Privacy and Personal Information Protection Amendment Bill
Debate resumed from 17 October.
Mr ANDREW TINK (Epping) [7.58 p.m.]: The Coalition does not support the bill. At the outset, I indicate that I am grateful for the opportunity to discuss the bill with the Ombudsman and for the briefings by the Cabinet Office and the Attorney General's Office. After careful consideration the Coalition is still concerned with aspects of the bill and, therefore, cannot support it. This bill amends the Privacy and Personal Information Protection Act to transfer the Privacy Commissioner's functions under the Act to the Ombudsman. It also amends a number of other Acts and regulations to remove references to the Privacy Commissioner and generally to replace those references with references to the Ombudsman.
Section 75 of the original Act provides for a review after five years. That five years is yet to come to pass. It is regrettable that there are to be major changes to the legislation before the review has taken place. As honourable members with an interest in privacy know, the concept of privacy legislation has been some time in coming. I think I introduced the first legislation dealing with the topic about 10 years ago as a private member's bill, and a number of bills dealing with the topic have been introduced since. However, it took about seven years for legislation to be passed through the Parliament after I introduced that first bill.
The Act was a long time in coming and a lot of thought went into it. It does have shortcomings and those who have a very strong pro-privacy bias would say it is weak. I am concerned that it is about to get a lot weaker. The Act is weak in some places; for example, by adopting a code of conduct a Minister can avoid a number of requirements of the Act. However, that does not justify the more significant weakness that is in this amending legislation. The review should have taken place first and we should have all been involved in it. Following that review, which was the original intention of this Parliament, we could consider amendments to the legislation. The legislation is capable of some amendment and improvement, particularly in relation to codes of practice. I am not sure that the majority of honourable members would necessarily agree with what I see as a weakness. Those issues need to be tested through a review process.
It troubles me greatly that, even though this is a relatively small bill when compared with the size and weight of the principal Act—to use a crude comparison—it contains some significant measures. First and foremost, the office of Privacy Commissioner will be abolished. That is a major and fundamental step. Before such a step is taken the legislation must be reviewed as originally anticipated by the Parliament. I know there has been a lot of controversy surrounding the recently departed Privacy Commissioner. Nevertheless, there is now an acting Privacy Commissioner. I believe he was the Commonwealth Censor. The incumbent is obviously a very senior and experienced public servant. There is no need for a degree of urgency that pre-empts or prevents a review.
The handing over of this jurisdiction to the Ombudsman is of concern because the Ombudsman has different powers and responsibilities. I am not convinced that those powers and responsibilities are appropriate for the functions of the Privacy Commissioner. The Ombudsman's primary function is to recommend, not to direct. The Privacy Commissioner has different, more acute functions in making decisions, orders and so on. Handing the functions over to the Ombudsman would not represent a simple change of name or incorporation of a name; we would be making significant changes to what can and cannot be done, given the powers of the Ombudsman compared to those of the Privacy Commissioner.
Honourable members on this side of the House have had concerns about this type of thing in the past. It is not so long ago that the Children's Services Commissioner position was abolished and incorporated as a Deputy Ombudsman's position under the Ombudsman's Act. We were not happy with that at the time; it was a bad mistake. We thought that it was important for that commission to continue to have an independent focus and advocacy role. With no disrespect to the Deputy Ombudsman who fulfilled the role of Privacy Commissioner, because I have a lot of time for Mr Fitzgerald, the advocacy of children's services has sunk without trace. That is a tragedy. I had some discussions this morning with the honourable member for Wakehurst, who played a major part as shadow Minister for Community Services in the debate that led to these changes. He expressed concern about how that educative and advocacy function would be lost in an incorporation or a takeover by the Ombudsman's Office. That has come to pass. As someone who has been interested in privacy from day one in this Parliament, I am very concerned that the advocacy of privacy will also sink without trace. That would be a great shame and a major concern to me.
Privacy needs advocacy; it must be pushed; it must be pressed; it needs a champion. This is not a get-the-Ombudsman exercise. I have been chairman of the Ombudsman's committee and I have a great interest in that office. I have considerable respect for the present incumbent, which is why I rang him yesterday to speak to him about this issue. When we subsume one body into another, the body subsumed loses its identity. I am not talking hypotheticals; it has happened with the Community Services Commission. Page 104 of the Ombudsman's report indicates that the incorporation of that commission in the Ombudsman's Office has understandably created a great deal of difficulty with the assessment and comparison of complaints. It used to frustrate me as shadow Minister for Police when the criteria in the budget papers for the police portfolio were changed every year. One could not compare like with like from one year to another. A similar problem has arisen in this case. The report states:
The merger of the former commission and the Ombudsman's office has complicated the reporting of community services complaints for 2002 - 2003. During the period 1 July-1 December 2002, both the former commission and the Ombudsman handled inquiries and complaints about DoCS and DADHC under different legislative and procedural requirements … Because of the possibility of some duplication, it is not possible to make accurate comparisons with complaint statistics from previous years.
I am concerned that this type of discontinuity will be a factor of the new regime if it goes ahead. It is a significant by-product and a difficulty that I would also like to have seen addressed in a proper review process. I am not saying that this should never happen, but these things must be dealt with during a review rather than in a bill debated in a limited time frame. The Ombudsman also discussed with me a matter involving a former privacy commissioner. He referred to a report, which was mentioned in the Daily Telegraph, that raised a number of matters that are currently the subject of further investigations. I have not seen the report, but apparently it contains recommendations for changes to the way the Privacy Commissioner operates, perhaps even including the measures proposed in the bill.
I sought to explain to the Ombudsman that he has the benefit of knowing what it is in the report, whereas I and other members of Parliament do not; it is not a public document. In that sense, we are being asked to make a decision without knowing what the main proponents of change are aware of. I find that state of affairs unsatisfactory and, in the context of this bill, unnecessary. An acting commissioner is in place. Should we not wait until that report, or so much of it as relates to these changes, is made publicly available? At that point, we would all know what is pushing the need for these changes. I know that there is reference to this issue on page 29 of the Ombudsman's report, but I am still none the wiser about the precise details and the need for change in the form that is now proposed.
Another matter that bothers me greatly is the change to section 41 of the principal Act, a matter referred to in the legislative digest based on a submission by the Public Interest Advocacy Centre, which has raised the matter with me and indicated its opposition to the bill. Section 41 of the principal Act deals with exempting agencies from complying with principles and codes, and provides:
(1) The Privacy Commissioner, with the approval of the Minister, may make a written direction that:
(a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or
(b) the application of a principle or a code to a public sector agency is to be modified as specified in the direction.
Schedule 1  amends section 41 as follows:
Omit "Privacy Commissioner, with the approval of the Minister," from section 41 (1).
Insert instead "Minister".
