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Tuesday, December 09, 2008

No laws in place to limit disclosure of personal information by NSW government agencies across state borders.

Should people in NSW be surprised to learn there are no legal restrictions on any NSW Government agency passing personal information about them (other than health information) to anyone in another state or territory, to a Commonwealth agency, or sending it offshore? This despite the fact that Parliament passed legislation 10 years ago in the form of the NSW Privacy and Personal Information Act, in theory to protect privacy?

Buried away on page 124 of the Consultation Paper issued in June by the NSW Law Reform Commission as part of its review of the NSW Privacy Act, is a note to the effect that the NSW Crown Solicitor is of the opinion that the relevant section (19(2)) of the Act, that would only permit disclosure to someone in another jurisdiction where a similar law applies to the handling of personal information, had not come into force, because it was only enlivened by the making of a privacy code of practice by the Attorney General.In essence it was for the Attorney General to decide where other jurisdictions had laws in place that were up to scratch.

The Attorney General hadn't got around to issuing the code for..... 10 years!

So the complainant in this case before the Administrative Decisions Tribunal was no doubt surprised to find that despite the fact that the Department of Education and Training had, before the matter got to the Tribunal, admitted a breach of the PPIPA Act as a result of passing personal information about her to a school in Victoria, the Tribunal, in response to a submission from the defender of privacy interests, the NSW Privacy Commissioner, ruled there was no breach of the Act. As there had been no privacy code of practice issued by the minister to which the Office reports, the limitation on disclosure interstate was not in force, and because of a rule of statutory interpretation, the provision limiting disclosure generally, did not apply. There had been no breach of the Act.

If you think this sounds like Alice in Wonderland you're right.There is no explanation about why the code of practice hasn't been made, why the authorities who have known about the Crown Solicitor's opinion since June 2007 haven't otherwise fixed the problem, or why the Privacy Commissioner's office thought that alone pushing this point against the interests of the privacy complainant was worth the time and public money involved.

I'm afraid it's all consistent with a long track record of disinterest in privacy issues by the NSW Government.

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