Greenleaf, Graham; Waters, Nigel --- "Private parts" [2001] PrivLawPRpr 56; (2001) 8(6) Privacy Law and Policy Reporter 128

Private parts

Compiled by Graham Greenleaf and Nigel Waters

First privacy case in NSW Tribunal

The Administrative Decisions Tribunal (ADT) has handed down its first decision under Pt 5 of the Privacy and Personal Information Protection Act in a jurisdiction hearing, Y v NSW Department of Education and Training NSWADT 149 (12 September 2001). The main issue decided by the Tribunal President, Judge Kevin O’Connor (former Federal Privacy Commissioner) was a technicality about the ADT’s jurisdiction to review ‘out of time’ applications for internal review — the Tribunal found it could not. But the judgment also contains significant findings in relation to the scope of the exclusion for information about suitability for appointment or employment as a public sector official under s 4(3)(j) and about the Tribunal’s power to review the action taken by an agency in relation to an internal review. The Tribunal rejected the argument that an application for internal review necessarily had to make ‘express reference’ to the statutory right being invoked. But President O’Connor also found that the scope of the exemption in s 4(3)(j) from the definition of personal information ‘information or an opinion about an individual’s suitability for appointment or employment ...’ is not limited to selection, promotion, disciplinary or involuntary retirement processes. It can also include management reviews of work practices, work arrangements and performance. This is a worrying confirmation that the exemption is an even wider loophole than the employee record exemption in the Federal Act, which is at least confined to current or former employees.

See <www.austlii.edu.au/au/cases/nsw/NSWADT/2001/149.html>

Source: Privacy NSW.

Benchmarks for complaints processes under Privacy Act Codes

Section 18BB(3) of the Privacy Act 1988 (Cth) says that before a code that has procedures for making and dealing with complaints can be approved, the Commissioner must be satisfied that the procedures meet the prescribed standards. These standards are contained in the Privacy (Private Sector) Regulations 2001 (Cth) Statutory Rules 2001 No 266, made on 27 September 2001. A copy of the regulations is available at the SCALEplus website <http://scaleplus.law.gov.au/>

Source: Office of the Federal Privacy Commissioner.

NZ move to EU compliance delayed

The amendments to the New Zealand Privacy Act 1993 designed to secure a finding of adequacy from the European Union (see ‘Proposed amendments to NZ Privacy Act give ‘adequate protection’’ 7(8) PLPR 160) have struck a snag in the parliamentary processes. The amendments would have allowed persons outside NZ to exercise their access and correction rights and empowered the Privacy Commissioner to issue transfer prohibition notices in certain circumstances. The measures were introduced into Parliament in a Statutes Amendment Bill with the support of all parties and, after public submissions and study by a select committee, were recommended for enactment. Subsequently, one opposition party withdrew its support and therefore the amendments could not remain in the Statutes Amendment Bill which is an omnibus bill reserved for uncontroversial law changes. The amendments were dropped from the bill in September 2001.

While the Privacy Commissioner has described the position as ‘precarious’ in his annual report, it is thought that the amendments may nonetheless go forward in another legislative vehicle as the Government apparently remains committed to the law changes and wishes to obtain a finding of ‘adequacy’ from the Europeans.

Source: Blair Stewart, Assistant Privacy Commissioner, NZ.

Private sector slow to comply with new law?

Media reports suggest that many private sector businesses were not ready for the commencement of the private sector privacy regime on 21 December 2001. In a commencement ‘launch party’ in Sydney on 20 December, Privacy Commissioner Malcolm Crompton struck a balance between acceptance that it will take time for businesses to change their systems and processes, and warnings that willful non-compliance will not be tolerated. We can expect the same approach from Crompton as that taken by the first Commissioner, Kevin O’Connor (a guest at the launch), to the introduction of the public sector, TFN and credit reporting regimes a decade ago — an emphasis on education and guidance rather than enforcement in the first few years, although serious breaches will attract the full range of remedies, including compensation.

The Commissioner also launched a redesigned website (still at www.privacy.gov.au) and the printed final versions of the three sets of guidelines (NPPs, Health Information and Code Development) which have consumed much of the effort of his office over the last year. Crompton also drew attention to the review of the private sector regime which he will conduct after two years, with the government’s support. He indicated in his email circular that this would provide an opportunity to review the appropriateness of the much criticised exemptions.

Surveillance — NSW Law Reform Commission report finally appears

The NSW Law Reform Commission report on surveillance, known to have been finished in February 2001 but stuck in the government machine since then, was finally released in December. The ‘interim’ report, responding to a 1996 reference, is a comprehensive review of overt and covert surveillance practices involving the full range of technology (including video, audio, computer monitoring and tracking devices). The Commission recommends a broad new Surveillance Act to replace both the Listening Devices Act 1984 (NSW) and the Workplace Video Surveillance Act 1998 (NSW), following the approach in the latter law of requiring judicial warrants for covert surveillance and compliance with privacy principles for overt or ‘announced’ surveillance.

As reported in (2001) 8(2) PLPR 48, the NSW Attorney General has already foreshadowed the Government’s acceptance of the need for a broader workplace surveillance law, but it remains to be seen if the Commission’s call for a law that applies outside the workplace environment, and its other recomm-endations, find favour in the current ‘tough on crime’ climate and general lack of sympathy for accountability and civil liberties protections.

See: Report 98 (2001) — ‘Surveillance: an interim report’ <www.lawlink.nsw.gov.au/lrc.nsf/pages/r98toc>.

Press release of 10 December 2001 releasing the report: <www.lawlink.nsw.gov.au/nswlrc.nsf/pages/prr98>.