Puplick, Chris --- "NSW Privacy Commissioner rejects Ministerial interference" [2002] PrivLawPRpr 54; (2002) 9(7) Privacy Law and Policy Reporter 133

NSW Privacy Commissioner rejects Ministerial interference

Chris Puplick

This is the text of a statement issued ,by the Privacy Commissioner of New South Wales at a Press Conference on 31 October 2002. The Ministerial comments which prompted the statements follow a breakdown in relations with another Minister ,reported in the last issue; see ,‘NSW government fails the test on student violence allegations’ (2002) ,9(6) PLPR 109 — Associate Editor.

Comments by Minister for Corrective Services

Thank you all for attending this press conference.

I have taken the unusual step of calling a press conference in order to respond to a number of misleading statements about the role, responsibilities and activities of my Office and to set the record straight about how complaints about breaches of the State’s privacy laws are handled.

I regret that this is necessary because of the misrepresentation of the facts the Minister for Corrective Services both in the Parliament and in the media, leading to subsequent media misunderstandings.

In 1998 the Carr Labor Government, in which Minister Amery occupied a position in Cabinet, passed the Privacy and Personal Information Protection Act.

That Act essentially does the following:

• it establishes certain privacy principles which all government departments and agencies are required to honour, unless specifically exempted;
• it establishes a legal mechanism for people to make complaints about alleged breaches of their privacy and to have them investigated;
• it establishes the Office of the Privacy Commissioner to administer the Act.

Under the law as passed by the NSW Parliament it is my responsibility to receive and investigate complaints. Once I have done so I can make recommendations about how matters should be resolved. Those recommendations are just that — recommendations only.

I have no power whatsoever to enforce those recommendations or to impose any penalties, fines or orders ,for compensation. I repeat, no power whatsoever.

As an alternative to making a complaint to the Privacy Commission, ,a person who believes their privacy has been violated can seek what is called an internal review of the conduct of the department concerned. If the person remains dissatisfied with the results of that internal review, they may seek a further review by the Administrative Decisions Tribunal.

The ADT is a court of NSW presided over by a judge.

That Court has the power to hear complaints and if the Court feels that the complaint has substance, it may impose penalties on departments found to have breached our privacy laws and it may order the respondent to pay compensation to aggrieved persons.

May I repeat, the Court, and only the Court, can order compensation to be fixed. I cannot. Any such matters are determined by the Court and I would ,be in contempt of Court were I to try ,to influence their decision — something the Minister virtually suggests I should do.

Any assertion that I have anything to do with the award of compensation is simply false. It is untrue. Any person who says to the contrary is merely displaying their complete ignorance ,of the law. Any Minister who says ,so, especially one who sat in Cabinet when the law was approved, is simply misleading the public if they say otherwise.

To date very few privacy cases have gone to the Court and of those who have, none has been awarded any damages whatsoever and the threshold test needed to win damages, let alone maximum damages, is exceptionally high.

If I turn to the precise matter raised by Minister Amery, I have to draw your attention to section 67 of the Privacy Act. It states :

The Privacy Commission or a member of the staff of the Privacy Commission must not disclose any information obtained by him or her in the course of his or her office, unless the disclosure is made with the consent of the person [concerned].

In other words I am bound by the law of NSW not to discuss details of individual cases which I may or may not be investigating. I am prohibited by those laws from either confirming or denying that I am investigating any particular complaint.

The legislation however, requires me to deal with all complaints on their merit. I have a legal and ethical responsibility to judge every complaint on the merits of the complaint not the moral status of the complainant. To do otherwise would be to pervert the law and it is improper for me to do that or to succumb to political, editorial or public demands that I do so.

It is my responsibility to administer the laws which Parliament has passed fairly, and without fear or favour. It is not for Ministers or commentators to tell me to do otherwise.

Indeed any attempt to prevent me ,or influence me adversely to ‘the honest and impartial exercise of official functions’ which I have the responsibility to perform may constitute ‘corrupt conduct’ under the Independent Commission Against Corruption Act ,(s 8) — a matter of which I am acutely aware.

It has been suggested that the matter referred to by Minister Amery may have been the subject of investigation by the Ombudsman. If the Ombudsman did look at the matter and decline it, that says nothing about what I should do were I faced with a similar situation. The Ombudsman may decline to deal with a matter not because it lacks substance but rather because the Ombudsman lacks jurisdiction or because the matter properly falls ,within the responsibility of the ,Privacy Commissioner rather than ,the Ombudsman.

I want to turn finally to the rights of prisoners. It may surprise some people, even prison Ministers, to know that prisoners do have rights. For example, they have the right to be secure and not to be beaten up or raped. They have the right to decent food. They have the right to health care.

Even if they lose administrative rights such as visits or employment while in custody, human rights such as physical safety, food and health can never be denied to them.

They also have limited rights to privacy, especially in relation to their health status and care. There is still a doctor/patient relationship which must be maintained. Suggestions that such a right should be legislated away are hideous and alarming. To destroy the right to health privacy — for example information about a prisoner’s HIV status — could well, within the context of NSW having the most violence-prone prisons in Australia, put a person’s very life at risk.

This is not the first instance where the Corrective Services system has sought ,to exempt itself from coverage of basic human rights laws — a similar proposal in relation to the rights of transgender people was floated recently. Our prisons are part of the system of law. They are not above the law and never should be.

I should like to conclude with the following comments.

We have privacy laws in NSW — they affect or protect people differently, but under them privacy is a right possessed in varying degrees by ordinary folk, public figures, politicians, schoolboys and even prisoners.

Those laws have been passed by Parliament and I have been appointed to uphold them which I will continue ,to do regardless of political attempts ,to suborn me from doing my duty as required by law.

The Government may in due course have the capacity to end my term as Privacy Commissioner and to appoint, instead of an independent guardian of privacy, a compliant functionery who will do the Government’s political bidding and prostitute their integrity ,to do so, but that will not happen on my watch.

I do agree with the Minister that my Office is grossly under-resourced. We only have six staff‚ the same number the old Privacy Committee had 20 years ago, long before the passage of complex privacy legislation. Compared with Victoria’s 15 staff with far lesser responsibilities and a budget four times ours, it can be seen how the NSW State Government is deliberately under-funding us and even refusing to allow us to fill positions already approved ,and funded.

As Chris Puplick, personally living as I do in this community, I am in no way immune from sharing the feelings of my fellow citizens about the moral worth or otherwise of people who commit hideous crimes such as murder or rape. I want to see those who break the law and threaten all of us caught and dealt with appropriately. My heart is as touched by the suffering of their victims as anyone. I share the community sense of outrage.

However, as the Privacy Commissioner, I am required to uphold the law and discharge my legal responsibilities and I will do so. I will judge matters on their worth and merits and not on the basis of what I think of the worth or merit ,of the individual concerned on either side.

In this I will not be intimidated by Ministers, Departments, editors, commentators or others to act in any other way.

Nor will I allow this inaccurate assault and selected leaks by Corrective Services interests to deflect me from undertaking investigations of any other matters related to our State’s prisons, now or ,in the future. They are not above the law, despite their desires to be.

At the end of the day I will continue to rely on the great Shakespearian exhortation — ‘be just and fear not’.

Thank you. I am happy to take questions.

Chris Puplick is the Privacy Commissioner of New South Wales.