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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Outcome 1—An Australian society in which the human rights of all are respected, protected and promoted
- Committee Name
LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Outcome 1—An Australian society in which the human rights of all are respected, protected and promoted
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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
(SENATE-Monday, 29 May 2000)
- Start of Business
- Administrative Appeals Tribunal
- Australian Transaction REPORTS and ANALYSIS CENTRE
- AUSTRALIAN LAW REFORM COMMISSION
- FEDERAL COURT OF AUSTRALIA
- HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
- family court of australia
- national crime authority
- Office of Film and Literature Classification
- administrative appeals tribunal
- OFFICE OF THE DIRECTOR OF PUBLIC PROSecuTIONS
- Australian Government Solicitor
- AUSTRALIAN INSTITUTE OF CRIMINOLOGY
- CRIMINOLOGY RESEARCH COUNCILi
AUSTRALIAN CUSTOMS SERVICE
- Outcome 1—Effective border management that, with minimal disruption to legitimate trade and travel, prevents illegal movement across the border, raises revenue and provides trade statistics
- OFFICE OF PARLIAMENTARY COUNSEL
- AUSTRALIAN FEDERAL POLICE
Content WindowLEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Outcome 1—An Australian society in which the human rights of all are respected, protected and promoted
CHAIR —Good morning, Mr Crompton and other officers of the commission. I believe Senator Ludwig will start with questions in this area.
—Can you give a report on when the separation of the Office of the Privacy Commissioner from the Human Rights and Equal Opportunity Commission is likely to occur? Would you could bring the committee up to date as to where that is.
Mr Crompton —The bill for the separation passed through the parliament earlier this year. I understand that it was actually put through the Governor-General in Council in April and will take effect on 1 July this year.
Senator LUDWIG —What work has started to take place to make allowance for that?
Mr Crompton —The deputy commissioner has been coordinating that activity and I would like him to answer that question.
Mr Pilgrim —In answer to that: we have been working closely with the corporate services area of the human rights commission to identify the various acts—the Financial Management Act, the Public Service Act and similar acts—that will require changes so that the Privacy Commissioner can take over as chief executive officer for the Office of the Privacy Commissioner. Those various changes are under way at the moment and the relevant documents and other subdocuments, such as documents of delegation, et cetera, will be ready for signing on 1 July, the date at which the Privacy Commissioner will become the chief executive officer of the new organisation
Senator LUDWIG —So 1 July is the formal start date?
Mr Pilgrim —That is correct, 1 July.
Senator LUDWIG —You mentioned some steps that have been taken so far. In a more procedural manner, what types of steps have you taken to achieve that by 1 July?
Mr Pilgrim —As I was indicating, Senator, we have been working closely with the Human Rights Commission's finance and administration area. We have identified the relevant acts that will require changing and we have also been liaising closely with the Public Service Commissioner about the formal arrangements for transferring staff over to the new organisation, and those instruments are being prepared as we speak and will be with the appropriate officer, such as the Public Service Commissioner, for her to sign for the 1 July, as well.
We have already undertaken additional work prior to these arrangements to identify a separate budget for the office. That was done in 1998 as some preliminary work so that the organisation could start to function more independently within set parameters of the fairly strict budget, and we have been working to that end for the last 18 months.
Senator LUDWIG —Can you then say what sort of resources have been committed to the process of separating the two?
Mr Pilgrim —Are you referring—
Senator LUDWIG —In terms of how much resources, both monetary and staff time. We then look at how many staff have been allocated and we look then, I guess, at physical location and outside agency assistance that might have been utilised. That is the picture I am looking for.
—Senator, this has been a gradual process. We have had quite a lot of notice that this was going to happen and so staff have incorporated the tasks that have to be done into their normal work over the last 18 months at least. So what we have done is essentially operate with the Privacy Commissioner's unit as a separate part of the commission within our overall budget. So most of those processes have taken place, I think, fairly seamlessly. In terms of administrative cost to us, they have been minimised.
Senator LUDWIG —But can you say how much has been allocated or how much has been used? I guess that is the question I put. Wouldn't it be important to know at some point how much it is going to cost to separate, what resources were utilised out of your budget to do that, and then whether you can then seek additional funding, or know how much you will actually lose out of your funding, given the split? Those sorts of questions have surely crossed your mind.
Ms Temby —Senator, what the privacy budget is very clear and that will transfer at additional estimates formally through the budget process. In terms of the costs, they are very minimal and, no, we just have not done that work. It has been a natural part of a number of people's duties and when the time comes corporate services will continue to support the Privacy Commissioner but on a contractual fee-for-service basis—a transfer of funds. So to a large extent there has not been a great deal of administrative burden on the commission during the last 18 months because of the transfer of the Privacy Commissioner—his funding and functions—to a separate organisation.
Senator LUDWIG —You mentioned corporate services: will the commission and HREOC continue to share some resources post separation?
Ms Temby —Yes, we will.
Senator LUDWIG —And what will they be?
Ms Temby —They will be everything from reception through to financial support and personnel services. But they have been identified and costed and the Privacy Commissioner, if you like, will pay the Human Rights Commission for those services.
Senator LUDWIG —And they have been identified within the budget for the Privacy Commissioner, have they?
Ms Temby —Yes, they have.
Senator LUDWIG —And they are likely to be ongoing? They are not going to change, or do you envisage them increasing or decreasing?
Ms Temby —I think they will increase due to the new functions that the parliament is considering for the Office of the Privacy Commissioner. But for the moment it will be quite a transparent supply of services to the Privacy Commissioner from the commission.
Senator LUDWIG —You are able to say, as I understand it, that the effect on HREOC has been minimal and that the budget outlays by HREOC in terms of the separation has been minimal? Is that what you are telling me?
Ms Temby —That is what I am telling you, Senator.
Senator LUDWIG —So you do not expect that the HREOC budget will be similarly affected in the future by this change?
—Senator, this will become a matter for the Privacy Commissioner. I cannot foretell the future. At the moment, the Privacy Commissioner has told us—he can speak for himself—that it is the intention to remain in the accommodation that he has. That could be in the form of either a separate lease or a sublease of our accommodation. Perhaps I could allow the Privacy Commissioner to answer the question.
Mr Pilgrim —Actually, it is the Deputy Privacy Commissioner again. I would just like to build on what Ms Temby is saying. Yes, we certainly have every intention at the moment to continue our arrangements with HREOC through the provision of corporate services administrative support and the like. I would just like to re-emphasise a point I was making earlier that we have been working since early 1998 with, for want of a better description, fenced funds. We negotiated a separation on paper of a notional amount for the Privacy Commissioner's office that we would work and live within. We have been doing so since mid-1998. There have been portions of that budget allocated out for the provision of corporate services of various types—the types that Ms Temby has been mentioning—and we have functioned quite adequately within that. The government has provided the organisation with additional funding for the commencement of the extended jurisdiction into the private sector, which is the subject of a current inquiry by the House of Representatives. We will be looking at increasing resourcing as a result of that and we will be discussing with HREOC an increase in our contribution to them for the provision of corporate services as well.
Senator LUDWIG —Just on that particular point, could you outline—or at least take it on notice if you need more time—the additional functions that will be required to be performed by the office of the Privacy Commissioner in the event that the bill is passed, or at least without amendment anyway? There will be new functions that will be accrued to your office.
Mr Pilgrim —I think it would probably be wise to take that on notice, Senator—a list of the additional functions.
Mr Crompton —I am just wondering if we cannot answer the question immediately. It depends on the level of detail that you are interested in. The bill currently before the House of Representatives modifies the Privacy Act in a number of places in a number of ways, but in simple terms it provides for a set of national privacy principles to be supported by law with us having a complaints handling function for making sure that that law is enforced. We are funded for a promotional and educational campaign to surround that. The law also provides for alternative codes to those national privacy principles to be approved by me, so long as those alternative codes are at least as good as the national privacy principles. The law also provides for me to approve an alternative code adjudicator to myself for those codes if that is also applied for and again that code adjudicator must pass some minimum standards, some set out in the bill already and some to be set out in regulations to be made under the bill. I am therefore a person who will be handling complaints in this wider regime. I will be undertaking various promotional and educational activities and I will be giving approval to the alternative codes and code adjudicators should they come forward. I suspect that is a broad-level summary of the answer to the question that you wanted. I am wondering if we could help you any further than that.
Senator LUDWIG —What additional resources do you think you will require to carry out those functions that you have just outlined?
Mr Crompton —They were provided in the last budget for us and, again, the Deputy Commissioner has those details to hand if you wish to discuss them.
Senator LUDWIG —Perhaps you could take it on notice then.
CHAIR —You do have them, Mr Pilgrim?
—I can give you the approximate figure that has been provided for the 2000-2001 budget.
CHAIR —Would that be helpful, Senator Ludwig?
Senator LUDWIG —It would be.
CHAIR —Thank you.
Mr Pilgrim —The Office of the Privacy Commissioner has received an additional $1.5 million for the purpose of implementing the new private sector scheme for this coming budget.
Senator LUDWIG —That is coming—the $1.5 million that you are then going to get to carry out those functions that you have just outlined, Mr Crompton. What resources are presently available to oversee the operation of the Privacy Act?
Mr Pilgrim —The current office budget by way of dollars—I will start there—is approximately $1.9 million.
Senator LUDWIG —How many equivalent full-time staff would you have?
Mr Pilgrim —At present, counting the commissioner's position and my own, there are 35 staff.
Senator LUDWIG —How many extra staff do you think you will require, or that you have made provision for, when the new functions are incorporated into your—
Mr Pilgrim —At the moment we are looking at potentially taking on another six to eight staff, approximately. But I should clarify that by saying that we are examining, through our strategic planning processes, some new means of delivering the services that we will need to for the private sector. We will be examining ways of better utilising existing networks that are out in the community, be that through community service groups or business associations, to help us disseminate information. The big impact on our organisation will be in approximately—depending on when the bill is passed by the parliament, of course—12 months after its commencement when we take on the formal functions of complaint handling. We will need to reassess our resourcing level at that stage, because at this stage there is not a lot of hard evidence about the number of complaints we may receive into the organisation, remembering that the scheme is a complaints based scheme.
Senator LUDWIG —You will agree that there will be an increased workload, given that the functions that you have outlined will then accrue to you. So that is the start. You then made allowances for additional revenue; you have made allowances for additional staff. How have those projections been worked out? Did you sit down and say, `One person per function'? Can you provide us with that? If you need to take it on notice, please do so. I am curious as to how you then arrived at that end result and how those projections were made. Perhaps we could start there.
Mr Pilgrim —I will give you a general response to the question and then, if you need any further detail, we are happy to take it on notice. In outlining the budget figures for the coming financial year, I should have mentioned also that the government provided an additional $470,000 in the 1999-2000 financial year. That was in recognition of the fact that the bill would be introduced into parliament, as it has been, and we needed to commence some preliminary work. We have already started to build up the staffing numbers over the last six to eight months in recognition of the work that we would need to do.
