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Thursday, September 23, 2010

NSW Information and Privacy Commission

The Legislative Assembly passed the bill on 31 August to integrate Privacy NSW and the Office of Information Commissioner, up to now separate but colocated bodies, into a single agency, the NSW Information and Privacy Commission , and the Legislative Council  followed suit on 21 September. The amendments to legislation also set up formal consultations between the commissioners, broaden oversight by a parliamentary committee to extend to the Privacy Commissioner and address issues concerning appointment and dismissal, clean up a previous oversight regarding amendment of personal information, and create an advisory committee to both commissioners.

No one opposed the amendments, and few issues of substance about the integration of the two offices were raised. Shadow Attorney General Greg Smith commented that "(t)he creation of two commissioners of equal status is bureaucratic duplication and could lead to inefficiencies and demarcation issues," but neither he nor other speakers mentioned that the NSW Law Reform Commission had recommended a model different to that adopted - two commissioners with discrete functions but with the Information Commissioner in charge. The adopted model puts the Information Commissioner in charge for administrative purposes, not regarding the exercise of functions by the Privacy Commissioner. The result is that the three jurisdictions that have had a go at structuring similar arrangements have produced three different results. (See my earlier comment here.)

In the Assembly the Opposition's John O'Dea referred to a better outcome if both functions were located in the Ombudsman's office, an issue that the Government's Tony Catanzariti took up in the Council in these terms:
"... on 23 June 2009 during the debate on the Government Information (Public Access) Bill 2009, the leader of the Opposition committed his party, should the Opposition win government, to moving the Information Commissioner's office within the Ombudsman's office. The Opposition has never resiled from that commitment. There are very good reasons for establishing the Information and Privacy Commission outside the Ombudsman's office. The Ombudsman's focus is on identifying and rectifying maladministration whereas the focus of the Information and Privacy Commission's office will be on promoting best practice in information handling. The new commission will work collaboratively with agencies and will have a policy development role that the Ombudsman does not have.

The Ombudsman should maintain an independent distance from decision makers in order to scrutinise Government decision making. His office should not be involved in developing policy or administering Acts other than his own. Indeed, the Ombudsman should be able to scrutinise the work of the Information and Privacy Commission, and this would be compromised should the commission be located in the Office of the Ombudsman. I note that the Law Reform Commission, the then Privacy Commissioner, Ken Taylor, the Law Society of New South Wales and a number of other key stakeholders strongly supported the establishment of a separate Information Commissioner's office. I strongly support the Privacy and Government Information Legislation Amendment Bill 2010."
It remains to be seen if this is still running at election time next March.

Another Government backbencher Helen Westwood told the Legislative Council things are going swimmingly regarding access to information:
Establishment of the Information and Privacy Commission will ensure that the cultural change that has already occurred with the introduction of the Government Information (Public Access) Act [GIPAA] will continue. Agencies already are taking up the spirit of the Government Information (Public Access) Act and releasing information proactively. All members would welcome the adoption of that approach. More information is available on websites than ever before, with most super agencies already having a right to an information access point on their website's home page. I congratulate agencies on the cultural change that is so clearly occurring when it comes to the release of government information.This Government is committed to transparency...
The jury, and users of the act might be waiting for more evidence of universal change of this nature.

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