Reasons for Public Interest Determination Number 7A

under section 72 of the Privacy Act 1988.

(A determination amending Public Interest Determination Number 7)

1 Background

The Privacy Act 1988 requires federal government agencies to comply with the eleven Information Privacy Principles in section 14 of the Act. On 10 March 1997, the Department of Foreign Affairs and Trade (the ‘Department’) applied for a public interest determination under section 72 of the Privacy Act to allow it to disclose personal information about Australians overseas to their next of kin in circumstances which would not otherwise be permitted by the Information Privacy Principles.

In accordance with section 74 of the Privacy Act, I published a notice of the application in the Commonwealth Gazette on 28 May 1997 and in the Sydney Morning Herald on 31 May 1997 inviting expressions of interest in, and submissions on the proposal. In addition, individuals and organisations known to be potentially interested in the issue were notified of the application by mail. I received seven submissions and six acknowledgements from interested parties.

I issued a determination on 21 October 1997 (the ‘Determination’), along with a statement of reasons for my decision. The Determination is at attachment ‘A’. In summary, the Determination gave the Department of Foreign Affairs and Trade the authority to disclose personal information of Australians travelling overseas to their next of kin in certain limited situations where:

. there is a serious threat to the health of an Australian overseas; or

. an Australian overseas has been arrested and this information has been made publicly available; or

. next of kin have asked for welfare and whereabouts information and the individual concerned has refused his or her consent to disclosure of information.

The Determination places strict limits on the circumstances in which personal information can be disclosed and, in some cases, the nature of the information that can be disclosed.

The Determination also contained the following conditions:

2. The determination shall be subject to the following conditions :

(1) Decisions concerning disclosures made under this Determination may only be made by a senior officer of the Department authorised by the Minister.

(2) The Department should develop guidelines subject to the Privacy Commissioner’s approval to assist with the application of this Determination. The guidelines should stipulate that the provisions of the Determination should not be relied upon if a disclosure can otherwise be permitted by Information Privacy Principle 11. They should, inter alia:

(a) provide guidance on ascertaining the status of a person as the “next of kin” of an Australian national overseas;

(b) clarify the interpretation of the terms “humanitarian reasons” and “publicly available information”;

(c) require the senior authorised officer to take into account the sensitive nature of health or criminal records in coming to a view.

(3) The Department should take reasonable steps to ensure that there is general public awareness about the Determination.

(4) The Department is required, at the end of each financial year, to report to the Privacy Commissioner on the number of occasions when disclosure of information under this Determination took place, and under which provision of the Determination each disclosure was authorised.’

The Determination was tabled in both Houses of Parliament on 23 October 1997. Copies of the Determination were also forwarded to the Senate Standing Committee on Regulations and Ordinances, the Attorney-General and other interested parties. Notice of the Determination was published in the Commonwealth Gazette on 19 November 1997.

A determination under the section 72 of the Privacy Act is a disallowable instrument. If either House of Parliament disallows a determination it does not come into effect. On 27 November 1997, Senator O’Chee, Chairman of the Senate Regulations and Ordinances Committee, gave notice that 15 sitting days after that date he would move that the Determination be disallowed. The Committee raised concerns about, and sought advice from the Attorney-General on, subclauses 2(2) and 2(3) (the conditions) of the Determination.

The Committee was concerned:

 that these subclauses appeared to be of no effect, because to provide that the Department ‘should’ engage in some particular action, is not the language of a condition, but of a request;

 that the Determination did not specify a time frame within which the guidelines referred to in subclause 2(2) were to be developed; and the reasonable steps to ensure awareness of the determination, referred to in subclause 2(3), were to be taken.

The Committee also queried the basis on which the Privacy Commissioner could impose a condition that the guidelines must be made with her approval and commented that this condition rendered the operation of the subclause uncertain as it was not clear what would happen if the guidelines were developed but not approved.