As I mentioned, through the strategic planning process we identified that one of the greater tasks we would need to undertake is to make the broader community aware of rights and responsibilities that would come into effect once the bill has been passed and is in place.. So, for example, we identified the additional promotional and educational work that we will need to undertake and, through comparisons with what we have been doing under the existing regime under the existing Privacy Act, and looking at the types of educational promotional activities there, we tried to work out a scenario by which we would need to undertake certain functions of the same nature to a much broader sector. So we have been building up resources in our education and promotional area.
We have also recognised that, as the commissioner has pointed out, we will have a significant function in the production of guidelines, policies and policy advice to the private sector organisations. So we have been building up a number of staff in our policy and advice area as well in recognition of the work that would need to be undertaken through code development and guidelines.
We did some projections for our complaints area, based on the process of dealing with complaints that the office has received over the 10 years of the current act and also trying to look at some comparisons in other jurisdictions. To do that, we looked at what has been occurring over the past five years in New Zealand. We have looked at similar bodies such as the human rights commission and other state jurisdictions to estimate the potential quantum of complaints that would come in and the staff we would require to do that. So we have certainly been attempting to project the figures for staff we would need over the next 18 months to two years, given the new responsibilities that will be coming on.
Senator LUDWIG —We might go through that shortly, then. How many complaints do you think you will receive? You have gone through and made that overseas comparison, and you have then used that—as I understand you have been telling me—as a projection to work out your costs and staffing. How many have you then said that you are likely to get?
Mr Pilgrim —If I could just answer that in regard to what our experience has been in the office since its inception: we can expect that there will be a natural peak in complaints. For example, in the first year of operation of the current Privacy Act, the office received approximately 21 complaints, going up to 59. The greatest number of complaints that the organisation received over the last 10 years was in the years following the 1991-92 financial year and 1992-93. It reached a peak of 254 complaints in the year 1992-93. This followed the introduction of the credit reporting provisions within the Privacy Act. We took that at the high point for two reasons: it was the high point of a number of complaints in the organisation, but also the introduction of the credit reporting provisions was the first time that the organisation had to deal to a great degree with the private sector.
We looked at those figures and at the same time we looked at the figures that the New Zealand Privacy Commissioner's Office received. That office has always covered both the private and the public sectors, so we thought it would be a good indication. Just to give you a rough idea: the Privacy Commissioner's Office in New Zealand received, in about its second year of operation, 550 complaints. I would qualify those sorts of figures by saying that our approach to handling complaints is somewhat different. The New Zealand Privacy Commissioner, for example, takes on board all complaints that come in to the organisation and deals with them as a formal investigation. The way we prefer to approach complaint handling is that in the first instance we would like to encourage the individual to try and deal with the matter, or settle the matter, with the respondent. If that fails, they are at right to approach our office and then we make a determination whether we will formally investigate the complaint or not. A number of complaints manage to be resolved at that initial contact, when the individual goes to the respondent organisation. An example of that is that, following the 1992-93 year, the complaints to our organisation decreased considerably, so that in 1998-99 we handled a total of 131 formal complaints. Those are the ones that were formally presented to our organisation.
Senator LUDWIG —To come to the fire point: if New Zealand has 500-odd and this is the first year of operation, as a proportion of their population as against ours, do you expect 1,500? What have you actually put on your chart as to how many you think you will get? That is the nub of the question. What have you written down?
Mr Pilgrim —I would have to go back and check those initial figures. I just do not have the figures for our initial calculations at hand.
Senator LUDWIG —All right. In those other earlier answers, you referred to your function as being to provide information. Does that include pamphlets and newspaper advertisements about your new functions? Is that the sort of campaign you are going to run? Can you give us an outline of the type of campaign that you will run?
Mr Pilgrim —As I was mentioning, in our strategic plan—and this is not a plug for our strategic plan—we have set out the process by which we would like to start to work with the community more broadly. As I have indicated, we will be dealing through consumer groups to a great degree, and associations. Naturally, if we were going to run a campaign to get to the whole community it would be an extraordinarily expensive process to a greater degree, so we want to try and use mechanisms and processes, networks that are already there, to try and get information out as best as possible.
One of the ways we would like to do that initially is to target those areas which are going to have the greatest immediate impact. So we are looking at working with various sectors, such as the health sector and some individual business groups, to start to develop more targeted processes for getting an information campaign out to the community. Naturally, we are taking into account and looking at processes for getting information to the general public, but at the moment we do need to be a little more targeted. At this stage, as you would be aware, the bill is before the House of Representatives committee. We will be waiting to see the outcome of that to get a firmer idea of when the bill will pass, because a lot of the information we will need to disseminate is going to be based on legislation which has not been finalised yet, or through both houses of parliament. We will be relying on working with a lot of existing associations and networks, to get information out to the general community.
Senator LUDWIG —How much have you budgeted for the information campaign that you have talked about?
Mr Pilgrim —I have not got an actual figure with me at the moment. I will take that on notice.
Senator LUDWIG —Does that come out of the $1.1 million?
—Sorry, Senator. When you look at our budget, the $1.5 million for the coming year that we have received has been allocated for the private sector scheme. However, what we are doing is looking at all the functions of our office and we will be pooling the resources that we have and making sure that we identify, through a risk management process, where we need to focus our campaigns the most. For example, if you take it into account that the existing Privacy Act has been in place for 10 years and, at the most, we received last year 151 complaints, generally speaking privacy is being treated exceptionally well—or the issue of privacy is being handled quite well—by the Commonwealth sector. So we would look at that as not necessarily being a major risk for us. That then allows us to reassess, through our strategic planning process, where we best focus our resources. That has been part of the process we have been working through recently.
Senator LUDWIG —So you do not intend to run a general campaign or information service to the wider community, at large, about the new functions. Is that right?
Mr Crompton —As the deputy commissioner has been saying, we need to reach at least two types of people: organisations who are using or collecting personal information, and individuals themselves. We need to target each of those types of groups equally well. We will be using networks to reach of them. We are already beginning to raise our profile through such things as the media; we have a web site where the number of hits regularly and consistently increases each month; it is going to be through a range, a web, of techniques rather than a single technique to raise the issue in the minds of both individuals and organisations. So we will be using the media, we will be using the Web, we will be almost certainly doing such things as pamphleteering. And we will be doing it in clever ways. We will not be putting a poster on every bus stop in Australia or doing a letterbox drop to every Australian citizen, simply because I do not believe those are cost-effective mechanisms for reaching people.
Senator LUDWIG —So the cost-effective mechanisms that you are talking about are the Web and pamphlets. Is that what you are telling me? That seems a bit disappointing, really, doesn't it? You would agree with me that it is an important issue.
Mr Crompton —Absolutely.
Senator LUDWIG —It is a new function that is being brought in, it is a significant change from where we have been before and the public have a right to know about it. You would agree with all of that, wouldn't you?
Mr Crompton —Most certainly.
Senator LUDWIG —And your response to that is that you are not sure how much you are going to spend on the information campaign but you will get back to me. You have then added that you think the networking system and perhaps the web site and perhaps pamphlets will be a mechanism to advise the general public about this, and that you will then do it in a cost-effective manner. Am I right so far? That is what you are telling me?
—I was giving you examples, rather than a strategy. I concede that we have not worked up a complete media or public education strategy, but, when you think that it may take the rest of this year for the legislation to get through the parliament and there is then a year's gap between when the legislation passes through the parliament and when it becomes enforceable law, there is a good length of time in front of us in order to both develop and implement that kind of education campaign. I believe that there are a number of complementary ways, similar to the way ASIC has used clever media techniques to get considerable coverage that it otherwise could not pay for, in which you can achieve an increased public awareness and understanding of the issue, what people's rights are and how they can get those rights addressed if there is a problem coming along.
Senator LUDWIG —Just on the strategy that you are talking about, did you develop options as to how those strategies were going to be put together and what strategy you then chose, and can you then tell us what mechanism you used to choose the strategy that you are now telling me about?
Mr Crompton —We sat down and did a strategic planning process, as the Deputy Commissioner has mentioned. We have essentially picked a technique of networking to delivering privacy solutions rather than directly reaching the individual people of Australia. We have four key result areas spelt out in that strategic plan. I am not sure if we have a copy with us, but I think I have one in my bag if you would like to see it?
Senator LUDWIG —Perhaps you could provide it to the committee so we can have a look at it as well.
Mr Crompton —Certainly. The four key result areas are essentially—
Senator LUDWIG —I am happy for you to take that on notice.
Mr Crompton —I was going to finish off by saying that the communication strategy is something that is about to be developed in the near future. I have given you examples rather than a strategy because as yet we have not finished developing the strategy.
Senator LUDWIG —All right, so you have not actually finished the strategy. What process did you then go through to develop the strategy that you have not finished off?
Mr Crompton —The strategic plan so far involved working with the leadership team in the office, with the office as a whole, making use of a consultant on a couple of occasions to make sure that we brought our thinking together. We have published the upper level of the strategic plan which we launched in March this year.
Senator LUDWIG —And that is what you are going to provide to the committee?
Mr Crompton —Yes.
Senator LUDWIG —What consultant did you use and how much did he or she cost?
Mr Crompton —It was the Value Creation group and I will ask the deputy if he has the figures for you.
Senator LUDWIG —I am happy to take those on notice if you do not actually have them in front of you at the moment.
Mr Pilgrim —We will take that on notice, Senator.
Senator LUDWIG —When you were in that process, did you consult the staff about the strategic plan, or consult with HREOC or any other agency, about how you then bring it together and put it forward—the communication strategy and the other bits that you have been referring to?
—One of the advantages of an office of our size of 30 people or thereabouts is that it is actually very easy to involve all of the staff, and we did that on a number of occasions. We have talked informally with other organisations, but we have not particularly brought them into a formal part of that strategic development planning process.
Senator LUDWIG —Have you considered talking to New Zealand or any other area where this type of legislation has been brought in to see what lessons could be learnt from their strategies that they have put in place to communicate, and the results of that?
Mr Crompton —We have, and they have been quite successful. For example, there was a meeting with the New Zealand Privacy Commissioner and with the deputy commissioner from the Hong Kong commissioner's office which we held in March this year. That is part of an ongoing dialogue with those people on how they are meeting similar challenges. I believe they have been quite successful in so doing. In fact, the Hong Kong people have been monitoring their impact on the people of Hong Kong over the three-year period since their legislation came into effect. By the measure of those surveys, they have actually been quite effective. So, yes, we are in continuous dialogue with the other offices around the region.
Senator LUDWIG —You also referred to the industry codes earlier. How many do you expect will be required for consideration for approval?
Mr Crompton —That is a really good question to which I have no answer. It may be only a small number of codes from the well-organised industries—for example, the insurance industry or the banking industry—and it may be that some of the other sectors, like the health sector, want a code of their own, so that we end up with a few fairly broad codes and that is all, or it could be that quite a number of industries or even businesses wish to come forward with codes of their own. It is an extremely difficult question to answer. The only better answer than that that I can give is that, at the moment, part of the outreach of this office is to get to know and to get known by as many different sectors of the economy as we can and that, as I talk to those people, I hear only a few of the better organised sectors keenly thinking about codes. But how they will go over the next year and a half before they can actually get a code is very hard to tell at this stage.
