Privacy Law & Policy Reporter --- "Private Parts" [2004] PrivLawPRpr 34; (2004) 11(2) Privacy Law and Policy Reporter 60

• Private Parts

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Private Parts

Compiled by Graham Greenleaf and Nigel Waters

Australian Privacy Act review limited

On 13 August, the federal Attorney-General issued terms of reference to the Privacy Commissioner for the overdue Review of the private sector aspects Privacy Act 1988. Not only is the review to be predictably restricted to the private sector provisions, but it will also expressly exclude four of the most contentious areas of application. The review will not address:

• genetic information;

• employee records;

• children’s privacy; and

• electoral roll information, and the related exemption for political acts and practices.

The exclusions are on the grounds that they have been recently (or currently) the subject of separate reviews: genetic privacy by the Australian Law Reform Commission; the employee records exemption by a joint AGs/DWER team, whose report is awaited; and children’s privacy by AGs (although nothing has been heard of this work for over a year). The justification for excluding electoral roll information is presumably last year’s Joint Parliamentary Committee Report and recent amendments to the Electoral Act, although the Privacy Act exemption for political acts and practices was not expressly canvassed during these processes.It seems clear that the ‘private sector provisions’ to be reviewed do not include the credit reporting and tax file number provisions which have been in the Act since the early 1990s, but only the general private sector amendments introduced in 2000.

The new Privacy Commissioner Karen Curtis has welcomed the terms of reference though it is not known what if any negotiations took place . One reason for the delay in the review is that her predecessor Malcolm Crompton reportedly raised concerns in 2003 with the then Attorney about the scope of the review.

See: http://www.privacy.gov.au/news/media/04_12.html

NZ study of intimate covert filming

The New Zealand Law Commission’s Study Paper Intimate Covert Filming (NZLC SP15, June 2004) arose from a Ministerial request to the Commission to consider how the law should respond to the taking of a visual record of another person without their approval in situations involving nudity, partial nudity, or physical or bodily intimacy where people have a reasonable expectation of privacy, and the subsequent use of any such record. The development of camera phones and surveillance cameras in gymnasia and the like have prompted similar concerns in many jurisdictions.The study paper considers the causes and social impact of such behaviours , the existing coverage of NZ law, and approaches taken in overseas jurisdictions. It does not address the wider issue of covert filming in general but only “intimate” covert filming. The study paper recommends a dual response of new criminal offences, and amendments to the Privacy Act 1993 to facilitate use of that Act’s complaints procedures to pursue civil remedies.

Justice Minister Phil Goff welcomed the study paper with the comment that such filming will soon be illegal.

Copies are available from the Publications page on the Commission’s site at

http://www.lawcom.govt.nz/

Complaint Checker on Federal Commissioner’s website

The Australian Privacy Commissioner’s website now includes a ComplaintChecker which it describes as ‘a system which asks you up to eight simple questions to help you see whether or not the Commissioner may be able to investigate your complaint under the Privacy Act’. Technically, it is a decision network, which offers users a choice of three answers to any of the questions it asks: Yes; No; or ‘ I do not know - please give me more information’. At the end of a consultation the user is informed either that it is likely or unlikely that the Commissioner can investigate the Complaint, and in the case of ‘likely’ answer it also lists possible exceptions to this answer. There are good links from some points in the consultation to the interpretative materials such a sections of legislation and Commisisoner’s guidelines and other publications.

At some points, the Commissioner’s interpretation of the Act seems questionably narrow, in the sense of turning complainants away without exhausting all relevant factors. For example, if a person answer’s ‘yes’ to the question “Have you lodged your complaint with another dispute resolution body, for example the Commonwealth Ombudsman or Australian Competition & Consumer Commission, which is investigating your complaint” they are told “Sorry, the Commissioner is unlikely to investigate your complaint.’. This may strictly be true, but surely the next question after a “yes” amswer should be “ Is your complaint is being dealt with adequately by the other dispute resolution body?”. If the complainant’s view is ‘no’ then the Commissioner can’t just send them away without further enquiry according to s41(1)(a). The link for further information dpes explain the details of s41(1)(a), but the impression given by failure to ask the second question is that the Commissioner woul d prefer never to consider complainants who have complained to anyone else.

Such caveats aside, this is a rather straightforward but useful system which should generally assist potential complaints to at least avoid wasting their time in complaining to the Federal Privacy Commissioner when she is unlikely to investigate their complaint, and it will encourage others to complain by giving them a preliminary check that the complaint is within the Commissioner’s jurisdiction. All in all, it assists in the transparency of the complaints process to the public.

See http://privacy.gov.au/privacy_rights/ComplaintChecker/index.html

The future of telecommunications privacy

The Australian Communications Authority (AComA)has released a report Vision 20/20 on the future of communications regulation. The Report concludes that regulatory systems face uncertainty and possible disruptive change, as well as rapid innovation in technology and services, between now and the year 2020. Privacy and security are identified as one of the key ‘tensions’ resolution of which will influence consumer trust and confidence, the pace of change and the nature of regulation required. The AComA has invited submissions by 17 September.

See: http://www.aca.gov.au/aca_home/media_releases/media_enquiries/2004/04-63.htm

NZ privacy office strenghened

The New Zealand Privacy Commissioner has created a new position of Assistant Commissioner (Legal), which has been filled by Katrine Evans, currently Senior Lecturer in Law at Victoria University Wellington and a member of PLPR’s Editorial Board as well as a regular contributor. Ms Evans will work alongside longstanding Assistant Commissioner Blair Stewart who will continue to focus on policy issues. The expanded senior team should assist the office to continue New Zealand’s outstanding contribution in the international privacy arena.

Stop Press - Review timetable announced

Federal Privacy Commissioner Karen Curtis will release an issues paper in early October as part of the review of the private sector provisions of the Privacy Act 1988 (see page 60 this issue). There will be a two month period of consultation including receipt of submissions. She will finalise her report by 31 March 2005. The Commissioner has convened a steering committee comprising three members of the Privacy Advisory Committee and three others: Charles Britton (Australian Consumers’ Association); Peter Coroneos, (Internet Industry Association); Ian Gilbert (Australian Bankers’ Association); Graeme Innes (Deputy Discrimination Commissioner, HREOC); John O’Brien (Department of Industrial Relations and Organisational Behaviour, UNSW); and Joan Sheedy (Information Law Branch, Attorney General’s Department).