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Timmins, Peter --- "Editorial: New chapter for privacy protection?" [2021] PrecedentAULA 48; (2021) 166 Precedent 2

A NEW CHAPTER FOR PRIVACY PROTECTION?

By Peter Timmins

Privacy and access to information are the hot topics in this edition.

Excessive secrecy in government and the need for regulation to protect personal information have been high-profile issues in the law since the 1970s.^[1]

The pandemic is testing the capacity of systems and institutions to cope with challenges on many fronts. Liberal democracies also face the perennial issue of balancing individual rights and what government sees as community interests, made even more difficult and complex in the digital age.

Our contributors provide background and analysis on important contemporary developments.

Transparency and accountability are fundamental principles that underpin democracy. Access to information is essential to hold government to account and enable meaningful participation in public affairs.

The Morrison Government’s performance on transparency and accountability to date is damaging and disappointing. Examples include questionable claims of public interest immunity in response to Senate Orders to produce documents, and sometimes spurious, seemingly political reasons for denying access to documents claimed as cabinet in confidence, commercial in confidence, and deliberative matter.

Journalists and other frequent users of the Freedom of Information Act 1982 (FOI Act) describe the system as dysfunctional, broken and underfunded.^[2] In 2020, the Centre for Law and Democracy Toronto ranked the FOI Act as 64th out of the 128 assessed.^[3]

The Government recently announced a long overdue review of the Archives Act 1983 but has failed to honour its 2016 commitment to ensuring that Australia’s information access laws, practices and policies are fit for the 21st century.^[4]

A culture of secrecy continues to reflect the tone at the top and impacts on the implementation and interpretation of the FOI Act in many ministerial offices and agencies.

However, we are better off with an FOI Act than without. Contributor Pip Mitchell provides useful tips for improving prospects of success when making an FOI application.

Dr Moira Paterson describes the inconsistent management of the records of children in out-of-home care, the difficulties care leavers have with accessing them, and the principles and mechanisms for regulating records creation and access.

History can also be unnecessarily hard to come by: Emeritus Professor Jenny Hocking outlines the long journey to the High Court and eventual victory for the right to know the detail in the letters between Governor-General John Kerr and the Queen, and the broader significance of that decision.

Privacy is important to many Australians. A 2020 survey for the Office of the Australian Information Commissioner (OAIC) showed that for 70 per cent of people the protection of their personal information is a major concern, and 83 per cent would like the Government to do more to protect the privacy of their data.^[5]

The art of the possible in our technological age raises privacy issues across a wide spectrum as governments and business recognise new possibilities for collecting information and accessing the resulting data. Privacy laws and enforcement mechanisms have struggled to keep up with the digitisation of our lives.

Several contributors are heartened by a review of the Privacy Act 1988, announced in December 2019 as part of the Government's response to the Australian Competition and Consumer Commission's Digital Platforms inquiry.^[6]

Meg Lessing and Dr Ebony Birchall recount the outcomes for those seeking compensation for a mass breach of privacy through the OAIC; Karen Cusack notes the complex laws regarding access to health records; and in separate articles Dr Bruce Arnold, Sarah Ghali, Anna Johnston, and Dr Monique Mann and Angus Murray canvass privacy concerns that should be addressed in the Privacy Act review.

Good reading. Enjoy.

Peter Timmins is a former diplomat and lawyer, involved with FOI and privacy issues since the 1980s. He received the Australian Press Council Freedom Award in 2017 for his advocacy for open government reforms. BLOG www.foi-privacy.blogspot.com TWITTER @FOIguru.

¹ See G Whitlam, Australian Labor Party 1972, Australian Federal election speech (13 November 1972) <https://electionspeeches.moadoph.gov.au/speeches/1972-gough-whitlam>; Australian Law Reform Commission, Privacy (Report 22, 1983) <https://www.alrc.gov.au/publication/privacy-alrc-report-22/>.

^[2] Grata Fund, The Federal Government's worst excuses, <https://www.gratafund.org.au/foi_litigation_hit_list>.

^[3] Centre for Law and Democracy, The RTI Rating, Global Right to Information Rating Map, <https://www.rti-rating.org/>.

^[4] Commonwealth Department of the Prime Minister and Cabinet, ‘Australia’s first Open Government Action Plan 2016–18’ (December 2016)

<https://ogpau.pmc.gov.au/national-action-plans/australias-first-open-government-national-action-plan-2016-18/31-information>.

^[5] OAIC, ‘2020 Australian Community Attitudes to Privacy Survey’ (September 2020) <https://www.oaic.gov.au/engage-with-us/research/australian-community-attitudes-to-privacy-survey-2020-landing-page/2020-australian-community-attitudes-to-privacy-survey/>.

^[6] Attorney-General’s Department, ‘Review of the Privacy Act 1988’ (2020)

<https://www.ag.gov.au/integrity/consultations/review-privacy-act-1988>.