Australian Press Council submission to the NSW Law Reform Commission on its inquiry: Privacy and Access to Personal Information.

August 31, 2009

The Australian Press Council notes that, subsequent to the reference to the Law Reform Commission of June 1, the Government Information (Public Access) Act 2009, and associated legislation, has been passed and assented to. An interim Information Commissioner has been appointed and the interim commissioner is now working towards defining how the new rules applicable to public access to government information should work.

In the view of the Press Council, the Law Reform Commission should let the newly appointed Information Commissioner work through the issues related to the balance between the interest in protecting private information and the public interest in the release of government information, where that information deals with matters of public interest and concern.

As the Law Reform Commission notes, Section 5 of the GIPA Act creates a presumption in favour of disclosure of government information unless there is an "over-riding public interest" against disclosure. The Act further provides that there is an over-riding public interest against disclosure if and only if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. The privacy of an individual's personal information is one of those considerations.

The Press Council believes that the GIPA Act has properly dealt with the concerns raised by the points for discussion in the paper: the default position is that information should be revealed and only in exceptional circumstances should the outcome be different. The public interest in the release of information on government is a dominant consideration. The Council believes that these criteria should be the ones applying to all decisions on the release of information held by the government, whether it is personal information or information related to the activities of government.

In such cases, the Council would support a process of assessment based on an Australian Law Reform Commission recommendation for federal legislation:

• decision-makers should take due and proper account of the legislative objective that records are to be made available unless there are compelling grounds justifying their non-disclosure;
   
• decisions to deny access must be based on contemporary evidence and information, and that evidence and information is to be expressly identified in reasons for decisions; and
   
• such decisions must be based on real and substantial specifics that demonstrate that access to the records would lead to damage, prejudice or adverse effect.

In so far as the Commission considers the extent to which public interest including privacy considerations apply in respect of access applications for personal information about public officials, the Council would argue that the public interest test would mandate that any perceived damage, prejudice or adverse effect needs to be incontrovertible.

The Council generally welcomes the reforms in the Government Information (Public Access) Act 2009 and looks forward to a greater availability of government information.

Submission

[return to top]

See also
Index of website material on privacy

Return to
Submissions list
Freedom of the Press overview

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.