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Greenleaf, Graham --- "Private Parts" [1994] PrivLawPRpr 151; (1994) 1(10) Privacy Law & Policy Reporter 200

Private Parts

Compiled by Graham Greenleaf

The sexual privacy saga

Our serial continues ... the Human Rights (Sexual Conduct) Act 1994 (see (1994) 1 PLPR 121) passed the Senate on December 9 1994, with six senators crossing the floor to defy Opposition policy not to oppose the Bill. They were Senators Boswell (Nat, Qld), Abetz (Lib, Tas), McGauran (Nat, Vic), O'Chee (Nat, Qld), Calvert (Lib, Tas), and Watson (Lib, Tas). Senator Harradine (Ind, Tas) also opposed the Bill. Senator Boswell subsequently resigned from Shadow Cabinet, and Senator Watson resigned as a Parliamentary Secretary.

The Coalition's turmoil over the legislation was exemplified when Nationals' leader Tim Fischer replaced Senator Boswell in the Shadow Cabinet by Warren Truss MP (Nat, Qld), who had a few weeks earlier crossed the floor in the House to vote against the Bill (see (1994) 1 PLPR 160) - Boswell's hanging offence! Truss vowed to do it again if a similar situation arose. One Liberal MP described the appointment as 'a bit like a two fingered salute' to Opposition leader Alexander Downer.

Meanwhile, the Government has agreed to look at providing legal aid to assist Tasmanian gays to challenge the Tasmanian legislation in the High Court. Not to be outdone, some Tasmanian politicians have lodged a complaint with the United Nations Human Rights Committee, claiming that the Commonwealth legislation is itself in breach of art 17 of the ICCPR.

EU Directive ... almost

The European Union's Council of Ministers is expected to adopt a revised draft Data Protection Directive at its meeting on 16 January 1996, after a compromise with the European Commission on the one outstanding issue came too late for the matter to be resolved at its December 22 meeting. The Commission, the Council of Ministers and the European Parliament reached an interim agreement on 'comitology', the role of the Parliament in the implementation of decisions taken by the Commission (via committee procedure). The deal means that the draft Directive can be adopted as an 'A' item on January 16 by qualified majority, rather than by unanimity, so the opposition of Britain (and probably Sweden) will not matter.

On December 8, EU industry ministers resolved most of the outstanding differences which have blocked adoption of the Directive for four years. An expert group prepared compromise amendments to the Draft to meet concerns of some States, but these do not appear to involve substantial changes to the previous draft. Once adopted by the Council, the draft will go to the European Parliament for its final reading.

Inside the filing cabinet

A recent unheralded exercise of power by the Senate may offer a quantum leap forward in open government. By insisting that Commonwealth departments should table in Parliament an indexed list of departmental file titles, despite strong resistance from the bureaucracy, the Senate has planted a substantial boot in the drawers of the government's filing cabinets.

In June 1994, the Senate agreed to an order (based on an earlier proposal by Senator Harradine) requiring all ministers to table, by 10 October 1994, an indexed list of the titles of all relevant files held by their department. File titles identifying individuals, and certain other categories, were exempted. The intention is to provide Members of Parliament, and the public, with an improved information base for the scrutiny of government activity. Knowledge of the existence and subject matter of files would potentially be of great assistance to anyone seeking to exercise rights under the Freedom of Information Act 1982 (Cth), particularly in relation to 'workings of government' information (see (1994) 1 PLPR 154).

Recognising the potentially far-reaching implications of such a simple idea, the June Senate order provided for the details of the scheme to be considered by the Standing Committee on Finance and Public Administration. The government submission to the Committee detailed all the difficulties that the public service would have in complying with the order, representing a major retreat from the general welcome that Senator Evans had given to the order. Parts read like a Yes Minister script, such as the assertion that '...The [FOI] Act is concerned with the principle of 'open government' - it does not prescribe "government in the open"...', and the not-so veiled suggestion that if file titles were required to be disclosed, deliberately unhelpful naming practices would emerge.

