Lexology: Australia: Tuesday, January 17, 2017.
A
chance for Queensland to capitalise on national and international developments
in privacy law
On 13
December 2016, the Queensland Government announced a review of Queensland’s
privacy and right to information legislation. The review aims to determine
whether the primary purposes of the Information Privacy Act 2009 (Qld) (IP Act)
and the Right to Information Act 2009 (Qld) (RTI Act) remain valid and whether
the Acts achieve those purposes.
The review
also aims to capitalise on developments around the world with respect to
privacy protection and information management. Unlike the Commonwealth Privacy
Act, which underwent substantial reforms in 2014, the IP Act and the RTI Act
have not been substantially amended since their commencement in 2009.
The
Queensland Office of the Information Commissioner is seeking submissions from
interested parties, including on the issues outlined in a consultation paper
published by DJAG (available here). The questions canvassed by the Review are
included in the pdf of this article.
Submissions
are due by 3 February 2017.
QUEENSLAND
PRIVACY LAW
Should the
IP Act align with the Commonwealth Privacy Act?
The Privacy
Act 1988 (Cth) contains one set of Australian Privacy Principles (APPs) that
apply to both Commonwealth government agencies and the private sector, whereas
the IP Act contains two sets of privacy principles: the National Privacy
Principles (NPPs) (for health agencies), and the Information Privacy Principles
(IPPs) (for all other Queensland government agencies).
The APPs
provide stronger privacy protections than the IP Act (and the IPPs and NPPs),
particularly regarding direct marketing and the handling of unsolicited
information and sensitive information.
The
Australian Law Reform Commission’s 2008 report into privacy laws recommended
that the Commonwealth and all States and Territories adopt one set of privacy
principles to reduce compliance burdens and improve efficiencies. It noted that
this might also help individuals to better understand their privacy rights and
would also benefit organisations who operate in multiple jurisdictions.
The Review
asks whether the IPPs and NPPs could be combined and replaced with principles
that reflect the APPs under the Commonwealth Privacy Act and the Review seeks
feedback as to the advantages and disadvantages of this approach.
Similarly,
the Review asks whether the definition of ‘personal information’ should be
updated to adopt the Commonwealth definition, which uses “more modern
terminology”.
Should
sharing information within government be a ‘use’ instead of a ‘disclosure’?
The IP Act
currently sets out different principles for the use and disclosure of personal
information. As noted in the Consultation Paper, there are situations where
individuals would prefer their personal information to be shared between agencies,
rather than having to provide the same personal information to multiple
agencies.
The Review
seeks feedback as to whether the IP Act currently unreasonably prevents the
sharing of personal information between Government agencies. In order to strike
a balance between duplicating the provision of information, but also ensuring
that it can only be shared for the purpose for which it was collected or a
directly related purpose, the Review seeks feedback on whether any sharing of
personal information between Government agencies should only be considered a
‘use’ and not a ‘disclosure’.
Embracing
the use of the cloud where should overseas disclosure requirements land?
The IP Act
currently sets out the circumstances in which personal information may be transferred
outside of Australia. However, since the IP Act commenced in 2009 there have
been significant technological advancements including the increased use of
CCTV, drones, wearable and other “Internet of Things” devices which may
collect, process and store personal information. Cloud computing is also now
widespread, facilitating the transfer and storage of personal information
outside Australia. Further, the Government increasingly engages with the
community through overseas hosted social media platforms. The Review asks
whether there are concerns with the current approach under the IP Act for
transfer of personal information outside Australia.
Protecting
information from loss and misuse what should be expected of agencies?
Currently,
agencies must ensure that personal information is protected from loss and
misuse. However, under equivalent Commonwealth legislation, APP entities are
only required to “take reasonable steps” in that regard. A 2013 review of the
IP Act found strong support to amending this to require agencies to take
reasonable steps, and the Review seeks feedback on this position.
Should the
IP Act apply to Government Owned Corporations and agency sub-contractors?
One of the
questions the Review asks is the extent to which the IP Act should apply to
Government Owned Corporations (GOCs) and contracted service providers.
In the course
of deciding whether GOCs should be bound by the IP Act or the Privacy Act 1988
(Cth), the Consultation Paper notes that Commonwealth privacy legislation may
give individuals a “higher level of privacy protection” than under Queensland’s
IPPs.
In relation
to contracted service providers, the IP Act requires a Government agency to
take reasonable steps to ensure that a contracted servicer provider complies
with the IPPs and NPPs (as applicable to the agency), but does not otherwise
require an agency’s sub-contractors to comply with the IP Act. The Review seeks
feedback as to whether the IP Act adequately deals with obligations for
contracted service providers, and whether the privacy obligations under the IP
Act should extend to sub-contractors of Queensland government agencies.
QUEENSLAND
RIGHT TO INFORMATION LAW
Should the
RTI Act apply to documents of contracted service providers performing functions
on behalf of government?
The Review
asks whether the RTI Act should be expanded to apply to non-government agencies
that have access to and create documents in the course of providing services to
Government agencies. This would mean that such non-government agencies would
need to comply with the RTI Act including processing RTI applications and
publishing publication schemes.
Alternatively,
the Consultation Paper seeks feedback as to whether the approach under the
Commonwealth Freedom of Information Act, which requires contracted service
providers to provide any requested documents to the Government agency to
process an application, should be adopted.
Are the
categories of exemptions satisfactory?
The RTI Act
provides individuals with a right to access documents of an agency or Minister
but excludes some information from release. Queensland has 14 categories of
exempt information, including budgetary information for local governments,
information subject to legal professional privilege, national or state security
information and information where disclosure would found an action for breach
of confidence. Access may be refused to exempt information, however agencies
and Ministers have a discretion to release it.
The Review
asks whether additional exemptions from disclosure should be incorporated in
the RTI Act, or alternatively whether there should be fewer exemptions.
Should
changes be made to the public interest balancing test (PIBT)?
Government
agencies are not required to release documents if, on balance, it is contrary
to the public interest to provide such access. The RTI Act contains a detailed
process outlining how decision makers should apply the PIBT, which involves comparing
factors for and against disclosure and disregarding irrelevant factors.
Schedule 4 of the RTI Act sets out 55 examples of the factors to be considered
or disregarded. Importantly, this is not an exhaustive list, and new factors
may be considered at any time. By way of contrast, the Commonwealth Freedom of
Information Act sets out only eight example factors and otherwise allows the
Information Commissioner to promulgate guidelines on the issue.
Given the
complexity of applying the PIBT, the Review asks whether the PIBT should be
simplified, and whether changes should be made to the public interest factors
that are used in the decision-making process. A 2013 review of the RTI Act
found that there was strong support for simplifying the PIBT.
Who should
the RTI Act apply to?
Currently
under the RTI Act, some but not all Government Owned Corporations (GOCs) are
required to comply with the RTI Act. The Consultation Paper asks whether the
way the RTI Act applies to GOCs should be changed, and notes that an obligation
to comply may increase the compliance burden for GOCs, particularly those
established and operated as commercial businesses.
Other
issues in the Review
The
Consultation Paper also discusses other procedual matters regarding appeals
from the Office of the Information Commissioner decisions, the powers of the
Office of the Information Commissioner and, under the RTI Act, the requirements
for schedules of documents and disclosure logs.
Making a
submission
Submissions
can be made up to and including 3 February 2017, either by email to
FeedbackRTIandprivacy@justice.qld.gov.au or by post to “RTI and Privacy Review”
at DJAG’s address.
What
happens next?
All
submissions will be considered as part of the Review. A report will be tabled
in Parliament on the Review.