The effect of the amendment is that the Privacy Commissioner will be substantially taken out of the picture when it comes to the decision to, in effect, exempt a public sector agency from complying with information principles. Currently, the Minister has the power to direct that a public sector agency is not required to comply with an information protection principle or privacy code of practice. It is argued that the Minister must still consult the Privacy Commissioner. With respect to anyone who might hold the office of Privacy Commissioner, I do not place any store in that. Schedule 1  inserts new section 41 (3), which reads:
The Minister is not to make a direction under this section unless the Minister:
(a) has consulted with the Ombudsman about the proposed direction and has taken into account any submissions made by the Ombudsman in relation to the matter, and
(b) is satisfied that the public interest in requiring the public sector agency to comply with the information protection principle or privacy code of practice is outweighed by the public interest in the Minister making the direction.
In practical terms, I do not believe that means anything. The reality is that the Minister will make the decision about whether a public sector agency is to be exempted. At present that can only be done by the Privacy Commissioner, taking the public interest into account. That is a major fundamental change. In my view it guts a key part of the Privacy Commissioner's jurisdiction, whether it is run by the Ombudsman, the Privacy Commissioner or anyone else. It is argued that Ministers have the power to introduce codes of conduct that can exempt agencies in any event. I believe that is a weak part of the Act. I cannot accept the use of a weak aspect of the Act to justify weakening another aspect of the Act. That argument is totally misconceived for anyone who is interested in privacy issues and in having a privacy commissioner who has some semblance of independence and power. A whole series of issues arise from that, and these are all picked up by the Legislation Review Committee in material it has made available for this debate. I think it is worth reading some of the information onto the record because it reflects the bipartisan view of a number of members of Parliament. In its report the Legislation Review Committee provided the following information:
The amendments have the effect of conferring the power to exempt on the Minister alone. This limits the scope of protection afforded under the legislation. The Minister will also have to weigh the two competing public interests, compliance with information protection principles, and the particular public interest in giving the exemption.
In practical terms, that is exactly what the bill does. The report continues:
The problem inherent in this proposal is that any public interest that competes with the "right to privacy" ought to be calculated on a completely disinterested basis. For example, medical information may help identify or locate a missing person, and there is plainly a public interest in release of what would otherwise be confidential material …
But the very existence of the Privacy Act and the Health Records Act acknowledges that private information is widely held, and may have a powerfully destructive effect if misused, including being disseminated into the public arena.
Ministerial control over what until now has been controlled by an independent statutory body raises the possibility of political considerations entering into the process of granting temporary exemptions.
I think that is true. Perhaps it is putting it a little high to say "what until now has been controlled by an independent statutory body", because Ministers already have fairly wide leeway to drive a truck through the whole show by introducing a code that exempts everything under the sun. Nevertheless, section 41 provided some positive statutory power base for the Privacy Commissioner to fight off the more outrageous exemptions. In that key respect, I believe the Legislation Review Committee is correct. The committee's report continues with the following very important point:
In addition, granting the Minister sole power to grant exemptions from compliance with these Acts may raise a conflict of interest. Given that the government is the largest collector and holder of personal information, the potential for such a conflict to arise is real.
It is important to refer at this stage to the special report to Parliament by the former Privacy Commissioner relating to the so-called Cecil Hills affair. The report shows how out of hand these privacy issues tend to get, how important the principles are in the assessment of privacy issues and complaints, and how imperative it is that those principles are applied. The summary of the report presented to Parliament reads:
There were insufficient steps taken by Mr Low, Mr Secord and Mr Aquilina to ensure that the mere suggestion that Student A had access to a gun, wherever it initially originated, was sufficiently verified before it was used and disclosed to third parties.
Because Student A was able to be identified at Cecil Hills High School and in his local community as the subject of media reports, because information about Student A was disclosed to the media, and because false information about him was provided to the media and consequently widely reported on, Student A and his family were subject to a violation of their privacy.
That is the background, the setting of the scene, so to speak. The report demonstrates the importance of the privacy principles in the assessment of this complaint and, through this precedent, hopefully it will be a deterrent to the same sort of thing ever happening again. A number of principles were found to be relevant, and they are under serious threat from this bill. Information protection principle 9, which is section 16 of the Privacy and Personal Information Protection Act, states:
A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
The finding of the commissioner, I suppose as a matter of law, was that Ministers are not part of the department or ministry they administer and, therefore, are not bound by the requirements of the Privacy and Personal Information Protection Act that relate to public sector agencies. It is evident that the former Minister for Education and Training was not prohibited by the Act from disclosing information. But, of course, the Act covered the staff involved, so the issues remain extremely relevant. Information protection principle 11, which is section 18 of the current Act, states:
(1) A public sector agency that holds personal information must not disclose the information to a person … or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency 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 another person.
How did that principle apply? The Privacy Commissioner stated:
In disclosing personal information about Student A to the media, in circumstances other than those contemplated in DPP 10(1)(a)-(c)—
which related to the individual consenting to the disclosure or being required by law—
and IPP 11(1)(a)-(c), I conclude that Mr Secord and Mr Low may have breached IPP 11, and that Mr Secord, Mr Low and Mr Aquilina acted in a manner contrary to DPP 10. I therefore conclude that this action violated the privacy of Student A and that of his family.
This report, which was of the utmost concern, is about the operation of data protection and privacy principles and involves members of the Government to a highly embarrassing degree. The difficulty with this amendment is that a Minister in a similar situation will be able to exempt himself and his staff. He will be able to issue his own get-out-of-gaol card to avoid compliance. After the appalling record of the Government and its violation of the privacy of student A in the Cecil Hills affair, I do not trust the Government to do the right thing. The Cecil Hills affair is a precedent for the sort of behaviour we are all trying to avoid.
Given the track record of the Government, I do not trust it, the Premier or the Premier’s staff to run exemptions under this privacy legislation without the Privacy Commissioner, in effect, having the right of veto. Under the current rules, exemptions under section 41 cannot come into operation without the Privacy Commissioner making that decision. To suggest other weaknesses in the legislation relating to codes of conduct is a pathetic way to justify further weakening the legislation. The Government does not have clean hands with respect to privacy, yet it is asking us to trust it. Information protection principle 9, which is section 16 of the Privacy and Personal Information Protection Act, states:
A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
Data protection principle 8 provides:
A recordkeeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant accurate, up to date and complete.
A reference is then made in the Cecil Hills matter to a radio interview between the former Minister for Education and Training, Mr Aquilina, and Mike Carlton on Radio 2UE:
Carlton: Did he have access to a gun?
Carlton: What sort of gun?
Aquilina: Well I’m not going to go into that detail, but the actual case, as I understand it was that, yes, he could have had access to a gun. I want to stress that he could have had access to a gun.
The finding continued:
This information about Student A's alleged access to a gun was later proved to be false and the question therefore follows, who was the source of the incorrect information about the gun and what steps were taken to verify it before it was made public?
A few pages further on the finding states:
It is clear from Mr Low's evidence to the ICAC that the environment in which he was working at the time focussed on the importance of "the story" …
In other words, the spin. The only thing of concern to the Government and the Premier's Office or, for opposite reasons, the only thing the public should be vigilant about is the importance of the story. The finding continued:
… and that "calling it off" was less palatable an option than letting an inaccurate story become current in the media. In particular it should be noted that, according to Mr Low, Mr Secord had earlier told him, "without a gun we could not do the story". In his response to my Investigation Report Mr Secord disputed this account of events and relied on the information he provided to the ICAC.
