Greenleaf, Graham --- "Hcnaging of the guard: watchdog wanted?" [1996] PrivLawPRpr 62; (1996) 3(7) Privacy Law & Policy Reporter 131

---

Changing of the guard: watchdog wanted?

Australia is to have a new Federal Privacy Commissioner, and there is apprehension among private sector organisations and privacy advocates over who will be appointed.

Commissioner O'Connor bows out

On December 31 1996 the term in office of Commissioner Kevin O'Connor ends, seven years after he took up office as Australia's first Privacy Commissioner on 1 January 1988.

His original five year term was twice extended by the previous Labor Government. Commonwealth Attorney-General Daryl Williams proposed a further extension of Commissioner O'Connor's term, but Cabinet refused to accept the recommendation, only six weeks before his term was due to end. It has been reported that several Victorian members of the Coalition Cabinet raised his role as a senior law officer in the former Victorian Labor government before he became Privacy Commissioner.

(Sydney Morning Herald, 2 December 1996).

At Commissioner O'Connor's farewell, he described his own style as `pragmatic and conciliatory' and stressed that he took office when Labor ministers were still recovering from their `Australia Card' defeats. His deputy, Nigel Waters noted Commissioner O'Connor's personal commitment to privacy protection, and that he had `successfully maximised the opportunities for privacy protection', giving examples of ill-fated government initiatives such as the Law Enforcement Access Network (LEAN), Australia Post's national address database, and assorted Health Insurance Commission proposals.

In absentia, Justice Michael Kirby praised his `forthright and courageous work', British Columbia Privacy Commissioner David Flaherty described him as one of the leaders among international Privacy Commissioners, and NZ Commissioner Bruce Slane said his `wise counsel and strategic thinking' would be missed. HREOC Commissioner Zita Antonius noted that Commissioner O'Connor had also delivered important decisions in the field of sex discrimination, and had made a very valued contribution to HREOC's corporate work. Although the private sector and privacy advocates were well-represented at the farewell, there were no representatives of the government, including the Attorney-General's Department.

Appointment apprehensions

The Federal Government does not appear to have had in mind any particular individual to succeed Commissioner O'Connor when deciding not to re-appoint him. The position is apparently not being advertised (nor was Commissioner O'Connor's), and officers of the Attorney-General's Department have been obtaining information about possible appointees.

Private sector organisations, who have started to adjust to the likelihood of the Commonwealth Privacy Act being extended to the private sector, had generally assumed that Commissioner O'Connor would remain in office while the extensions were introduced, and were comfortable with the approach he had taken to administering credit reporting legislation. They now face an uncertain relationship with a new Commissioner. For example Rob Edwards, Chief Executive Officer of the Australian Direct Marketing Association, said `It would have made some sense to keep his hand on the tiller'.

Privacy advocates have expressed disquiet at the appointment process, and stressed four criteria which the Commonwealth Attorney-General Daryl Williams should take into account in selecting a new Commissioner. Julie Cameron, Vice President of the Australian Privacy Charter Council (see 2 PLPR 41) wrote to Mr Williams on 10 December to set out the council's views, as follows:

We are aware that the term of the current Privacy Commissioner, Kevin O'Connor, expires at the end of December 1996. Since you will be considering a new appointment, the members of the Australian Privacy Charter Council offer some suggestions that we consider appropriate to retain maximum public credibility of this important statutory position.

We suggest that the preferred way of ensuring the best possible appointment would be to advertise the position publicly. The qualities and skills required could be found in people from very diverse backgrounds and public advertisement would ensure the widest possible field, and that less obvious sources of expertise are not overlooked. We note that open public competition

as been used for other Commonwealth statutory officer appointments, and that this was the method adopted by the New Zealand government in selecting their first Privacy Commissioner, and by the UK Government upon the retirement of their first Data Protection Registrar.

Council members consider that there are four main criteria, other than general ability and competence, which should be borne in mind in any selection process for a new Privacy Commissioner.

The first criterion relates to the need for sensitivity in handling the issue of private sector extension of privacy laws. While your department has immediate carriage of the consultations on this proposal, the reaction of business and professional interests to the proposed legislation will be critically affected by their confidence in the Commissioner, as the officer who will be interpreting and applying the extended Act. The proposed role for the Commissioner in relation to codes of practice and exemptions makes it essential that the appointee is credible from a broad private sector perspective.

The second criterion, which will need to be balanced against the first, is the importance of credibility in the eyes of the wider community. In this respect, the Privacy Commissioner needs to be someone who, whilst sensitive to business interests, can taken an independent and critical view of commercially driven arguments. The Commissioner must first and foremost be committed to the integrity of the internationally accepted privacy principles which underlie both the current Act and any likely extension.

The third criterion, which is in some ways an extension of the second, relates to the importance of the Commissioner's role as an independent monitor of the government's own handling of personal information. It is important that the current pre-occupation with the private sector extension does not obscure this established role, which often requires the Commissioner to give advice to government which may be unpalatable or politically inconvenient. It is essential that a new Commissioner is perceived to be clearly independent of any particular interests. This aspect of the job will become even more important as efficiency driven changes in administration bring increasing pressure to bear on the privacy principles.

The fourth criterion is that the Commissioner should be technically literate, and able to deal effectively with the issues arising from the use of new technologies and their impact on individuals and on the community.

We urge you to give these four criteria very close consideration during the process of selection and appointment of a new Privacy Commissioner.

Comment

As the Privacy Charter Council's letter indicates, it is important to remember that, although much attention is now being given to the extension of the Privacy Act to the private sector, the most important function of the Commissioner is likely to remain her or his roles as custodian and critic of the Federal Government's own handling of personal information. European and Canadian experience has shown that governments are always tempted to replace Privacy Commissioners who are advocates of privacy interests with those will be more compliant to the interests of government administration. The credibility of a Privacy Commissioner, including in the eyes of the private sector, depends to a very large extent on how able and willing they are to examine critically, and where necessary resist, government demands.

Graham Greenleaf, General Editor.