CHAPTER 4
PRIVACY AND FREEDOM OF INFORMATION LEGISLATION
Privacy Act 1988
4.1 Following public debate in the 1970s and 1980s and a wide-ranging
inquiry into privacy by the Australian Law Reform Commission from 1976
to 1983, Federal Privacy legislation was enacted in 1988. The general
privacy principles adopted in the Privacy Act 1988 are broadly in line
with those endorsed by the Council of the Organisation for Economic
Co-operation and Development (OECD), the Council of Europe and the United
Nations General Assembly. Most Western European legislatures and some
in North America have enacted a similar law.
4.2 The Act focuses on privacy protection for information handling
in Commonwealth departments and agencies. The Act establishes 11 Information
Privacy Principles (IPPs) which govern the collection, storage, quality,
use and disclosure of personal information. The Act does not take into
account the degree of sensitivity of information about individuals;
it applies to any identifiable personal information. The Principles
also apply to the entirety of personal information held by Commonwealth
organisations and agencies.
Freedom of Information Act 1982
4.3 The Freedom of Information Act 1982 provides a mechanism for members
of the Australian community to gain access to documents in possession
of the Government, which in the case of consular activities, may include
providing applicants with records of administrative action in respect
of individual consular cases. The Act provides exemptions to the release
of all or part of a document. Reasons for exemption include that:
- the information would reasonably be regarded as irrelevant to that
request;
- damage could be caused to the security of the Commonwealth;
- information or matter has been communicated in confidence by or
on behalf of a foreign government or international agency;
- disclosure would not be in the public interest; and
- there would be an unreasonable disclosure of personal information
about any person (including a deceased person).
4.4 A person who is dissatisfied with a decision made in respect of
a Freedom of Information (FOI) application may apply for an internal
review of the decision by the agency. If the person is still not satisfied,
he or she may apply for an external review by the Administrative Appeals
Tribunal.
The Privacy Act and Consular Work
Policy
4.5 In its submission to the Committee, the Department of Foreign Affairs
and Trade stated that the application of the Privacy Act had 'a considerable
impact on the delivery of consular services' [1]
and that while the Privacy Commissioner has ruled that the Act does not
apply to deceased persons, it has 'relevance to virtually every consular
case'. [2]
4.6 Information Privacy Principle 11 is particularly relevant to consular
activities:
Principle 11: Limits on disclosure of personal information
1. A record-keeper who has possession or control of a record
that contains personal information shall not disclose the information
to a person, body or agency (other than the individual concerned)
unless:
(a) the individual concerned is reasonably likely to have been
aware or made aware under Principle 2 [Solicitation of information
from person concerned], that information of that kind is usually passed
to that person, body or agency;
(b) the individual concerned has consented to the disclosure;
(c) the record-keeper believes on reasonable grounds that the
disclosure is necessary to prevent or lessen a serious and imminent
threat to the life or health of the individual concerned or of another
person;
(d) the disclosure is required or authorised by or under the
law; or
(e) the disclosure is reasonably necessary for the enforcement
of the criminal law or of a law imposing a pecuniary penalty, or for
the protection of the public revenue.
2. Where personal information is disclosed for the purposes
of enforcement of the criminal law or of a law imposing a pecuniary
penalty, or for the purpose of the protection of the public revenue,
the record-keeper shall include in the record containing that information
a note of the disclosure.
3. A person, body or agency to whom personal information is
disclosed under clause 1 of this Principle shall not use or disclose
the information for a purpose other than the purpose for which the
information was given to the person, body or agency.
4.7 In certain circumstances, DFAT will release information about an
Australian overseas. For example, if many Australians are caught up
in a natural disaster or civil war overseas and cannot be contacted
by consular officials, it is DFAT's practice to divulge information
to next of kin. DFAT relies on Privacy Principle 11(1)(a) to do this,
as an individual may reasonably expect DFAT to pass on personal information
in such circumstances. DFAT gave the example of a recent evacuation
from Liberia:
where the only information we were getting about the Australians
who were being evacuated from Liberia was information we were getting
via the United States because the United States government ... was involved
in their evacuation from Liberia. The families in Australia were obviously
interested to know what was going on with their next of kin or whatever
in Liberia at the time. We were not in a position to ask those people
in Liberia if they would authorise us to speak with their families.