The conclusion reads:
I conclude that false information about Student A's access to a gun was provided to the media by Mr Low, Mr Secord and Mr Aquilina. The failure of Mr Low, Mr Secord and Mr Aquilina to take reasonable steps to check the accuracy of the information before its use was contrary to DPP 8 and possibly breached IPP 9. I therefore conclude that this action violated the privacy of Student A and that of his family.
In other words, the Premier's Office was working in the worst way possible to spin an inaccurate, damaging story about a minor in a school environment where a duty of care of an almost parental nature was owed to that minor. Even after that, the Premier's Office continued to allege there was a gun when that was not the case. Yet these same people now ask us to trust them to handle issues of privacy, without the Privacy Commissioner looking over their shoulders. That is akin to bank robbers, who have been given the combination to a safe, saying to bank staff, "Trust us, we will be all right with this". They have been given the tools to do the job. The amendment to section 41 is a disgrace in its present form. The summary of the disgraceful Cecil Hills affair is as follows:
Because Student A was able to be identified at Cecil Hills High School and in his local community as the subject of the media reports, because information about Student A was disclosed to the media, and because false information about him was provided to the media and consequently reported on, it is my view that Student A and his family were subject to a violation of their privacy.
In terms of the DPPs I conclude that the use of this information was contrary to DPP 8 (accuracy) and DPP 10 (disclosure), and therefore violated the privacy of Student A and his family. In terms of the PPIP Act it would also appear to have breached IPP 9 (requirement to check accuracy before use) and IPP 11 (limitations on disclosures) …
That is a slam-dunk indictment of the worst possible type of the very people who now say, "Trust us, we will do it better." Can one imagine, with that type of track record, the Minister for Education and Training or the Minister for Health moving to exempt from the application of privacy principles all or parts of their departments that might be embarrassing from time to time? It is appalling. If it is proposed that the bill should be passed before a review is undertaken, there must be a few things that the Government would prefer not to be put before a review at all. The starting point for any sensible review would be a consideration of the Government's record throughout the Cecil Hills affair and the bona fides of Ministers of the Crown and their staff under this Government in relation to the application, non-application or total avoidance of privacy principles. One must then ask whether those people can be trusted with a bill in this form.
That is the reason the bill is being pushed through the House before a review has taken place and it is one important reason why the Opposition will not support the bill. The review should come first. One cannot trust the Government after what happened with the Cecil Hills affair. I do not believe that amendments should never be made to the legislation. I understand enough about privacy to accept that it is an evolving process, but history has shown that that is best done on a consultative basis, in circumstances where the proposal can be tested and proper consideration is given to it before, hopefully, a bipartisan approach is reached.
I hope the Government realises that trying to push through amendments, particularly to section 41, is a way of dealing with any future Cecil Hills affairs via the backdoor. I sincerely hope the bill is defeated in the upper House so that a considered and measured approach can be taken to the legislation. That would also provide an opportunity for a review, which the Parliament contemplated in the original legislation, and no reason has been given why the review was not undertaken before the bill was put through the Parliament. We strongly oppose the bill.
Mr ALAN ASHTON (East Hills) [8.33 p.m.]: I was disappointed to hear the Opposition spokesman say that he hopes the bill will be defeated in the other place. At the beginning of his contribution I was interested to hear his reasons for opposing the bill in its present form. However, he spent the next 10 minutes revisiting the so-called Cecil Hills case, with nine minutes devoted to dragging the former Minister for Education and Training and his adviser through the mud. Members may to consider whether the truth was told in Federal Parliament in the past couple of years with respect to the Tampa, children being thrown overboard and the SIEV X. Fortunately, Senator Faulkner and Senator Ray dissected the lies told in Federal Parliament about those matters. It is complete hypocrisy for the shadow Attorney General to speak about the role of the Privacy Commissioner in this State as though it is a most hallowed position. That is a load of codswallop. When Opposition members can come to this House with clean hands about kids overboard, the Tampa, and the Office of National Assessments—and I refer to a recent Four Corners program about that—then they can speak about Cecil Hills.
Ms Gladys Berejiklian: Point of order: Given the importance of the bill and its consequences for the residents of New South Wales, I ask you to draw the member back to the leave of the bill. I ask the member to address the specific issues.
[[ltab]][[ltab]Mr ACTING-SPEAKER (Mr Mills): Order! I remind the honourable member for East Hills of his obligation to comply with the standing orders and confine his remarks to the subject matter of the bill.
Mr ALAN ASHTON: I will, but the shadow spokesman opened a window of opportunity when he spoke about Cecil Hills. That is the one issue about which the Opposition could have a real shot at the Government, but we can fire back. We jumped at that opportunity, and we always will.
Mr Thomas George: This is State Parliament.
Mr ALAN ASHTON: It is State Parliament. The shadow Attorney General said also that he hopes the bill will be defeated in the upper House. His leader in Canberra wants to abolish the upper House in Federal Parliament, the Senate, because he cannot get legislation through. Members of the Opposition like to dish it out but they cannot cop it. The Legislation Review Committee is doing a great job under the leadership of the honourable member for Miranda. It is the first time that a document relating to bills has been presented. If it were not provided to Opposition members they would not have a clue about bills because they do not do the necessary research.
Ms Gladys Berejiklian: Point of order: I appeal to you to direct the member to address the specific issues in this important bill.
Mr ACTING-SPEAKER (Mr Mills): Order! There is no point of order.
Mr ALAN ASHTON: I can appreciate she is learning, but she is not learning very fast. The Legislation Review Committee is providing members with a complete and thorough—
Mr Thomas George: Point of order—
Mr ACTING-SPEAKER (Mr Mills): Order! If the point of order relates to relevance it will not be upheld because the comments of the honourable member for East Hills are relevant to the debate.
Mr Thomas George: I think it is very relevant.
Mr ACTING-SPEAKER (Mr Mills): Order! I am pleased the honourable member for Lismore agrees with my ruling. There is no point of order. The honourable member for East Hills has the call.
Mr ALAN ASHTON: The shadow Attorney General consistently referred to the Legislation Review Committee document as part of his argument and I am entitled to do the same.
Mr Thomas George: Point of order—
Mr ACTING-SPEAKER (Mr Mills): Order! If the point of order relates to relevance, I will not hear it. The honourable member for East Hills has spoken only 10 words since the last point of order. The honourable member for Lismore may take a different point of order, but not one related to relevance. The honourable member for East Hills has the call.
Mr ALAN ASHTON: My comments are relevant because the shadow spokesman suggested this report as the reason he did not believe this was good legislation. He spent most of his time talking about Cecil Hills, but there are more substantive issues in the bill. The shadow spokesman also referred to the Privacy Commissioner. Government members have a fair degree of respect for the Privacy Commissioner. They probably have more respect for him than most members of the Liberal Party, who have spent the past 20 years ruining his career and denigrating his name. We received the Ombudsman's report today and item  on page 29 includes a case study about Mr Chris Puplick, the former Privacy Commissioner. We have all read that information, if not in this report then in the media. It was a sad case that probably played some part in bringing undone the position of Privacy Commissioner.