The Committee's report in September accepted much of the government submission and recommended an alternative order which would have severely limited the scope of the requirement, with no retrospectivity, a wider range of exemptions, and a six month trial limited to two departments (DSS and DFAT were proposed). However, the Senate rejected this alternative and on the 14 November re-instated the original order, with an amendment to provide for a review by the Standing Committee of the issues involved in compliance.

As a result of the Senate's determination in this matter, all departments will now have to table comprehensive lists of the titles of policy advising-type files created in their central offices since 1 January 1994 (subject to an expanded range of exemptions). The order requires these to be made available in stages - the first batch by 2 February 1995, and another batch by 23 March 1995.

Privacy concerns are addressed in the order by exemptions for 'case -related files' and allowing titles to be edited to remove any part which 'would necessarily disclose... identifiably personal ... matters'.

It is difficult to predict how useful the lists of file titles will be. The precedents of the FOI Act s 8 statements, and the Personal Information Digest issued by the Privacy Commissioner under s 27(1)(g) of the Privacy Act 1988 (Cth) are not encouraging, although they contain a wealth of valuable information for those with patience and supplementary knowledge. The Senate order provides for the lists to be made available not only as hard copy, but also in a database format (subject to technical feasibility).

If the file lists are to be more useful they arguably need to include key words or summaries of their contents. Many file titles are opaque and meaningless to the casual observer. This does not necessarily reflect deliberate obfuscation - number sequences and acronyms can be more efficient for regular users. The government submission to the committee clearly identified some genuine difficulties with the proposal. But the potential clearly exists for deliberately unhelpful practices, and it would be naive to expect departments to go out of their way to interpret and explain file titles unless they are required to do so. The Senate order falls short of imposing this requirement, and the resulting lists are likely to be a disappointment to many. Nevertheless, they should be a major advance on current levels of information, and the Committee review of compliance, due to report by 30 June 1995, will hopefully lead to further improvements in content and accessibility.

Sources: Senate Committee Report, September 1994; Senate Hansards 28 June, 10 October, 14 November 1994. Order printed in Senate Notice Paper No 131, 7 December 1994.

O'Connor's term extended

Federal Attorney-General Michael Lavarch has extended the term of office of Australian Privacy Commissioner Kevin O'Connor for two years until 31 December 1996. 'Mr O'Connor has in the last six years firmly established the Privacy Act as an important part of the Commonwealth's commitment to the protection of human rights in Australia. He has also played a valuable role as a member of HREOC. I look forward to his continuing work in this area during his next term of office', Mr Lavarch said.

The term of the Human Rights and Equal Opportunity Commission (HREOC) President, former High Court judge Sir Ronald Wilson, was also extended for two years. No appointment of a Human Rights Commissioner to succeed Brian Burdekin has yet been made. The appointments coincide with amendments to the HREOC legislation designed 'to encourage Commissioners to act in a collegiate manner' (see Legislation and Guidelines this issue).

Second NZ Privacy Issues Forum

The NZ Privacy Commissioner has tentatively scheduled a follow-up to the very successful 1994 Forum (see (1994) 1 PLPR 79) for May 1995 in Wellington. Further details can be obtained from Blair Stewart in the Auckland office (64 9 302 2160).

US conferences

The biggest annual 'privacy event' in North America, the Fifth Conference on Computers, Freedom and Privacy (CFP'95), sponsored by the Association for Computing Machinery and Stanford Law School, will be held from 28-31 March 1995 at the San Francisco Airport Marriott Hotel, Burlingame, California. Details are available from CFP'95 Information, Stanford Law and Technology Policy Center, Stanford Law School, Stanford, California 94305-8610, or send email to: cfp95@forsythe.stanford.edu with the word 'Information' in the subject line.

The following more specialised conferences are also on offer:

(Details provided by Epic Alert - to subscribe via internet, send the message: SUBSCRIBE CPSR-ANNOUNCE Firstname Lastname to listserv@cpsr.org)

European conferences

Those heading toward Europe might like to sample the following:


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