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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE
24/05/2010
PRIME MINISTER AND CABINET PORTFOLIO
Office of the Privacy Commissioner

CHAIR —Good evening and welcome. Ms Curtis, would you like to make an opening statement?

Ms Curtis —No, thank you.

CHAIR —Then we will go to questions.

Senator RONALDSON —Thank you, Ms Curtis, and your colleagues. Do you recall an article by Cameron Stewart entitled ‘Command and control’ that ran in the 7 November 2009 edition of the Weekend Australian?

Ms Curtis —No, I do not recall that article.

Senator RONALDSON —A portion of that article related to the relationship between the Rudd Prime Minister’s office and the independent oversight agencies of the Commonwealth government. In that article—and I will quote from the article—

Senator Ludwig —In fairness, if you are going to quote from the article it should be provided to the commissioner so that she can see the quote in the context of the article, given that she has indicated that she does not have a recollection of the document.

CHAIR —Senator Ronaldson, have you got something you can table?

Senator JACINTA COLLINS —Could members of the committee be provided with a copy, too, please?

CHAIR —If we could have it for the committee as well, that would be most helpful.

Senator RONALDSON —I would have thought you would all have read it!

Senator JACINTA COLLINS —It was November last year.

Senator RONALDSON —I know that is a long time for you, Senator!

Senator Ludwig —I think we may have expected in February estimates!

Senator JACINTA COLLINS —We have had one estimates between then and now, too!

Senator RONALDSON —I acknowledge that that is a long time. So, Minister, do you just want to make sure that I am correctly quoting the article? I just want to clarify that.

Senator Ludwig —No; I said that, as to the quote you draw from the article, you should make sure that the commissioner has that quote in the context of the whole article. But if you would like me to add the additional part, that you are quoting correctly, then, yes, I am happy to add that as well.

Senator RONALDSON —I would prefer you are honest with these things, Minister.

Senator JACINTA COLLINS —Ditto.

Senator RONALDSON —If you do not trust me to quote it properly, I would rather know.

Senator Ludwig —I think, Chair, I have raised this every time I have been at estimates. So I would imagine that, by now, senators would be aware that they will be asked to at least provide a copy to the witness.

Senator RONALDSON —I am pleased that you mention that. In fact, my hardworking staff are actually across this, Minister, and indeed have got everything—bar this particular article! I have a very, very big file for tomorrow!

Senator Ludwig —Excellent.

Senator RONALDSON —I have got a two-staff folder for tomorrow—and that is just to bring it up—for this very same reason.

Senator Ludwig —While we are doing that, are there any other questions to effectively utilise your time?

Senator RONALDSON —Can I take you to what is headed, on the top right-hand side, ‘Page 6 of 10’ of this article. In the left-hand column you will see:

Rudd’s desire to control the agenda has led to new rules behind the scenes. The heads of each government agency in Canberra are now required to produce a weekly report on issues they have coming up that are likely to attract media attention. “The generous view is that it keeps the government informed of what is happening, but the cynical view is that it feeds into their media control strategy,” says a senior public servant. Other sources add that even the watchdog agencies are required to lodge reports about issues of media interest, despite the fact that they are independent statutory bodies that are supposed to monitor government, not pander to its media strategy. “When it comes to media control they are blind to our independence,” says one senior watchdog staffer.

Similarly, since Rudd’s election all independent statutory authorities in Canberra have been required to provide briefs to their minister’s office on issues likely to be raised in Senate Estimates hearings, to ensure that there are no ugly surprises on the day.

I could continue but I will not. Has the Office of the Privacy Commissioner been asked or instructed to provide the current government with any type of brief or report on issues of media or political interest at any time since the 2007 election?

Ms Curtis —We provide to the Department of the Prime Minister and Cabinet, on a weekly basis, a list of things of importance in the privacy field that we think either the minister or the Prime Minister may be interested in. It is in a very brief email and, dare I say it, our input usually is along the lines of, ‘It’s Privacy Awareness Week’—we have done that twice a year—or, if I am releasing a major report, we advise PM&C to that effect.

Senator RONALDSON —When did you first get the request for those briefings?

Ms Curtis —I cannot recall the exact date but it would have been within the last 18 months or so.

Senator RONALDSON —Since the election of the Rudd government.

Ms Curtis —Yes, before then we were in the Attorney-General’s portfolio.

Senator RONALDSON —Yes, and before then had the Attorney-General’s Department requested the provision of these briefs?

Ms Curtis —It is not a brief; it is just a statement of fact if we are releasing—

Senator RONALDSON —Had the Attorney-General’s Department requested statements of fact from you?

