Privatising or outsourcing? Consider the privacy risks: a recent AIC statement is relevant for sale of business by government
On 15 March 2016 the Acting Australian Information
Commissioner released a statement addressing the privacy
implications of the sale of the Dick Smith electronic customer
database. The statement has relevance for governments in the
context of privatisation and the outsourcing of government agency
functions to third parties.
As part of its sale of Dick Smith's assets, the company's receiver has sold the Dick Smith customer database to online retailer 'kogan.com'. The Commissioner considered the sale of the Dick Smith customer database in the context of Australian Privacy Principle (APP) 6, which must be observed by an APP entity in circumstances where it uses or discloses personal information for a purpose secondary to the purpose for which it was collected.
The Commissioner stated that the planned use of the online database by kogan.com to deliver an online retail service under the Dick Smith brand is consistent with what subscribers might reasonably expect. Furthermore, the Commissioner noted that the receivers had sent an 'opt out' email to all subscribers of Dick Smith's customer database offering customers the opportunity to unsubscribe from the database before the sale went ahead. The Commissioner considered this to be an "appropriate step."
The Commissioner's statement provides guidance for
government businesses looking to privatise or outsource their
functions. While the APPs do not apply to state and territory
governments, the NSW government and its public sector agencies have
obligations under the Privacy and Personal Information Protection
Act 1998 (NSW) which are similar to those under the APPs. The
Commissioner's statement should therefore be heeded at both
state and Commonwealth levels in the context of the sale or
outsourcing of government business where this would result in
personal information being disclosed or subsequently used for
purposes secondary to which it was originally collected, and by a
different party. The Dick Smith 'opt out' approach
may be regarded as a best practice guide.
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In the media
New independent inspector to monitor custodial services
in NSW
The Department of Justice today announced the appointment of Fiona
Rafter as Inspector of Custodial Services. The Inspector of
Custodial Services is an independent watchdog who reviews
correctional and juvenile justice facilities and reports to
parliament on issues of concern (24 March 2016).
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New NSW laws to hit crime gangs where it
hurts
People engaged in serious and organised crime will face new orders
restricting their associations and business dealings, and tough new
penalties for dealing in the proceeds of crime, with the
introduction of two Bills into Parliament(22 March 2016).
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New judges to ease pressure on District Court in
NSW
A $20 million package of funding, including the appointment of two
new judges, will deliver a total 256 sitting weeks for the District
Court to address the criminal trial backlog, Attorney General
Gabrielle Upton announced today (21 March 2016).
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Prison reform to improve community safety
The NSW prison system will undergo a major reform program to lift
standards, strengthen accountability and help meet the
Government's commitment to reduce adult reoffending by 5 per
cent by 2019 (20 March 2016).
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Former NSW SES boss not guilty of sacking
whistleblower
Murray Kear, the first person to be charged under New South
Wales' whistleblower protection laws, says he is enormously
relieved with verdict that he did not sack whistleblower (16 March
2016).
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Dick Smith sale
The OAIC has been advised that the customer database will be used
for the purpose of delivering an online retail service under a
'Dick Smith' brand, which is in line with what subscribers
might reasonably expect. Receivers have offered customers on the
database the opportunity to opt out of the list prior to the sale,
under Australian Privacy Principle (APP) 6 of the Privacy Act 1988
(Cth) (15 March 2016)
More...
The new frontier in assaults on privacy and what the law
is – or isn't – doing about it
Australia stands out as a country that does not provide an
actionable right to privacy – that is, the ability to sue
someone who has seriously invaded the secrets of your private life.
The courts have tried to develop a privacy tort or bend the law
relating to breach of confidence so that it extends to protecting
personal privacy (15 March 2016). More...
In practice and courts
NSW Parliament: This month in committees
Research Paper - Cyberbullying of children
Inquiries receiving submissions
Inquiry into Reparations for the Stolen Generations in New South
Wales, closes 31 March.
Reports
Examination of the Auditor-General's Performance Audit Reports
September 2013 – July 2014 (report published) (Tue
15).
Changes to the Routine of Business and consequential changes to the
Sessional Orders (report published) (Wed 23).
Inquiry into Changes to the Routine of Business and consequential
changes to the Sessional Orders (report due) (Wed 23).
Government responses
Progress of the Ombudsman's investigation 'Operation
Prospect' (response received) (Tue 22).
What's new
The House in Review - Vol 56/19, 21-23 March 2016
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[Upcoming Events at Parliament House]
NCAT: Updated guideline
on internal appeals
NCAT's
Guideline on internal appeals has been
recently updated with new information about leave to appeal and
stays (17 March 2016). More...
NSW IPC March 2016
See the March 2016
issue of the NSW IPC Bulletin here March 2016
Published – articles, papers, reports
The Honourable Justice Stephen Rothman AM, 'Judicial
Review of Administrative Decisions'
Paper presented by Rothman
J to the Australian Lawyers Alliance
NSW State Conference on 11 March 2016.