Senator LUDWIG —Have you gone out and asked any of those groups that you have referred to about whether or not they intend to seek a code?
Mr Crompton —Only very informally.
Senator LUDWIG —Do you intend to do that?
Mr Crompton —Absolutely. One of the things we clearly have to be in a position to do by the time 1 July 2001 comes along, or when the commencement date of the legislation comes along, is to approve codes on that first day, if that is what any bits of the economy wish to do. So we will have had to have spoken to potential applicants for code approval well before then.
Senator LUDWIG —What role did HREOC play in the development of the private sector legislation?
—HREOC includes at the moment the Office of the Privacy Commissioner, and the Office of the Privacy Commissioner has been the point in HREOC that has developed the national privacy principles in consultation with both privacy advocates and consumers and with other interested parties, both in the business sector and, for example, we did a consultation on the health issues in particular last year. So, yes, HREOC has been quite deeply involved in the preparation of the national privacy principles and has been consulted on the development of the legislation itself through the Office of the Privacy Commissioner.
Senator LUDWIG —So the short answer is you were consulted on the detail of the legislation or just on the principles?
Mr Crompton —We were consulted on a lot of the detail. We were not consulted on all of it, but that is the government's prerogative.
Senator LUDWIG —The bill, as you would be aware, contains a number of what I guess you would call significant blanket exemptions which apply to some important sectors. Some of those sectors relate to employee records in small businesses with annual turnovers of less than, I think, $3 million; journalism; registered political parties; and members of parliament. It begs the questions: has HREOC considered whether that is too broad, too narrow, whether the breadth of those exemptions is sustainable over time or they will be peeled back, whether that group is inclusive or exhaustive or intends to be built upon?
Senator Vanstone —Senator Ludwig, I might get some advice from the chair, and you might also be able to help. If there is not a lot of questioning on this line, Mr Crompton might be able to help, but, as I understand it, this bill you refer to now is before another committee. Is that right?
Mr Crompton —Yes.
CHAIR —Is it before a House committee, Minister?
Senator Vanstone —I think that is right.
Mr Crompton —It is the House of Representatives Legal and Constitutional Affairs Committee.
CHAIR —Mr Andrews' committee.
Mr Crompton —Yes.
Senator Vanstone —I do not know where it is on various notice papers, and I am not wanting to cut off appropriate questioning, but I am wanting to ensure that we just do not simply duplicate. If there is not much we would not be worried, but if you wanted a lot then I would want the standing orders checked to make sure which committee had priority and whether we should be doing it here—that is all.
Senator COONEY —Minister, you would not compare the quality of the House of Representatives committee with this committee?
Senator Vanstone —I do have a touch of guilt about even reflecting on that, Senator Cooney. You are quite right—they are not called the Lower House without good reason. Nonetheless, there are courtesies. I am just trying to get a grip on how much Senator Ludwig wants and whether we have to look at this question or not.
CHAIR —I understand the point you raise, Minister. Perhaps Senator Ludwig can give us some advice and at the same time we will check the standing orders.
Senator LUDWIG —You might want to look at the standing orders. I am not on that committee in the House of Representatives. I do not think I will refer to them as the Lower House.
CHAIR —Many do, Senator Ludwig.
Senator Vanstone —Yes, they do.
—Yes. In any event, I may fall into that trap over time. The questions I have will go to that area in some detail. I do not have an opportunity to ask those questions on that committee. I do not think there is a Senate committee, but I also would not want to foreshadow that there would not be one either. If we can deal with them here, then we can deal with them here. I do not know what questions they will ask in the other place and I do not know what line of inquiry they will make. I have about another three or four questions in this area and I think it is relevant that they be asked and answered.
Senator Vanstone —If it is three or four it is not—
CHAIR —Shall we pursue those Senator Ludwig?
Senator LUDWIG —We can deal with them and if it starts to take too long you can throw up your hands again.
Senator Vanstone —If it is three or four questions let us just get them out of the way.
Mr Crompton —I think the House of Representatives committee was given a terms of reference to look at this bill on the day the bill went before the House of Representatives on 12 April. Submissions were called for by 19 May and the first hearings were held on 24 May. I think the committee is due to report by 19 June. The next hearings are due on 2 June. We lodged a submission which is not, as of this morning, yet published on the web site for the committee but it is available on our own web site, which is www.privacy.gov.au, the only web site in Australia that you need to visit on privacy matters.
CHAIR —Thank you for the advertisement Mr Crompton.
Mr Crompton —Much more seriously, the submission is on our web site. We have physical copies with us here which we could also give you, if that is what you preferred.
Senator LUDWIG —That would be helpful as well.
CHAIR —That would be very helpful thank you.
Mr Crompton —The submission addresses a number of issues. First of all it comments that the framework for this legislation is good. Both the principles and the way the legislation will be put in place is good and it takes into account an extraordinarily fast moving, dynamic area of world economic development, namely, the information economy, and it begins to address some questions on how you regulate it. Of course it addresses also the various exemptions in that submission, and we gave evidence at the hearings on 24 May.
Senator LUDWIG —Coming back to the original question, do you think the blanket exemptions are sufficient or do you think there should be more or fewer?
Mr Crompton —In each instance in our submission we commented on the exemptions. We suggested that the political exemption, for example, needed very careful consideration, suggesting that it was not yet clear as to what the problem was that needed to be addressed by an exemption but that the exemption in its current form appeared to be too broad; and that when we had a better understanding of what the problem was that the exemption needed to address then perhaps a more finely targeted exemption could be developed. For example, the current exemption puts the individual Australian in a particularly interesting position.
The political parties in particular are simply not defined as organisations. For that reason the act simply does not apply to political parties. It would have what I believe are unintended consequences. In particular, the bill would give individuals the right to see information held on them by a business but not information held on them by a political party. If the information held by a business is wrong, then the bill would allow a person to have that incorrect information corrected. However, if incorrect information is held by a political party then the citizen would not have any right to get that information corrected.
Political parties at the moment in the bill as constructed would be able to collect information for any purpose they choose and do with it anything that they chose including selling that information to businesses. I am sure that that is not the intention of the drafting of the bill but it does appear to be as though the bill delivers that kind of result. As I said, once it is clearer as to what the intention of the exemption is then I believe a more finely crafted exemption could be developed but I would have to say that I believe that—as I have said in a submission—if we are to have a community that fully respects the principles of privacy in the political institutions that support them then these institutions themselves must adopt the principles and practices that they seek to require of others. I firmly believe that political organisations should follow the same practices and principles as required of the wider community.
Senator COONEY —I suppose, though, that any customer might not be a good customer, but any vote is a good vote I think you would probably find, Mr Crompton.
Mr Crompton —I am sure it is.
Senator LUDWIG —In terms of small business, which is perhaps an interesting issue itself, exemption will apply, as I understand it, for those with around the $3 million annual turnover. Have we had a look at what portion of small business will then be exempt from the operation? In other words, have we knocked out all of small business, half of small business or a quarter of small business? Has any work been done to determine exactly who will be in and who will be out?
Mr Crompton —I have not. I am not the drafter of the legislation. That question was asked and taken on notice by the Attorney-General's Department, which did help with the drafting during the House of Representatives committee process. I am sure they will be able to help you better with that answer.
Senator LUDWIG —Yes, I have that question to ask them as well, but rather than get it bounced back to you when you had gone, I thought I would ask you now.
Mr Crompton —The Attorney-General's Department took that question on notice at the House of Representatives committee hearing.
Senator BOLKUS —What was the answer?
Mr Crompton —The Attorney-General's Department will provide it.
Senator BOLKUS —Can we ask, Mr Crompton, when we will get this answer? When will it be provided to the House of Representatives committee and can we have it now for this committee?
Mr Cornall —I will have to make inquiries. I cannot answer that immediately.
Senator BOLKUS —Can you get back to us after lunch on that?
Mr Cornall —We will make inquiries straight away.
CHAIR —Thank you, Mr Cornall.
—That comes to my next question. We now know that there will be an exemption proposed. We know that it will apply to small businesses with an annual turnover of approximately $3 million if the bill is passed in its currently unamended form. How will the consumers then know whether the business they are dealing with is in or out? How is that intended? You have already talked about an education campaign dealing with the web and pamphlets, but when we get down to tintacks, how will an ordinary consumer be able to understand whether the business that they are dealing with is caught by the proposed legislation or not?
Mr Crompton —It will most certainly be a challenge. As I have said in the submission to the House of Representatives committee, an important policy objective of the bill is to allow people to engage in electronic commerce, confident that their personal information will not be misused. The small business exemption may prevent that objective from being achieved. The policy objective of the exemption itself, which is to minimise compliance costs for small businesses, may also not be achieved because not only may it be more complicated for individuals to understand whether their personal information is protected by law or not, depending on which business they are dealing with, but also the compliance costs for small businesses themselves will go up as well.
Senator LUDWIG —So is it fair to say that in dealing with businesses, consumers are going to have—under this bill anyway—difficulty in terms of deciding whether or not the information they provide is secure and not misused or on-sold?
Mr Crompton —Our submission points to that as being a challenge, yes.
Senator LUDWIG —Do you think there would be any benefit in encouraging businesses to opt in? Your slogan is `good privacy is good business'. So even if they fall below the statutory threshold minima of $3 million annual turnover, or for any other reasons they are exempt, would you be able to then jump in—using your slogan, `good privacy is good business'—and say, `We do not want to misuse or on-sell your information. We want to be part of it'?
Mr Crompton —Indeed. There are a couple of ways that are in the bill that I have seen which would allow a small business to do that. One of them is the Attorney-General's regulation making power to bring other areas of small business within the coverage of the law. The other one is, again, the code development process that we talked about earlier. As I said before, the national privacy principles can be substituted by an alternative code, if I approve it. One of the tests of my approving such a code is that the code is demonstrably binding on the people who subscribe to the code, but there is nothing in the legislation which says that the subscribers to such a code need only be organisations that are by law bound to abide by either the NPPs or such a code. In other words, it might be that some bigger businesses or a bigger business organisation develops the code and I approve it, but there would be nothing wrong with a small business, as defined in this bill, from also subscribing to such a code. So there will be at least a couple of ways in which businesses, if they wish, can subscribe to a code and be bound by it. I agree with you—good privacy is good business, and I think we will find there will be at least some small businesses for whom there is considerable advantage.
Senator LUDWIG —Following that down the track further, if you have those groups—you have those that are bound, those that have code, and those that then voluntarily subscribe to the code—what would then be their appeal rights? In other words—
Mr Crompton —Whose appeal rights?
—If a consumer—and I presume it is the consumer that is put to task to do this, unless someone else will do it on their behalf—finds that there is a suspected breach under the legislation, and we say it is likely that there is one, how will those three different scenarios be addressed in terms of seeking to bring the company to justice about the matter?
Mr Crompton —The primary means of direct enforcement for a breach of the law that is set out in this legislation is that either myself, as the default code adjudicator, or an approved alternative code adjudicator, investigates the complaint. Therefore, under the small business exemption I suspect that one of the early issues I would have to address as a code adjudicator is whether the business or the respondent claims a small business exemption and, if so, I need to be satisfied that, in fact, that small business is exempted.
