Dated February 2002
This document is at http://www.privacy.org.au/Papers/SubmnCParlt0202.html
The Australian Privacy Charter Council is known to the Committee from previous submissions. The Council's interest in this legislation relates to the provisions concerning information gathering powers.
The Bill provides for "Examination Orders" - Part 3-1 - which give powers to the Director of Public Prosecutions.
We note that at the hearing on 30 January, the DPP stated that:
"My office has developed guidelines as to the operation of the examination power and the operation of the office under the provisions of the bill. We are not yet in a position to make them available to this committee because of the discussions that we are having with the Privacy Commission. We are close to finalising the last draft of those guidelines as a result of the input from the Privacy Commission."
We welcome the intention to have such guidelines, but consider that they should be available for public consideration before the new powers are granted. We also point out that the provision of this safeguard for such a relatively narrow power (examination orders can only relate to persons already subject to a restraining order) stands in stark contrast to the lack of equivalent safeguards for the new "Notices to Financial Institutions" on which we comment below.
The Bill introduces a new device - "Notices to financial institutions" (Part 3-3) - which provides for a range of AFP and NCA officers to be able to require financial institutions to produce information or documents relevant to specified accounts or transactions. Unlike the existing provisions for `Production Orders'; `Monitoring Orders' and `Search Warrants' which are updated in the Bill, the new "Notices" do not require judicial authorization. On the other hand, like Production and Monitoring Orders, Notices can include a requirement not to disclose the existence or nature of the Notice, breach of which is a criminal offence. We assume that it will be the norm for Notices to include such a requirement.
The Council is concerned that these provisions represent a further erosion of the financial privacy of individuals without sufficient safeguards or accountability. In our view, judicial authorization should be required for the issue of a Notice to Financial Institution.
Consistent with our general position on search warrants and information gathering powers, two other safeguards should also be introduced. Firstly, there should be a requirement to report publicly, at least annually, on the number and general nature of "Notices" (and of production and monitoring orders and search warrants under the Act if this is not already the case). Secondly, there should be an `after the event' requirement to notify individuals that a "notice" has been served in relation to them, once there is no longer any prejudice to a current investigation. These measures would help to ensure that the broad and intrusive information gathering powers under the Act are used sparingly, and that they agencies concerned can be held to account for their use.
Nigel Waters
Convenor
Australian Privacy Charter Council
Go to the APF Home Page.
Created: 7 February 2003
Last Amended: 7 February 2003
APF thanks its site-sponsor: