Dated 26 July 2002
This document is at http://www.privacy.org.au/Papers/SubmnOFPC0207.html
Thank you for the opportunity to make a submission on these Guidelines.
Guidelines will be useful not only to applicants but also to public interest advocacy groups such as ours.
An additional consideration to be covered in applications (para 1.5) could be the extent to which recipients of the information are subject to substantially similar laws or binding codes (there may be advantages in expressly linking this criterion to NPP 9 and its wording).
We are particularly pleased to see that you are suggesting a process of consultation that goes beyond the rather narrow `invitation to request a conference' requirement in the Act (s.75). As we have argued before, the scheme of Part VI only really works if there is a clear invitation to interested parties to make submissions accompanying the publication of the notice of receipt of the application. A strict interpretation of s.74 would not see any requirement to make the application itself, and any supporting materials, publicly available, even though this is implied by the s.74(2) withholding provision and by the sub-heading `Publication of application'.
It makes sense for the Commissioner to be aware of any significant views about proposed determinations before he issues a draft determination. Otherwise the Commissioner's position is likely to be unduly influenced by the case made by the applicant, and to under-appreciate any opposing views. Critics of a proposed determination will inevitably perceive a higher barrier, and probably have to surmount one, if the Commissioner has already declared a pre-disposition to grant an application, than if he invites submissions first on an application.
The commitment at 2.2 to pro-actively disseminate notice of applications received is welcome - many public interest advocacy groups (and other interested parties) cannot routinely monitor newspapers or the Gazette, or even routinely view the OFPC web-site.
The provision at 2.3 for summaries of lengthy applications is acceptable provided full details and supporting materials are available free of charge to interested parties on request.
While we understand the reason for retaining the discretion to dispense with pre-draft determination consultation (Note after 2.3), we would caution against the exercise of this discretion too often, particularly in the early years of operation. Matters which may appear at first sight to be `minor and non-controversial' may turn out to have profound implications -not necessarily for the particular application, but perhaps by setting a precedent.
We would like to see a commitment to a minimum specified period of consultation on applications, before the Commissioner issues a draft determination. We suggest 60 days as a reasonable period of time for initial submissions -- this would make the relatively shorter period of 15 days proposed for `objections' later in the process more acceptable.
We would like to see a general commitment that everyone who had expressed interest would be treated as having a `real and substantial interest' for the purposes of receiving the draft determination, even if the Commissioner wants to retain the discretion not to allow some parties to request a conference. This discretion should generally only be exercised if the party concerned is making trivial or malicious submissions.
The draft determination should never be too long to be supplied in full - a summary may not be adequate.
Draft determinations should explain the not only the justification for granting (or denying) the application, but also the the reason why it is considered necessary eg: why the applicant cannot achieve its objectives without breaching a principle. If the applicant has not made this clear in their application, the Commissioner needs to.
The Guidelines could usefully deal with the question of `generalising' determinations under s.72(4). There may be arguments for the Privacy Commissioner identifying cases where a `generalising' determination would be in the public interest, whether or not the applicant for a specific PID, or any other party, has requested it. While PIDs should not be given lightly, the process is quite onerous and time consuming for all concerned. It is in the public interest to avoid having to repeatedly go through an identical process with identical arguments as and when organisations become aware of their need for a determination. Where there are:
then the Commissioner might wish to propose a generalising determination. Care would need to be taken in defining the class of beneficiaries and additional care with the terms of the primary determination, to avoid any unanticipated adverse consequences. There would also be an onus on the Commissioner to identify and consult those parties likley to be affected by the generalisation. In this regard the experience of the first Commissioner with PID 3A, and the comments of the Senate Committee on Regulations and Ordinances on the adequacy of consultation on that Determination (see reasons for Determination) are relevant.
Go to the APF Home Page.
Created: 7 February 2003
Last Amended: 7 February 2003
APF thanks its site-sponsor: