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Wednesday, 11 May 1994
Page: 568


Senator SPINDLER (9.58 a.m.) —The Australian Democrats will be opposing clauses 53 to 56. This matter gave the chamber some concern earlier. These clauses remove a requirement that people be consulted before information on their personal details is disclosed. Because of that concern, I approached the Privacy Commissioner and, in turn, the Privacy Commissioner voiced some concerns in a letter to the Minister for Justice (Mr Kerr) dated 4 May. The Privacy Commissioner did not object in principle to attempts being made to avoid unnecessary engagement of the reverse FOI procedures in relation to personal information, but he had some difficulties with the course taken. While the clauses now provide that people need not be consulted in every case before personal information about them is disclosed, they do say that they should be consulted if the person concerned is one who `might reasonably wish to contend that the record ought not to be disclosed'.

  However, the Privacy Commission indicates—and this is certainly my concern—that it is not clear how such a discretion should be applied. I believe that this legislation should contain guidelines on how this view is to be formed as to whether this person might reasonably object to having the details disclosed. There should be differential treatment for ordinary clients of the Department of Social Security, for taxpayers, for grant applicants, for police witnesses and for subjects of criminal records. I would imagine that all of those people—and possibly there are many other categories—would strenuously object to having their personal details divulged. On the other hand, there would be classes of people—public servants possibly, ministers, politicians and others—who might not fall into that category. The problem is that these sections do not provide these guidelines. There are no criteria on the basis of which the public servant can make that decision as to whether the information should be disclosed and whether a person would fall into that category and, therefore, needs to be consulted.

  The other general area to be critical of in these clauses is that the criteria put forward focus entirely on reasons for not giving notice and may indeed be difficult to apply in practice. For example, how does a middle level agency officer processing an FOI request inform himself or herself as to whether the personal information sought is `well known', whether the person is known to be associated with this particular matter or whether the personal information is indeed publicly available?

  One of the concerns expressed by the Privacy Commissioner is that, according to the Attorney-General's Department, the Privacy Act ought not to be applied to material and departmental records that happen to be publicly available in another place. However, it seems to me that those items of information which are contained, for example, in a Social Security departmental record and which are also publicly available ought not to be disclosed simply on the grounds that they are also publicly available.

  The minister, in his reply to the Privacy Commissioner on these points, stated, first of all, that the Attorney-General's Department's practice had changed. That is good news, but I would feel a lot safer if these provisions were in the legislation. The minister also says that the concerns raised about private information also being available in the public context would give rise to the officer certainly approaching the person and asking for that person's advice or protest to be made before that information is disclosed. But at this stage all we have is the minister's suggestion that this would actually happen.

  The minister also says that that will be formalised by a memorandum on freedom of information practices which will be issued once this bill is passed. That is putting the cart before the horse. On behalf of the people who have elected me to the Senate, I am not happy to sit here and say, `It is not satisfactory as it stands but there will be a memorandum in due course which will give guidelines to the officers concerned.'

  All we have at the moment is an indication that this will happen. I believe it is the responsibility of this chamber to ensure that the legislation we pass contains proper safeguards in a form which we can judge is acceptable to the community.

  There is also a suggestion in the minister's letter in reply to the Privacy Commissioner that, if it is found in practice that further guidelines are necessary, such further guidelines will be issued. How sloppy can it get! These few comments indicate why I am suggesting that this whole section should be withdrawn by the government. It should be redrafted and brought back before the chamber in a reasonable shape. At the moment it is a ramshackle provision that does not provide any safeguards; does not provide a clear guide to what the government intends to do; and does not commit the minister or his department to a particular course of action. It is all up in the air.

  I believe it is simply not satisfactory for the minister to say that these things will be dealt with one way or another. I believe that I have demonstrated very clearly why these particular provisions should not be passed in the form in which they are before this chamber. I commend the amendment to remove that section, and I call on the minister to agree to that course of action. I call on him to bring those clauses back to the Senate when the wording has been properly amended.

  The TEMPORARY CHAIRMAN (Senator Childs)—Senator Spindler is opposing clauses 53 to 56 inclusive. The question is that clauses 53 to 56 stand as printed.