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Monday, June 28, 2010

NSW Information and Privacy Commission coming..after August.

The NSW Government introduced into Parliament on 24 June the Privacy and Government Information Legislation Amendment Bill to bring the Information Commissioner and the Privacy Commissioner together into a single executive body, the Information and Privacy Commission, "creating a unified administrative hub, a one-stop shop for information management in New South Wales." The separate and distinct statutory roles of Information Commissioner and Privacy Commissioner will remain, the Government choosing to reject some NSW Law Reform Commission recommendations regarding the structure of the Office and the respective roles of the commissioners.

In an answer to a question the day before, Attorney General John Hatzistergos said the Law Reform Commission proposal for the Information Commissioner to have some privacy related functions and for Privacy Commissioner to be Deputy Information Commissioner "amounted to a demotion of the importance of the Privacy Commissioner." Given the government's  history of an unsuccessful attempt to abolish Privacy NSW some years ago, long periods when the Commission had no permanent commissioner, its decade as a business unit of the Attorney General's Department, and underfunding since the office was established, this emphasis on the importance and independence of the office, while welcome, produced a few wry smiles.

The Bill got no further in Parliament than this "in principle speech"LA Privacy.pdf in the Legislative Assembly before Parliament rose until the end of August, so the changes will lag commencement of the GIPA act on 1 July. The two bodies in any event are now co-located.

The Bill also amends the Privacy and Personal Information Protection Act  by removing the amendment of personal information provisions transferred from the Freedom of Information Act by the Government Information (Public Access) Act, and related legislation. As a result amendment applications will be processed in accordance with the pre -existing provisions of the privacy act, amended to include for the first time a right to amend information held by a minister.  The transfer of provisions from the FOI act had created two different rights to amend in the same act.

The Government may be right about the superiority of this model but it's worth noting that this is the third variation in Australia on how to manage combined privacy and right to information oversight, at three tries. Queensland has adopted the sole authority model, creating an information commissioner responsible for both privacy and Right to Information, with the appointment of statutorily created deputy or assistant privacy or RTI commissioners. The Information Commissioner has full responsibility, but may delegate and give instructions to the Privacy Commissioner regarding the exercise of delegated functions.The Commonwealth has adopted a shared responsibilities model where there are three independent statutory office holders within a single office. Each office holder has designated responsibilities and functions. However, particular functions overlap or are interchangeable. In NSW the Government has decided there will be one office with two commissioners of equal status, where statutory functions are separated although there is a requirement for consultation where there is overlap, for example, in issuing guidelines relevant to privacy protection and the right to access.The Information Commissioner will have additional administrative responsibilities as head of the commission.

Whether the differences in the models amount to much, and importantly, which office holders make their model work best, time will tell. But it's a new look for NSW to be out in front in ensuring nothing is done that demotes the importance of privacy.

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