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As part of a package of legislation to encourage the use of electronic commerce, the federal parliament passed the Privacy Amendment (Private Sec tor) Act 2000 in December 2000. The Act extends the operation of the Privacy Act 1988 to many private sector organisations for the first time. Previously, private sector privacy regulation was limited to the consumer credit reporting industry and the telecommunications sector.
On 21 December 2001, principles that set standards for the handling of personal information came into force. They are known as the National Privacy Principles (NPPs) and can be found in Schedule 3 to the Privacy Act. The federal government stated that its objective was to establish sound privacy protection that is balanced against other competing public interests such as law enforcement and the free flow of information. The government was also concerned about placing unnecessary compliance burdens on small businesses that posed a low risk to privacy.
The main features of the NPPs relate to organisations' obligations to collect, store, use and disclose personal information responsibly. Personal information is defined to mean 'information or an opinion ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'.
In general, under the NPPs, an organisation must:
• only collect personal information that is necessary for its functions or activities by lawful and fair means;
• take reasonable steps to ensure that the individual is aware:
- that the organisation is collecting personal information;
- of the purpose of the collection;
- of the usual disclosure of that information;
- that he or she is able to gain access to the information; and
- of the main consequences (if any) if the information is not provided.
• take reasonable steps to ensure that the information is accurate, complete and up to date;
• provide an individual with a right of access to their information;
• take reasonable steps to protect personal information from misuse and loss and from unauthorised access, modification or disclosure; and
• follow stricter obligations in relation to the collection of sensitive personal information. Sensitive personal information includes information such as an individual's religious or political beliefs or affiliations, union memberships, sexual preference and health information.
The legislation covers the 'acts and practices of organisations'. An 'organisation' does not include a small business operator. A small business is defined as a business with an annual turnover of$3 million or less. However, a small business will be covered by the NPPs if it:
• is related to an organisation with an annual turnover of greater than $3 million;
• is performing a service under a Commonwealth contract (for that service);
• is the nature of the business to 'trade' in personal information, that is, discloses personal information about another individual for a benefit, service or advantage, or provides a benefit service or advantage to collect personal information about another individual from anyone else;
• provides a health service and holds health information that is not in an employee record.
Small businesses not required to comply with the law can opt in and out of the legislation by registering or revoking that choice with the Federal Privacy Commissioner. Those small businesses that are covered by the legislation have an extra year to comply with their obligations, that is, from 21 December 2002, unless they involve the provision of health services or they opt in.
The NPPs do not apply to:
• political parties that are registered under Part XI of the Electoral Act 1918 (Cth); and
• State or Territory authorities unless incorporated under the Corporations Law.
Other exclusions fall under the category of exempt 'acts or practices':
• Acts and practices of employers in relation to employee records are exempt. To be excluded, an act or practice of an employer must be directly related to a current or former employment relationship. An employee record includes matters such as the terms and conditions of employment, work performance, and work-related financial matters such as taxation and superannuation.
• Activities carried out by political representatives or their contractors in connection with an election, referendum or participation in another aspect of the political process.
• Activities of a media organisation in the course of journalism provided that the media organisation is publicly committed to observing a writ ten code of standards addressing privacy.
The NPPs are minimum standards. The legislation establishes a co-regulatory framework that allows industry bodies to submit a privacy Code to the Federal Privacy Commissioner for approval. Codes may provide for their own code adjudicator, or utilise the existing mechanism for complaining to the Federal Privacy Commissioner.
The Attorney-General has indicated that he will ask the Federal Privacy Commissioner to conduct a review of the legislation two years after it has been in operation. Further information about the amendments and the application of the NPPs can be found at the Federal Privacy Commissioner's web site at <www.privacy.gov.au>.
Sudip Sen
Sudip Sen is a legal officer in the Information Law Branch of the Commonwealth Attorney-Generals Department, Canberra.
Any views expressed are those of the author and not the Department.
Repeal of abortion regulations
One issue which may be of particular interest to regular Alt.LJ readers, is the recent repeal of the ACT's infamous laws which required foetal pictures to be shown to women contemplating an abortion (see ACT DownUnderAllOver column in Vol 24, Number 4, August 1999).
The Maternal Health Information Regulations Repeal 2001, which commenced on 27 November 2001, repealed the Maternal Health Information Regulations 1999 and the Maternal Health Information Regulations Amendment, both of which had been implemented under the Health Regulation (Maternal Health Information) Act in 1999. Those regulations had made it mandatory for women contemplating abortions to be given detailed pre scribed information, including pictures and descriptions of foetal development in the first four months of pregnancy. An expert advisory panel appointed under the same Act advised against the inclusion of the foetal pictures and descriptions. However, the then Liberal government pushed the provisions through the ACT Legislative Assembly with the aid of conservative Independents, despite the panels' recommendations.
