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Five years of Victoria's Information Privacy Act 2000

01/09/2006

by Dr Helen Szoke
Chief Conciliator / Chief Executive Officer
Equal Opportunity Commission Victoria
Five years of Victoria's Information Privacy Act 2000

Introduction

I would like to commence today by acknowledging the traditional owners of the land and to pay respect to their elders and to acknowledge their sacred connection to the land.

Today I intend on speaking briefly about the new Victorian Charter of Human and Responsibilities – what is and how will it affect us; about the EOCV; and the introduction of an express right to privacy in the Charter and its potential to expand the notion of privacy that public sector organisations currently comply with under the Victorian Information Privacy Act 2000. In doing so, I reflected on the Attorney-General’s comments in farewelling Vicotria’s first Privacy Commissioner Paul Chadwick. At that time, he reminded us that privacy has only had a 5 year life in terms of being legislated for as a right, where as equal opportunity legislation has been in plce for 30 years. This gives us some idea of the journey that is ahead for privacy in terms of community education and public awareness but also what is ahead of us in relatin to the Charter of Human Rgihts and Responsibilities and the awareness and education process for the Victorian community.

The Charter of Human Rights: what does it mean and how will it work

Parliament passing the Charter of Human Rights and Responsibilities was the first important step in embedding human rights into our daily lives. But the biggest challenge is coming – to show Victorians the Charter’s importance and relevance to their everyday lives. In delivering the Inaugural Mabo Oration in Queensland last year, Noel Pearson said, “My primary concern with human rights is not so much their recognition but their enjoyment in reality rather than mere theory.” This too is the Equal Opportunity Commission’s concern and it is also our role.

In theory, the Charter aims to improve the work of State and local government. Based on a parliamentary rights model, its purpose is to improve democracy by compelling State and local government and public servants to take human rights into consideration when making laws, setting policies and in the provision of services.

In practice it calls for statements of compatibility or incompatibility when new laws are introduced, and gives enhanced powers to the Parliamentary Scrutiny of Acts and Regulations Committee in assessing legislation against clear human rights principles. The Courts can interpret and make declarations of inconsistent interpretations but will have no power to strike out laws.

The EOCV will soon become the newly constituted Victorian Equal Opportunity and Human Rights Commission. We will have the task of informing Victorians about the existence and application of the Charter. The Commission will have a number of functions including annual reporting on the operation of the Charter and the provision of human rights education. Its educative role will be to develop a more sophisticated understanding of human rights and how the Charter may be used to extend the human rights protections to their constituencies.

As part of this process we will have to sort out our working relationship with other human rights bodies such as the Health Services Commissioner, the Ombudsman, the Privacy Commissioner and so on.

So what does having the Charter mean for us and what is the difference it will make? I will flag some possibilities in relation to the right to privacy a little later but first the most fundamental contribution of the Charter will be to compel decision makers (be they law makers, bureaucrats, the courts, public authorities) to consider the human rights dimension of all matters before them and act compatibly with human rights.

This duty of consistent action is a very powerful tool in promoting human rights compliance. One of the benefits of a human rights instrument is that it gives prominence to human rights considerations within a very crowded public policy process that often render human rights invisible or secondary, or worse, matters only considered when they become a problem. If we accept that new laws and policies should be subject to an economic and environmental appraisal so should they also be subject to a human rights assessment. This is, after all, a fundamental definition of our efficacy as a democracy – how we treat each other and how we expect to be treated.

Over time human rights will become understood principles that enhance public administration, just as good economic management is demanded of public administration.

In New Zealand, independent audits of the human rights framework have found it adds to the quality and sustainability of public policy. In the ACT, Human Rights and Discrimination Commissioner, Helen Watchirs, argues that its human rights legislation is beginning to provide an operational framework for what was previously regarded as intuitive, but difficult to define. Compliance therefore becomes desirable rather than simply required because human rights are understood to be a fundamental part of, rather than an impost on, sound public administration.

