Introduction
Sharing private sector data between Commonwealth entities may create efficiencies, enable entities to perform their business functions, and maximise the value for money for the Commonwealth.
Private sector data can include facts and figures, numerical data, charts, graphs, images, coding, notes, financial data, and software.
Requirements
Where a Commonwealth entity is planning to enter an arrangement with a supplier for the provision of private sector data, and are using a bespoke contract or contract provided by the supplier, the entity should consider:
- Restrictions on Data Sharing: whether the contract includes clauses that limit the sharing of procured data with the broader Commonwealth and if these clauses are appropriate.
- Confidentiality Provisions: whether the contract contains restrictive clauses that limit the agency's ability to disclose the type of data collection and/or the details of the data obtained.
- Broader Efficiencies and Benefits: the wider efficiencies and benefits that the data asset may provide across the Commonwealth.
When procuring private sector data, it is recommended that where possible, Commonwealth entities use the clauses available at the Commonwealth ClauseBank1 (ClauseBank).
The ClauseBank includes pre-drafted contract terms that can be used within existing contract templates or in bespoke contracts by Commonwealth entities when appropriate. In particular, the ‘Disclosure of Information’ clause should be included to allow the sharing of confidential information, including private sector data, between Commonwealth entities.
Disclosure of Information Description
The purpose of the ‘Disclosure of Information’ clause is to prevent the disclosure of confidential information (including private sector data) by the supplier or the Commonwealth entity to a third party unless prior written approval has been provided by the other party. However, this clause includes a number of exceptions, whereby the Commonwealth entity may share confidential information without prior written approval of the supplier. This includes:
- disclosure to its personnel in order to comply with its obligations, or to exercise its rights, under this contract or to obtain advice in relation to, or enable management or auditing of, contract-related activities
- within the Commonwealth entity, or with another Commonwealth entity, where this serves the Commonwealth’s legitimate interests
- disclosure to the responsible Minister or in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia
- when it is authorised or required by law to be disclosed
- which is in the public domain otherwise than due to a breach of this clause.
Non-Commonwealth Contracts
When not using a Commonwealth Contract
Where it is typical to sign an industry specific contract, it is recommended that the Commonwealth entity seeks legal advice prior to entering into that contract where the terms are not favourable to the Commonwealth. In such instances, an entity may seek to strengthen the contract terms to specifically enable the sharing of private sector data within the Commonwealth.
By carefully considering private sector data sharing provisions, entities can ensure that their contractual arrangements are robust, transparent, and aligned with the goals of the Commonwealth.
In practice examples
Examples of private sector data that can be shared between Commonwealth entities to create efficiencies may include, but is not limited to:
- with the Department of Home Affairs to assist with border protection and cyber security
- with the Department of Health and Ageing to improve health policy and health outcomes
- with the Department of Agriculture, Fisheries, and Forestry to improve sustainable agriculture, fisheries, forestry, and land care policies
- with the Australian Bureau of Statistics to improve the production of data and statistics
- with the Australian National Audit Office to improve performance audits.