Speaking at a Human Rights Day meeting on 10 December 2001, Chief Minister Jon Stanhope outlined the terms of reference for a new commit tee that will examine the question of a Bill of Rights for the ACT. Professor Hilary Charlesworth is to chair the committee, which will be responsible for making recommendations to the government about an appropriate Bill. Mr Stanhope explained that the aim of such a Bill would be 'to effectively reinforce and ensure the rights we all take for granted, but which are not guar anteed under the law as it now stands'.
The ACT Human Rights Education Association has welcomed the move, although concerns have been expressed in some quarters, notably by Opposition Leader Gary Humphries. A broad range of views within the community will be considered as part of the committee's consultation and deliberation processes. Among other matters, the committee will consult and report on the form the Bill should take, the extent and type of the rights to be included, the application and enforceability of the Bill, and its relationship to other laws. • FD
The NSW Carr government has made headlines several times in the past years on its controversial policies developed to deal with growing issues of crime and drug use in Sydney. The latest involves not human personnel but the canine policing squad, and the legality of their use in random drug searches.
The current NSW Drug Misuse and Trafficking Act 1985 authorises a member of the police to stop, search and detain any person where the police reasonably suspect they are in possession or control of a prohibited plant or drug (s.37(4)(a)). This section was relied on by the police to introduce evidence uncovered by a police dog called 'Rocky' in the case of Police v Darby (unreported, 21 November 2001). The defendant was one of a group of 40 people who had come out of a nightclub in Oxford St, Sydney, whereupon they were searched by plain clothes police and Rocky. Rocky identified the defendant as being in possession of illegal substances.
The matter was heard by Deputy Chief Magistrate Mary Jerram. She held that the dog had conducted a form of search under s.37(4)(a) but that the search was illegal because it preceded, and indeed created, the formation of the reasonable suspicion required by that section before a search is initiated. On this basis, the magistrate held that the evidence was obtained illegally and was therefore inadmissible.
The magistrate also found that the illegal searches could be seen to create an unlawful interference with the right to privacy, and therefore this search was also in breach of Article 17 of the International Covenant on Civil and Political Rights.
The Police Service has appealed this case. However, in response to the out come, the NSW parliament passed the Police Powers (Drug Detection Dogs) Act 2001. This Act allows the police to search a person without reasonable suspicion that the individual is committing an offence, if that person falls within certain circumstances prescribed by the Act. Those circumstances include entering or leaving a premises where liquor is sold and consumed (other than a restaurant or dining place), entering or leaving a public place hosting a sporting event, concert, artistic performance, dance party, parade or other entertainment, or entering or leaving public transport. Essentially, the Act allows the police to continue to use sniffer dogs for random searches out side nightclubs and on railway stations.
The Police Powers (Drug Detection Dogs) Act 2001 (NSW) promises to encourage some interesting legal debates before the courts on the ongoing use of sniffer dogs in NSW. • SL
This item is based on a report by Phillip Gibson 'Sniffer dog out by magistrate', Feb 2002 LSJ 62.
On 19 December 2001 Coroner Wallace handed down the findings in the death of Johnno Johnson Wurramarrba. The deceased died in custody on 10 February 2000 while imprisoned for a mandatory term of incarceration following unlawful entry and theft. In many ways, this death was a turning point in the mandatory sentencing debate. His death was repeatedly used as an example of the failure of the regime. That regime has now been repealed by the Northern Territory government.
The inquest revealed fundamental issues in relation to the prosecution, defence and sentencing of Aboriginal defendants in 'bush courts'. The deceased was from the remote Aboriginal community of Groote Eylandt. The crime he was sentenced for was com mitted at Groote Eylandt. He was sentenced in a 'bush court' which sat as a Juvenile Court in Alyangula, Groote Eylandt, on three separate occasions.
Submissions were made to the Coroner that there were at least three sentencing errors made in the sentencing history of the deceased. The final error was the ignorance regarding a diversionary program available to be considered by the court in sentencing the deceased. There was no indication that the court considered that option. The court were not alerted to that option by defence counsel or the prosecutor. It was submitted by the Director of Public Prosecutions, Mr Rex Wild QC, that 'it was while serving that perhaps unnecessary 28 days, that the deceased died'.
Two of the 14 recommendations made related to proceedings in 'bush courts'. First, the Coroner recommended that the DPP and Commissioner of Police jointly ensure that bush courts be served by capable prosecutors. Second, it was recommended that sufficient resources be allocated to Aboriginal Legal Aid organisations and that those organisations allocate their resources so that their clientele at bush courts receive a quality of service com parable to the clientele in major centres. • FH
On 7 December 2001, Justice Weinberg of the Federal Court delivered judgment ruling that the contentious appointment in 1998 of Hugh Bradley as Chief Magistrate of the NT on special terms for a two-year period, was not unconstitutional or otherwise invalid as being made for an improper or extraneous purpose.
