Martin, John --- "ACCI supports 'essentially voluntary but enforceable' codes" [1998] PrivLawPRpr 23; (1998) 4(9) Privacy Law & Policy Reporter 175

• Voluntary guidelines and codes of conduct
• Privacy principles
• National consistency
• Conclusion

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ACCI supports ‘essentially voluntary but enforceable’ codes

John Martin

The following article was provided by John Martin, the Executive Director of the Australian Chamber of Commerce and Industry (ACCI). ACCI was represented throughout the Privacy Commissioner’s consultation process.

ACCI was very critical of the Attorney General’s Department Discussion Paper on Privacy in October 1996 because it sought to impose a detailed legislative scheme on all business, regardless of how privacy-sensitive their operations might be.

The paper did not make a case for such a general and potentially expensive approach. Most smaller firms would have had considerable difficulty meeting the effort and costs required by such a regulatory scheme. In particular ACCI was concerned over the proposed coverage of employee records, without demonstration of any privacy problem.

ACCI therefore welcomed the announcement by the Prime Minister in March of 1997 of the government’s decision not to legislate generally for the private sector and his request to State Premiers and Territory Chief Ministers not to regulate unilaterally.

ACCI subsequently participated positively with the Privacy Commissioner in the development of a national framework for privacy protection in the private sector.

Voluntary guidelines and codes of conduct

Voluntary guidelines and — for particularly sensitive sectors — sector-specific voluntary codes of conduct are more appropriate than detailed legislation for ensuring appropriate handling and protection of personal information by Australian business. Voluntary codes would allow affected businesses to develop, ‘own’ and apply practical principles and procedures, generally at much lower compliance costs than would apply with a detailed legislated approach.

Such codes might include an avenue for appeal or alternative dispute settlement for individuals concerned about inappropriate privacy practices that have not been able to be rectified under code mechanisms or in voluntary conciliation.

However, ACCI believes it is important for a complainant to exhaust all remedies available under a code or otherwise from the offending firm or through its industry association, before seeking to pursue any judicial remedies (which could be very expensive for all parties). Binding and non-appealable directions from a specialist independent arbitrator or from the Privacy Commissioner are possible options.

Privacy principles

ACCI is supportive of the National Principles for the Fair Handling of Personal Data (privacy guidelines for the private sector) released in February this year by Privacy Commissioner Moira Scollay, in conjunction with Attorney-General Williams.

These principles reflected the outcome of an intensive consultative process conducted by the Commissioner with business, consumers and other stakeholders. This process followed the rejection by business and the Howard government of a complicated legislation-based approach to private sector regulation.

A particular priority for all stakeholders in the consultations has been to set out a framework for a consistent national approach to privacy protection in the private sector. Australian business is most anxious to avoid inconsistent and overlapping State-based regimes which could lead to undue compliance costs and confusion.

ACCI, like the government, has specifically asked the States not to regulate and cut across the emerging national approach.

As an active participant in the Commissioner’s consultations, ACCI was pleased to observe the preparedness of all stakeholders to compromise in order to address both the privacy concerns of consumers and the legitimate interests of business.

ACCI is hopeful that this constructive attitude at the in-principle stage of consultations will continue into the next phase of consultations on implementation issues.

The issue of whether the principles should extend to workplace-related information has been postponed, at ACCI’s insistence, to a subsequent round of consultations on implementation issues. ACCI’s firm position is that workplace-related issues should continue to be covered to the extent required, under workplace relations legislation, awards, agreements and best practice (rather than a general privacy regime).

National consistency

It remains critical to avoid the enactment of separate and divergent regimes by individual States and Territories. A series of overlapping and inconsistent schemes can only add to business confusion and compliance costs.

Following the announcement by Victoria that it intended to legislate comprehensively for privacy protection, ACCI wrote to the Prime Minister and State Premiers/Territory Chief Ministers urging all governments to commit to the principle of a national framework that is consistent, affordable and practical for business. Despite a generally sympathetic response from all governments, Victoria has left open its options in relation to whether legislation is appropriate to create a conducive environment for the development of multi media industry in that State.

The Commissioner’s release in February 1998 of national Principles for Fair Handling of Personal Information, means there are now good prospects for a national framework — acceptable to business and consumers alike — for essentially voluntary but enforceable codes where privacy protection is needed.

Conclusion

For most sectors which collect little personal data aside from employment records, a case for detailed regulation has yet to be made. In these situations, straight-forward guidelines rather than complex or legalistic schemes are needed to help businesses focus on real-life risk situations. This is especially the case with smaller firms whose core business is not connected with handling personal information.

Subject to a broadly acceptable resolution of these and other implementation issues, ACCI is confident that the Commissioner’s Principles will indeed form the basis of a nationally consistent best practice approach to the handling of personal information by business. Progress should then be monitored in sectors which have adopted voluntary codes on the basis that they regularly deal in commercially valuable personal information

ACCI agrees wholeheartedly with the view expressed by the Hon Warren Truss MP Minister for Customs and Consumer Affairs in the March 1998 Policy Framework on Codes of Conduct when he said:

This Government encourages businesses to regulate themselves rather than rely on the Government to do it for them. Effective self-regulation has the potential to achieve greater and lasting improvements in business practices by using negotiation and consultation rather than prescriptive legislation and enforcement. Consumers can benefit from a greater focus by business on customer service and on being responsible for its behaviour.

Voluntary codes of conduct are the main tool used to achieve effective self regulation.

The Government will give business every chance to make voluntary codes of conduct work. There are occasions, however, where voluntary codes of conduct have not been effective and dubious business practices continue. In such situations, the Government will consider whether businesses’ attempts to self regulate need to be given some Government support.

John Martin, Executive Director, Australian Chamber of Commerce and Industry.