Australian Privacy Foundation

Submission to the Office of the Federal Privacy Commissioner (OFPC)

Dated March 2002

This document is at http://www.privacy.org.au/Papers/SubmnOFPCCodesCons0203.html

Submission re Consultation Processes involved in the Development and Consideration of Codes of Practice under Part IIIAA

Further to my discussions with yourself and Julia Clapin, I am writing on behalf of a range of consumer and privacy groups about the consultation processes involved in the development and consideration of Codes of Practice under Part IIIAA.

We are concerned that we have the maximum opportunity to become aware of and involved in consideration of any proposed Codes of Practice at the earliest possible opportunity.

I hope you would acknowledge that there are some key NGOs that will necessarily have a potential interest in all proposed Codes - even those proposed by specific businesses and directly affecting a small number of individuals. These organizations have expertise and collective memory which should be brought to bear on applications for Codes, particularly given the potential for Codes to weaken privacy protection. We would imagine that there are a number of other parties who might have a similar expectation - such as the State Privacy Commissioners and the Commonwealth Attorney-General's Department.

Given our limited resources, we cannot of course guarantee that we would be able to comment on any particular draft code, but unless we are aware of all code applications, we cannot make choices about priorities.

It has become clear that a narrow interpretation of the formal processes may result in applications for Codes reaching an advanced stage before we become aware of them. Applicants do not necessarily consult with your office until they make an application, by which time you would have expected the required public consultation to have taken place. If the applicant has a narrow concept of what consultation is required, it is quite possible that groups such as ours would not be aware of their proposal - as an example we were only aware of one of the six applications that I now understand you have already received.

We would like to suggest two practical steps that would help to maximise the chances of effective and early consultation.

1. Your office could advise potential applicants at an early stage that there are certain key public interest groups (and other parties) that may be interested in commenting on Code applications and that they should consider informing them so they could indicate their willingness to consult. We understand that you cannot mandate notice to or consultation with particular parties but you could surely indicate that you would be unlikely to accept any consultation as adequate unless certain groups had been given the opportunity to comment (and not just by relying on the general public advertisement). As well as telling potential applicants who consult you informally, you could also make this suggestion clearly in general information about the Code process - eg: on your web-site.
2. As soon as you had received a formal application for a Code (and even earlier by arrangement with the applicant) you could post a notice on your web-site giving contact information for the applicant - preferably a link to their web-site if relevant. I draw your attention to the Privacy NSW web-site which has a list of Codes under consideration.

Had we been aware that your office might take a conservative approach to consultation, we would have raised these issues in our comments on the Code Development Guidelines. But we cannot see how the steps we have suggested above are inconsistent with those Guidelines or would require them to be amended.

We hope that you will be able to adopt these two steps. We would be happy to discuss the suggestions with you if necessary.

The Privacy Code development process is heavily dependent for legitimacy on the appropriate consultation with consumer and public interest groups to occur. At a more general level, we urge you to examine ways to bring neutral and adequate funding arrangements (paid for by applicants or industry more broadly) to create an environment where adequate consultation and review from these perspectives can be achieved, rather than the ad hoc scramble for scarce advocacy resources currently in contemplation.

Yours sincerely

Nigel Waters, Australian Privacy Charter Council;

Tim Dixon, Australian Privacy Foundation;

Charles Britton, Australian Consumers Association

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