Ms Curtis —On occasions we may have been asked for briefings about what was happening across our agencies.

Senator RONALDSON —I am sure that is right, but I am very specific in my question. You are providing these briefings on a weekly basis at the moment. Under the Attorney-General’s Department, prior to the election, I take it from your answer that you were not providing weekly briefings.

Ms Curtis —No, we were not providing a weekly statement of an event that was coming up.

Senator RONALDSON —Thank you. What sorts of briefings were you instructed by the government to provide after the election?

Ms Curtis —The Department of the Prime Minister and Cabinet coordinate across the portfolio, so I provide input to them. I think this is a question you should be directing to the department.

Senator RONALDSON —No. I am asking you. What sorts of briefings were you asked by the department to provide? I do not care who it goes to.

Ms Curtis —I have indicated we are asked to say if there is anything of interest in the privacy area coming up in the next week—it is a rolling thing, so something in the next month or the next fortnight that may be of interest to the minister.

Senator RONALDSON —It is a weekly?

Ms Curtis —Yes.

Senator RONALDSON —I take it the practice of requiring media and political briefs from independent oversight agencies is without precedent and there was no precedent for you when you were under the A-G’s?

Ms Curtis —Senator, it is not a brief; it is a statement that next week is Privacy Awareness Week.

Senator RONALDSON —But you just said to me before that matters of interest under your portfolio were reported.

Ms Curtis —Yes, and that is the extent of the brief. It is a one-liner that says, ‘We’re releasing a report on X, on Privacy Awareness Week.’ There is nil response from my office for I would say close to 50 weeks of the year.

Senator RONALDSON —You are required under this to provide information on any political issues?

Ms Curtis —Sorry—we are not providing political issues.

Senator RONALDSON —I presume under this requirement you are required to provide any information about political issues that may be of relevance to the minister or to Prime Minister and Cabinet?

Ms Curtis —No, not under the requirement to give a listing of events or things of interest in the privacy field that are coming up. I do not provide a brief or commentary on them.

Senator RONALDSON —On that request of 18 months ago, in what form were you given that?

Ms Curtis —I probably would need to take that on notice because I cannot remember the exact format it came in. My recollection is of an email.

Senator RONALDSON —Will you provide a copy of that to the committee, please?

Ms Curtis —To the best of my ability. If we have it still, I will provide that.

Senator RONALDSON —There is no reason why you would not have it, is there?

Ms Curtis —I would expect not, but my recollection is that it came in to my personal assistant.

Senator RONALDSON —Given that you had not had such a request previously, I presume it is the sort of thing that you would have kept and taken some notice of. Has your office been asked or instructed to provide the current government with any briefing or report in preparation for these estimates or any prior estimates hearings since the November 2007 federal election?

Ms Curtis —Yes, we have.

Senator RONALDSON —What types of briefings were you instructed by the government to provide?

Ms Curtis —For the appearances before the Senate committee—that is, the three estimates related ones—we provide some aspects of the briefing that my office prepares for me.

Senator RONALDSON —When you were with the Attorney-General’s Department, were you instructed to provide briefings of this nature and in this context to the government?

Ms Curtis —No, we did not provide them at that time. That is correct.

Senator RONALDSON —So, again, this action of the current government in relation to demanding briefings in preparation for Senate estimates is unprecedented?

Ms Curtis —Senator, it is a request for some advice. It is not a demand.

Senator RONALDSON —I would be interested to see whether it was a demand if you did not provide it.

Ms Curtis —Just to clarify: we did provide some briefing to the previous government, to the Attorney-General’s Department—which I understand was provided to the relevant minister—about key issues in our office.

Senator JACINTA COLLINS —Prior to estimates?

Ms Curtis —Sorry, Senator?

Senator RONALDSON —Hang on a moment. Let us be very careful about this, because conflicting information has been given.

Ms Curtis —In the Attorney-General’s Department, we were asked to provide key areas of interest in a briefing form to the department, which they provided to the relevant minister. That was a junior minister or the senator.

Senator RONALDSON —You just indicated to me before that the requests that were made in relation to preparation for Senate estimates were unprecedented.

Senator JACINTA COLLINS —No. You said that, Senator.

Ms Curtis —Yes. I did not—

Senator RONALDSON —And the witness agreed with me.

Ms Curtis —No, no.

Senator JACINTA COLLINS —No. You are too enthusiastic.

Ms Curtis —My colleague just reminded me that we may have provided a small number of issues. For instance, on the privacy law reform review, we would have provided a briefing to the Attorney-General’s Department on our perspective on how the ALRC was going. That was not always the same as a briefing that I would have, but it was a briefing that they would provide.

Senator RONALDSON —That was a specific matter, was it not? This is a general briefing.

Mr Pilgrim —We were required under the previous government, when we were part of the Attorney-General’s Department, to identify a small number of key areas prior to estimates hearings and, if we thought they were of a significant nature, to provide a briefing. It was usually two or three issues.

Senator RONALDSON —A small number of key areas?

Mr Pilgrim —That is correct. I would describe it as a small number of key areas.

Senator RONALDSON —What is the briefing you are now required to provide? It is not in relation to a small number of key areas, is it?

Ms Curtis —We provide a more extensive briefing.

Senator RONALDSON —Indeed. Can you provide me, please, with the form of request that that came in, or was it part of the same email that you were referring to earlier on?

Ms Curtis —It was a different email.

Senator RONALDSON —Will you provide the committee with a copy of that as well?

Ms Curtis —I will endeavour to do so.

Senator RONALDSON —Thank you very much. Under the heading ‘Who are we?’ on your website, it reads:

The Australian Privacy Commissioner is the national privacy regulator.

…         …         …

The Office of the Privacy Commissioner is a statutory authority that sits in the portfolio of the Department of Prime Minister and Cabinet.

So no-one else would be making those requests that we referred to, apart from PM&C. It goes on:

Although the Office is a government agency, it is independent in the exercise of its regulatory and policy advising functions.

Can you please explain to me how you can effectively consider complaints about government departments or agencies when ministers in charge of those departments and agencies can order the commission to provide undeniably political briefs on issues of media interest and issues likely to be raised in Senate estimates hearings ‘to ensure that there are no ugly surprises on the day’, to quote again from the article.

Ms Curtis —We provide briefing to the Department of the Prime Minister and Cabinet as we are part of the portfolio. We are independent in the exercise of our functions under the act—that is, in handling complaints and conducting audits and providing some policy advice. That is why we provide submissions to many government inquiries and many parliamentary inquiries. That is the way we exercise the independence that comes with being the statutory authority that we are. We also have, under the FMA Act, many responsibilities to work with the government of the day, not only in budgetary matters but also in matters affecting the way privacy is administered and rolled out in this country. So we do work with the government of the day to provide advice to ensure that privacy is appropriately looked after as policies are developed.

Senator RONALDSON —I think what you have done today is to confirm the article in the Weekend Australian Magazine-—that indeed you are required now to provide these weekly reports and provide detailed information in relation to estimates. Minister, in light of the evidence today, don’t you believe that the Rudd Labor government, on the back of this article in the Weekend Australian, is putting organisations such as the Privacy Commissioner under enormous pressure by making demands of them in relation to their communication with this government for which there has never been a precedent?

Senator Ludwig —I appreciate the opportunity to reply to what I would have considered some outrageous allegations that you have made, and quite wrongly in fact. What you have heard in evidence is that the Privacy Commissioner has indicated on a very few occasions future events such as Privacy Awareness Week. It disheartens me to think that the previous Howard government did not have enough interest in privacy to actually find out when privacy week was. It is not new or novel to me to find that we would be interested in having that information. Secondly, in terms of estimates briefs you have already heard that it seems to have been a practice of both the previous government and this government to have estimates briefs. It is not unusual that certainly the key issues get raised. Again, I think that you are chasing a conspiracy that does not quite exist. Reading the Weekend Australian is helpful but, in this instance, unfortunately, I do not think it has been fruitful in your questioning.

Senator RONALDSON —I rather hope that in November you are not doing what you are doing and I am not doing what I am doing, but I await with great interest the tabling of these requests from Prime Minister and Cabinet. I invite you to go back and look at Hansard to see whether the actions of this government are, according to the Privacy Commissioner, unprecedented.

Senator JACINTA COLLINS —Why don’t you clarify the reference?

Senator Ludwig —I will respond to that, Senator Ronaldson. What you are now suggesting, if we put it in the reverse, is that it would be unusual for ministers to be informed about agencies’ work that is coming up or that is on their radar. That seems to be the suggestion you are making. It is not unusual for ministers to be informed about matters that the Privacy Commissioner has, such as events of the Privacy Awareness Week. It seems to me that you are trying to make a mountain out of a molehill here.

Senator RONALDSON —It seems to me that Cameron Stewart in the Weekend Australian has absolutely nailed the behaviour of your government in relation to both these matters and many, many others. I have no further questions.

Senator LUDLAM —I have a couple of quick questions for the Privacy Commissioner. Ms Curtis, they are based on some comments that you made in the press about Google and their Street View service. They had accidentally somehow harvested a lot of data from open Wi-Fi networks on their way past with that service. You have said, in press at least, that that was a potential breach of the Privacy Act but you would be discussing that matter further with Google. Can you provide us with an update of where that situation is up to?