In contributing to the advice given to the Committee, the Deputy Privacy Commissioner agreed that it would have been clearer to use the word ‘shall’ in all instances but also suggested that because clause 2 states the determination ‘shall be subject to the following conditions’ (emphasis added), subclauses 2(2) and 2(3) could not be regarded as merely advisory. However, in view of the Committee’s concerns and the need for clarity in the wording of the Determination, the Deputy Privacy Commissioner offered to seek to have the Privacy Commissioner amend the Determination by changing ‘should’ to ‘shall’ in subclauses 2(2) and 2(3).

In relation to the timeframes for meeting the conditions, the Committee was also advised that the Department had given an assurance that it would not make a decision pursuant to the Determination until all the conditions of the Determination had been met. The Department had also been advised that if guidelines had not been finalised within four months of the Determination coming into effect (23 July 1998), consideration would have been given to revoking the Determination until the guidelines were finalised.

The Committee was satisfied with the advice provided to it and Senator O’Chee withdrew the notice of motion to disallow the Determination. The Determination came into effect on 23 March 1998. The Committee noted that it understood that the Determination would be amended to provide for mandatory provisions in subclauses 2(2) and 2(3).

The Department subsequently produced guidelines in consultation with this office which were approved prior to 23 July 1998, and consequently, the Determination was not revoked.

The Department consulted with my office on the steps it would take to ensure that there is a general public awareness about the Determination and made a commitment in writing on 24 July 1998 to undertake those steps.

On 30 July 1998, the Department sent written notice to me that it had not made any decisions under the Determination as at 30 June 1998.

A draft of Determination 7A and the associated reasons was circulated for comment to the persons who made submissions or expressed an interest in the Determination. Only one response with comments on the draft was received and no requests were received for a conference under section 76 of the Privacy Act.

2 Findings

The findings on material questions of fact relating to Public Interest Determination 7A are as follows:

(i) During the period in which Public Interest Determination No.7 was subject to disallowance, the Chairman of the Senate Standing Committee on Regulations and Ordinances, Senator O’Chee, sought advice from the Attorney-General on, inter alia, the use of the word ‘should’ in subclauses 2(2) and 2(3) of the Determination.

(ii) The advice provided to the Committee in response to its concerns regarding the mandatory status of the conditions stated, in part, that the Deputy Privacy Commissioner would seek to have the Privacy Commissioner amend the Determination changing ‘should’ to ‘shall’ in subclauses 2(2) and 2(3) at the earliest opportunity.

(iii) The advice provided to the Committee in response to its concerns regarding the timeframes for the Department to meet the conditions in subclauses 2(2) and 2(3) stated that the Department has given assurances that it would not make any disclosures under the Determination until the conditions have been met.

(iv) The Chairman of the Senate Standing Committee on Regulations and Ordinances advised the Attorney-General that the advice met the Committees concerns and noted that it understood the Determination would be amended to provide for mandatory provisions in subclauses 2(2) and 2(3).

(v) The Determination took effect from the first day on which it was no longer liable to be disallowed, 23 March 1998.

(vi) The Department produced guidelines as required by subclause 2(2) which have been approved by the Privacy Commissioner.

(vii) The Department has given a written commitment that it will:

(a) include a description of the Determination, which has already been settled in consultation with this office, in the booklet ‘Hints for Australian Travellers’ which is provided to every person when they are issued with an Australian passport;

(b) include a description of the Determination on the Department’s Internet home page;

(c) include brief references to the Determination in relevant consular brochures when they are next due to be reprinted; and

(d) provide, where possible, a copy of the Determination to people affected by the Determination.

3 Amendments

In view of the ambiguity as to whether the conditions in sub clauses 2(2) and 2(3) are mandatory requirements, I have decided to amend the Determination to change ‘should’ to ‘shall’ in these two subclauses. It was always my intention that these conditions be requirements that must be satisfied before a decision could be taken to disclose information pursuant to the Determination and I am amending these subclauses to ensure that the determination reflects that intention. (As noted above, the Department gave an assurance that it would not make a disclosure under the Determination until all of the conditions have been satisfied.)

