Greenleaf, Graham --- "Fifth Annual Report on the Operation of the Privacy Act (1992-93)" [1994] PrivLawPRpr 42; (1994) 1(3) Privacy Law & Policy Reporter 56

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Fifth Annual Report on the Operation of the Privacy Act (1992-93) - Part (2) - Focus on policy

Australian Privacy Commissioner, December 1993

The first part of this review concentrated on the Commissioner's compliance activities. Some of his contributions to policy development, as detailed in the Report, are summarised below.

Advice and submissions

The Report is valuable for the summaries it provides of the very wide range of (non-confidential) advices that the Commissioner gives to agencies. Many of these are of great importance to privacy, and some will be featured in future issues of the Reporter. His recent submissions to parliamentary inquiries were detailed by Nigel Waters in (1994) 1 PLPR 6. Important aspects of advices detailed in the Report include:

1. The refusal or failure of a number of Commonwealth agencies (including the Australian Federal Police, the Australian Taxation Office and the Department of Immigration and Ethnic Affairs) to adopt the Commissioner's Data-Matching Guidelines.
2. Because the Privacy Act 1988 (Cth) is only binding on agencies, Commonwealth agencies are being encouraged to include privacy clauses in outsourcing contracts, and the Commissioner has recommended that the Act be amended to apply the IPPs to outsourcing contractors.
3. The Commissioner is attempting to develop an agreed position with the Attorney-General's Department on the interpretation of exception (e) to IPP 11.1 (the law enforcement and revenue protection exception). No consensus had been reached, and the Commissioner's approach is detailed in a very interesting speech in Appendix 3. He considers that ''exception (e) involves a "reasonable necessity" test, not a test of mere administrative convenience', and in relation to data-matching he says ''I very much doubt whether IPP 11.1(e) was intended to cater for bulk disclosures of this sort'.
4. The Electoral Roll raises numerous privacy issues. The Electoral Commission has sought to use extensive data-matching to maintain the accuracy of the Roll, using Telecom's Electronic White Pages, Australia Post's change of address data, and immigration records of new naturalisations, whereas the Commissioner has sought less privacy invasive alternatives. The Electoral Commission Act was also amended so as to exempt the computerised form of the Electoral Roll from the Freedom of Information Act 1982 (Cth), and to limit the use of the computerised roll to election-related matters and prescribed permitted purposes. The Commissioner supports, for example, use of the roll for medical research under NHMRC guidelines.
5. Proposed regulations concerning Australia Post's National Change of Address (NCOA) service, which would allow change of address information to be provided to direct mail companies to allow them to update their records, without the consent of the individuals concerned, were stated by the Commissioner to involve ''a very significant erosion of Australia Post's historical commitment to the secrecy of the mail'. The regulations were subsequently withdrawn under threats of Senate disallowance, and replaced with temporary regulations requiring customer consent. The Commissioner was also involved in negotiations with Australia Post over its proposal to establish a comprehensive National Address File derived from the post officer's observations, NCOA data and data- matching.

It would be useful if the Report also listed the occurrences of confidential advices that the Commissioner gives, so that some overall picture of the Commissioner's advice-giving role was available.

Specific areas of policy responsibility

Telecommunications

The Commissioner prefers that calling number display (CND) only be offered on an opt-in basis, and argues that AUSTEL's proposed trial of CND (which has taken place at Wauchope) will be of limited value. He recommended the extension of the Telecommunications Interception Act 1979 (Cth) to cover radio communications.

Tax file numbers

The Commissioner warns that the proposed Child Care Rebate scheme could involve a significant extension in the use of the TFN.

NHMRC Guidelines

No breaches were reported to the Commissioner.

Data-matching

The Commissioner does not report any significant problems in supervising the operation of the Act.

Old convictions

The ACT government and the Queensland Treasurer on behalf of all States and Territories sought an exemption from the Commonwealth legislation for the purpose of assessing all persons applying to be casino employees. The Commissioner advised the Attorney-General that he saw no reason to change his 1990 advice against this. The Attorney-General accepted this advice.

Credit reporting

No significant problems in administering the legislation are reported.

Graham Greenleaf