The Opposition cannot claim that one man is doing a wonderful job, but that there are a few problems with Bunny and his mates that we will hide and not look at again. The Government took another look at the matter and felt, quite rightly, that taking the power away from one person and putting it under the control of the Ombudsman and dozens of staff is a much better outcome for privacy in this State than having a Privacy Commissioner who is compromised by who his friends may or may not be. Opposition members should understand that that is the motive for this bill, not a desire to give a Minister power to cover up certain matters. By virtue of this bill the Minister will still have to refer matters to the Ombudsman and they will have to discuss them before any decision is made about whether to release certain information. I ask members opposite to try to understand that, if they are capable of understanding anything at all.
To avoid upsetting members opposite I will now address the more obvious provisions of the bill. The bill makes changes that are necessary to enable the responsibility for privacy complaints handling and oversight to be transferred to the Ombudsman. I was just a kid in the late sixties or early seventies when the Ombudsman's position was created. Who kept fighting for it? The Labor Party! Who did not want an Ombudsman? Bob Askin and his cronies! It was a continuous demand from the people of New South Wales, who said, "We have to have an Ombudsman to check up on what the Government is on about." Who created the Ombudsman's office? The New South Wales Labor Party. No member of the Coalition could ever have done it because they would have found out too much about Bob Askin if they had.
The Ombudsman is widely regarded as a strong and impartial watchdog body. He is independent of the government of the day and is accountable to the public through the Parliament. The Ombudsman has extensive experience in handling complaints and in improving standards of administration. There are real benefits to be gained from placing responsibility for such an important issue as privacy protection in the Ombudsman's office. As a large, effective and high-profile organisation, the Ombudsman's office has the capacity to effect substantial improvements in privacy protection in New South Wales. Only today I received the NSW Ombudsman's 2002-03 annual report, which contains 192 pages. The letter accompanying the report, dated 29 October, states:
Dear Mr Ashton
Please find enclosed my report, which can also be found on the web site.
When I decided to participate in this debate I quickly read the report and found information that gives me great confidence—taking into account the range of work covered by the Ombudsman—that he will be able to handle privacy protection. If it is suggested that he cannot handle privacy protection, how is it that he has been able to handle matters that have come before him already, such as equity, child protection, community visitors, information that is published on reviewing deaths, handling complaints about community services, legislative review and police matters? The Government proposes to transfer staff who previously worked for the Privacy Commissioner to the Ombudsman. It is not the case that as a result of this bill the Ombudsman will have more work to do with fewer staff. The Ombudsman will have extra staff to carry out the privacy protection role.
The Ombudsman's annual report also notes that agencies agreed to implement all of the recommendations made by the Ombudsman's general team in final investigation reports. These recommendations were for changes to law, policy or procedures. In addition, as pie graphs in the report indicate, during 2002-03 more than 80 per cent of freedom of information complaints were either completed to the Ombudsman's satisfaction or were finalised on the basis that there was either no evidence or there was insufficient evidence of wrongful conduct. I challenge members opposite to point out any member of this Parliament who has not had someone come along at some stage with a case that is followed right to the nth degree but is later found to be without foundation and a complete waste of time. That is fair enough and it is not a big problem because it just happens to members of Parliament. However, members of Parliament sometimes chase a matter to its very end, find something amiss and get straight onto the Minister to have it dealt with.
In practically 100 per cent of cases the Ombudsman's investigations have shown how people whose actions are the subject of complaint have done the right thing or they have uncovered practices that should be rectified. In some cases complaints have been found to be utterly without foundation and based on ill-feeling. Completion of a matter to the Ombudsman's satisfaction has generally meant that an agency took positive action to address a particular problem that had been identified by the Ombudsman. It should be remembered that the Ombudsman is not a single entity, which was the case with the Privacy Commissioner. I use the term "Ombudsman" to include dozens and dozens of staff who are working on the Ombudsman's office to ensure that probity is a characteristic of all matters handled by government and the State's bureaucracy.
The Ombudsman's investigation statistics demonstrate that the Ombudsman has the capacity to effectively influence the policies and procedures of agencies. The high regard in which the Ombudsman is held, combined with his ability to provide high-quality advice, will facilitate the development of improved privacy outcomes for agencies and for the public. Bruce Barbour notes in the very first line of the introduction to the annual report that "the essential characteristic of this office is its integrity". The four key principles of the integrity that underpins the operation of the Ombudsman are openness, honesty, accountability and objectivity. I do not like the term "mission statement", but the Ombudsman's comment is a statement of values and a statement of objectives. The Ombudsman's office has always exemplified the standards inherent in those four principles.
The bill transfers the present powers of the Privacy Commissioner to the Ombudsman. As the Minister acknowledged, governments hold the most information about people. The State Government holds more information about what is going on in New South Wales than any other organisation. The Federal Government—through its taxation agency, Centrelink and other organisations—possesses a great deal of information also, as do local councils through their collection of rates, et cetera. In a sense it is quite appropriate for the Government to have an agency operating at arm's length so that information that should be private will be protected. It should not be thought that if information is released which should not have been released, an opposition—presently constituted by the Coalition parties, although that may change when Labor members are in their dotage—will challenge the decision.
I am a member of the Public Bodies Review Committee, as is the deputy Opposition Whip, the honourable member for Wagga Wagga. Four or five years ago one of the tasks of that committee was to ensure that reports by government agencies were as detailed as they could possibly be and that they provided answers to questions asked by members of Parliament. With invaluable assistance provided by the Deputy Opposition Whip, the honourable member for Swansea and me, the committee made sure that annual reports are useful. The Ombudsman's annual report contains 103 different case studies. Because I received the report only today I have not had the chance to read all of them, but I am sure that they cover the ambit of any claim investigated by the Ombudsman and typify the role of the Ombudsman.
The Ombudsman's annual report will underwrite the faith of everybody in his ability to undertake the work of the Privacy Commissioner. Unfortunately, the Privacy Commissioner's position has been somewhat tainted by some of the activities referred to in the Ombudsman's annual report. I believe that abolition of the position of Privacy Commissioner is not the end of the world or the most heinous thing that this Government has ever done, as suggested by the Opposition spokesman. During the first five minutes of the Opposition spokesman's speech he made some sense and I was genuinely interested in what he was saying. However, when he began to refer to people pulling out guns and running around school yards it was obvious that he had run out of relevant material and that he would filibuster for the rest of his speaking time. I commend the bill to the House.
Ms GLADYS BEREJIKLIAN (Willoughby) [8.48 p.m.]: As a new member of this House I am appalled by the audacity of the Government in bringing forward the Privacy and Personal Information Protection Amendment Bill. The bill reeks of arrogance, mass politicisation of a process that should be impartial and exposes the people of New South Wales to manipulation of a process that, as pointed out by the honourable member for East Hills, should be at arm's length from the Government, not directly linked to the Government. The purpose of this bill is to amend the Privacy and Personal Information Protection Act 1998 to transfer the functions of the Privacy Commissioner to the Ombudsman. The bill also amends a number of other Acts and regulations to remove references to the Privacy Commissioner and to generally replace those with references to the Ombudsman.