Senator LUDWIG —And how would you do that? What powers will you have to be able to determine the $3 million turnover and the cut-off?
Mr Crompton —As I understand it, the legislation, for example, sets out how I would test whether a business meets or fails the $3 million threshold which is based on the same concept as used in some of the GST legislation. But the construct of the act is that it provides a basic law that covers all businesses. It exempts small business operators but then it adds back a certain group of people—for example, organisations that trade in personal information, or organisations that are offering health services and hold personal health information. In those circumstances, I would have to make sure that the organisation that wished to claim the small business exemption passed those various tests, and I would have to use the powers that I have under the act to get answers to questions to allow me to satisfy myself as to whether the organisation is exempt.
Senator LUDWIG —So consumers effectively do not have the right. They have to encourage you to take the action and you would then take the action?
Mr Crompton —The consumer would be complaining to me. Then it is going to be up to me, I think, rather than the consumer, through a complaint handling process, to work out whether a business which claims the exemption, in fact, can rightfully claim the exemption. That is possibly a different question from the one I think you might have been asking earlier which is when I shop, or when I transact, how will I know whether the business that I am dealing with is covered by the law? We are now dealing with a separate issue of handling complaints.
Senator LUDWIG —Yes. I am moving through the circle of just how it works and I have got a few more questions about that. What happens then? Is there the ability for the consumer to take administrative decisions to judicial review if they are unhappy with the determination that you have made? For argument's sake, if you determine not to pursue and that then becomes an administrative decision, as I would understand it—but I am happy to be corrected—can the consumer then challenge your decision?
Mr Crompton —I think the answer is, yes. We are now moving towards a level of detail—
Senator LUDWIG —I am happy for you to take this on notice. It is important for the consumer, I think, to know this, and I think you would agree with that. Consumers should know their rights and know what they can actually do by encouraging you, and if you are not encouraged in the right direction, they should have a fair means of ensuring that they have exhausted all possible avenues to do that.
Mr Crompton —Administrative review legislation will cover my decisions, yes.
—We talked about the business that have got the $3 million and out, so you then determine that they are not covered by the privacy legislation. The one that is covered by the proposed legislation you then go through the adjudication process after a formal complaint. What happens then with the two scenarios—I guess nothing if they are not guilty, if there is no breach suspected—if there is a breach and you then take action? Is there an ability to seek compensation to order the company to pay damages? What avenue do you have available to you to redress the wrong?
Mr Crompton —Sections 41 and 52 of the legislation are likely to be the most commonly used parts of the legislation to right the wrong. They allow me to, if necessary, make a determination that compensates the individual for whatever has gone wrong.
Senator LUDWIG —Can you also then ask the company, or whoever it might be, to fix the information that is held?
Mr Crompton —One of the things that has happened through the last 10 years of this legislation is that mostly the measure needed to put things to right is not a monetary measure. It is such as making sure that the agencies' information is corrected or that access to the information is given or that, sometimes, an apology is provided.
Senator LUDWIG —If they do not, what ability do you have to compel them to do it?
Mr Crompton —We would proceed to the Federal Court and seek enforcement. But we have never had to in the last 10 years and that includes about eight years of coverage of the credit sector.
Senator LUDWIG —So you do not envisage the individual doing any of this? You envisage that you would, acting on a complaint, exhaust all these avenues as you saw fit?
Mr Crompton —I would expect to. I repeat, though, that in the 10 years of operation to now we have not had to seek court enforcement. When I combine that with the comment that you made before that good privacy is good business, one of the things I am saying to everybody I talk to at the moment is that I am in the business of helping business do business right under this regime for as long as a business will let me do so, but I will stop businesses doing business wrong if they force me to do so. Examples that you can see in the press, and most especially in America, would suggest that adverse publicity in this area about mishandling of people's personal information is very damaging to a business. One of the approaches that I will certainly be saying to a business is, `I am going to be very happy to talk publicly about your business, particularly if it is not doing the right thing. But I would also be very happy to celebrate with you that you are doing the right thing if that is what you wish to do.' I do believe that that will be a very effective mechanism in the circumstances of the odd recalcitrant. I repeat that up to now we have not had to go to the courts to seek enforcement.
Senator LUDWIG —In respect of the company which has voluntarily adopted the code but which might otherwise be exempt, what happens to them if the individual makes a complaint?
Mr Crompton —One of the things that, as I said before, will have to be a characteristic of a code before I can approve it is that the code is a binding code—that it binds the organisation. So I guess that an organisation that did not have to bind itself to the code would need to give some thought to that before it bound itself to the code.
Senator LUDWIG —So it would be fair to say that you envisage a situation where if a code were to be produced and a body were to bind itself to the code then its members, although they might otherwise be able to claim the exemption, should then be bound and they should then statutorily obey the code. Is that what you are telling me?
Mr Crompton —It is a degree of detail that, frankly, I have not yet thought through.
—I am happy to have your view about that on notice; it is a very important issue. People should be able to understand from a consumer point of view that, if there is going to be a code the body is going to pick up the code and their members are then going to promote the code—as they would—and say, `We are good privacy, good business.' Then, when an individual makes a complaint, they would not otherwise end up at your counter being told, `This business is exempt and therefore you have no right of recourse.'
Mr Crompton —Are you saying that as of yesterday we left the code? The deputy would like to elaborate.
Mr Pilgrim —I would just like to add to that. Should an organisation at one stage—assuming they are not a small business—be exempt, if they are part of the code then the individual will have a right to complain to that code adjudicator, should it exist. Should a business that is part of a code decide to leave the code at any stage—and remembering that they are not a small business—then they immediately fall back under the jurisdiction of the Privacy Commissioner into the default scheme. So the individual then has the right to come to our office to complain.
Senator LUDWIG —Yes, but I am talking about a small business that is exempt and the code then applies to the umbrella organisation.
Mr Crompton —We may need to get advice from the drafters or legal advice but—
Senator LUDWIG —You see the point I am making?
Mr Crompton —I hope that I see the point you are making. But I think that, with an organisation that has, if you like, voluntarily joined such a code, it may be beyond my powers to then try to bind them to the code even when they want to leave the code. Maybe I can encourage a code that has only annual renewal so that, at least for a year at a time, you know that they are in the code, but I am not sure that I could force that under the provisions of the bill. That may be something that the people who have drafted the bill could answer.
Senator LUDWIG —Yes, you are coming at it from a slightly different perspective. What I am effectively saying, though, and what concerns me, is that a gap might otherwise exist where a code will bind its members but not all its members because they will be able to claim exemption. Even if they do not claim exemption, they may say, `Yes, we voluntarily bind ourselves to the code; we've got no doubt; we subscribe to the code, but the act doesn't apply to us, and if we've transgressed it, you do not have a basis for a complaint.' Does that concern you—because the individual consumer, since they will not have inquired into whether or not the business is exempt, will accept and enter into a contract or an arrangement, or provide information to a business that is showing its label as saying, `I am bound by the code', and then find out that in truth there is no right of redress? That is the point I am getting to and seeking your view on.
Mr Crompton —I am not the person who administers the Trade Practices Act, but if a business had claimed that it was covered by a code at the time it made the sale and then later on denied it, there may well be elements of the trade practices legislation that would come into play.
Senator LUDWIG —I do not think we are going that far. I am simply saying that the business might say that it is a member of the code, and that is a truthful statement as far as I am aware. But the privacy legislation will not apply if they have an exemption.
—The privacy legislation would not, but the code would if they had bound themselves to the code.
Senator LUDWIG —And then what would be the right of redress? What could you then do?
Mr Crompton —With a separate code, there are two options available under the act. One of them is that I am still the code adjudicator for that separate code, or in fact the code includes a separate code adjudicator. If it were a separate code adjudicator—for example, the banking industry and the banking industry ombudsman became a code and a code adjudicator—then it would be the banking ombudsman who would handle it. Then another code format could come along where it is a separate code, but I would be left as the code adjudicator. So, if the company, the otherwise exempt small business, had bound itself to a code, I would examine the complaint.
Senator LUDWIG —And then you have all powers that you would otherwise have if they were not exempt—to enforce a breach if there were a breach? If you are not sure about that, please take it on notice.
Mr Crompton —I think it is time to take that one on notice.
Senator LUDWIG —You can see where I am going to. Presumably once the codes are set up, you expect that the industry groups would have complaint handling processes involved—I think that is one of the requirements. Is that correct? In other words, you want, in essence, the industries themselves under the codes first to deal internally with matters that arise under privacy concerns through an internal complaints process?
Mr Crompton —My objective is to make sure, in terms of economic activity that is covered by the legislation, that the code and the code complaint process work properly and well, whether that is the national privacy principles or a separate code with me or somebody else as the code adjudicator. It is for me to facilitate it to happen. But I must admit I have lost the point of the question.
Senator LUDWIG —If there is a code set up, you would expect that there would be a determination process or a complaints handling process within that. If the body then makes a determination that is adverse to the consumer, what powers do you have then to intervene to correct that? In other words, the consumer says, `I went to the industry group under the code. They internally dealt with it and I got an adverse determination. I am still unhappy.' So they have ended up at your counter. Can they make a complaint to you about that and then what can you do about it? Can you investigate the determination process to see that it was fair, just and equitable in all the circumstances and that it did not offend any of the privacy legislation? That is where I am going.
—Okay. Part of the construct of the law, of the light-touch approach, is that there was intended to be really only one stop for having your complaint handled. Either the Privacy Commissioner handled the complaint or the code adjudicator handled the complaint. The Federal Court would be available to enforce the decision in either circumstances, but it was intended, as I understand it—and maybe, again, ministers or the drafting department could help you further—that the process be as simple as that and that the Federal Court not be asked to buy into the matter. As I understand it, there are some constructs in the legislation that seek to move in that direction—for example, certificates of evidence. Therefore, if a code adjudicator makes a decision, I am not in a position to come in over the top and review that code adjudicator's decision, just as there is nobody who can come in over the top of me and review my decision if I were the first line decision maker. The legislation does provide for me to both approve and revoke codes and for me to approve and revoke code adjudicators. As I understand the construct of the bill, I can seek to revoke at either of those two levels at any time. If I am seeing, if you like, systemic behaviour that is coming out of a code and, more particularly, a code adjudicator that I do not like, I can approach that adjudicator and say, `I would like to review your code and I am thinking about revoking that code,' but it is at the systemic level, not at the individual complaint level. There is a mechanism in the legislation for complaints to be transferred from an adjudicator to me, but that is not an appeal process so much as where, for example, it might be unclear as to which code applies or there may be some other reason as to why it should be transferred to me. That is not an appeal process; it is a transfer process.
Senator LUDWIG —Are you happy with that process or would you prefer to be able to intervene?
Mr Crompton —It is one of many reasons why I think the announcement by the Attorney that there be a review after two years of operation of the act is the right way to go. I think we have got to come back to the seriousness or otherwise of the matter as we have seen with the personal information of the people of Australia up to now. We have seen 10 years of operation of the Privacy Act in the public sector; we have seen about eight years of operation of the Privacy Act in the credit industry. Yes, there have been complaints to be handled and, yes, those complaints have pretty well always been handled very satisfactorily, with low levels of money involved or no money at all because it was not a monetary issue.