There was no reason to think they would not authorise us, but equally
we do not know whether they would have or not. Under the Privacy Act
we are theoretically not in a position to notify the family because
it did not make any difference to the actual health and welfare of the
people being evacuated whether the family in Australia knew. Taking
a literal approach to the Privacy Act we were not permitted to speak
with the family. [3]
4.8 In the case of medical evacuations. DFAT relies on Privacy Principle
11(1)(c) to contact the next of kin on the basis that 'it is necessary
to prevent or lessen a serious and imminent threat to the life or health
of the individual concerned'.
4.9 Where individuals are involved, DFAT's practice is to ascertain,
if possible in writing, whether an individual who requires assistance
wishes their next of kin or other relative to be informed. If consent
is given, DFAT will pass on information to the next of kin or other
relative.
Public Interest Determination
4.10 Under section 72 of the Act, the Privacy Commissioner has the
power to determine that an act or practice of an agency which might
constitute a breach of an IPP shall be disregarded for the purposes
of the Act. In making a section 72 determination, the Commissioner must
be satisfied that the public interest in the agency doing the act or
engaging in the practice, outweighs to a substantial degree, the public
interest in adhering to that IPP. In order to do this, the Privacy Commissioner
places advertisements in the press informing the public that an application
has been made and calling for interested parties to make a submission.
The Commissioner holds public hearings on the matters before her, before
making a determination.
4.11 In late 1996, the Department made an application for a Public
Interest Determination (PID) to engage in the practice of disclosing
personal information about Australians overseas to their next of kin
in circumstances which would otherwise constitute a breach of IPP 11.
DFAT sought this determination for individuals only, not classes of
citizens, and where DFAT would make disclosures or notifications to
the individual's next of kin in either of two ways:
- disclosure on the initiative of DFAT in the interests of the individual;
and
- disclosure made at the request of the next of kin.
4.12 The first circumstance would apply where an Australian overseas
is suffering from serious health problems and informed consent may be
unobtainable or where the health problems of a person may not necessarily
satisfy IPP 11(1)(c) but disclosure may nevertheless still be in the
interests of the individual. The second circumstance would apply where
an Australian is arrested or imprisoned overseas or where there is an
inquiry about the general welfare and whereabouts of an Australian overseas.
4.13 Following amendment, the Department's application was resubmitted
in March 1997.
4.14 The Privacy Commission is expected to publish notification of
the application in late May 1997 with a draft determination to be made
by the end of June followed by a final determination at the end of July
1997. The Committee does not wish to pre-empt the Privacy Commissioner's
decision: it is for the Commissioner to seek the public's views on the
Department's application and then to critically examine them before
issuing a determination. However, the effects of the Privacy Act impinge
on a number of areas of consular practice on which this Committee took
evidence and, notwithstanding the application before the Commissioner,
it is incumbent on the Committee to examine the effects of the Act on
those areas.
4.15 In evaluating the effects of the provisions of the privacy legislation
on consular activities, Mr Fisher, First Assistant Secretary, Public
Affairs and Consular Branch, and told the Committee:
The Privacy Act poses real limitations and constraints in virtually
every field of consular operations, for all the reasons that it was
set up. Of course, next of kin always assume that they have a right
to be informed, but quite often we find that the consular cases themselves
do not want their next of kin informed. So we get a lot of pressure
and indeed sometimes complaints from the next of kin saying, 'The department
won't tell me'. The reason why the department will not tell them is
that the next of kin has specifically prevented that. [4]
Mr Fisher said that DFAT always asks the person concerned for
permission to release information. When that permission is not forthcoming,
'it is often a point of conflict within the family and often a point
of dissatisfaction by the family with our consular service'. [5]
4.16 DFAT gave the example of a young woman in Bali whose odd behaviour
was reported to consular officers. On being contacted by the officers,
she was asked on several occasions, both orally and in writing, whether
her next of kin should be notified. She insisted that she would contact
her family but evidently did not do so. When the woman's mother heard
of her daughter's problems, she contacted the Department for information.
On being told that the information she required could not be provided,
'the mother became very displeased. She repeatedly argued that she had
a right to information on her daughter, and finally travelled to Bali
to find her.' [6] The Committee also
received complaints about the lack of information that was provided by
the Department.