The case has generated intense heat in 'Top End' legal circles as many thought the original appointment was driven by political considerations, particularly to secure the installation as Chief Magistrate of someone who was felt to be sympathetic to the government's controversial policy on mandatory sentencing. The fervour over this aspect disappeared somewhat with the unexpected rout of the previously entrenched CLP in the August 2001 Territory Election and the subsequent dismantling of mandatory imprisonment.
Some, however, were still propelled by worries surrounding the issue of undermining judicial independence by fixed-term magisterial appointments and the matter proceeded to full hearing. The matter is subject to appeal but whether this will proceed is unclear. Critics of the previous regime will garner some satisfaction from the judicial criticism of the evidence of their betenoir, past Chief Minister Shane Stone.
One much debated aspect of the matter concerns the proper role of an Aboriginal legal aid organisation such as the Northern Australian Aboriginal Legal Aid Service (NAALAS). Should such a body invest a significant slice of its resources in fighting a matter of principle or should it concentrate on providing a grass-roots service to Aborigines in day-to-day need? The importance of this facet of the case may be highlighted if an order for costs is made against NAALAS. Costs are likely to be large and would bite deeply into the NAALAS budget, thus reduc ing the amount available for furnishing a basic legal service. • KB
Pauline Hanson has left politics -at least until she seeks to re-enter it. On 14 January 2002, the former Member of Parliament announced she was resigning her unpaid position as President of Pauline Hanson's One Nation Party. The party's one Senator, Queensland's Len Harris, declared the move to be 'in the party's best interests'.
It was a whimper of an exit for the woman who fell to earth with a bang in the 1998 federal election, taking a safe Labor seat in a storm of reactionism against minorities. The party, its power centre shifted from Ipswich to Perth, will drop her name from its registered title. Whether it will be possible to have a Peronist party without a Peron, at least in a titular position, remains to be seen, though One Nation still has members in three Australian parliaments. While failing to entrench itself, the movement has spawned 'Hansonism' as a Bumpkinite, anti-globalist nationalism. Hanson, meanwhile, faces committal hearings in April on fraud charges arising from the party's original registration in Queensland.
A forensic patient, regulated for parricide, manages to absent himself from custody at Wolston Park Hospital. Four
days later, he is found and secured, having returned to his hospital unit searching for ciggies. He says he spent those
days, not roaming the streets looking for mayhem, nor enjoying the coverage of his story, but holed up in a cricket pavilion in the facility's grounds. One could expect headlines such as 'Escapee Breaks Back In'. But what here guarantees a moral panic?
For several weeks, Queensland's media and the political process they drive have been awash with fearful portraits of the 'criminally insane' and tough-sounding political rhetoric. This is not to deny that those most intimately concerned, particularly staff and patients (and their families) alike, have legitimate concerns about ageing facilities, cost-conscious security and inadequate treatment and rehabilitation.
Rather it is to ask why action is taken only when an unreasonable fear for public safety is whipped up. As if to illustrate the point, journalists searching for more 'killers on the loose' stories only succeeded in uncovering an earlier, more tragic security lapse. In that case, a regulated patient wandered out of hospital, obtained four litres of kerosene from a garage and self-immolated. He survived, but with second degree bums.
Rhetoric aside, the Beattie government has deferred the issue to an inquiry, headed by a Monash University academic, into the assessment and treatment of forensic patients by the Health Department and the Patient Review Tribunal. The saving grace of governance by experts is that the media quickly loses interest in the details and the Ministry, within reason, commits itself in advance to implement their recommendations, including progressive and systemic reforms.
Liabilities of public liability
Queensland, like the rest of Australia, is full of tales of massive hikes in public liability insurance, affecting both business and community sectors. The effect on not-for-profit ventures was starkly illustrated in the likely closure of Clifton's RSL Hall after 40 years.
As the federal government seeks to co-ordinate a national summit, Australia may get its own version of the UK's Pearson Commission. Hopefully Premier Beattie, having pre-emptively announced his own 'taskforce' into the issue, will commit Queensland to a national approach.
Unfortunately, radical reform seems off the books, with Federal Minister Hockey pulled into line after he floated a national, no-fault accident insurance regime, a Ia the NZ scheme and the Woodward/Whitlam model. Meanwhile insurers, offering no support for this alternative to tort, jump ahead of the 'blame game' by pointing the finger at plaintiff attorneys and courts. How common law, growing at organic rates, could be responsible for premium rises of up to 1000%, is unclear. Lawyer bashing is obviously more colourful than explaining that the reinsurance market is vacuuming up funds to meet September 11 claims, chiefly from New York. When the richest city in the world hurts, insurance spreads the pain to the less rich as well. • GO
South Australia is to have a Constitutional Convention which will examine parliamentary reform including citizens' initiated referenda, a reduction in the number of MPs, changes to the election of the Legislative Council and its role and parliamentary procedures in general. A conservative independent (and former Liberal MP) has extracted support from the Labor Party for this as part of his conditions of support for a minority Labor government.