This has not been the big end of town when it comes to handling complaints. My objective in this law moving out to the private sector is to keep it that way. We will have done well if the issue of people's personal information remains for people in this country a background issue. And if it remains a background issue, then the complaints will be fixed in a quiet way, in a direct way and in a way that does not involve having to walk off to the Federal Court to seek enforcement or anything like that. But we only need to see two years of operation to get a feel for whether that wish of mine will come to pass or not.
Senator LUDWIG —I guess I get the chance to ask you that again in two years. Coming back to the actual process itself—and I will abbreviate it—the individual comes to your counter, you then turn them away if there is no complaint or you dismiss it after the usual process—
Mr Crompton —I am sorry. Are we talking about a complaint that has been made to me—
Senator LUDWIG —Yes.
Mr Crompton —or to an adjudicator?
Senator LUDWIG —We will leave the code aside for the moment. What right of appeal do they then have of your determination?
Mr Crompton —They do not have a right of appeal. They could—
Senator LUDWIG —Do you review? Can they ask you to look at it again?
Mr Crompton —I am sorry?
Senator LUDWIG —Is there any review process?
—There is not a review process built into the legislation, but on a number of occasions when an individual has not been happy with the first response from my office, they have approached us again and, yes, we have reviewed the initial decision by the office within the office.
Senator LUDWIG —In terms of a company, where you have made a determination that is adverse to them do they have a right of appeal?
Mr Crompton —There is no right of appeal built into the legislation as a right of appeal.
Senator LUDWIG —So you are saying that in relation to a decision by you in respect of the company—in other words, where they have been investigated by you and been found to be in breach and you have then made a determination—the company does not have a right of appeal against that determination. But they can take it off to the Federal Court, can't they?
Mr Crompton —Yes.
Senator LUDWIG —But in the legislation before you there is no process other than taking it off to the Federal Court—is that what you are saying?
Mr Crompton —Correct.
Senator LUDWIG —But the individual cannot—if you turn them away, they cannot take you off to the Federal Court, or can they? By all means, if you are not sure, please take it on notice. I am trying to get a balance, that if your privacy legislation is going to be put in there is a balance between the rights of corporations and the rights of consumers, and that it is a fair balance, not lopsided.
Mr Crompton —There are two levels of answer that I am driving at there. One of them, which I am sorry I did not say to you before, is that one of the things I could do if I thought the complaint was vexatious is just simply set the complaint aside and not proceed. That decision of mine could be reviewed using the ADJR legislation. In other words, the individual who felt that I should not have set it aside because it was vexatious could proceed against me on that basis.
The other thing I would come back to that I mentioned before is that I believe we should also think about the materiality of the issue, that we have had 10 years of experience with this legislation up until now and it has not been necessary to proceed to the courts to date, including regulating one part of the private sector. So, yes—
Senator LUDWIG —The short answer is yes, the corporation can take you to the court if they are unhappy with the decision; the individual has only got the ADJR.
Mr Crompton —Which is also a Federal Court process.
Senator LUDWIG —Yes—providing cross-vesting legislation is still supporting it, but that is another question for the Attorney-General.
Who bears the costs of these things that we are talking about? With the individual's complaint, is there any cost should it either be dismissed or upheld? If it is frivolous or vexatious, can you order them to pay? By all means, take it on notice if you need to. I am looking at the two sides again, the individual and then the company, as to what happens about costs.
Mr Crompton —I am pretty sure it is an own cost jurisdiction and, therefore, if I were taking the proceedings the individual would not have to meet any costs.
—So if you took an individual's complaint and you thought there was some validity in it and you pursued a corporation for it, as far as you are aware nothing would accrue to the individual. It will be your cost and your expense that will be expended in pursuit of good privacy.
Mr Crompton —One of the things where money has changed hands in the past, in fact, has been where an individual got legal advice in terms of constructing their complaint to me or before I get to the point of handling it. We have included in the compensation a figure that meets the legal expenses.
Senator LUDWIG —And then for the company its own costs as well?
Mr Crompton —Yes.
Senator LUDWIG —Do they have the right, if they are successful in challenging you and finding no breach—for argument's sake, that it was not a valid complaint, or at least there was no basis in it, or on the balance of probability there was no breach—then who bears that cost? Can they pursue you for the recovery of those costs?
Mr Crompton —Not as far as I am aware. I think the deputy might know more than me.
Senator LUDWIG —But by all means, take that on notice if we are not sure.
Mr Crompton —Yes, we might take that one on notice, I think.
Senator LUDWIG —Then, of course, if we go into the Federal Court, that becomes an entirely different matter, doesn't it, where costs obviously can be recovered? The costs would follow the event, as I understand it, but if I am wrong about that by all means correct me. I do not have any further questions about that area so if anyone else has some particular questions about that particular area it might be a good time to ask them now and move on to another area.
Senator COONEY —As I understood it, you say you have $3.4 million available in the next year to carry out the work that you have to do. Am I correct in saying that?
Mr Pilgrim —I think the figure for the coming financial year will be somewhat higher than that. There are a number of smaller areas which we get additional funding through—for example, through the data matching act we have an arrangement with Centrelink where we get an additional $331,000 and we have an arrangement with the ACT government where we provide privacy protection for ACT government agencies and they provided us with funding in the last financial year of approximately $79,500. So that does take the total budget of the organisation up somewhat above the $3.4 million mark, but in roundabout figures, yes.
Senator COONEY —About $5 million?
Mr Pilgrim —Approximately $4.1 million.
Senator COONEY —All right. Are you going to have a presence throughout Australia?
Mr Pilgrim —No, it is not our plan. We have the bulk of our staff, approximately 30 of them, in Sydney in the accommodation we share with the Human Rights Commission. We have a small office here in Canberra with approximately five people, and their primary function is to undertake the data matching work as well as the work for the ACT government.
Senator COONEY —What about in Adelaide and Perth?
Mr Pilgrim —We have no other presence in any other state.
Senator COONEY —And it is not intended that you will?
—It is not intended at this stage. I would just add to that that we handle complaints nationally for the Commonwealth in the credit area and we certainly get complaints from all over Australia and we have not found it a problem to be based in Sydney.
Senator COONEY —You have not found it a problem?
Mr Pilgrim —No. And I would add that from our feedback from clients and people who have lodged complaints there have not been any major concerns expressed to us by any members of the community.
Senator COONEY —On the planning you have done have you presumed that there will not be any problems with people—say, an employee in the workplace—getting in touch with you?
Mr Pilgrim —We have fairly good contact lines through our hotline and we certainly do have appropriately trained staff to answer inquiries. I would add that we get regular inquiries, approximately 8[half ] thousand a year, generally about privacy issues and we have not had a problem in getting information back. Should a complaint be of such a nature that it may warrant us dealing with it face to face, then we would certainly undertake to travel to interview that person if we believed it was necessary to do that, or to interview anyone else in regard to the complaint.
Senator COONEY —Have you ever thought why we have Federal Courts in each capital?
CHAIR —I'm not sure that is a question for Mr Pilgrim, Senator Cooney.
Senator COONEY —I think it might be.
Mr Pilgrim —I must admit it is not something I have pondered on lately.
Senator COONEY —Unless it is the government that is restricting you to Canberra. Have you got a presence in Melbourne?
Mr Pilgrim —No, only Sydney and a small office in Canberra, Senator.
Senator COONEY —That is all?
Mr Pilgrim —That is all we have. We are only 35 staff.
Senator COONEY —Is it your understanding that will remain much the same when you take on business from the private sector as well?
Mr Pilgrim —Yes, our intention is to remain in those two sites for at least the next of couple of years anyway. We will not be growing that much that we would be able to have, I would suggest, a useful presence in other state capitals.
Senator COONEY —As you understand it, nor does the government have any problems with that; There is no concern that people in Perth may be troubled by that?
Mr Pilgrim —In the matters that we have been dealing with from other states, such as complaints we may have received from Western Australia, we certainly have not been given any feedback from the complainants that they had a problem with the way we have dealt with them—be that over the phone, or be that through written correspondence. We do encourage complainants to let us know how they have found the service we provide them.
Senator COONEY —You will cover under the new scheme, I suppose, tenancy organisations which you do not cover now?
—The answer to that question is yes, as long as the business that we are dealing with is not covered by the small business exemption. I was just going to say that the importance or otherwise of being in Sydney is measured by the fact that the amount of face to face contact that we have with the people of Sydney is similarly low. Our hotline phone number, 1300 363 992, or our web site, or contact through the media generally, be it newspapers or the radio or the television, are at the moment our main ways of raising consciousness around the countryside. We end up with contact and presence in the media and all of those media in all of the cities. We do not actually do any counter work in Sydney in terms of dealing with people face to face, so I am not sure that there is a particular advantage to the people of Sydney in the fact that that is where the office is located.
Senator COONEY —That is your considered opinion?
Mr Crompton —The evidence that I have at the moment, yes.
Senator COONEY —You cannot see that, say, some tenants or some students, or what have you, that have problems with privacy are not going to be disadvantaged by having to ring, say, from Melbourne, Hobart, Darwin, Perth?
Mr Crompton —The 1300 number is the same number and the same price all over Australia.
Senator COONEY —So that is your answer to that question, is it?
Mr Crompton —Given that our main form of contact with any Australian at the moment is either the web site or the telephone in terms of them getting in touch with us, it is equitable across the country, yes.
Senator COONEY —Do you mean equitable, or do you mean equal?
Mr Crompton —Certainly equal.
Senator COONEY —Have you kept in touch with the European Community about this issue?
Mr Crompton —The privacy issue, do you mean?
Senator COONEY —Yes.
Mr Crompton —We have some contact. There is the annual conference of privacy commissioners, for example, which I attended for the first time last year. We have periodic contact with the delegation of the EU, which is here in Canberra.
Senator COONEY —Are they happy with the way you are going?
Mr Crompton —In terms of the construct of the legislation, or the conduct of my office?
Senator COONEY —The conduct of your office.
Mr Crompton —They do not comment on things like that.
Senator COONEY —What about the construct of the legislation?
Dr Brown —I believe that the Attorney-General's Department has had much greater contact with them than I have.
Senator COONEY —So there is nobody who has commented upon the way the office is run and where it is located from outside Australia?
Mr Crompton —I am unaware of such comment, but the deputy may have something to elaborate on that, I do not know.
—I am not aware of anyone externally, certainly from overseas, commenting on the way the office is run, but I would point out that while it is a much smaller nation New Zealand has a Privacy Commissioner, as I have mentioned before, and he is predominantly only in two locations as well—granted it is a much smaller country. The Canadian Privacy Commissioner has one office as well. He is not based, but there are regional commissioners for each of the provinces in Canada which are a separate jurisdiction. But at a federal level there is only the one office in Canada, and similarly with the United Kingdom.
