Privacy NSW extends "temporary" exemptions until end of 2007

The Acting NSW Privacy Commissioner has renewed seven Directions that have the effect of exempting some or all public sector agencies from specified provisions of the Privacy and Personal Information Protection Act (What's New 11 January 2007 - the Directions are available at Exemptions).

These Directions, some made initially in July 2000 have regularly been rolled over since, with this latest announcement extending them until the end of this year.

As previously noted here, these exemptions (and others contained in Codes of Practice approved by the Attorney General) add to the complexity of privacy law in NSW. The result is that ascertaining what privacy principles apply to which government agency is difficult even for employees let alone members of the public.

It was probably inevitable that the Directions were extended until the end of 2007, given the fact that the laws are currently under review by the NSW Law Reform Commission.

However the Act (Section 41) requires the Commissioner to only make a Direction where satisfied that the public interest justifies departure from the privacy principles. For most of the Directions, there is nothing on the public record that provides the basis for the Commissioner's determination. One Direction - certain exchanges between public sector agencies - authorises departure from the privacy principles where the conduct is consistent with any agreement (formal or informal) between agencies that was in existence prior to the commencement of the Act on 1 July 2000.

While this might have been justified in 2000 to assist transition to compliance with the law, it's difficult to see why a blanket exemption of this kind, is necessary almost seven years after the Act commenced.

There is no publicly available information about what agreements exist, or why the public interest is served by continuation of the exemption for pre 2000 agreements, until the end of the year.

The NSW Law Reform Commission was asked by the Attorney General to undertake the review in April 2006. Its website nine months later contains no information about the review other than its terms of reference. It is working in conjunction with the Australian Law Reform Commission (now in the consultation phase on its published discussion paper), but more information about progress to date with the NSW review would be welcome.