The Opposition, as already ably indicated by the honourable member for Epping, opposes the bill for a number of reasons. The complete abolition of the Privacy Commissioner's office by the Ombudsman will reduce privacy protection rather than improve it. The whole privacy jurisdiction will become one of many under the control of the Ombudsman. By this bill the Government is indicating that it is very happy to dilute or diminish the importance of privacy. In an era when technological change is increasing and access to information is of paramount importance, the Government is sending the message to the people of New South Wales that privacy can be lumped in with everything else. This is no reflection on the current Ombudsman. However, one person having many areas of responsibility and expertise obviously means that there will be a dilution and diminution of the importance of privacy. That in itself is a good enough reason to oppose the bill.
The second reason, amongst many reasons, the Opposition opposes this bill is that the five-year review provided for in the Privacy and Personal Information Protection Act, which was scheduled to commence in November 2003, has not been undertaken. The Government is proceeding to completely rewrite the Act before the review has even commenced. The Act should not be rewritten until a review has been completed. I find it difficult to stomach this point, given that the honourable member for East Hills said that we should trust the Government in terms of the privacy rules and regulations, and privacy processes.
How can we trust the Government when it has already reneged on a prior commitment to conduct a full review? To put on the public record a commitment and to legislate to review an Act and then to introduce a bill to abolish the review process before the review has commenced is an appalling way to proceed on this important issue. Frankly, the Government's arrogance has no bounds. Rather than have a full and frank review and bring to the fore important matters that need to be discussed the review process will be totally thwarted.
Mr Bob Debus: How come it says that it will be extended by one year? Extended by one year is not abolition of a review.
Ms GLADYS BEREJIKLIAN: The Minister has a right of reply. He should wait his turn. Currently the Privacy Commissioner must agree with the relevant Minister before the application of the Act is lifted from a particular government agency. Under the amendments the Premier will be able to exempt government agencies from privacy requirements without the concurrence of the Privacy Commissioner. In the case of the Health Department the Minister for Health will have this power. This change will politicise the process. I stress again what the honourable member for East Hills said in support of the legislation. He said that the Government should be at arm's length from the privacy process. This bill does the exact opposite. Perhaps the honourable member either misread his briefing notes or does not understand the issues, or both.
This bill will inextricably link the Government and Ministers directly to control information passed through our agencies that relates to the voters, taxpayers and residents of New South Wales. It will literally make the Government big brother in relation to information and the flow of information. This is an appalling position and the Opposition is rightly opposing it. The Australian Labor Party [ALP] is hypocritical. When privacy legislation for the private sector was introduced into the Federal Parliament the ALP not only supported that legislation but also suggested that the Federal Government was not going far enough in making the private sector accountable in terms of privacy. Yet in this Chamber the Labor Government has closed ranks and has taken a position that is completely opposite that of Federal Labor. What is good enough for the private sector is not good enough for the New South Wales Government.
The New South Wales Government wants to increase its power and control over privacy regulations. Although it wants to make the private sector accountable for a range of privacy issues, it will exempt itself from the process. That is totally hypocritical to say the least. I would like to hear the Attorney General's response to these issues of paramount importance. What concerns me the most is that people in our electorates would be appalled if they knew what the Government was putting through the House tonight at this late hour. They would be appalled if they knew that the Government is not only taking power from the Privacy Commissioner and giving it to the Ombudsman but also giving the Premier the ability to exempt government agencies from privacy requirements.
If a Minister does not want something to comply with the privacy process he or she will simply send a memorandum or give the Premier's office a call, get the Premier to sign something and next thing we know information flows readily between agencies and departments but is held back from the people of this State. That is an appalling state of affairs. Again I highlight the Government's hypocrisy in introducing this bill given its position in relation to the private sector. The Government makes the private sector comply and do back flips on all sorts of privacy issues, but when it comes to itself it wants to appoint itself the arbiter of information and the flow of information. I reiterate that I am appalled by and oppose the bill. I ask all members of the House to think hard about what their constituents would want. How would their constituents feel if they knew what was happening in this House tonight? On that basis I vigorously oppose the bill.
Mr PAUL LYNCH (Liverpool) [8.55 p.m.]: As usual, the Opposition is completely wrong. I support this legislation. The prime object of the bill is to transfer the functions of the Privacy Commissioner under the Privacy and Personal Information Protection Act to the Ombudsman. The section of the bill that particularly attracted my attention is clause 20 in schedule 1. The impact of that provision is to repeal part 7 of the Privacy and Personal Information Protection Act. That effectively involves the abolition of the Privacy Advisory Committee. In a sense that flows from the abolition of the position of Privacy Commissioner. The need for an committee to oversight the body carrying out the functions of the Privacy Commissioner, which is what the abolished body was doing, will be met by the existence of the Committee on the Office of the Ombudsman and the Police Integrity Commission.
That joint parliamentary committee was established by this Parliament under the Ombudsman's legislation. I chair that committee, which is obviously why that aspect of the legislation attracted my attention. My view is that the committee I chair is capable of oversighting the exercise of those functions when they are performed by the Ombudsman. I have other reasons to support the legislation. The committee I chair conducted an inquiry into freedom of information regimes. This inevitably involved the Privacy Commissioner's office and the work of the Privacy Commissioner. The areas of privacy and freedom of information intersect. Indeed, the then Privacy Commissioner gave evidence before the committee.
The one inescapable conclusion from that inquiry is that the current regime is one of extreme complexity and confusion. Parliament, probably with the best of intentions, managed to create a complex, convoluted and complicated series of Acts and regimes. The adoption by the Office of the Ombudsman of the functions of the Privacy Commissioner will help that situation. It will not completely resolve the situation but it may assist. This also reflects a broader principle that it will help complainants and aggrieved citizens if there are fewer, rather than more, places to complain to to have their grievances redressed.
Having a multiplicity of places to complain to runs the risk of simply confusing complainants and allowing them to fall between the cracks. A one-stop shop certainly has many attractions. Of course, that should not be adopted uncritically in every case. For example, I bitterly oppose the absorption of the Police Integrity Commission by the Ombudsman or the Independent Commission Against Corruption [ICAC]. In this case there are no sufficient disadvantages to militate against the benefits that can be achieved by the Office of the Ombudsman taking over the functions of the Privacy Commissioner. It is a progressive step to consolidate bodies to whom one can complain. It will make it easier for citizens.
It is also true from my experience on the committee that the Office of the Ombudsman has great expertise in issues dealing with the management of personal data and information. There is also a significant area of work already undertaken by the Office of the Ombudsman that relates to privacy issues, such as oversighting telecommunications intercepts. The only possible concern is whether, by continually adding powers and responsibilities to the Office of the Ombudsman, we are creating an unwieldy monster. I think not, but that is the other side to pursuing one-stop shops.
