PO Box 382 North Adelaide
SA 5006 AUSTRALIA
Tel: 07 3424 0201
Fax: 07 3424 0241
31 August 2001
Mr M Crompton
Federal Privacy Commissioner
L8, 133 Castlereagh Street
Sydney NSW 2000
Dear Mr Crompton
EFA has appreciated the opportunity to participate in the NPP Guidelines Reference Group during the past six months. As you are aware, EFA has previously been generally supportive of the approach being taken by the OFPC in relation to the Guidelines and we have commented to that effect publicly, including in media interviews. However, during the past few weeks information emanating from the OFPC has caused us to review our position and we advise accordingly below.
EFA hereby records our strong disapproval of the significant reversals in the OFPC's approach as evidenced in the revised draft Guidelines and Information Sheets recently distributed to members of the NPP Guidelines Reference Group and, apparently, unnamed others. We also disapprove of the minimalist and secretive "consultation" process being undertaken given the changes to the public consultation draft issued in May are major and there is no evidence that these changes are desired or supported by ordinary members of the public whose privacy is at risk.
We have previously indicated our concern regarding the extremely short time (two working days) granted to prepare comments on the substantially altered guidelines and the difficulties of commenting while the supplementary information sheets were not available. Having since received the draft information sheets, we are appalled to learn that a number of previously intended sheets will not be produced. Moreover, the remainder fail to address matters that are at the very core of whether the "privacy" legislation will provide adequate, if any, protection against privacy abusive practices by organisations required to comply with the Act. While some such matters are briefly mentioned in the gutted Guidelines, the information is either so hazy and ambiguous that it is useless or the content and tone appears likely to legitimise privacy invasion to a greater extent than the legislation itself does.
We understand that a criticism of the public consultation draft was that it was too lengthy and we agreed that a shorter document plus supplementary sheets may be more user friendly. We did not expect however, that one means of reducing the size would be to simply delete guidance on some important matters, principally it appears where some (but not all) business lobby groups objected to the contents of the public consultation draft issued by your office.
In view of the above, EFA declines to provide comments on the Information Sheets. In addition to the three day time frame for responses being totally inadequate, EFA considers that no benefit to EFA members is likely to arise from our continued participation in this "consultation" process. In our view it is clear that a decision has been taken to favour business interests over the privacy of ordinary citizens that the legislation is allegedly intended to protect. Moreover, after six months participation in this process, we are sure the OFPC is already well aware of EFA's views.
With regard to the short comment periods on the revised material, we recognise this results from the OFPC decision to issue final guidelines earlier than scheduled because some business interest groups said the scheduled date did not provide businesses with adequate time to prepare. While we commend efforts to provide final guidelines as soon as possible to organisations who genuinely desire guidance from the Commissioner, it is pertinent to note that some (perhaps all) of the groups critical of the scheduled release date are the very same ones who do not wish the Commissioner to provide guidance on compliance with the law at all, and/or who have indicated intent to comply with their organisation's interpretation of the legislation irrespective of any interpretation by the Commissioner in the guidelines. These groups are obviously well aware that the guidelines are just that, guidelines, not the law. Such groups have already had some nine months to prepare to comply with the legislation and the claim that they cannot do so until the final guidelines are issued is nonsense.
We believe there are reasonable grounds for the view that the guidelines have been gutted at the request of some business lobby groups who seek to ensure that:
In acquiescing to the demands of various business lobby groups, the Commissioner's office is likely to fail, not only citizens, but also many businesses who seek clear guidance on compliance with the law so as to avoid the potential for complaints and/or genuinely wish to undertake best practice in protecting their customers' privacy.
In summary, it presently appears that the Federal Privacy Commissioner's office has been hijacked by politically powerful big business lobby groups with minimal interest in their customers' right to privacy. If such a perception is not factual and is not to become a widely held view in the general community, the current draft guidelines require another major overhaul, this time to restore backbone and balance.
on behalf of the EFA Board
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