The Charter will not vacate Port Philip and Barwon prison nor will it immediately resolve and address every issue of social justice that we confront as a community. However, what the Charter is clear about is its objective of preventing the infringement of rights. At the risk of sounding trite, an ounce of prevention is worth a pound of cure.

Our notion of privacy and its protection under the Information Privacy Act 2000

The Charter has the potential to extend the notion of privacy that presently applies to public sector organisations under the Information Privacy Act 2000.

Presently public sector organisations are obliged to comply with a regime for the responsible collection and handling of personal information; to provide individuals with rights of access to information about them held by organisations; and to provide individuals with the right to require an organisation to correct information about them held by that organisation.

Once the Charter is fully operable a broader notion of privacy will need to be observed by public sector organisations. This new notion of privacy as set out in the Charter will extend the notion of this right beyond the handling of personal information by public sector organisations to protection from unlawful or arbitrary interference with a person’s personal space and autonomy, the family and home. But how will this work in practice?

The Victorian Charter and the right to Privacy

Section 38 of the Charter places an obligation on public authorities to act in a way that is compatible with human rights. Similarly, in making a decision, it will be unlawful for a public authority to fail to give proper consideration to a relevant human right.

The Charter will now require public authorities to conduct themselves in a manner that does not unlawfully or arbitrarily infringe a person’s right to privacy. Section 13 of the Charter provides a person has the right to:

• not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
• not to have his or her reputation unlawfully attacked.

But what does this new obligation mean in practice

The right to privacy in the Victorian Charter is derived from the right in Article 17 of the International Covenant on Civil and Political Rights and is expressed in very similar terms to the right in the Victorian Charter: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

Now in interpreting the meaning of a right or whether a statutory provision (and the action or policy that flows from that) is consistent with the rights set out in the Charter regard may be had to international law and the judgments of domestic, foreign and international courts and courts relevant to a human right.

The right to privacy has been interpreted as applying to a vast array of circumstances in international law. It has been defined widely as ‘the right to be left alone’ and narrowly as a right to control information about ones self. International law provides some diverse and interesting examples of the types of matters that have been defined as relating to the right to privacy; from the right to change one’s surname (Coereil and Aurik v The Netherlands - HRC) to denouncing the criminalization of homosexuality as an incursion on a person’s personal privacy (Toonen v Australia – HRC).

But for our purposes today it is most useful to pear it back to its actual terms to determine what obligations will now pass to public authorities.

The right protects from "unlawful" interference – this means that no interference can take place except in cases envisaged by the law. Interference authorized by the State can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Charter.

The expression "arbitrary interference" is also relevant to the protection of the right. The expression "arbitrary interference" can also extend to interference provided for under the law. The inclusion of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Charter and should be, in any event, reasonable in the particular circumstances.

Regarding the term "family", it can be given a broad interpretation to include all those comprising the family as understood in society and the term "home" is to be understood to indicate the place where a person resides or carries out his or her usual occupation.

The Office of the High Commissioner for Human Rights in its General Comment 16 provides tangible examples of what compliance with the right to privacy in the ICCPR should mean in practice:

• Correspondence should be delivered to the addressee without interception and without being opened or otherwise read.
• Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.
• Searches of a person's home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.
• So far as personal and body search is concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched.
• Persons being subjected to body search by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex where possible.

It is clear from what I have said today that the inclusion of the right to privacy as expressed in the Charter will extend public authorities present obligations in so far as protecting privacy is concerned. This is because public authorities’ actions and policies should now be driven by a consideration of compatibility with human rights, namely a wider notion of privacy.

When we talk about human rights and the Charter, we recognize in this room that we have embarked on an historic phase of Victoria’s development as a civil, equitable and sophisticated democracy. So too is this a historic time for the notion of privacy, its significance in the Victorian public sector, and its greater protection for the Victorian community.