4.17 Evidence of another difficult situation was provided by DFAT:
There are certain difficulties, particularly in the very short
term. If we had, say, a young Australian traveller in a place that was
known as a drug place - drug city or town or country - and that person
was in a psychotic state, then one would have to ask the question whether
one should override the provisions of the Privacy Act under the health
exclusion to notify a next of kin in Australia when in fact they may
be having an adverse reaction to magic mushrooms or whatever it happens
to be and they would not perhaps thank you 24 hours later, when they
had recovered from that adverse reaction, for notifying their family.
So there is always tension in that sort of position. But the exclusion
to do with health is one that is used because if somebody is clearly
suffering from a mental disorder then their health is at issue and we
can use that to go back to a next of kin in Australia to say, 'Look,
does this person have a record of mental illness? If they do, what is
it, what medication were they on and can we pass this information, please,
to the local treating authorities wherever they happen to be now?' [7]
4.18 The Department also submitted that the provisions of the Privacy
Act have sometimes constrained the Department from responding to stories
which are in the public domain or from replying fully 'to what may be
a barrage of false or misleading allegations about the handling of a case'.
[8] Not only has this been a source of
frustration for DFAT officers but it has resulted in the continuing use
of inaccurate information by the media.
4.19 Concern about the effects of the Privacy Act on consular practices
was also raised in other evidence. The Arpke family drew attention to
the difficulties they encountered in 1995 in trying to obtain information
concerning the whereabouts and condition of a family member, Mr Boris
Arpke, who was suffering from schizophrenia. In particular, the Arpke
family said that they were not contacted by DFAT when Boris Arpke was
admitted to a hospital overseas but, instead, two days after he was discharged
and only because he required information from his sister. Mr Arpke was
discharged from hospital and died about four weeks later from injuries
received from a fall from his hotel. His family expressed disappointment
that they did not have the opportunity to assist Boris Arpke and said
that they 'could not even ask the consular affairs people to explore the
possibility of having him deported or forcibly repatriated to Australia
because of his condition'. [9]
4.20 In responding to these concerns, Mr Robert Hamilton, Assistant
Secretary, Consular Branch, stated that, over time, the Department had
modified its interpretation of the Act:
when it first came in, it was seen as something that precluded
us from passing information to anybody in just about any circumstances,
because it clearly was not written with a view to dealing with overseas
consular cases ... What we have done is to improve our interpretations
considerably, particularly in the last couple of years, where we are
now more liberal in how we interpret the Act. [10]
He thought that if the case had occurred today, information
would have been passed to the Arpke family more quickly.
4.21 In evidence, Ms B Hocking of SANE Australia noted the importance
of the issue of confidentiality but stated:
the ill person's rights need not conflict with the rights of
the carers. Family and other carers are understandably upset when they
are not informed about their relative's mental condition or whereabouts,
yet they are often expected to pick up the pieces afterwards. [11]
4.22 Ms Hocking also suggested that often it is assumed that the ill
person would not want any information passed on to family members, but
in most cases if a person is reassured that it will be in their interests
for their family to be informed then they are quite happy and ready for
the information to be passed on. [12]
4.23 As mentioned above, DFAT has lodged an application for a Privacy
Interest Determination with the Privacy Commissioner. The Committee
does not wish to prejudge the Privacy Commissioner's determination by
examining in detail the particular instances which are the subject of
DFAT's application. Nevertheless, the Committee wishes to make some
general comments about the subject matter of the application.
4.24 The former Privacy Commissioner, Mr Kevin O'Connor, in a letter
to the Committee dated 14 October 1996, assured the Committee that he
would give due consideration to DFAT's application and trusted that
the Committee would not accept uncritically claims about the impact
of the Privacy Act on the ability of agencies to carry out their functions.
