Privacy Law and Policy Reporter
The National Privacy Principles or NPPs (more correctly entitled the ‘National Principles for the Fair Handling of Personal Data’) were drawn up by Australia’s then Privacy Commissioner, Moira Scollay. They are the most significant part of what little remains of the Federal Government’s previous policy of voluntary industry self-regulation in relation to privacy.
The NPPs are the basis of the Government’s new proposals for ‘light handed’ legislation, and have been treated as ‘non-negotiable’ in the Government’s current consultation process. They also provide the privacy content for Victoria’s new Data Protection Bill 1999 (see 5 PLPR 138).
The NPPs have been criticised as inadequate by privacy and consumer organisations (see 4 PLPR 161 and 176, and 5 PLPR 41). How do they stand up to examination by the Senate?
The NPPs have been condemned by the Senate Legal and Constitutional References Committee as ‘weak and piecemeal’ and having ‘serious deficiencies’ which require them to be revised before they are an appropriate basis for legislation. The Committee’s Report Privacy and the Private Sector (March 1999) includes comments by the minority of Government senators who rejected any need to revise the NPPs at this stage. However, the Government senators do not address any of the majority’s criticisms of the NPPs; they merely say (in effect) that to change them so soon would cause business uncertainty.
The Committee, comparing the NPPs with the European Union’s privacy Directive, found that:
The National Principles, in comparison, appear a very weak and piecemeal approach to the issue of collection and protection of data. They do not deal with substantive issues such as the rights of the data subject; they give unequivocal preference to the wants of certain industries; they provide very little obvious limitations on the discretion of certain parties; and they provide virtually no direction as to the way in which even the minimal protections provided would be safeguarded. They do not locate privacy among human rights, and express limited concern for the rights of the individual as opposed to the needs of the business community.
The Committee therefore concluded (Recommendation 6) that:
The Committee questions the use of the Information Privacy Principles in preference to the National Principles. However, as the Committee has noted serious deficiencies in the National Principles, it recommends that they be carefully revised, and should not be adopted without modification which takes into account the issues raised by expert commentators, and in light of the guiding principles of the European Directive. Until such revision has occurred, the National Principles would not be an appropriate base for legislation.
In summary, the Committee’s main criticisms of the NPPs are:
The then Privacy Commissioner made some minimal changes to the NPPs in January 1999, but these do not address the substance of the Senate Committee’s criticisms other than by the removal of the ‘unduly onerous’ exception. Some of the Committee’s criticisms of the NPPs are directed at the non-mandatory language in which they are expressed (‘should’ and ‘ought’ rather than ‘shall’). This will presumably be addressed by any legislation embodying the NPPs, but this leaves most of the Committee’s criticisms untouched.
Labor and Democrat senators have explicitly rejected the NPPs as an adequate basis for legislation. Government senators have not bothered to defend the content of the NPPs against the majority’s criticisms.
If the Federal Government presents a Bill which incorporates the unchanged NPPs as the basis of a private sector privacy regime, as seems to be its intention, then it is difficult to see why the Senate would not seek to amend the NPPs to address some of their deficiencies. Since July 1999 the Senate has had a clear majority of Labor and Democrat senators. It is unlikely that the Government would adhere to a ‘take it or leave it’ approach if moderate and well argued amendments to the NPPs are put forward as conditions of passage though the Senate. If the exemption of food from the GST is a matter open to compromise, then amendments to the NPPs are certainly not beyond exemption. At the end of the day, the Parliament legislates, not the Privacy Commissioner (or ACCI).
The Senate debate on the Government’s Privacy Bill is therefore where the ultimate shape of the NPPs is likely to be decided.
Although the principal significance of the Report may be for the future of the NPPs, the Committee made other significant findings:
Graham Greenleaf, General Editor.