O'Connor, Kevin --- "The Federal Privacy Commissioner: Pursuing a Systemic Approach" [2001] UNSWLawJl 3; (2001) 24(1) UNSW Law Journal 255
[*] President,
Administrative Decisions Tribunal of New South Wales; Chairperson, Fair Trading
Tribunal of New South Wales; first Federal
Privacy Commissioner,
1989-96.
[1] Both of which were issued in 1993. The first concerned a complaint against a Minister, from a prominent Opposition Member of Parliament (‘MP’), in respect of alleged disclosure – in contravention of the Privacy Act – of information about the Opposition MP connected with an application they had made to the Minister’s Department in respect of a travel expense claim. The information contained in the claim had found its way into a press report. While the ultimate publication pointed towards a contravention of the Information Privacy Principles (as set out in the Privacy Act), I found that there was insufficient evidence for me to identify the source of the disclosure. In the second case, the agency involved conceded that there had been a wrongful disclosure of information relating to discharge from employment, but stated that it was unable to settle the matter for the proposed amount, which it saw as reasonable, because of restrictions on its Finance delegation. However, this problem could be overcome if there was a formal determination, so a reasoned public determination was issued.
[2 ] The rules commenced operation in 1992.
[3] For example, the Department of Social Security (now Centrelink in this regard) has to ensure that payments are made to the right people based on correct information and in the correct amount. It relies on information given directly by the applicant and may move to cut off payment if other sources of information question the assumptions upon which the agency is making payments. But the desire to act
quickly to limit damage to revenue has to be balanced against the right of the citizen to fair decision-making and fair and accurate use of personal information.
[4] Opened for signature 28 January 1981, ETS No 108 (entered into force 1 October 1985).
[5] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995.
[6] 5 USCS s 552 (1966).
[7] 5 USCS s 552a (1974).
[8] The application of standards of this kind, which involve categories of indeterminate reference, ‘must include a decision as to what justice requires in the context of the instant case’: Julius Stone, The Province and Function of the Law (1946) 186. However, in the context of privacy law, I tend to the view that the use of broad statements of principle is probably unavoidable, and in fact such general principles have an important educative role to play as they state simply and in clear terms the values that are being protected.
[9] See Chevron USA Inc v Natural Resources Defense Council Inc, [1984] USSC 140; 467 US 837, 843-4 (1984). For a recent summary, see Southern California Edison Co and Los Angeles Dept of Water and Power v United States, 226 F3d 1349 (Fed Cir, 2000) pt B. See also Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 156-75. The Chevron doctrine has recently been described as ‘clearly anathema’ to the High Court: Mark Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 17, 20, referring to Corporation of City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 151-4, 158. See also Stone, above n 8, 198, where he comments on what he saw at that time as the ‘deep rooted common law tradition of judicial hostility to legislation’.
[10] Through the Privacy Amendment (Private Sector) Act 2000 (Cth).
[11] Privacy Amendment (Private Sector) Act 2000 (Cth) s 55B, which is yet to commence.
[1] Both of which were issued in 1993. The first concerned a complaint against a Minister, from a prominent Opposition Member of Parliament (‘MP’), in respect of alleged disclosure – in contravention of the Privacy Act – of information about the Opposition MP connected with an application they had made to the Minister’s Department in respect of a travel expense claim. The information contained in the claim had found its way into a press report. While the ultimate publication pointed towards a contravention of the Information Privacy Principles (as set out in the Privacy Act), I found that there was insufficient evidence for me to identify the source of the disclosure. In the second case, the agency involved conceded that there had been a wrongful disclosure of information relating to discharge from employment, but stated that it was unable to settle the matter for the proposed amount, which it saw as reasonable, because of restrictions on its Finance delegation. However, this problem could be overcome if there was a formal determination, so a reasoned public determination was issued.
[2 ] The rules commenced operation in 1992.
[3] For example, the Department of Social Security (now Centrelink in this regard) has to ensure that payments are made to the right people based on correct information and in the correct amount. It relies on information given directly by the applicant and may move to cut off payment if other sources of information question the assumptions upon which the agency is making payments. But the desire to act
quickly to limit damage to revenue has to be balanced against the right of the citizen to fair decision-making and fair and accurate use of personal information.
[4] Opened for signature 28 January 1981, ETS No 108 (entered into force 1 October 1985).
[5] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995.
[6] 5 USCS s 552 (1966).
[7] 5 USCS s 552a (1974).
[8] The application of standards of this kind, which involve categories of indeterminate reference, ‘must include a decision as to what justice requires in the context of the instant case’: Julius Stone, The Province and Function of the Law (1946) 186. However, in the context of privacy law, I tend to the view that the use of broad statements of principle is probably unavoidable, and in fact such general principles have an important educative role to play as they state simply and in clear terms the values that are being protected.
[9] See Chevron USA Inc v Natural Resources Defense Council Inc, [1984] USSC 140; 467 US 837, 843-4 (1984). For a recent summary, see Southern California Edison Co and Los Angeles Dept of Water and Power v United States, 226 F3d 1349 (Fed Cir, 2000) pt B. See also Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 156-75. The Chevron doctrine has recently been described as ‘clearly anathema’ to the High Court: Mark Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 17, 20, referring to Corporation of City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 151-4, 158. See also Stone, above n 8, 198, where he comments on what he saw at that time as the ‘deep rooted common law tradition of judicial hostility to legislation’.
[10] Through the Privacy Amendment (Private Sector) Act 2000 (Cth).
[11] Privacy Amendment (Private Sector) Act 2000 (Cth) s 55B, which is yet to commence.