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Friday, October 14, 2011

Barrister's right to know what was said, not who said it

Sydney barrister David Smallbone has the legal profession buzzing, not just in NSW over the selection process for silks but his partial victory in the Federal Court  in Smallbone v New South Wales Bar Bar Association [2011] FCA 1145 is of interest concerning privacy practices, and confirmation that exceptions to the right to access personal information under the Privacy Act are not absolute and must be read in the context of all the relevant circumstances including the nature of the information in question.

On the first point, it pays to read those privacy notices most people tick and flick [8-19]. And crossing out parts you don't agree to doesn't mean the organisation (the Bar Council at least) won't do business with you, although that may bne one of many changes in the light of this decision [20-22].

On the second, the exceptions in the Privacy Act to the general rule that access must be provided to an individual seeking access to personal information held, must be read in accordance with the words "except to the extent that" in National Privacy Principle 6.1.

Justice Yates decided that the exception to the right of access in NPP 6.1(c)- except to the extent that "providing access would have an unreasonable impact upon the privacy of other individuals"- should preclude Mr Smallbone from access to any information that would identify individuals consulted about his application who answered questions about his competence and experience, as they had been assured of confidentiality, and to information about others who made an application. But it did not preclude access to the answers provided (“yes”, “no” and “not yet”) by those who responded to the questions.The nature of the information was an important factor in this case [51]. Justice Yates concluded:
65. I am not satisfied, however, that providing the applicant with other information about him, such as the expressions of opinion in the form of the designated answers, or the answers to the question whether the member providing the information had the relevant direct personal experience of the applicant, would have, in the particular circumstances of this case, an unreasonable impact upon the privacy of other individuals. Similarly, I am not satisfied that providing that information by reference to broad sub-categories such as “judicial”, “senior counsel”, “junior counsel” and “solicitors” would have such an impact.

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