NSW privacy policy patchwork contracted in the name of law and order

This article “Moves to extend privacy law exemption” in The Australian reports that the Premier has announced that the NSW Government is moving to get rid of privacy law provisions that hamper information sharing between government agencies about young offenders.

The NSW Premier Morris Iemma used a friendly question in Parliament on Tuesday on “Cutting red tape to reduce crime” to outline what was intended. The Premier said the changes to facilitate information exchange were necessary in order to assist in the campaign to crack down on anti social behaviour by young people and to steer them away from a life of crime.

The Premier’s contribution to public debate about privacy matters has been pretty limited to date, but these remarks, with their law and order emphasis, were probably inevitable in the current context, 6 months out from the next election.

Privacy NSW website has the details – the Acting Privacy Commissioner has issued a Direction (see What's new 26 September) that has the effect of extending to other parts of the state and a range of government agencies significant exemptions from the privacy principles that were first approved for use in a trial in Sydney suburbs or Waterloo and Redfern.

There’s no clear explanation anywhere about how the laws were preventing cooperation and information sharing. In this case, the Government itself is resorting to “BOTPA” (because of the privacy act) to justify changes in the name of law and order.

Perhaps the Premier doesn’t realise that what has been approved is symptomatic of one of the major problems in NSW privacy legislation – the gaps and holes in the scheme as a result of exemptions from privacy principles provided for functions of government agencies that are contained in provisions in the acts, and in regulations, codes approved by the Attorney General and directions issued by the Privacy Commissioner.

The result is a scheme so complex that few in government agencies know or can explain how privacy law applies to particular aspects of their operations.

To illustrate the point these changes follow the gazettal on 15 September of modifications to privacy legislation (see What's new 19 September) as it applies to some operations of the Department of Corrective Services and the Department of Ageing, Disability and Home Care.

Federal Privacy Commissioner, Karen Curtis in a recent speech (see 18 September) announcing new cooperative arrangements with the Department of Immigration said “privacy should not be difficult to understand or implement”.

The NSW privacy scheme got this dead wrong from day one. Things have got progressively more complex ever since.

Perhaps the NSW Law Reform Commission review will have the answers on completion of its current review.