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Tuesday, February 10, 2009

Opaque law making at Privacy NSW.

I've been rabbiting on for years about the complex and confusing nature of NSW privacy legislation with its many gaps and loopholes in the hope that- in the fullness of time as they say- something will be done (eventually) about it.

In the meantime .....

The NSW Privacy Commissioner announced in January that he had
"re-made 8 public interest directions under section 41 of the Privacy and Personal Information Protection Act 1998. Public interest directions allow NSW public sector agencies to deal with personal information in a manner which, in other circumstances might breach the Information Protection Principles. The Privacy Commissioner will only make such directions where he is satisfied that it is in the public interest to do so." (Emphasis added)
Now Section 41 confers very significant powers-to authorise a government agency to do something that would otherwise be contrary to the law- and the Commissioner's exercise of the power is not even subject to disallowance as it would be in the case of a regulation.

So you might expect the Commissioner would lay out publicly the reasoning behind any decision to exercise the power. Some of the more recent of the eight directions include a few words before the Commissioner concludes he is satisfied that it is in the public interest to make the direction. Such as this in the Direction to allow some personal information handling practices as part of the Anti Social Behaviour Project (no, hold tight, I'm sure the project team know what they are doing):
"This Direction has been made to allow the ASBP Participating Agencies to collect, use and disclose personal information for the purpose of implementing the objectives of the ASBP Project. I am satisfied that the public interest in making this Direction to enable the implementation of the ASBP Project is greater than the public interest in requiring the agencies named in Schedule 1 to comply with the IPPs as referred to in the provisions set out below. A corresponding direction applies to the ASBP Project in respect of the Health Records and Information Privacy Act 2002."

Other directions that have been extended year after year for years now don't even go that far- not a word explains or justifies the direction or explain the public interest considerations.

Some uses of the power are highly questionable. For example this direction- extended now for a ninth year- covers a number of exchanges of personal information between government agencies, including simply where the agencies had an agreement to exchange personal information before privacy legislation commenced in July 2000. Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements

The NSW Law Reform Commission has been looking at privacy legislation now for close to three years, with no finish date in sight.In the meantime no-one seems to be paying much attention to what amounts to law-making at Privacy NSW.


  1. Anonymous8:38 pm

    Oh Peter, this is way better than the "easy button"!

    Every new parent should receive a set at their baby shower.

  2. Teri
    A new world opens.Peter