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Wednesday, 11 May 1994
Page: 583


Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (11.19 a.m.) —What I was alluding to earlier was that a balance is struck in the legislation between the concept of ministerial responsibility and the concept of the Privacy Commissioner having the capacity to make an impact on public debate. The government's position thus far has been that under the legislation the Privacy Commissioner should report to parliament through the responsible minister. That is in the legislation and that reflects the Westminster system of ministerial responsibility.

  Senator Harradine asked what happens in the preparation of legislation. Government departments have a capacity to get advice through the Attorney-General's Department. That is the formal channel that is recommended and encouraged to be used—and is the formal channel that will continue to be encouraged to be used. The role of Attorney-General is pivotal in terms of the provision of that advice in terms of the bureaucracy and the parliament.

  In passing the Privacy Act and the legislation governing the Privacy Commissioner's powers, the parliament took into account the fact that on some occasions it would be in the public interest to release advice on legislation. Under section 31 of the Privacy Act the Commissioner is able to make an initial report to the minister concerning a proposed enactment. That is there already. He also has the capacity to make a second report where it is in the public interest to do so. In essence, there is the capacity for the Privacy Commissioner to make an assessment as to whether it is in the public interest to provide information publicly to a member of parliament or to a broader constituency. That legislative regime ensures that the ministerial responsibility channel is the pivotal part of it. What Senator Spindler is proposing would detract from that structure in the legislation.

  One reason it is felt that mechanism is important is that it will ensure the Privacy Commissioner has an ongoing role in the cabinet deliberative processes. If we were to do things as broadly as Senator Spindler suggests, I think there would be a conflict of interest. The Privacy Commissioner would be responsible openly to whoever wants to write to him or her and, at the same time, would have a role in the cabinet deliberative process. The structure is set up to reflect the important role the Privacy Commissioner plays in the deliberative process. At the end of the day, if he or she is not happy, the commissioner has the capacity to issue a second report, if it is in the public interest to do so.

  There is also capacity in the Privacy Act for a mechanism for the reports of the Privacy Commissioner to be tabled in parliament to enable members to have the benefit of the commissioner's views. There is the capacity for public awareness of the Privacy Commissioner's views, and at the same time there is a consideration in the legislation that the confidential and deliberative role in the cabinet process that the Privacy Commissioner plays needs to be protected. I hope that answers Senator Spindler's question.