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Australia in a century of transformative governance: a
federation for communities and places
Local Government Professionals Australia, Institute of
Governance and Policy Analysis
This paper has been commissioned by Local Government Professionals
Australia as a contribution to debate on the future of the
Australian federation and as a response to the National Innovation
and Science agenda (20 March 2016).
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Cases
Voitenko t/as Access Party Hire v Zurich Australian
Insurance Limited [2016] NSWSC 324
PROCEDURE – subpoena for production of recordings
made by investigating police through the use of a listening device
authorised by a warrant issued under the Surveillance Devices Act
2007 (the Act) – prohibition under s 40(1) of the Act
against use, communication or publication of such recordings being
"protected information" within s 39 of the Act
– whether producing the recordings to the court could
constitute a contravention of s 40(1) – whether an order
can and should be made under s 43 of the Act permitting a
party or parties to search the recordings "in the interests of
justice" within s 43 – the procedure to be followed
by a court in making a determination under s 43 – the
issues to be considered in making such a determination which
involves a balancing exercise.
More...
Director of Public Prosecutions (NSW) v Best [2016]
NSWSC 261
ADMINISTRATIVE LAW – appeal from Local Court –
magistrate dismissed charge of intimidate police – s 60
Crimes Act 1900 – whether threat made to police officer
communicated through third party intermediary can support the
charge – binding authority gives "intimidates"
ordinary English meaning – erroneous process of statutory
interpretation undertaken – no requirement for intimidatory
conduct to be in the presence of the police officer –
magistrate's decision set aside and matter remitted to Local
Court. More...
Quach v Health Care Complaints Commission [2016] NSWCA
49
ADMINISTRATIVE LAW – notices of motion seeking
judicial review – where Court of Appeal has dismissed amended
summons in underlying proceeding – where present applications
not commenced by separate summons – where maker of decision
to be reviewed not joined as party – motions dismissed
PROCEDURE – whether Court should make orders in terms of Teoh
v Hunters Hill Council (No 4) [2011] NSWCA 324.
More...
Deputy Commissioner of Taxation v Joseph Frangieh (No 2)
[2016] NSWSC 310
PROCEDURE – civil – interlocutory issue
– documents produced by Deputy Commissioner of Taxation
– whether protected information pursuant to Div 355 of Sch 1
to the Taxation Administration Act 1953 (Cth) – disclosures
of protected information – proceedings related to taxation
laws – disclosures made in performing duties as a taxation
officer – disclosures fall within exception in s 355-50(2)
item 3
Administrative Decisions (Judicial Review) Act 1977 (Cth). More...
Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC
26
JUDICIAL REVIEW : validity of a complying development
certificate – whether proceedings time barred – whether
certifier failed to consider development consent – whether
irreconcilable conflict between consent and complying development
certificate – proceedings not time barred – no conflict
between complying development certificate and consent –
complying development certificate validly issued. More...
Health Care Complaints Commission v Khan [2016] NSWCATOD
32
ADMINISTRATIVE LAW – Civil and Administrative
Tribunal Act 2013 NSW – Professional disciplinary proceedings
brought by HCCC against practitioner. Where two complaints heard
together. Where it is asserted that the practitioner engaged in
conduct that demonstrates his practice of medicine was
significantly below the standard reasonably expected of a
practitioner of an equivalent level of training or expertise. Where
it is asserted practitioner's medical records in respect of an
8 year old child were inadequate. Where separate complaint asserts
practitioner inappropriately prescribed medications for himself,
and failed to maintain adequate records in respect of his
self-prescribing. Where it is also asserted practitioner suffers
impairment and further asserted he is not competent to practise.
Where practitioner withdraws material filed and does not seek to
defend complaints. Where all complaints are found proven.
More...
Legislation
NSW
Proclamations commencing Acts
Regulatory Reform and Other Legislative Repeals Act 2015 No 48
(2016-154) — published LW 24 March 2016
Bills introduced – Government – 24 March
2016
Crimes (Serious Crime Prevention Orders) Bill 2016
Criminal Legislation Amendment (Organised Crime and Public Safety)
Bill 2016
Fines Amendment Bill 2016
Bills passed by both Houses of Parliament
Crimes (Domestic and Personal Violence) Amendment (National
Domestic Violence Orders Recognition) Bill 2016
Bill introduced - Non-Government – 18 March
2016
Law Enforcement (Powers and Responsibilities) Amendment (Sniffer
Dogs—Repeal of Powers) Bill 2016
Bills Progress
Privacy and Personal Information Protection Amendment (State Owned
Corporations) Bill 2016
Legislative Assembly 23 March 2016 - Second reading debate
continued and adjourned
This Bill is for an Act to amend the Privacy and Personal
Information Protection Act 1998 to extend its application to State
owned corporations that are not subject to the Privacy Act 1988 of
the Commonwealth
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