Certainly, the Ombudsman has had a significant increase in jurisdiction with the transfer of the functions of the Children's Services Commissioner. We also continue to get the Office of the Ombudsman to conduct reviews of the plethora of legislation in this place that affect citizens' rights. The reviews that the Ombudsman carries out are good. It is important that the reviews are done; they must be part of legislation that we adopt to cover such things as knife powers and so on. But it certainly continually adds to the Ombudsman's jurisdiction. I do not think there is a problem as yet. It is the only conceivable objection one could have. On balance, there is no doubt that the proposal in this legislation is good. The status of the Ombudsman is higher. Given what has happened to the most recent Privacy Commissioner, something that raises the status of the regime exercising the functions of the Privacy Commissioner must be a good thing. At the moment one would be hard pressed to find people who take the regime that currently exists seriously, given what happened to the Privacy Commissioner.
The adoption of this bill helps address some of those problems. In relation to the history of this bill, I refer to the report of the NSW Ombudsman which was released today. Page 29 of the report, under the heading "Case study 3", deals with the allegations that Mr Chris Puplick, as both the President of the Anti-Discrimination Board and the Privacy Commissioner, had dealt with several cases in which he has a conflict of interest. I do not propose to go through the intricacies of the allegations; in my view they are not particularly relevant to this debate. However, some of the Ombudsman's comments are relevant. Part of that section of the report deals with the complaints and states:
The investigation also focussed on the problems that can arise from one person being both ADB President and Privacy Commissioner and the co-location of the staff of both those organisations.
We found that staff of one organisation had access to complaints and files of the other organisation. We also found that senior managers on the ADB discussed discrimination complaints at meetings where the Deputy Privacy Commissioner was present. These actions were, ironically, contrary to relevant privacy principles as well as legal requirements.
Further, the document states:
Our final report of 22 May 2003 made ten recommendations to the Attorney General. He has accepted all ten. Some of the key recommendations were that:
• one person should not be both ADB President and Privacy Commissioner
• there should be a review of the co-location arrangements of the ADB and Privacy NSW offices.
That explains to some extent how we got to this stage with this bill. I refer to some of the comments of the honourable member for Epping and to the quite extraordinary performance of the honourable member for Willoughby. The honourable member for Epping said, among other things, that he was not launching an attack on the Ombudsman, that this was not a get-the-Ombudsman approach. That is not the impression I had. And, frankly, criticism was implicit in the speeches of members of the Opposition.
Mr Bob Debus: Or the impression one would have from the attack by the Leader of the Opposition on the Ombudsman during the afternoon.
Mr PAUL LYNCH: The Attorney General made the point I was just about to make: that the performance of the Leader of the Opposition in attacking the Ombudsman today was an absolute disgrace. The Leader of the Opposition ought to grow up and bother to find out why the course of events that occurred today did occur. His behaviour was absolutely unforgivable. The honourable member for Epping once again ranted and raved about the Children's Services Commission. I note that the honourable member for Wakehurst is present in the Chamber; I dare say there will be another dose of that.
Mr Brad Hazzard: Some concise and logical argument, is that what you mean?
Mr PAUL LYNCH: The honourable member for Wakehurst says he will be giving us some concise and logical arguments. I look forward to the day—I have never seen him do that. I would be delighted if this is the first occasion on which it occurs. The truth of the amalgamation is that the functions and powers of the Children's Services Commissioner were inferior to those that are now exercised by the Ombudsman. It is in fact an increase in status, an increase in power.
Mr Brad Hazzard: It was not the Children's Services Commissioner, it was the Community Services Commissioner.
Mr PAUL LYNCH: I am sorry, it was the Community Services Commissioner. In fact, there has been an increase in powers and status. It is certainly true that initially a number of people were concerned. Those people have moved on, but regrettably the Opposition has not. The honourable member for Epping also became extraordinarily excited about section 41, and we heard a long dissertation about events at Cecil Hills. As I read the provisions of section 41 and other similar sections, exemptions can be obtained and ordered. They have to be done after consultation with the Ombudsman. If one really thinks that the Ombudsman is going to roll over and allow exemptions to be granted which he vehemently opposes, it seems to me that one would have a very low opinion of the Ombudsman. The comments of the honourable member for Epping were an implicit attack upon the Office of the Ombudsman, its capabilities and capacities.
It is absurd to think that the office would not make reports adverse to the Government if it thought that was appropriate when exemptions were issued. The childish undergraduate performance of the honourable member for Willoughby was very high in rhetoric and very short on logic. She accused the Government of politicising the process of privacy and of behaving with extraordinary arrogance because we are transferring the functions to the Ombudsman. What is she saying about the Ombudsman? According to her, giving these powers to the Ombudsman is a politicisation. That is not only an attack upon the Ombudsman, it is also grossly offensive and extraordinarily stupid.
The honourable member for Willoughby also made the point that it is terrible to lob all these things onto the Ombudsman. She said that he has too much to do, and asked how one person could carry out all these functions. That argument is so childish it hardly needs rebuttal. The staff of the Privacy Commission are to be transferred to the Office of the Ombudsman. The Ombudsman already has about 100 staff. As chairman of the Committee on the Office of the Ombudsman and the Police Integrity Commission I have not received any complaint from him that he is understaffed. It has been made clear to the Ombudsman that if he has a problem along those lines the committee will be delighted to play a role. But that has not happened; he clearly has enough staff. It is stupid and childish to suggest that this is all too much for one person.
I note also that the honourable member for Willoughby and the honourable member for Epping seem obsessed with five-year reviews. Reviews are very useful, but it is wrong to say that things cannot be changed simply because five years have not elapsed. I know that both honourable members have an inclination for conservative politics, but even that level of conservatism is a bit extreme. The honourable member for Willoughby and the honourable member for Epping ranted and raved and said that they do not trust the Government. That is fine; the bill does not ask them to trust the Government; it asks them to trust the Ombudsman. It is sad that they are prepared to attack the bill and the Ombudsman. Today the Ombudsman has been treated very shabbily, by the Opposition in this debate and in earlier radio comments. Frankly, the Opposition ought to be ashamed of itself.
Mr BRAD HAZZARD (Wakehurst) [9.06 p.m.]: The honourable member for Liverpool talked about logic and insight. We really did not obtain a lot of either from him. It was unfortunate that he spent so much time attacking other members of the House who have made comments and given their views. The bill is part of a pattern by the Carr Government. Over the past few years we have seen a drawing back—further than most people could possibly imagine—from any pretence at transparency or accountability. Over recent years a number of major steps have indicated that the Government is not keen to leave itself open to scrutiny. The bill is simply part of the continuum of a movement by the Carr Government to shut down any serious opportunity for critical analysis of what the Government and government agencies are doing.
Those of us who have been here for a few years would remember the Government's reluctance to appoint an inspector-general in the Department of Corrective Services. At that time the Attorney General, who is in the Chamber, was the Minister for Corrective Services. I recall debates in this House when he introduced legislation that had the effect of making certain amendments to that department. I recall also indicating to him that the Opposition was extremely concerned at his failure to appoint an inspector-general. There was a hiatus, a long delay in the appointment of an inspector-general. It was not with enthusiasm that the Labor Government eventually appointed an inspector-general. It therefore came as no great surprise that the Inspector-General of Corrective Services effectively disappeared before the last election.