4.25 When a person breaks contact with family and friends in Australia,
they may become anxious but they know that if he or she runs into difficulties,
there are government and non-government services and facilities which
can help. There are, however, many countries around the world which
lack even basic services and facilities. When family and friends do
not know where someone is overseas or what is happening to him or her,
there is greater cause for anxiety. Apart from the question of services
and facilities, many countries are much more dangerous for travellers
than Australia. This only serves to increase the level of anxiety about
the safety and health of the missing person. As was pointed out to the
Committee by Ms Allom of SANE, it is often left to the family and friends
to care for someone who gets into difficulties overseas or to meet the
financial costs of repatriating him or her to Australia. Yet under the
Privacy Act, DFAT officers who locate the missing person may not be
allowed to pass on any information to next of kin. Although the Committee
suppports the principles underpinning the Privacy Act, a little liberalisation
along the lines of the DFAT submission would, in the Committee's opinion,
be in the public interest.
The Freedom of Information Act and Consular Work
4.26 The Consular Instructions state that:
Consular officers should be familiar with the Act and its implications
and should take it into account in all dealings with the public both
in Australia and abroad, particularly when drafting records of cases
and reporting by cable or memorandum. As the Act applies to virtually
all the Department's activities, officers will need to bear its provisions
in mind when executing the great majority of their duties.
And:
[The Consular Instruction] stresses the need for consular officers
to provide the Department with full reports on consular cases. Under
the Freedom of Information Act, these reports will not often be exempt
from disclosure to the person to whom they relate. Officers must therefore
guard against making defamatory statements about their clients. At the
same time officers have a duty to report frankly, fully and honestly
to the Department. [13]
4.27 The Department submitted that most FOI requests in relation to consular
cases are easily dealt with but some are 'extremely time consuming because
of the amount of material captured, or possibly captured, by the request'
and that difficulties may arise because the information involves foreign
governments or other agencies. [14]
4.28 FOI requests have been made in relation to a number of the cases
referred to the Committee. Mr Tim Wilson, for example, made a request
for documents relating to the death of his brother David. This request
was granted on 16 June 1995 and the documents released were received
on 5 October 1995. DFAT said that a total of 961 documents were examined
as a result of the FOI request, of these 441 were released in full,
254 documents were partially released and 187 documents were totally
exempt from disclosure. The reasons for the documents being withheld
were provided to Mr Wilson.
4.29 The Wilson family submitted that about one third of the documents
within the ambit of the request were not provided, that some file notes
were hand written and illegible and that it was only under the FOI request
that letters from David to his family were received. [15]
4.30 In evidence Mr Peter Wilson, David's father, stated:
I would also like to add that it has been very difficult for
our family to piece the puzzle together and prepare ourselves for this
inquiry when we have been denied access to so much information about
what happened to David - that is to say, hundreds of FOI documents being
withheld, the coroner's inquest being continually postponed ... [16]
4.31 Mr Purcell, a family friend, said that lack of access to some
documents had hampered the Wilson family in understanding some events
which took place during the hostage crisis:
In any case, coming back to the shelling [of Phnom Vor where
the hostages were held], it is hearsay if you do not bother to research
and check the FOI material. This is material we have requested which
has never been brought forward to us because it is sensitive because
of security matters or something like that. But without checking transcripts
from DFAT people and from the AFP, it is only what we have heard through
certain people whom we have made contact with. Like yourselves, whom
do we believe if we cannot access this sort of information? [17]
4.32 The family has requested a review of the documents not released
under their original FOI request. Mr Peter Wilson stated that:
There is this continuing request of DFAT for FOI. We have continued
this for I do not know how long - it goes into years now. I think
there are still something like 250 documents partly censored and about
another 200 documents fully censored that we have not got. We do get
a stream and we have had a stream of FOI over a period of time, but
it has just been strung out.
What is going to be the situation here? We believe that to get
to the truth of the matter - and, as I say, that is what we wanted in
the first place - somebody will have to have access to those documents,
whether we see it, you see it or somebody who is going to be in a position
to judge the results of this inquiry sees it. As I said, if we did,
we could present the information to you. It is obvious that we will
not get the information. If we are going to get all the information,
that is going to be strung out for another two years and we are not
going to hang around for another two years. [18]
4.33 In a response to the Wilson's family's dissatisfaction with the
documents withheld from them, DFAT stated that an internal review of the
initial request was conducted and noted that 'the Department sought to
release as much material as possible to Mr Wilson, consistent with its
obligations under the FOI Act taking particular note of the FOI "Guidelines
for Decision-Makers"'. [19] Following
that review, some additional documents were released. [20]
It was then open for Mr Wilson to appeal to the Administrative Appeals
Tribunal. According to DFAT the period for application has elapsed and
the family has not made any further request for action to be taken in
the Tribunal. [21]
4.34 The Committee understands that often there are valid reasons for
a department or agency to withhold documents from a person applying
for access to them under FOI legislation. The documents may clearly
fall into classes of documents exempted from release under the Act.