Needless to say it is a populist and conservative agenda. A reduction in the number of MPs is often based on the notion of 'snouts in the trough' politicians - but even if one accepts this view, will a reduction in their number change their character? More importantly, if accountability of parliament and better representation is the aim of this program, then how does cutting numbers and thereby reducing the chance of diversity of representation achieve those outcomes. A small parliament may be more efficient but why should democracy be in a rush? Some of the worst outcomes have been pre vented because parliaments took too long to make up their mind.
Likewise citizens' initiated referenda seem like a good idea in terms of democracy. Though some express concern that it will become government by talk back radio, of greater concern is that in the absence of a Bill of Rights to protect minorities it will result in rules made by the majority in their own interests. Clearly, a State Bill of Rights has to be on the agenda of a Constitutional Convention. And while we are discussing accountability, what about lowering the voting age to 15?
Although this Convention has come about because of the influence of a conservative independent in shaping the government it will be interesting to see how the Labor government determines its agenda. It may be a great opportunity to engage in some real constitutional reform -provided diverse views are truly represented and, of course, the MPs who must still pass those reforms ultimately accept the need for change.
The fledgling Family First Party appears to have won a seat in the State Upper House. The party has links to the church -the likely new MP is apparently an Assemblies of God minister. It should be no surprise that the definition of family which the party has adopted and which is displayed on their website is heavily centred on the heterosexual family:
Family First believes the family is the most important social unit in society. The party has formed to promote, protect and 'put first' the welfare of boys, girls, mums, dads, heterosexual or single parent families and extended families.
Although this definition includes a reference to single parent families it is clear that the party does not regard this as 'normal'. In the FAQ section of their website they pose the question: 'How would you define the word family in the context of same sex couples who would like to have children through invitro fertilisation?' and answer:
Family First Party believes that the time-tested traditional model of raising children is still the best. There is insufficient evidence to support the stance that children brought up by same sex couples derive the same benefits as those reared in households with mums and dads. The role of a father or mother should not be lightly regarded as the absence of such a parental figure could well result in long-lasting and deep wounds.
Let us hope that this party receives the same scrutiny as other parties when it enters parliament. • BS
Victorian electricity users now have a choice of electricity retailers: 'full retail contestability' commenced in Victoria on 13 January 2002 (though with more of a whimper than a bang).
The privatisation of the electricity industry began in the mid-1990s by the Kennett government, with the corporatisation of the SECV and then sale of component parts to the private sector. Competition, the central ideology of 1990s government, was introduced more slowly, starting with the largest users of electricity. Full retail competition was to have been extended to small and domestic users of electricity in Jan uary 2001 but this was delayed until January 2002.
Will domestic consumers benefit from competition? They will be able to remain with their existing retailer or shop for a better energy package -in the UK retailers offer 'bundled' packages including electricity and gas, phone services and insurance, with a range of prices and discounts (which may be difficult to compare, as with telecommunications in Australia). Price protections will be maintained for a period but then will be determined by 'the market'. There may be scope for consumers to combine, to increase buying power. Contestability in the UK was accompanied by frenzied face-to face marketing by rival companies, as occurred in Australia in telecommunications; marketing may be more controlled here.
On the other hand, negative overseas experiences are also likely to be repeated: the 'cherry-picking' of attractive (high income, high usage) customers and the reduction or refusal of services to low income or low usage customers. There is no statutory right to electricity, despite power being an essential service in this society. Suppliers are required to offer supply, and to endeavour to provide payment options for low-income users, but are not required to go further in addressing poverty issues: they are also likely to offer less attractive discounted or bundled services to less 'attractive' customers. Demand is also currently unaddressed: what incentives are retailers likely to offer for customers to reduce their power usage, given their responsibilities to their shareholders? This is obviously an environmental issue. It is also important for possible future problems with supply of power -Victoria has had to purchase expensive power on the national market already, faced with insufficient generation capacity. The new Victorian regulator, the Essential Ser vices Commission, has enhanced mechanisms for consultation with consumers: these must be some of the issues on the agenda. • BN
DownUnderAllOver was compiled by Alt.LJ committee members Ken Brown, Fiona Hussin, Sabina Lauber, Bronwyn Naylor, Graeme Orr and Brian Simpson together with invited writers listed under their items above.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/15.html