That was not the only event that indicated the shutdown of the flow of information and the desire to shut down scrutiny. Another matter that stood out was the action taken in regard to the Community Services Commissioner. The honourable member for Liverpool referred to the Community Services Commissioner as the Children's Services Commissioner—an understandable mistake, because the Community Services Commissioner acted largely as an advocate on behalf of children who were in care in New South Wales. The role of the Community Services Commissioner was established under a Coalition government prior to the current Labor Government coming to power in 1995.
The Community Services Commission built up an admirable reputation, but the Government started to become a little aggravated by the level of criticism that was being offered by Robert Fitzgerald in his capacity as Community Services Commissioner. I remind the House that this Parliament, at least in the form of the Legislative Council, also became concerned about what the Government was doing. During the administration of Minister Lo Po' the Government sought the advice of the Crown Solicitor, who returned the great news for the Government that the Community Services Commission may have been operating ultra vires. It used that opportunity to send a letter to the Community Services Commission, advising the commissioner that he was not to undertake certain functions he had been undertaking with regard to the investigation of children who had died and who were at risk.
The net result of that was that the expertise and talent inside the Community Services Commission started to be lost over a period of almost 18 months. There was considerable public comment outside Parliament. The Legislative Council voted unanimously, save and except for members of the Labor Party, to reinstate those powers via a bill that I, on behalf of the Liberal and National parties, introduced. In the Legislative Council there was sensible debate on that bill. Views were expressed by members of the Government and members of the Opposition, and all members of the Legislative Council, save and except for members of the Labor Party, voted to reinstate the commission's powers. There was a consensus view that the commission was doing a good job and needed to be reinstated. The Government took no notice, stymied debate on the bill in the lower House and effectively shut down the Community Services Commission under the guise of bringing it under the Ombudsman's Office. Interestingly, since that merger, the Community Services Commission staff who were taken under the umbrella of the Ombudsman's Office have been incredibly quiet publicly.
The staff of the commission comprised people who acted most honourably on behalf of children at risk and in care. They prepared many good reports about the problems that needed to be addressed in the Department of Community Services, but when they went over to the Ombudsman's Office that ethos, that advocacy role, that desire to bring things out into the public arena, was for some reason largely lost. It may or may not have been an immediate consequence of directions from the Government. It may have been that placing the staff into the Ombudsman's Office to some degree assailed the culture that had developed in the Community Services Commission. Whatever it was—and I will not contribute to the trivial debate about who said what about the Ombudsman, and I will not be critical of the Ombudsman—the transfer of the Community Services Commission staff to the Ombudsman's Office had the effect of shutting down much of the public criticism and public evaluation of the Department of Community Services and the very important issues relating to the welfare of children in New South Wales. With those two examples—and there are others—it is obvious that a pattern of behaviour is developing in the Carr Government to shut down criticism, to remove opportunities for transparency and to make sure there is as little criticism as possible outside the tightly contained lines that the Carr Government wishes to set around its public agencies.
The bill, without assailing the personal intent of the Minister, must be analysed in the context of what Premier Carr has done. From my experience, the agendas of the Premier's Department and Cabinet Office are not driven by individual Ministers. Quite often Ministers recognise the true value of their departments and their intrinsic worth as stand-alone agencies. But they have become part of a Government hell-bent on containing information and criticism. This Government has all the symptoms of a government in its death throes. Unfortunately, arrogance has become its hallmark. It disregards completely the needs of the community.
With that background, I address the amendments proposed to the Privacy and Personal Information Protection Act. The Opposition regard this bill with more than a degree of cynicism. The Government's intention to transfer the functions of the Privacy Commissioner to the Ombudsman's Office is alarmingly similar to its intentions with regard to the Community Services Commissioner. The people of New South Wales should now regard this Government with absolute caution. We should look carefully at what is being done and the consequences of containing the Privacy Commissioner under the umbrella of the Ombudsman. I am not questioning Mr Barbour's capacity in the Ombudsman's Office, but officeholders such as the Privacy Commissioner need to satisfy certain criteria in order to effectively carry out their work. They must not be accountable to any other body—in this case the Ombudsman. The Privacy Commission must be a stand-alone organisation.
The Government is seeking to contain the Privacy Commissioner by placing him under the umbrella of the Ombudsman. But it is even worse than that. Item  of schedule 1 to the bill specifically provides that the Minister, instead of the Privacy Commissioner, may make a direction under section 41 of the Act exempting a public sector agency from complying with an information protection principle or a privacy code of practice under the Act. That is yet another example of the Carr Government's policy of the centralisation of power. No longer will such power rest in the hands of anyone outside of the Government. I do not wish to reflect personally on the Minister, but the Ministers in this Government are part of that containment through the Cabinet Office and the Premier's Department. I will note with great interest the consequences of the bill. I suspect that the people of New South Wales will discover that this is yet another amendment proposed by the Government that is not in their best interests.
Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [9.17 p.m.], in reply: Who would ever have guessed, after hearing the contributions to this debate by members of the Opposition, that in the lead-up to the last election the Leader of the Opposition announced a policy to merge a substantial number of investigating bodies under the Ombudsman? Who would have guessed, having listened to Opposition speakers this evening, that the Leader of the Opposition actually announced the merger of Privacy New South Wales with a number of other complaints handling and watchdog bodies? The Opposition has engaged in a high level of hypocrisy in this debate, and I feel sure I will be drawn back to that theme from time to time in my reply. Several Opposition members completely misunderstood the meaning of the bill and the circumstances that led to its presentation to the House. And, as I say, they apparently feel completely comfortable about ignoring their own announced policy on many relevant matters.
I thank Government members for their contribution to debate on this bill, not least the honourable member for Liverpool, who as I indicated earlier is chairman of the relevant parliamentary committee and who, as a consequence, has more understanding than most of the issues contained in the bill. Obviously, the necessity for an urgent reconfiguration of our arrangements for the administration of the Privacy Act and its bureaucracy was precipitated by the rapid and unpredicted departure of the former Privacy Commissioner. At present it is not appropriate for me to dwell on the circumstances of that departure. No doubt he has colleagues on both sides of the House. Whilst various investigative procedures find their way through various investigative bodies, the former commissioner is entitled to all the protections of the law. However, the fact remains that, since his departure, the Privacy Commission has been in limbo.
The honourable member for Eastwood rightly referred to the steady hand and experience of the present acting commissioner. He is a most valuable person and we are lucky to have his services. But if the honourable member for Eastwood really cared about privacy protection, he would be as keen as the Government to see the commission set up on a sustainable and long-term basis, not in limbo for another six or 12 months while other reviews are conducted. The Privacy Commission is a rather small agency; as I recall it comprises eight full-time employees. That group of people is not able to stand on its own as a separate institution or as a separate agency. It is simply impossible and it has not done so in the past. That is why we previously had arrangements in place that also saw the former commissioner as the chairman of the Anti-Discrimination Board. That situation, which existed under this Government and under the former Government, led to some difficulties.
