Privacy Law & Policy Reporter --- "Private parts" [2002] PrivLawPRpr 50; (2002) 9(6) Privacy Law and Policy Reporter 119

Private parts

Telecommunications interception — Government rejects comparisons with US

The Opposition has voiced concern about ‘excessive’ use of telecommunications interception in Australia, following the release in May of the latest Annual Report on the Operation of the Telecommunications (Interception) Act 1979.

In the year ending 30 June 2001, 2157 interception warrants were issued to State and Federal law enforcement agencies — up from 1689 the previous year. The majority of warrants were issued in ,State and Territory jurisdictions.

In the same period, 890 prosecutions involved lawfully obtained interception information given in evidence, an increase from 836 the previous year. The Government also claims that intercept product contributed to guilty pleas, thereby avoiding lengthy and expensive trials.

The ALP has compared the rate of use of interception with the equivalent figures for use of ‘wiretaps’ in the United States, claiming that the per capita rate is almost 20 times as high in Australia, and questioning why there should be such a major difference. They point to the change, in 1997, that allowed designated members of the Administrative Appeals Tribunal to issue warrants, rather than only Federal Court judges, as used to be the case. Privacy groups warned at the time of those amendments that they could lead to an increase in the use of interception — these latest figures suggest that their concern was well-founded.

The Attorney-General has rejected the comparison with the US on the grounds that there are clear differences in the regimes and in safeguards applying, although he makes no attempt to explain the much higher relative usage of interception other than to claim that increases from previous years are due to factors such as increased use of mobile phones and of multiple services.

Source: Attorney-General and ALP media releases.

Guidelines on human rights and the fight against terrorism

The Council of Europe, which has ,a long history in developing measures ,to combat terrorism, believes that governments seeking to combat it must find effective counter-measures, but at the same time not lose sight of the need to respect fundamental human rights. With this in mind, on 11 July 2002 ,the Council of Europe’s Committee ,of Ministers adopted guidelines as recommendations both to Member ,and non-Member States.

The guidelines reaffirm states’ obligation to protect everyone against terrorism, and reiterate the need to avoid arbitrariness. They also stress that all measures taken by states to combat terrorism must be lawful, and that torture must be prohibited. The framework set out in the guidelines concerns, in particular, the collecting and processing of personal data, measures which interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and compensation of victims.

See: <book.coe.int/GB/cat/Liv/HTM/l1932.htm>.

New members for federal advisory committee

The Attorney-General has appointed three new part-time members to the Privacy Advisory Committee which advises the Federal Privacy Commissioner on matters relevant to his functions, recommends material for inclusion in the Commissioner’s guidelines and engages in community education. The appointments are until 30 June 2005.

Dr John O’Brien is a senior lecturer in industrial relations at the University of New South Wales, and has been appointed for his significant experience in the trade union movement.

Mr Peter Coroneos has been ,Chief Executive of the Internet Industry Association since 1997. He has been appointed for his extensive experience in electronic data processing.

Associate Professor Kathy Alexander is the Chief Executive Officer of Women’s and Children’s Health in Victoria, and has been appointed to represent general community interests including interests relating to social welfare.

The other current members of the Committee are Ms Karen Curtis, Director of Industry Policy, Australian Chamber of Commerce and Industry; Mr Graeme Innes AM, Deputy Federal Disability Discrimination Commissioner and Mr Peter Ford, First Assistant Secretary, Information & Security ,Law Division, Attorney-General’s Department.

Source: media releases.

Criminology research ,can proceed

Public Interest Determination No 8, issued on 22 March 2002, became effective (after the requisite period ,for disallowance by Parliament) on ,26 August.

The Commissioner determined that the Commonwealth Director of Public Prosecutions (CDPP) could disclose specified personal information to the Australian Institute of Criminology (AIC) for research purposes, notwithstanding that this would otherwise breach Information Privacy Principle 11 (limits on disclosure of personal information).

The CDPP will disclose personal information held in 28 completed case files relating to serious cases of fraud, dishonesty and deception, subject to certain conditions and safeguards. These include that the names of witnesses, suspects, offenders, victims and those acquitted of the crime will not be recorded by the AIC; that access to the information shall be provided on CDPP premises exclusively and under CDPP supervision; and that the results ,of the research will be published ,in aggregate form to prevent the identification of individuals. l

Source: OFPC website.

Another variation — health privacy law in NSW

The New South Wales Health Records and Information Privacy Bill has now passed through both Houses ,of the Parliament and was awaiting assent as at 18 September.

Unlike the State’s Privacy and Personal Information Protection Act 1998 (PPIP Act), the health legislation applies both to public sector agencies and to private sector ‘health service providers’. These organisations are required to observe 15 Health Privacy Principles (HPPs). These cover the usual field of collection, use, disclosure, access and correction quality and security, but also follow the federal private sector NPPs in dealing with idenitifiers, anonymity and trans-border data transfers. There is also a principle dealing expressly with computerised linkage of health records.

There is provision for health codes ,of practice to modify the HPPs for the private sector. The complaints and enforcement mechanisms involve the Privacy Commissioner and the Administrative Decisions Tribunal, rather than the ACT and Victorian precedents of bringing a separate Health Complaints Commissioner into play. For public sector agencies the process follows the PPIP Act model with internal reviews, while complainants against private sector providers can go straight to the Commissioner.

Unusually for a privacy law, the Bill requires private sector health service providers to retain personal health information for seven years from the last service provision. The law also creates new offences relating to corrupt disclosure of health information and offering to supply corruptly disclosed information (these provisions mirror those in the PPIP Act).

The Privacy Commissioner is given ,a range of new functions including preparation of guidelines and promotion of the HPPs, and can refer complaints to other bodies where appropriate.

Source: media release 20 September 2002.

Call for tracking of sex offenders

Federal Justice and Customs Minister Senator Chris Ellison has urged all State and Territory Governments to quickly progress registers of sex offenders similar to a Victorian proposal to enable law enforcement agencies to keep track of sex offenders across Australia.

The Minister said in September that the Commonwealth supported Victoria’s proposal to establish a registry of serious sex offenders which would enable Victorian authorities to monitor the movements and employment of convicted serious offenders. A uniform national approach would allow more detailed information tracking the movement of sex offenders to be fed into the Federal Government agency CrimTrac initiative. CrimTrac was ,not originally set up to monitor the movement of individual offenders inside a State or Territory, because that was the responsibility of the respective State and Territory Governments.

The Minister stressed that the details of offenders on the proposed national sex offender register would not be released to the community. He said international experience showed that public disclosure could inadvertently encourage vigilantes and had led to attacks against offenders and innocent people mistaken for alleged offenders.

The Federal Government hopes that the Australian Police Ministers Council (APMC) will consider the sex offender register proposal and suggested the Standing Committee of Attorneys-General could consider the development of consistent legislation. l

Source: media release 20 September 2002.

EU Directive review

Following public consultation earlier this year which yielded nearly 10,000 submissions, the EU Commission held ,a conference in Brussels at the end of September as part of its review of the 1995 general Data Protection Directive 95/46/EC. The Commission is due to report by the end of the year.

Source: <europa.eu.int/comm/internal_market/en/dataprot/lawreport/index.htm>.