Sometimes, however, the classification of documents is not quite so
clear, requiring judgement on the part of the departmental officers
making or reviewing decisions about the release of documents.
4.35 In some cases, FOI applicants who have suspicions may come to
the conclusion, whether right or wrong, that some documents have been
exempted not in accordance with the law but to protect the department
or agency from justifiable criticism. The applicant may not be able
to afford an external review by the Administrative Appeals Tribunal.
Without an external review, the applicant is left wondering whether
or not the exempted documents were exempted correctly by the department
or agency.
4.36 In the David Wilson case, the Wilson family, already critical
of DFAT's handling of David's case, became suspicious of DFAT's motives
for exempting certain documents, relating to David's case, from release
under FOI. The family requested the Committee to examine the exempt
documents to determine whether they cast a different light on the case
to that which the Department was maintaining in its public statements.
4.37 The Committee sought access to the exempt documents to satisfy
itself that the information contained in them was consistent with the
Department's account of its handling of the Wilson case. The Minister
for Foreign Affairs, the Hon Alexander Downer, MP, denied the Committee
access to the records. In his letter to the Committee Mr Downer stated:
When the Department's decision makers considered the vast number
of documents caught by the Wilson's FOI request they decided to withhold
documents for two key reasons, while at the same time taking a sympathic
approach to the family's request. The first key reason for not releasing
documents is the long-standing practice of not providing access to
sensitive information provided in-confidence by other governments.
This is an internationally accepted principle and has been the practice
of successive Australian governments. There were and are reasonable
grounds for believing that the release of some material caught by
this request would cause damage to the international relations of
the Commonwealth and/or would have a substantial adverse effect on
the operations of the Department of Foreign Affairs and Trade. It
is perhaps worth noting at this point that we were expressly requested
by two governments not to release documents containing information
they had provided during the hostage situation.
The second key reason the documents have been withheld is concern
for Australians who could, at some stage in the future, find themselves
in a similar situation to that of David Wilson. This is very much
connected to the reason given above. Without the willing cooperation
of other governments in such cases, we could find ourselves unable
to work effectively which could seriously and adversely affect the
outcome of a possible hostage taking in the future, particularly if
it were to happen in a country where Australia had to rely on other
governments for information. This is not a scenario we can afford
to ignore. It is important that information be communicated freely
and frankly between the Australian and other governments and done
so on the expectation that it will not be released to third parties.
This expectation of confidentiality is extremely important and must
be defended.
Information was also withheld to protect individuals who had
provided information to the embassy or officials. Some of these people
could be placed in jeopardy should they be identified by the documents
which the Committee has requested access to and should be protected
by privacy provisions in any case.
Finally, I have been advised by my Department that the information
contained in the documents the Committee has requested access to would
make no material difference to the conduct of the inquiry. [22]
Footnotes
[1] DFAT submission, p. 15.
[2] DFAT submission, p. 15.
[3] Committee Hansard, p. 37.
[4] Committee Hansard, p. 17.
[5] Committee Hansard, p. 17.
[6] DFAT submission, p. 15.
[7] Committee Hansard, p. 22.
[8] DFAT submission, p. 15.
[9] Committee Hansard, p. 269.
[10] Committee Hansard, p. 500.
[11] SANE Australia submission, p. 2.
[12] Committee Hansard, p. 586.
[13] DFAT, Australian Consular Instructions,
p. 94.
[14] DFAT submission, p. 16.
[15] Mr Tim Wilson submission, pp 35-6.
[16] Committee Hansard, p. 104.
[17] Committee Hansard, p. 570.
[18] Committee Hansard, pp 579-80.
[19] DFAT response to questions raised by
the Wilson family.
[20] Committee Hansard, p. 663.
[21] Committee Hansard, p. 664.
[22] Letter to the Committee from the Minister
for Foreign Affairs, dated 26 May 1997.