Contrary to the implications of several Opposition speakers, we have never had a situation in which the Privacy Commission has stood on its own in a bureaucratic sense. The Government believes that the transfer of responsibility for privacy regulation to the Ombudsman under the bill will enhance privacy protection, complaints handling and public sector administration. Again, notwithstanding the strange implications of several Opposition speakers, the Ombudsman is widely regarded as the pre-eminent public sector watchdog. He has extensive experience in handling complaints and improving standards of administration. He and his staff have substantial knowledge about information management, including privacy issues. I refer, at least briefly, to the second reading speech in which attention was drawn to the number of ways in which public sector agencies would be able to achieve improved privacy protection under this arrangement.
First, the Ombudsman has the capacity to further improve outcomes by drawing on his high public profile and expertise in public administration. Second, the Ombudsman has extensive experience in considering issues relating to information management, including privacy management. Third, the Ombudsman's dual role in relation to privacy and freedom of information as proposed by this bill will promote an integrated and coherent approach to information handling. In the second reading speech the Parliamentary Secretary went on to point out that this exact arrangement is being proposed in the United Kingdom, in several Australian States and in many Canadian provinces. We are introducing an arrangement that has already been considered and adopted in a number of comparable jurisdictions around the world.
As I said earlier, it is anticipated that the Ombudsman will be able to use his high public profile and expertise to develop improved outcomes for privacy. His ability to achieve improvements in public administration is demonstrated by even a most cursory reading of the just published 2002-03 Ombudsman's annual report. The proposal by the Government strengthens privacy by giving it a more long-term structure, resolving the massive uncertainty that has existed, not just in recent weeks but since May, when the difficulties surrounding the former commissioner first came to light. It gives privacy protection to a large and powerful organisation, one that has never hesitated to undertake searing investigations into government agencies and to produce critical reports. If the Government really wished to emasculate privacy—which is what members opposite profess to believe—it would leave the small band of privacy staff just where they are: isolated, with an acting leader, subject to endless reviews and committee meetings. That would be the best way to ensure that nothing happened in privacy advocacy.
I repeat: It is extraordinary hypocrisy for Opposition members to suggest that these new arrangements will in some way weaken our privacy provision. The Office of the Ombudsman is a large and powerful body. It has decades of experience in making searching investigations and in writing public reports. It has coercive powers, including powers of entry into government agencies that are unheard of for the existing bureaucracy. It has powers to make reports and to place them before the Parliament. As I said earlier, privacy is being passed by this bill to an agency that is inherently, legislatively, politically, and in its public profile, much more powerful than the body with which arrangements sit currently. The bill directly addresses the Opposition's publicly stated concern that the overlapping jurisdiction between watchdog agencies can lead to complexity, conflict and confusion for the public. That is the position that Opposition members were taking until about half an hour ago.
I wish to respond to my colleague the honourable member for Wakehurst, who raised several specific issues. He seemed to suggest that the abolition of the position of Inspector General in the Department of Corrective Services would involve some kind of attempt to remove conditions of transparency from the Department of Corrective Services so far as it relates to watchdog bodies. However, he neglected to mention the fact that the Ombudsman now has the responsibility that the Inspector General had, and much more besides. The Independent Commission Against Corruption has a permanent relationship with the Department of Corrective Services, which again is much more powerful and which guarantees much more transparency and much more significant possibility for the exposure and pursuit of corruption in that department than any power that the Inspector General could possibly have brought to bear in that circumstance. It is ludicrous for Opposition members to suggest that we are engaged in some kind of systematic attempt to undermine various watchdog and accountability organisations that have been established by the Government over the years.
Finally, I mention something about the proposal in the bill to transfer to the Minister the power of the Privacy Commissioner to exempt organisations from privacy laws. The transfer of that power to the Minister, which is entirely proper, seemed to agitate several Opposition members. However, it is entirely proper and it is consistent with the operation of the present Act and with the role and independence of the Ombudsman. There are strong checks and balances on the exercise of the exemption power. Under the present privacy laws, the Privacy Commissioner may exercise this power only with the approval of the Minister. That requirement was not apparent from the overwrought contributions of the Opposition.
The Ombudsman is independent of the Government, and it is not appropriate for that function to be transferred to the Ombudsman. The Ombudsman, however, does not have a relationship with the Minister that would appropriately accommodate such power. To change that situation in accordance with the proposals put by the Opposition would compromise the Ombudsman's independence. The Minister will have a statutory duty to consult the Ombudsman before granting an exemption. The Minister must take into account any submission made by the Ombudsman in relation to the proposed exemption. This is an important and independent check on the exercise of the Minister's power. The Minister must grant the exemption only if, in doing so, the public interest outweighs the public interest in compliance with the relevant privacy laws. This clearly requires the Minister to balance competing public interests. Failure to do so would expose the Minister's decision to adverse comment from the Ombudsman. As the honourable member for Liverpool said earlier, to suggest that the Ombudsman would be reluctant to comment adversely on a Minister's decision seriously questions the integrity of the Ombudsman and denies the obvious facts of the Ombudsman's history.
The Minister's failure to balance those interests effectively would, in turn, attract the Supreme Court's inherent jurisdiction of administrative review. That, in turn, imposes a compelling reason for a Minister to exercise discretion in an entirely proper way. It is appropriate for a Minister to analyse competing public interests to determine the appropriate course of action. That is what governments are expected to do. The Minister is, of course, also responsible to Parliament for the exercise of this function and ultimately to the electorate. Significantly, under the present privacy laws the Minister already has the power to exempt organisations from privacy laws by making privacy codes of practice. There is no statutory requirement to consider the public interest in making these codes. Codes of practice may be far more comprehensive and permanent than the exemptions that may be granted by the Privacy Commissioner with the approval of the Minister under the current privacy laws.
The analyses and arguments put by the Opposition are legally ridiculous and politically opportunist and do not bring any credit upon those who made them. As the honourable member for Liverpool said during the debate, they resonate uncomfortably with the appalling behaviour of the Leader of the Opposition this afternoon and this evening when he launched an attack upon the Ombudsman, apparently because the Ombudsman did not attend a press conference. He was completely ignorant of the reasons why the Ombudsman failed to do so. If the Opposition members who are presently affecting to be unimpressed by my criticism of the Leader of the Opposition were publicly denigrated when, in fact, they had pressing family circumstances that caused them to be absent, they would present a less pompous attitude.
Finally, I refer to the statutory review. The bill provides that the review will be delayed one year. The review will occur, but the many pressing circumstances, which I have described, demand that we settle the circumstances of the Privacy Commissioner and his staff and we establish a structurally sound arrangement in which they may work. In the meantime, the review will be established and take place. The proposed arrangements are sensible and will better ensure the appropriate administration of the privacy laws of the State. The bill merits passage through the House. The criticisms made by the Opposition are at best misguided and in most respects hypocritical. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Question resolved in the affirmative.
Mr J. H. Turner
Mr R. W. Turner
Motion agreed to.
Bill read a second time and passed through remaining stages.