The area of privacy law continues to generate considerable interest. There have been two recent developments which are worth noting, namely:
- the release of the Commonwealth Government’s Issues Paper on serious invasions of privacy;
- the decision in Smallbone v New South Wales Bar Association  FCA 1145 (6 October 2011).
This update discusses each of the above developments in turn
Smallbone v New South Wales Bar Association  FCA 1145 (6 October 2011)
Whilst the process for appointing Senior Counsel has often been the subject of comment and criticism, its interaction with principles of privacy law was not considered judicially until the Federal Court decision in Smallbone v New South Wales Bar Association  FCA 1145.
In this case, the Applicant, a barrister and member of the Respondent organisation, sought injunctive relief under section 98 of the Privacy Act 1988 (Cth) and ancillary relief in connection with his claim for a right of access to the information collected about him in relation to his application to the Respondent to be appointed as Senior Counsel, which he made in response to the Respondent’s general invitation for applications on 1 July 2011 to all members of the NSW Outer Bar. For the purposes of considering that application, the Respondent collected personal information, including opinions relating to the Applicant from a variety of sources, including opinions and comments from the Consultation Group (comprising barristers and solicitors) and the Judicial Consultation Group (comprising various judges and judicial officers) as described in the Respondent’s Senior Counsel Protocol as at June 2011 (Protocol). In response to the Applicant’s claim for a right of access to the information collected about him in relation to his application, the Respondent notified the Applicant that it refused to give such access.
It was common ground between the parties that the Respondent is an ‘organisation’ within the meaning of section 6C(1) of the Act and that the collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles (NPPs) set out in Schedule 3 of the Act. There was also no dispute that:
- the Respondent is an organisation to which NPP 6.1 applies such that if it holds ‘personal information’ about an individual, it must provide the individual with access to the information on request by the individual; and
- the information collected by the Respondent about the Applicant in relation to his application was ‘personal information’ for the purposes of the Act and the NPPs, and that the Applicant had requested access to that information.
The issue between the parties was the extent to which NPP 6.1 applies to limit the Applicant’s right of access to that information.
According to Justice Yates, the general rule is that if an organisation holds personal information about an individual, access must be provided to the individual upon that person’s request unless one of a number of possible exceptions applies in a given case, including NPP 6.1(c). NPP 6.1(c) provides as follows:
6.1 If an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual, except to the extent that:
(c) providing access would have an unreasonable impact upon the privacy of other individuals; or
The Applicant’s primary position was that providing access to all of the information relating to the Applicant, including the identity of the persons who had supplied that information, would not have an unreasonable impact upon the privacy of other individuals. In essence, the Applicant’s position was that NPP 6.1(c) had no relevant application in the circumstances of the case. On the other hand, the Respondent’s position was that providing access to any of that information to the Applicant would have an unreasonable impact upon the privacy of other individuals, being the persons who participated in the selection process and supplied the information in respect of the Applicant. In essence, the Respondent’s position was that NPP 6.1(c) provided an absolute exemption to providing access to that information to the Applicant.
Justice Yates stated that whether providing the information would have an unreasonable impact is essentially a matter of practical judgment having regard to all the circumstances of the case. His Honour referred to C v Insurance Company  PrivCmrA 3 and stated that in this case the Commission identified various considerations relevant to the assessment of whether the provision of access to documents containing the personal information of third parties would have an unreasonable impact on the privacy of those individuals, and that these were (at para 50):
helpful indicators of some of the considerations that might be involved in a particular evaluation of the application of NPP 6.1(c). They are not, however, the only relevant considerations. Another relevant consideration is the nature of the information that is held by the organisation and the form in which that information is held.
While Justice Yates found that the Applicant was entitled to access the personal information that the Respondent had collected in relation to his application for appointment as Senior Counsel in 2011, he found that the Respondent is not obliged to provide access to information which discloses:
- the identity of persons who are members of the consultation groups who have provided information to the Respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which each member has been appointed, if it is a court other than the Supreme Court of New South Wales; or
- the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011.
In relation to (a) above, his Honour stated that given ‘the circumstances in which the information was sought and the circumstances in which it came to be provided, as well as the nature of the information itself’, his Honour was satisfied that granting access to the Applicant of that information would have an unreasonable impact upon the privacy of those members of the Consultation Group and Judicial Consultation Group. In addition, his Honour stated that ‘given the small number of responses from some judicial officers from some identified courts, disclosure of information by reference to those courts will have an unreasonable impact upon the privacy of other individuals, being the judicial officers of those courts who have provided information about the [A]pplicant’. In relation to (b) above, his Honour also believed providing information about the Applicant in a record that shows the identity of and information about other applicants for appointment will have an unreasonable impact upon the privacy of those individuals.
As a result, the Applicant obtained access to the documents sought other than for the limited exceptions made by his Honour Justice Yates identified in (a) and (b) above. Until the expiry of 7 days after completion of the inspection of the records of the information held by the Respondent, the Respondent is restrained from making any adverse determination of the Applicant’s application for appointment as Senior Counsel lodged with the Respondent in July 2011.
This case provides some judicial guidance in relation to one of the exceptions that applies where access to information has been requested by an individual, namely, in circumstances where it ‘would have an unreasonable impact upon the privacy of other individuals’. This decision also highlights the application of privacy law and the NPPs to a range of organisations as defined in Section 6C of the Act. That is, the application of privacy law is not restricted to government departments and agencies but also has broader application to the private sector in certain instances.
On 23 September 2011, the Minister for Privacy and Freedom of Information, the Hon. Brendan O’Connor, released an Issues Paper titled ‘A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy’. The Issues Paper discusses the recommendations by the Australian Law Reform Commission (ALRC) in relation to the introduction of a statutory cause of action for serious invasions of privacy. According to the media release, the ALRC proposal ‘would allow individuals to seek a remedy from a court where their private life has been seriously invaded in a way that ordinary Australians would consider to be highly offensive’. The Issues Paper seeks submissions on whether Australia should introduce a statutory cause of action for privacy and, if so, what elements a statutory cause of action might include. The Issues Paper draws on the analysis of the Australian, Victorian and New South Wales Law Reform Commissions and considers the policy context and current legal positions in Australia and comparable jurisdictions. Submissions are due by 4 November 2011. In his media release, Mr O’Connor stated:
‘Rapid advances in technology have led to profound changes to the ways in which people store personal information, and how they share that information with family, friends, organisations and government. We need to make sure that our privacy laws and protections are keeping pace with the changes.’