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Monday, November 13, 2006

Further exemptions from privacy laws for NSW agencies

The gaps, loopholes and eccentricities of NSW privacy legislation (the Privacy and Personal Information Protection Act) have often been cited here, and the NSW Law Reform Commission is currently giving the whole thing a close reexamination.

That hasn't stopped even more exemptions appearing as the Acting Privacy Commissioner has issued Directions that provide some government agencies with relief from some aspects of the law.

The latest is this Direction on the use of information for investigative purposes. The Direction - said to be temporary pending the making of a Code of Practice on this issue by the Attorney General - has been around in slightly differing forms since 2000. This latest version extends the exemption from compliance with disclosure principles to information provided by one agency to another agency to assist in the conduct of an investigation by the latter.

On 1 April 2005, the NSW Administrative Appeals Tribunal in NW v NSW Fire Brigades (2005) NSWADT 73 decided that the Direction did not protect the Fire Brigades for conduct involving the provision of information about a firefighter's non attendance at work to assist his primary employer to conduct an investigation into the taking of sick leave. The President of the ADT commented at the time that the Direction was ambiguous and if it was the intention to apply to these circumstances the Privacy Commissioner should redraft and clarify. The Fire Brigades decision itself reversed earlier Tribunal findings that the exemption covered this type of disclosure.

It's only taken 19 months for the clarification, and it was obviously judged important enough that action had to be taken even though the Law Reform Commission has a brief to review the entire Act. Perhaps there has been some behind the scenes problems that have provided the catalyst for this development, but as the Privacy Commission doesn't explain, defend or justify these directions we'll never know.

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