Senator COONEY —If you have a court case in the Federal Court in Perth, for example, how are you going to conduct that? Are you going to fly people over or what is going to be the situation? How are you going to get the evidence together? Have you thought about that?
Mr Crompton —If it required our presence over there then presumably we would go over there.
Senator COONEY —How much of the budget would that take if you had a Federal Court case in Perth against a big store or a big company over there?
Mr Crompton —I have not costed a particular scenario like that.
Mr Pilgrim —I would add that, given the history again of the Privacy Act, we have only ever had to appear before the Federal Court on one occasion—that was for an ADJR matter. There has been only that one occasion.
Senator COONEY —So you are presuming that the private sector is going to react in the same way as the public sector. That was Senator Bolkus's contribution to privacy—was it the credit reference agency? You brought that legislation in.
Senator BOLKUS —I think it was in 1987. It was very strenuously opposed at the time. But the people answering questions are over there, not over here!
Senator COONEY —What I am putting to you is this: you seem to be saying—I was listening to your answers to Senator Ludwig as well—that there is not going to be much difference between the way the public sector reacts and the way the private sector reacts. The only experience we have got with the private sector is the credit reporting agency, and it seems to me that you might be being a bit precipitous to say that the private sector is going to react in exactly the same way as the public sector—but that seems to be the basis upon which you are going forward.
Mr Crompton —There is very little evidence, obviously, until it starts as to what happens.
Senator COONEY —But do you agree with that proposition that that is what you are doing?
Mr Crompton —Yes. In the consultations that I have all over the place I get a sense that that is how most of Australian business is going to approach the issue. I do not sense that they are shaping up for a fight.
Senator COONEY —This is a `trust you' situation, is it? They say, `Trust me, Mr Crompton', and you say, `I will'. Is that right? That is what you have just said.
Mr Crompton —I believe that the `good privacy is good business' argument will work.
Senator COONEY —So you say market forces will work?
Mr Crompton —They will certainly be on our side.
Senator COONEY —Will they work?
—They will work many times. I do not believe that we will see that this will be regular front page material with us in the federal courts, no. I believe that most of the time market forces will clear the matter up, with me perhaps nudging it along when the complaints come along.
Senator COONEY —If market forces are so good why do we need you, do you think?
Mr Crompton —In my first speech I said that I think I would have done my job if nobody remembered my name at the end of my term because we had returned privacy to the fabric of people's lives rather than having it out in front of them.
Senator COONEY —It is a serious question. It seems to me that what you are saying to us is, `Don't worry. Market forces will keep business going.' If they do, why do we need you? I ask that in all seriousness.
Mr Crompton —It is an extremely good question. One of the answers is that in many circumstances you do not need a Trade Practices Act either and yet we do. There is always going to be the road—
Senator COONEY —You could hardly say that Allan Fels is retiring, that we do not see him in the newspaper every day.
Mr Crompton —Much business most of the time is not having to come up against the Trade Practices Act but there is always the rogue somewhere who does. I believe that we will see market forces dealing with the privacy issue in most circumstances in a similar way but there will be the rogue somewhere, and yes, I will have to address the rogue. But I do not believe that I have much evidence at this stage that it is going to have a dramatic impact on the activity of this office. Of the two determinations that have had to be issued by my predecessors both were actually issued against the public sector not against the credit industry.
Senator COONEY —I do not want to get into a debate. It is hardly reassuring to say that most businesses will obey the law. Of course they do. Most people obey the law. Most civil cases that you have before the court are settled—up to about 95 per cent. The whole process concerns the up to five per cent that do not conform. It is my observation but you do not seem to have taken that on board at all. Anyhow, I would just say that you should have a look at how the court is run, where business comes from and how they are dealt with. It might help.
Mr Crompton —I am expecting to have to be in court at some stage in the five years I am operating.
Senator COONEY —No, I am not talking about you going to court. I am talking about how you will come up against what you call rogue businesses. I am just simply saying that you seem not to attach much importance to that.
Senator BOLKUS —In respect of another matter of privacy, there is a proposal about the place to give Australians a PIN known as a unique health identifier, which has got some similarity with the issues of the past, I suppose, and could be used to access their medical records in every surgery, pharmacy and so on across the country. Have you had a chance to assess this proposal?
Mr Crompton —I think that is probably a policy matter.
Senator BOLKUS —No, it is a question to you. Have you had a chance to assess the proposal? It is not a policy matter. It is a direct question.
Mr Crompton —Yes, we have seen a cabinet submission.
—You may have seen a cabinet submission but has any agency come to you with a proposal to assess it separately from the cabinet submission?
Mr Crompton —Not in great detail, no, other than the cabinet submission.
Senator BOLKUS —But in some detail someone has come to you. Who was that?
Mr Crompton —The Department of Health and Aged Care.
Senator BOLKUS —When was that?
Mr Crompton —I cannot remember.
Senator BOLKUS —Do any of your officers know?
Mr Crompton —Within the last year.
Mr Pilgrim —We could take the exact date on notice, Senator.
Senator BOLKUS —Okay. What was the proposal put to you?
Senator Vanstone —Senator, I think that needs to be taken on notice and given consideration as to the context in which any discussions might be covered by cabinet-in-confidence. I think the officers are entitled to that capacity to consider those things. If you want to put all the questions down, I am sure we can take them on notice and give answers as appropriate.
Senator BOLKUS —Minister, I think there is some weight—not total weight—in your argument maybe at this particular stage of the debate. But I can ask the commissioner whether he had any reservations about that proposal. I think that that is something that officers should be entitled to answer, given the important position they have.
Senator Vanstone —I would think, Senator, that would not have been a view—and it was not, as I recall—when you were in government. Matters where advice has been sought that might relate to cabinet matters is not advice that is generally distributed freely at estimates committee meetings. I imagine that Mr Crompton's answer would be that he would take it on notice.
Senator BOLKUS —Minister, to the contrary, in fact when the Australia card proposal was put up, it was not just me on my side of the Labor Party who was opposed to it or the government but there were quite senior bureaucrats in positions similar to these persons who went public with their concerns about the proposal. I think, if this commissioner's position is to work honestly in the interests of privacy, then he should not be muzzled at this particular stage.
Senator Vanstone —I am not sure that you are asserting the government never claimed cabinet-in-confidence in relation to advice it sought from the Privacy Commissioner. I do not think you are asserting that. I just think that, given these can be sensitive areas, in relation to the issue itself but also in relation to whether the cabinet confidentiality rules are breached, public servants are clearly entitled to reflect on that matter and would probably therefore take a range of those questions on notice. That is all.
Senator BOLKUS —Mr Crompton, did you have any concerns with the proposal? I am not asking you what they were at this stage. I am asking you whether you had concerns.
Mr Crompton —Perhaps one way we can address your questions here is that a medical magazine, whose name I forget, approached us last week with some very similar questions. We wrote them a statement which I could get a copy of for you.
—Mr Crompton, I would have thought your accountability to the parliament weighed a bit more heavily than your accountability to some journalist in some medical magazine.
Mr Crompton —They asked me first.
Senator BOLKUS —They may have asked you first, but I am asking you now and I am not going to be fobbed off by being told to go and read a magazine. Did you have any concerns?
Mr Crompton —I am sorry, that was not what I was saying at all. I do apologise.
CHAIR —Senator Bolkus, I have to intervene here. I am sorry, Mr Crompton. That is not what Mr Crompton said. He did not suggest you—
Senator BOLKUS —Did you have any concerns, then? It is a direct question.
CHAIR —Senator, in responding to your question he did not try and fob you off by referring you to some magazine. He indicated that perhaps one way he could assist is by supplying you with an answer, or comments, that he supplied to a magazine recently.
Senator BOLKUS —That is right.
CHAIR —There was no suggestion in Mr Crompton's remarks—
Senator BOLKUS —That is my point of concern.
CHAIR —either that you should have to go and chase this material yourself, or, for that matter, that it was a lesser answer than would be given to parliament in any event.
Senator BOLKUS —Minister, we know quite well that quite often—
CHAIR — Mr Crompton is simply trying to ensure that he does not breach cabinet confidentiality rules, which is why you will find, if you continue with this, that public servants will take the answers on notice to give themselves time to consider the answer that they give you and probably to ensure that their own answers are not paraphrased back to them incorrectly.
Senator BOLKUS —Mr Crompton, do you understand that under your empowering legislation you have some degree of independence from government?
Mr Crompton —Yes, I do.
Senator BOLKUS —How does that relate to your role in assessing government proposals? Do you have a capacity to make comments on government measures publicly?
Mr Crompton —Of course I do.
Senator BOLKUS —In respect of this proposed measure, can you tell me if you have got any concerns?
Mr Crompton —The reason I have difficulty in answering your question is that I do not have, in the public gaze, a government proposal on which I can comment publicly.
—Okay. If, for instance—as the New South Wales Privacy Commissioner, Mr Puplick said yesterday—genetic information contained in electronic records could be encompassed in such a PIN capacity, would you be concerned about that?
Mr Crompton —I am sorry, I must admit I did not follow the question.
Senator BOLKUS —If the proposed PIN—unique health identifier—could give people access to genetic information contained in electronic records, as Chris Puplick said yesterday—that is if, for instance, you could access it through the PIN—would that be of concern to you?
Mr Crompton —It really depends upon the proposal. I would expect that genetic information would be particularly well protected. I have said so in public twice already. I have also said that the current proposals before the parliament are a base level of protection for personal information and that genetic information probably requires special coverage. So the security arrangements, the access arrangements and the law surrounding access to genetic information would require special protection. But I have not seen such a proposal.
Senator BOLKUS —Has your commission had a chance to assess whether internationally available security measures would be adequate to protect in this circumstance?
Mr Crompton —I have not been asked the question, nor have I addressed it.
Senator BOLKUS —So your body has not had a chance to assess the adequacy of internationally available security measures?
Mr Crompton —I may have to come back to you with an answer on notice to that one, but I am not aware that we have sat down and consciously either had that question put before us or assessed it.
Senator BOLKUS —Does Mr Pilgrim know?
Mr Pilgrim —I can only support what the commissioner is saying. To the best of my knowledge we have not been asked the question and we have not looked at it.
Senator BOLKUS —Have you addressed the question as to how to provide security at the user end, for instance—at the surgery, the pharmacy, the hospital end?
Mr Crompton —No. I have not been asked the question and I have not addressed it.
Senator BOLKUS —Have you been asked to look at the question of security of any aspect of such a proposed scheme?
Mr Crompton —Not that I can recall, but I would prefer to make sure we gave you the fullest answer possible so we will take that one on notice.
Senator BOLKUS —Mr Crompton, how could you say that this would be okay if you could put security measures in place when you do not know whether security measures are available?
Mr Crompton —My answer was: if there was sufficient security available.
Senator BOLKUS —Sure, but you do not know whether there is or is not at this stage?
Mr Crompton —It is certainly a necessary prerequisite before you do anything else, and at this stage I have not been asked the question and have not answered it.
Senator LUDWIG —On the Privacy Advisory Committee, at the last hearing I recall that there were only two members, that there were still a number of vacancies. Can you give us an update of where we are with that? Is that still the case or has that changed?
