Bills Digest No. 90 2003-04
Privacy Amendment Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Privacy Amendment Bill
2003
Date Introduced: 3 December 2003
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent
To amend the
Privacy Act 1988 ( the
Privacy Act ) to:
-
extend elements of the Act to situations where non-Australians
and those resident in Australia for a legally limited time have an
interest, and
-
enable private organisations to have a privacy code that covers
more than the specified areas nominated for coverage by privacy
codes, and also
-
allow for the creation of regulations which cover Commonwealth
superannuation schemes as a block, rather than requiring individual
consultations regarding the regulations.
There has been no significant media, or other,
interest in this Bill, and the modifications that it makes are
mostly minor or technical in nature.
The Privacy Act came up for review on 21
December 2003. According to media reports the Federal
Attorney-General is still considering the review s terms of
reference planning to take them up with the incoming Privacy
Commissioner after the incumbent, Malcolm Crompton, steps down in
April 2004.(1) It is at this time that we may see some
more radical developments, but for now the developments are
modest.
It is notable that the Department of
Immigration and Multicultural and Indigenous Affairs ( DIMIA )
already treats most information regarding non-citizens as if it
were covered by the Privacy Act.(2) The extension of
elements of the Privacy Act to non-citizens and people who are in
Australia for a legally limited time is, consequently, not
particularly dramatic, however the use of privacy principles in the
case of refugees and asylum seekers has been a double-edged sword.
When few rights are available to a class of people and yet privacy
rights are given to them it can have an anomalous effect (for
instance it has resulted in difficulties of access for potential
legal advisers, amongst other well-wishers).
Dr
Mary
Crock,
the author of Immigration
and Refugee Law in Australia(3), has commented
that, while privacy laws have a genuine protective purpose, the
dangers of an over-zealous application of privacy law in the
immigration field can result in the dehumanisation of those
involved, and has already led to a dramatic decrease in the
information available from DIMIA.(4) Judicial responses
to the requirement that certain visa applicants not be named have
also indicated a concern with the potential for impersonality,
summarised by the question posed by Justice Gummow who said with
respect to the plaintiff Why has it a number, not a human identity?
(5) In spite of these more general concerns with the
role of privacy in the case of non-citizens and people here for a
legally limited time, the current amendments are quite limited in
scope.
There are four distinct amendments made by
this Bill. The first is designed to extend the coverage of National
Privacy Principle 9 (NPP 9) to non-Australians and to those in
Australia for a limited time period. NPP 9 limits the transborder
flow of information to circumstances in which the organisation
offering the information can be satisfied of certain conditions,
e.g. that the relevant person consents to the transfer of
information, or that the organisation getting the information is
subject to effectively the same regulatory scheme which will uphold
principles for the fair handling of information.
Item 1 makes this change by
amending section 5B of the Privacy Act. Section 5B limits the
extra-territorial operation of the Privacy Act so that it only
covers information regarding Australian citizens and residents. The
amendment extends this coverage more broadly so that it covers
non-citizens and people who may be here for a limited time. It
makes this extension with regard to NPP 9.
Another extension to the Privacy Act s
coverage is achieved by item 4 which provides that
the Privacy Commissioner may investigate complaints of breaches of
the Act (in relation to the correction of personal information) by
anyone in the world with an appropriate interest. The current
subsection 41(4) specifically excludes non-citizens and those in
Australia for a legally limited time from the Commissioner s
purview, and by deleting the subsection, the coverage for
monitoring compliance will be expanded.
Item 6 makes provisions for
privacy codes to cover a broader range of issues than previously. A
privacy code can be adopted by an organisation and if the code
covers areas that are an exempt area or practice the amendments
would ensure that the Privacy Act applies to the code, including an
exempt act or practice thus, for instance, the otherwise exempt act
or practice could be the subject of a complaint.
Finally Part 4 operates to ensure
that superannuation services, which want to share identifiers for
the purposes of providing superannuation services to Commonwealth
employees, can have regulations made without the Minister having to
be satisfied of the more onerous provisions of section 100 of the
Privacy Act. The Minister must still consult the Privacy
Commissioner about such proposed regulations, but is not required
to satisfy the requirements of section 100, i.e. to:
-
consult the individual agencies concerned,
-
ensure that they have consulted with the Privacy Commissioner,
and
-
ensure that use of the identifier can only be for the benefit of
the individual concerned.
-
The Australian Financial
Review, 5
January 2004, p.
40.
-
This is apparent from
the letter sent to media outlets by Kym Charlton, then Acting
Director, Public Affairs, DIMIA in July 2003, quoting the Privacy
Act as a reason why they should not publish photos of recently
arrived asylum seekers, and is affirmed by conversations with the
then Acting Director of the Ombudsman, Privacy and Freedom of
Information section. It is also apparent throughout DIMIA s
web-site: <www.immi.gov.au>.
-
Leichhardt, NSW, Federation Press, 1998.
-
Private Communication,
February 2004.
-
Plaintiff S157 of 2002 v
The Commonwealth
of Australia S157/2002 (19 July
2002) the transcript for which can be viewed at:
http://www.austlii.edu.au/au/other/hca/transcripts/2002/S157/1.html.
See also, for instance,
Justice Hayne s comments at the callover of 494 Immigration
Matters, 7 February 2003 (http://www.austlii.edu.au/au/other/hca/transcripts/2003/M0/1.html),
or in particular Justice Gaudron s in Applicant S275-02 v MIMIA & Anor
S200/2002 (23 September 2002)
http://www.austlii.edu.au/au/other/hca/transcripts/2002/S200/1.html.
In the recent case of Singh
v The Commonwealth No. S441 of 2003, the High Court allowed
the applicant s name to be used rather than her anonymising number.
Justice Kirby pointed out there was some doubt as to whether
section 91X applied in the case. Section 91X prohibits the Federal
Courts from publishing the name of applicants for protection visas.
The provision s constitutionality has been queried, and Justice
Gaudron has argued that, given the provision is a blanket
prohibition, it cannot be called a safeguard for the applicant. See
for example Applicant
S275-02 v MIMIA & Anor S200/2002 (23 September 2002)
http://www.austlii.edu.au/au/other/hca/transcripts/2002/S200/1.html.
Kirsty Magarey
17 February 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general
distribution to Senators and Members of the Australian Parliament.
While great care is taken to ensure that the paper is accurate and
balanced, the paper is written using information publicly available
at the time of production. The views expressed are those of the
author and should not be attributed to the Information and Research
Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate
and for related parliamentary purposes. This paper is not
professional legal opinion. Readers are reminded that the paper is
not an official parliamentary or Australian government
document.
IRS staff are available to discuss the paper's
contents with Senators and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under
the Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of Parliamentary
Services, 2004.