Ms Curtis —When Google said that it was inadvertently collecting personal information from Wi-Fi networks with Google Street View, we asked Google to come in and meet with us. Assistant Privacy Commissioner Mark Hummerston and his staff met with them. We asked them a series of questions. They were able to answer some of those but are coming back in detail with some further responses for us.

Senator LUDLAM —Have you set a deadline for those responses from them?

Ms Curtis —I will ask Mark to answer that.

Mr Hummerston —I spoke to the Google representative this morning to check on progress. They said they were obtaining that information from their US headquarters as quickly as possible. We have not set a deadline, but we certainly indicated we would like the information as quickly as possible. They said they will do their best.

Senator LUDLAM —That sounds like it is still in progress. The German Federal Commissioner for Data Protection and Freedom of Information has said that they will be calling on Google to delete any unlawfully collected personal data. Is that same demand coming either from your office or from any other office of the Commonwealth?

Ms Curtis —We have not made that demand of them yet, because we are waiting from some further advice from them; but, to be consistent with the national privacy principles, if data is not needed it should be destroyed. But we want to be certain that we want them to go ahead and do that.

Senator LUDLAM —To their credit, Google have not made the case that this is public information. The comment that I have seen from one of their spokespeople is that they regard it as a screw-up. What is the legal status of Wi-Fi data on open networks if you happen to be driving past and pick it up?

Ms Curtis —That is an interesting question. We have not firmed our legal perspective on it yet, but it would appear that if you have an unsecured Wi-Fi network you probably are publicly broadcasting, so you may expect that others may intercept it. We would be urging people to make sure they secure their networks.

Senator LUDLAM —Is that something that retailers should be telling people when they are installing these devices in the first place? What degree of guidance are they given when they purchase this equipment? That they may well be broadcasting and that information may be public to your neighbours or to anybody else?

Ms Curtis —Education and awareness are very important. They also go to the use of social networking sites as well. People should be very aware of what they are doing, so that may be a likely oucome.

17:39:58

Senator LUDLAM —Does your office have a role in forwarding that kind of education or improvement standards?

Ms Curtis —Under the act we do have education and awareness responsibilities and we do promote privacy as much as we can and educate the public as much as we can. Just recently we worked with the Australian Communications Media Authority and the Department of Broadband, Communications and the Digital Economy on tips for use of your mobile where they are Internet enabled.

Senator LUDLAM —This may be the last estimates session we have before the election so I am wondering whether you could provide for us anything in writing or on notice that would relate to standards either of public advocacy of that sort that you are describing or regulations regarding the capture of material or data on open or unsecured networks? It does seem like a bit of a legal grey area that has been exposed quite dramatically in this instance.

Ms Curtis —As I said, we are undertaking some work internally to try to determine what we think the legal position is.

Senator LUDLAM —What could the parliament or the public expect to come out of that? There would be some internal advice to government presumably, but what about for the rest of us?

Ms Curtis —I would undertake that the office should release some information about helping people to protect their personal information in technology related areas.

Senator LUDLAM —Finally to return to the Street View issue, did the Australian government make any demands or requests of Google? I know in some jurisdictions they are blacking out number plates, faces and other identifiable information. Did the Australian government make any similar calls in that regard?

Ms Curtis —We met with Google Australia before it was rolled out in Australia and we made that suggestion to them that it should occur, and it did occur.

Senator LUDLAM —Apart from those ones—they are just off the top of my head—were there any other requests that you have made?

Ms Curtis —We have regular meetings with Google on various initiatives that they have. I will ask the deputy commissioner if there is anything extra to add.

Mr Pilgrim —During our earlier discussions prior to the rollout of Street View, as the commissioner has mentioned, we did get an undertaking and Street View did move to pixellate such items as people’s faces, number plates and cars. They also put in place procedures whereby, if someone was particularly concerned that there was some identifying feature say of their house or something like that, they could approach Google and have that taken down.

Senator LUDLAM —Thanks for that. That is all I have.

Senator JACINTA COLLINS —Just one question of clarification to Ms Curtis which follows on from the earlier question: have you as a public servant ever provided a political brief to any minister?

Ms Curtis —Not to the best of my knowledge, Senator.

Senator JACINTA COLLINS —So the briefs we were talking about in terms of estimates or other matters are not of a political nature?

Ms Curtis —No, they are issues about the work that my office is undertaking.

Senator JACINTA COLLINS —Thank you.

CHAIR —There being no further questions, I thank Ms Curtis and the officers. I now call forward Old Parliament House.

[5.44 pm]