Mr Crompton —In relation to the current membership of the committee, I cannot remember when we answered the last question but, in the last year, Mara Bun, who was a member of the Privacy Advisory Committee, has moved on to another job and has resigned.
Senator LUDWIG —How many privacy advisory members are there now?
Mr Crompton —Not many.
Senator LUDWIG —One or two?
Mr Crompton —One of the positions is an ex officio position, essentially.
Senator LUNDY —So one?
Mr Crompton —That may be the case at the moment, yes.
Senator LUDWIG —Perhaps you could take that on notice.
Mr Crompton —Yes. The deputy may have the answers with him.
Mr Pilgrim —My understanding is that we have one member at the moment and that the Attorney-General's Department is starting the preliminary work to see about finding other members of the committee. There has been a turnover in the last 12 months of a couple of members. My understanding is that there is still one person who is a member.
Senator LUDWIG —Is that satisfactory, either Mr Pilgrim or Mr Crompton?
Mr Crompton —I would most certainly like to have a Privacy Advisory Committee to help me think the issues through.
Senator LUDWIG —That is not really telling me whether you think it is satisfactory or not. We would all like that, I think, but we have only got one member and I guess they would find it very difficult to have a meeting or a quorum. Perhaps you can tell me about that as well. Have they met since the last estimates hearing—and I guess it is only the one person—or are they waiting to find out what is going to happen?
Mr Crompton —The last meeting was on 22 September. When the latest person left we did not proceed with the meeting that we were going to have in December, and I must admit I do not propose to proceed with meetings until there are more members.
Senator LUDWIG —That would seem to be a wise decision to make, but when will there be more members?
Mr Crompton —That most certainly is a matter for the Attorney-General.
Senator LUDWIG —All right. You have not quite answered whether the situation you have at the moment is satisfactory, but let us review the facts. You have no next meeting, you have one member, you have had no meeting since 22 September and you do not know when further appointments will be made. I will ask you again: do you think that is satisfactory? It is a simple question.
Mr Crompton —I would prefer it if I had a committee with a full enough membership so that I could have a meeting, yes.
Senator LUDWIG —Is that your answer?
Senator LUDWIG —It is not very efficient, is it? If we take another tack, you are not going to be able to deal with the issues that are supposed to be dealt with in that committee and you are not going to be able to provide or obtain information from them, are you? That surely cannot be very satisfactory.
Mr Crompton —If the committee membership continues as it currently continues, I will use other mechanisms to obtain outside advice. The ability to obtain advice from outside of the office and to have dialogue with people outside of the office is critical to us getting our job done.
Senator LUDWIG —So it is critical to have that dialogue, but you are not prepared to say that the current state of affairs is completely unsatisfactory—or are you?
Senator Vanstone —Senator, I think you have already put that question to the officer and he has given you the answer.
Senator LUDWIG —I think this one is a slightly different question. Have you already looked at outside advice?
Mr Crompton —When we launched our strategic plan at the end of March, we specifically announced that we were seeking people to come forward and join networks that we were going to be establishing through the year.
Senator LUDWIG —So at this point in time you are accessing alternative means of outside advice other than through the Privacy Advisory Committee?
Mr Crompton —It is obviously at a more informal level, but it is continual—every week.
Senator LUDWIG —Is that satisfactory?
Mr Crompton —It is very valuable input.
Senator LUDWIG —Would it be better to have a Privacy Advisory Committee at full strength?
Mr Crompton —I would prefer to have a Privacy Advisory Committee at full strength.
Senator LUDWIG —Have you asked the department through the Attorney-General when they are likely to make the appointments?
Mr Crompton —They are well aware of my view that I would like to have more appointees, yes.
Senator LUDWIG —Have you expressed to them when you want them?
Mr Crompton —It is not that kind of thing where you give a date, I am afraid. I have simply said that I would like to have members.
Senator LUDWIG —So we do not have any on the horizon that you are aware of?
Mr Crompton —You really will need to ask the Attorney-General or his department.
Senator BOLKUS —Mr Cornall, can you help us with that?
Mr Cornall —The suitability of potential candidates for appointment is under consideration but, as you would appreciate, the appointment is a matter for the government.
Senator BOLKUS —You told us that last time, though.
Mr Cornall —I am unable to advance the answer any further.
—Last time was not very long ago, Senator Bolkus.
Senator BOLKUS —It was not, but it seems to be going on for quite some time, Minister. We had announcements about this quite some months ago. Is the Attorney-General having trouble focusing on this issue, or what is it?
Senator Vanstone —Mr Cornall has given you the appropriate answer. It is a matter for the Attorney to respond to, and I will take your question on notice and see what the Attorney wants to tell you.
Senator COONEY —Have you had a talk to people like Chris Puplick?
Mr Crompton —We saw him last week.
Senator COONEY —He is quite an outstanding person in this area. Do you get advice from him?
Mr Crompton —Chris was one of the people who joined us at the meeting with the New Zealand and the Hong Kong privacy commissioners in March. We went and had an informal function with Chris Puplick only last Thursday. So yes, we are in regular contact.
Senator COONEY —Do you float past him some of the questions that have been asked of you this morning?
Mr Crompton —Yes.
Senator COONEY —You would remember him, Minister, as one of the great senators of this chamber.
Senator Vanstone —I must say, Senator Cooney, I was very pleased to have such a wholesale endorsement by Senator Puplick of the efforts that the Commonwealth government has put into privacy protection in relation to the new forensic procedures that will relate to CrimTrac. If I were a member of the New South Wales government, I cannot say I would be happy with what he had to say about what they have done. But he was most effusive in praising the Attorney-General's Department. People from my own office have consulted him and taken into account both his views and those of the Privacy Commissioner here.
Senator COONEY —That is all I had to say, but you need not have gone on about what they are doing in the forensic area. That is a different area.
Senator Vanstone —I am establishing that he is a man of considerable standing. I thought I would point out—
Senator COONEY —I might stop giving you free kicks from now on.
Senator Vanstone —Don't be nasty. I might go home and weep!
Senator COONEY —What about Kevin O'Connor? Have you seen him at all?
Mr Crompton —I saw him at one stage last year. I have not been in regular contact with Kevin O'Connor.
Senator COONEY —Has he made some comments that have been helpful?
Mr Crompton —Not to me. I saw him last year long before the legislation was announced. If he has been making comments since then, I have not seen them.
Senator COONEY —Have you consulted anybody outside Sydney about this issue?
Mr Crompton —Yes.
—Who was that?
Mr Crompton —I have sat down informally with groups of privacy advocates in Melbourne and in Sydney. I am going to Adelaide, I think, at the end of next week. On Friday I was talking to some Queenslanders about setting up a meeting there.
Senator COONEY —Where were you going to meet them—in Sydney or in Queensland?
Mr Crompton —We will go to Brisbane. I actually have meetings in Melbourne every month or two with various people there.
Senator COONEY —Who do you see in Melbourne, or do you prefer not to say? If you do not want to say, don't say it.
Mr Crompton —It is a list that is longer than I can remember, so if you really wanted names, I would have to take it on notice.
Senator COONEY —So you cannot remember any particular names at the moment.
Mr Crompton —I have seen people from the Health Issues Centre, for example, in Melbourne.
Senator COONEY —Do you remember their names?
Mr Crompton —A person called Meredith Carter amongst others. I am just trying to work out—
Senator COONEY —When you say a person called Meredith Carter, you do not give the impression that you were highly impressed with what she had to say.
Mr Crompton —She has actually been very helpful. She wrote a submission to our inquiry that we ran last year. We had some follow-up discussions with her. She provided some further material that I found very helpful actually. She has been very critical of some parts of the privacy legislation as it has now been introduced into the parliament. I believe that at least some of what she has had to say has not been based on the facts of the legislation and other parts of it are a matter of judgment.
Senator COONEY —If the people in Queensland convince you when you see them, would you be willing to recommend changes to the legislation, or is this legislation fixed no matter who you see?
Mr Crompton —If you have seen the submission that I put into the House of Representatives committee, I commented on each of the exemptions and a number of other issues. I am not sure how fast the legislation will be proceeding through the parliament.
Senator COONEY —I take it from that answer that if somebody from Queensland or from anywhere else put forward matters that you think are convincing you would recommend changes to the legislation?
Mr Crompton —If the opportunity were there, yes.
CHAIR —Yes, Mr Cornall?
Mr Cornall —Just before we leave the privacy issue, there was a question—
CHAIR —I am not sure we are about to leave the privacy issue, Mr Cornall.
Senator BOLKUS —We are.
—I think Senator Mason may have a question, Senator Bolkus. I would like to, if at all possible, complete HREOC's appearance before estimates by 1 p.m. which gives us approximately 15 minutes. I have one question, not on privacy, and Senator Mason has one question on privacy. Before we leave the privacy area, Mr Cornall, I will come back to you.
Senator MASON —Mr Crompton, I just had a very broad question on how you perceive your role. You mention in your submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs inquiry into the Privacy Amendment (Private Sector) Bill 2000 that your role as federal Privacy Commissioner is to promote an Australian culture that respects privacy. You go on to say, however, that the right to privacy is not absolute. A lot of things you have mentioned today in evidence illustrate the fact that your role is becoming more prominent with changes in technology and so forth. My question is: do you see yourself as a privacy advocate?
Mr Crompton —It depends on whether you want me to use a generic term or something that might have a more particular meaning. I believe that a very balanced approach is needed to the issue, taking into account the views of all the people of Australia whether as individuals, consumers or voters, whether they are part of business, whether they are part of government or whether they are part of the groups of people that call themselves privacy advocates. I have not agreed with any of them all of the time so I think I am doing a good job.
Senator MASON —I just asked because Senator Cooney mentioned Kevin O'Connor before, and there was always this dispute that Mr O'Connor was captured by Professor Greenleaf and other privacy advocates and so forth.
Mr Crompton —I would think that I have done my job well when I have not been captured by either the people who style themselves as privacy advocates, such as the people you have named, nor have I been captured by the people who run Axiom nor have I been captured by government.
Mr Cornall —There was a question asked about percentages of small business which might be under the $3 million exemption.
CHAIR —That was Senator Ludwig, I think, or Senator Bolkus.
Mr Cornall —It was asked I think by both Senator Ludwig and then followed up by Senator Bolkus. The question was whether or not the Attorney-General's Department had taken a question on notice at the House of Representatives committee. The answer is that we have not taken such a question on notice. The comment made by officers of this department was that the question should be referred to the Department of Employment, Workplace Relations and Small Business.
CHAIR —Thank you, Mr Cornall. Do you wish to pursue further, Senator Ludwig or Senator Bolkus?
Senator BOLKUS —I might do so in the supplementaries.
CHAIR —Senator Lundy, did you have questions in this area?
Senator LUNDY —Yes, I did and they certainly will not take too long. I just want to ask the Privacy Commissioner whether he has conducted an analysis of the privacy bill in relation to both the EU directive on data protection and the implications for Australia in relation to the EU-US agreement relating to privacy.
