Privacy Law and Policy Reporter
Compiled by Graham Greenleaf
The Human Rights (Sexual Conduct) Bill (Cth) (See (1994) 1 PLPR 121, 160) Committee (sic) on 28 November, for public hearings with an expected reporting date back to the Senate of 5 December.
The Queensland DPP and Law Society have made submissions claiming that laws against incest will be invalidated by the bill. Attorney-General Michael Lavarch promptly countered on Radio by claiming that the Queenslanders had apparently not read the explanatory memorandum to the House of Representatives, which states that 'the Bill will not affect laws ... dealing with incest' (para 8), in referring to the meaning of 'arbitrary interference with privacy' in cl 4(1) (emphasis added).
Other laws which will not be affected, the memorandum says, include those dealing with sexual conduct involving a person with an intellectual disability, sexual conduct involving animals, regulation of the sex industry, sexual conduct amounting to professional misconduct, the possession or use of child pornography and sexual conduct in prisons where the interference with privacy is justified and reasonable.
An odd feature of the introduction of the sexual privacy Bill into the Senate is that it now has a brand new 'replacement explanatory memorandum' different from that originally presented to the Senate (and the House). Most of the changes would be unlikely to be important, as they are of the nature of uncontestable propositions such as 'the Bill does not provide a general guarantee of freedom from interference with privacy' and 'the individual's right to privacy is not absolute'. However, the amendments do make it even more clear that the views of the UN Human Rights Committee are to be regarded as 'appropriate extrinsic material' for the purposes of interpreting the Bill. There is also a potentially significant new paragraph.
The term 'sexual conduct' is intended to cover the physical expression of sexual desire. The term does not mean conduct which is incidental to sexual conduct such as the termination of pregnancy or the production or distribution of pornographic material. [para 5]
The differing memoranda raise an interesting point of statutory interpretation. If the House passes a Bill supported by one explanatory memorandum, but the Senate passes the same Bill based on a different explanatory memorandum, which one is a court entitled to use to guide interpretation? A case about abortion laws or sexually explicit publications (not involving children) could be very interesting. ((1994) 1 PLPR 173)
The Australian Health Ethics Committee (AHEC), a principal committee of the NHMRC, has a new head, Professor Donald Chalmers, Executive Dean of the School of Business and Law at the University of Tasmania, succeeding Robyn Layton QC. Details of other members of the reconstituted AHEC are in the AHEC Newsletter, September 1994. AHEC has responsibility for the NHMRC privacy guidelines (see Legislation and Guidelines this issue).
The Australian Consumer's Association's Choice magazine gives the Credit Reference Association the once-over in its September 1994 issue and finds little to complain about. A 'mini survey' of 26 people who had recently applied for their file found one error relating to credit applications ($8,000 greater than was actually applied for) and seven files with incorrect information relating to addresses, current employers or driver's licence numbers. As Choice says, none was particularly serious or would be likely to affect future credit availability. It found CRAA 'efficient and prompt' in dealing with access requests, and that 'CRAA has certainly lifted its game in the last few years, due in part at least to the requirements imposed by the Privacy Act'.
Information Privacy in the Public Sector' is the subject of an IIR Conference on 23 and 24 March 1995 at the Boulevard Hotel, Sydney. In addition to speakers from the Privacy Commissioner's Office and the Privacy Committee, speakers will include the Telecommunications Industry Ombudsman, Professor Roger Clarke on new technologies and privacy, and Patrick Gunning on emerging common law privacy protections. A separate one- day workshop on 'Setting up a formal data protection policy' will be run on the previous day by Barry Davidow of Fraud Prevention Services. Telephone (02) 954 5844 for details.
The Telecommunications Industry Ombudsman reports that 10 per cent of all complaints received concern privacy, and are increasing (TIO Talks, Issue 3, November 1994). No details of individual complaint resolution is given.