The one response received on draft Public Interest Determination 7A submitted that an additional subclause should be inserted to ensure that the Department can only make a decision under the determination in accordance with the approved guidelines. The purpose of this is to address the issue of a timeframe under subclause 2(2) within which the Department must develop guidelines.

The response submitted that the wording of subclause 2(2) would support an argument that the Department could rely upon the determination provided guidelines were in the process of being developed. This, of course, was not my intention. Given that the Department now has approved guidelines in place, there would seem to be no necessity to include such a condition, however if in future the current guidelines are inapplicable for whatever reason, such a condition would give effect to my intention that a decision must only be made under the determination subject to guidelines approved by the Privacy Commissioner. Consequently, while it makes no difference in real terms at the present time, I have decided, again for reasons of clarity, to insert such a condition.

As to the timeframe for the Department to take reasonable steps to ensure general public awareness of the Determination as required under sub-clause 2(3), I take the view that appropriate timeliness in taking these steps is an integral part of the requirement that the steps taken are reasonable. I have also advised the Department that, in my view, the Department has on-going responsibility to ensure that the travelling public are generally aware of the Determination.

In relation to the query by the Committee as to whether the Privacy Commissioner is able to make a determination which imposes conditions upon the agency, in my view, the authority conferred upon the Commissioner by section 72 of the Privacy Act implicitly authorises the Commissioner to make a determination which is conditional on certain grounds. To take the opposite view would mean regarding the power under section 72 as being purely to either make without alteration or to reject in toto a determination as specifically sought by an agency. Presently, there are no regulations under the Privacy Act to prescribe the form of an application for a determination and the agency does not submit a draft determination as part of the application. Section 75 of the Privacy Act obliges the Commissioner to prepare a draft determination to be circulated for comment.

Given the consultation process required in the course of considering an application, if the power did not include the ability to impose conditions, the process would be inefficient and unduly burdensome both for the applicant and my office. The agency would be forced to submit successive applications until it was successful in obtaining a determination. The consultation process should be used not just to decide whether to accept or reject a given draft determination, but to consider any reasonable modifications or conditions which would serve both to better protect the privacy of individuals and to serve the public interest.

4 Conclusions

1 The language used in Public Interest Determination No.7 that I issued on 21 October 1997 leaves open to question whether the conditions in subclauses 2(2) and 2(3) of the determination are mandatory conditions. I have decided to amend the Determination to ensure that it is clear that these conditions are mandatory.

2 The intention that the Department can only make a decision to disclose information under the Determination in accordance with guidelines approved by the Privacy Commissioner ought to be expressly stated in the Determination.

3 The word ‘reasonable’ in sub-clause 2(3) refers not only to the actions taken but the timeliness of taking those actions.

The conditions as amended shall read:

‘2 The determination shall be subject to the following conditions

(1) ...

(2) The Department shall develop guidelines subject to the Privacy Commissioner’s approval to assist with the application of this Determination. The guidelines shall stipulate that the provisions of the Determination shall not be relied upon if a disclosure can otherwise be permitted by Information Privacy Principle 11. They shall, inter alia:

(a) provide guidance on ascertaining the status of a person as the “next of kin” of an Australian national overseas;

(b) clarify the interpretation of the terms “humanitarian reasons” and “publicly available information”;

(c) require the senior authorised officer to take into account the sensitive nature of health or criminal records in coming to a view.

(2A) The Department shall only make a decision under the Determination in accordance with guidelines approved by the Privacy Commissioner.

(3) The Department shall take reasonable steps to ensure that there is general public awareness about the Determination’

MOIRA SCOLLAY

Privacy Commissioner

7 January 1999

Attachments

A Public Interest Determination No. 7, dated 21 October 1997