Mr Crompton —I intend to be in touch with the various players. Yes, I have been talking to the EU delegation and I believe others from the Attorney-General's Department have been doing the same thing. My last advice from them was that they are assessing the legislation carefully.
—That is with respect to the data protection directive?
Mr Crompton —Correct.
Senator LUNDY —When are you likely to hear back from them?
Mr Crompton —I suspect that they will actually be communicating with the Attorney-General's Department or with the Attorney-General rather than me.
Senator LUNDY —Are you in a position to actually conduct your own consultation with the European Union, the delegation here in Australia?
Mr Crompton —Without meaning to make a diplomatic incident out of it, I think the Europeans are going to be working very hard to work it out for themselves. I am not sure that I can do it for them. They are obviously going to have to spend quite a lot of time thinking it through.
Senator LUNDY —Are you in a position to give the government advice about the implications of the legislation as far as your analysis and your understanding of the European directive is concerned?
Mr Crompton —With regard to the European directive, I have not, and I honestly think the Europeans should be speaking for themselves. My submission, which we put before the House of Representatives committee, does not particularly address that question. It addresses a number of other issues in the legislation.
Senator LUNDY —In terms of the recent developments between the EU and the US, is that something that you as Privacy Commissioner have been perusing as it has developed?
Mr Crompton —I have tried to follow it, yes.
Senator LUNDY —What is your analysis, in terms of the substance of that agreement, perhaps not relative to the bill but just generally?
Mr Crompton —I have had some consultations with a number of the American regulators, which I did last month when I was in America. The European negotiators, in particular, have yet to get a tick-off from the people who hold a stakeholding in what the negotiators have negotiated. Already I believe one of the committees in the European system has said that they do not believe the safe harbour is satisfactory, or they have certainly made some comments where they would like to see it improved. That came out a week or two ago, I think.
Senator LUNDY —In terms of a relative analysis of what is contained in Australia's bill in relation to the proposed safe harbour agreement, do you think that the Australian bill would satisfy concerns expressed in the context that EU-US dialogue continuing.
Mr Crompton —That is a very good question, and I must admit that I have not done the analysis up to now. I would have thought it would be at least very close, but that really is an instantaneous judgment. I have not done a proper analysis.
Senator LUNDY —Is it your role to do that sort of assessment and then advise the government? Are you resourced to the point, or do you have the capability, to investigate these matters yourself and provide independent advice to government?
Mr Crompton —I clearly could if I asked for it to be done. I have not asked for it to be done. One of the reasons I have not asked for it to be done is that it is by no means clear that this particular agreement is the one that will actually bind, and clearly I need to direct my resources to where they will be most effective. I think getting too involved too early in the safe harbour process may be inefficient use of my resources.
—What do you think of the status of the EU-US talks in this area in terms of the way that general standards—that is probably the wrong word—for privacy will develop around the world?
Mr Crompton —I am sorry, I have lost the question.
Mr Crompton —The safe harbour would be pretty high?
Senator LUNDY —The status of that agreement if it, in fact, is agreed to?
Mr Crompton —I would have thought that once there is a settled agreement between the US and the EU it would have significant impact on what the EU then agrees is adequate protection of people's information in other countries. One of the things that the Europeans have not always been very clear about is that they are only protecting the data of Europeans, they are not actually making sure that Australians are looked after, except to the extent that maybe they have been in Europe or something like that, but they are only looking at the adequacy of protection for their own citizens.
Senator LUNDY —But the data protection directive, as I understand it, does have some trade implications because it promotes the fact that member states of the EU will not engage in an exchange with those countries that do not have similar—I think is the word they use—privacy and data protection laws.
Mr Crompton —The word is `adequate' I think.
Senator LUNDY —I am just trying to ascertain what level of importance and resource you are placing on continuing that analysis, given that there are implications perhaps beyond your portfolio, beyond your issues, that actually have a strong implication for the government.
Mr Crompton —It is probably going to be more government to government than it is going to be me to Brussels or anything like that that addresses the adequacy question as between the EU and Australia. Clearly, the safe harbour process is going to impact on what the EU assesses as adequate. At this stage I have not put any resources into assessing the safe harbour agreement. As I said, I think it is possibly still too early to find out the nature of the safe harbour agreement.
Senator LUNDY —Perhaps I should ask the minister about the relative importance you are putting on assessing the EU-US safe harbour proposal as far as the development of legislation in Australia is concerned.
Senator Vanstone —Senator, that is not a matter I would look at because, as you may or may not be aware, these are not my policy areas, they are the Attorney's. I will put the question on notice and get you an answer from him.
Senator LUNDY —Thank you.
CHAIR —Senator Cooney, did you have a further question for HREOC?
Senator COONEY —There are a couple of things Australia is interested in before the commissions in Geneva—mandatory sentencing and mandatory detention. Is that right? Has HREOC gone over there to see that?
—HREOC monitors what is going on in Geneva to the best of its ability, particularly Commissioner Sidoti, the Human Rights Commissioner, and the President, Professor Tay. Also, the Indigenous Social Justice Commissioner, Dr William Jonas, was in Geneva for the committee's deliberations on mandatory sentencing as an observer.
Senator COONEY —When is that coming up? With those two matters, the mandatory detention of people who are claiming refugee status—boat people—and mandatory detention, are the two commissions in Geneva going to consider those matters in July?
Ms Temby —Could I take that on notice, Senator Cooney?
Senator COONEY —Do you not know?
Ms Temby —Offhand I do not know the precise status of what is going on in Geneva.
Senator COONEY —I thought somebody from the commission went over to Geneva recently about this.
Ms Temby —Commissioner Sidoti and the president went to Geneva for the general UN consultations on human rights. As I said, Dr Jonas did go to Geneva for the considerations of the committee on mandatory sentencing. It is simply the issue of July and what they are specifically going to consider that I need to take on notice. I believe what you are saying is true, but I would wish to confirm it before I answered the committee.
Senator COONEY —Do not bother confirming it. So HREOC does not know whether or not there are hearings on those matters in July.
Ms Temby —I am sure Commissioner Sidoti does know, but I would simply wish to check with him precisely what is happening in Geneva in July.
Senator COONEY —But at this stage people here do not know about that?
Ms Temby —I do not have detailed knowledge of what is happening in July in Geneva but the department may have.
Senator COONEY —Do you know whether a hearing is coming up on that in July or otherwise?
Ms Temby —I understand that these are issues of concern to the United Nations members.
Senator COONEY —But you do not know anything more about it than that?
Ms Temby —I am sorry, I am not quite sure how I can add to my answer.
Senator COONEY —What I am putting to you is that the Human Rights and Equal Opportunity Commission has come before the committee and does not seem to know about such matters of importance as mandatory sentencing and mandatory detention. They have got to make inquiries about it. It does not create a—
Ms Temby —Forgive me, Senator, I thought that you had asked me specifically about the committee in Geneva in July.
Senator COONEY —Yes. I will re-ask the question. First of all, you do not know whether it would be coming up in July or not, but then do you know whether it is coming up at all?
Ms Temby —My understanding is that the Geneva committees of the United Nations are considering these matters and have them under their attention.
Senator COONEY —But you do not know to what stage they have got?
Ms Temby —I do not know what they are doing right at the moment and before July.
—And you do not know whether Australia has got any reply to those two issues in Geneva?
Ms Temby —I am sorry, this is not an area of my particular expertise. If I could take that on notice I would be very happy to provide as much detailed information as the commission has.
Senator COONEY —Perhaps the easiest thing is to ring up abut it. Which commissioner may know something about it?
Ms Temby —Two commissioners, in fact, would be closely concerned. They would be Commissioner William Jonas, the Indigenous Social Justice Commissioner, and Commissioner Sidoti, the Human Rights Commissioner.
CHAIR —Thank you, Senator Cooney. I just want to ask one question in relation to the operation of the Disability Discrimination Act, I suspect to Mr Innes. I think this is Mr Innes's first estimates committee. Mr Innes, we welcome you very much to the committee and thank you for coming.
Mr Innes —Thank you, Senator.
CHAIR —I understand that occasionally complaints that are made under the Disability Discrimination Act are dealt with in what I would describe as a public inquiry process. Could you explain to the committee how they are handled in that way.
Mr Innes —Some 18 months ago the then Disability Discrimination Commissioner put forward guidelines for dealing with complaints in a more public manner where they raised issues of systemic discrimination or broad policy issues. Of course, such complaints are dealt with in that way after consideration of the impact of a public inquiry on the parties and in consultation with the parties. A notice of public inquiry is published on the Internet and submissions are sought, and from that decisions on the complaints are made in the same way as they would be made for other complaints.
There have been a number of complaints dealt with in that way. Probably the most effective has been a complaint in regard to access to the electoral process, which the commission received from the daughter of two people in Newcastle, one of whom has a physical disability and one of whom has a vision disability, and neither of whom could access the polling booth in the last New South Wales local government election. That was dealt with in a public manner and we received submissions from all electoral commissions except Queensland. The conciliation of that complaint has been an undertaking by the Electoral Council of Australia, which is the electoral commissioners throughout Australia, to establish a national definition for access and to work with us and the community to set benchmarks for the percentage of polling booths to be accessible over the next few years, because there are different levels of access in different states.
Other matters have been dealt with, such as mobile phones and their impact on hearing impaired people; access to a particular railway station in Sydney; and television and movie captionings for deaf and hearing impaired people—all issues which deal with broad policy questions. We are finding it far more effective to deal with them publicly through the Internet and to give the whole community the capacity to have input.
—Mr Innes, how long does a hearing like the one on the access to the electoral process take? How long does it take to run that through?
Mr Innes —That complaint was lodged in December last year and it was completed in the last couple of weeks, but that is no guide as to the length of time because it very much depends on the individual inquiry. The mobile phones inquiry, for instance, has been going for a much longer period of time. It really depends on the complexity of the inquiry and the processes used to investigate and attempt to conciliate the complaint.
CHAIR —So the electoral process one, which is for various reasons, I am sure, a matter dear to the hearts of many people in this room, means that the Australian Electoral Commission looks at a more standardised access for people with disabilities to electoral venues?
Mr Innes —The Electoral Council of Australia will do that—I am in fact meeting with representatives of that council tomorrow. That is a council of the Commonwealth and state electoral commissions—so it is across the board—to try and obtain uniformity in terms of a standard of access so that a person with a disability, if they are told a polling booth is accessible, knows what to expect—there is some variation—and also to get a greater number of polling booths accessible. In the different states and the Commonwealth it ranges from 30 per cent to about 70 per cent of polling booths which would be mainly physically accessible for people with physical disabilities at the moment. The aim, of course, is to improve that to the point where all polling booths are accessible.
CHAIR —Indeed. Thank you very much.
Senator BOLKUS —Regarding the issue of the Electoral Commission handing over information to the Taxation Office for its conduct of campaigns on the GST, is that something that your office has cleared, Mr Crompton?
Mr Crompton —We have not been approached about it at all other than our reading the press and some informal inquiries made of me on Thursday and Friday by Senator Ray.
CHAIR —Thank you all for your appearance before the committee this morning.
Proceedings suspended from 1.07 p.m. to 2.10 p.m.