The Legal Bulletin is a regular publication of the Legal Section
comprising recent developments of interest.
INSIDE THIS ISSUE:
2. Selected general Australian jurisprudential developments
relevant to human rights
2.1 Jurisprudence
2.2 Legislative
3. Developments in Australian Federal Discrimination Law
- Access for All Alliance (Hervey Bay) Inc v Hervey Bay City
Council
- Islamic Council of Victoria v Catch the Fire Ministries Inc
4. Selected Developments in International Law
4.1 Human Rights Committee
- Hudoyberganova v Uzbekistan
4.2 European Court of Human Rights
4.3 Other jurisdictions
United Kingdom
- A (FC) and others (FC) v Secretary of State for the Home Department
5. Australian and International Privacy Law
5.1 Australian Developments
- Australian Institute of Private Detectives Ltd v Privacy Commissioner
- Rummery and Federal Privacy Commissioner and Anor
Federal Privacy Commissioner Case Notes
- Z v Credit Provider
- C v Service Provider
- H v Credit Provider
- E v Motor Vehicle Retail Organisation
Federal Privacy Commissioner Temporary Public Interest Determinations
5.2 International Developments
- Case of Wood v United Kingdom
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1. Introduction and forthcoming seminar details
Welcome to the February/March 2005 edition of the Legal Bulletin, covering developments in domestic and international human rights law during the period 1 November 2004 - 31 January 2005.
For our next Legal Bulletin Seminar, HREOC is very pleased to present a panel discussion entitled 'Are human rights principles relevant to the war on terror?' That topic is closely related to some of the issues discussed in this legal Bulletin (see section 2.2 and 4.3 below).
We have a highly qualified panel to speak on that topic, consisting of:
- Mr Dennis Richardson AO, Director-General of ASIO
Dennis
was first appointed to that position in 1996 and re-appointed for a further
five years from October 2001. Dennis was Deputy Secretary in the Department
of Immigration and Multicultural Affairs from 1993 to 1996.
- Ms Devika Hovell, Director, International Law
Project, Gilbert + Tobin Centre of Public Law
Devika lectures
in international humanitarian law at the University of New South Wales.
She is also a director at the Gilbert + Tobin Centre of Public Law, where
she is working on a three-year project on the relationship between international
law and Australian law. Devika has a Master of Laws from New York University,
and was previously employed in the legal department at the International
Court of Justice in the Hague.
- Mr Simeon Beckett, barrister.
Simeon was admitted to the New
South Wales Bar in 1997 and practises in areas relating to human rights
law. Simeon is also President of Australian Lawyers for Human Rights and
has appeared before Committees of the Australian Parliament in inquiries
into counter terrorism legislation. Prior to going to the bar, Simeon was
a Federal Government advisor on the drafting of Native Title Act and Indigenous
issues.
- The President of the Commission, the Hon John von
Doussa QC will chair
the panel.
Unfortunately for those who have not yet rsvped, the seminar is already
full. If you have already rsvped and can no longer make
the seminar please email legal@humanrights.gov.au or
telephone Craig Lenehan on 9284 9617 so that those on the waiting list may
be notified to attend in your place.
For those who have rsvped, we remind you that admission is free and the
seminar will take place on Tuesday 5 April 2005 at 5 – 6:30
pm (please ensure that you arrive by 4:50pm for a prompt start).
The venue is:
Hearing Room,
Human Rights and Equal Opportunity Commission
Level 8 Piccadilly Tower
133 Castlereagh Street Sydney
We look forward to seeing you there.
2. Selected general Australian jurisprudential
and legislative developments relevant to human rights
2.1 Jurisprudence
There are no relevant cases on which to report in the period
covered by this bulletin.
2.2 Legislative
There are two interesting inquiries which are being or have been conducted by Parliamentary Committees:
The Senate Legal and Constitutional Committee held an inquiry into the Criminal Code Amendment (Trafficking in Persons) Bill 2004. The Commission made a submission to that inquiry which appears on the Committee's website at: http://www.aph.gov.au/senate/committee/legcon_ctte/trafficking/submissions/sublist.htm
The Committee's report is available at: http://www.aph.gov.au/senate/committee/legcon_ctte/trafficking/index.htm
The Committee made extensive reference to the Commission's written submissions and oral evidence and accepted many of the Commission's recommendations.
The Joint Parliamentary Committee on ASIO, ASIS and DSD is conducting an inquiry into the operation, effectiveness and implications of Division 3 Part III of the Australian Security Intelligence Organisation Act 1979 (Cth). Submissions are due on 24 March 2005.
3. Developments in Australian Discrimination Law
Access for All Alliance (Hervey Bay) Inc v
Hervey Bay City Council [2004]
FMCA 915
Background
The applicant organisation in this matter complained that
a number of facilities provided by the respondent Council
were inaccessible to people with disabilities.
The complaint related to an outside entertainment area
at a local community centre; round concrete picnic tables
in a foreshore area; and toilets in a number of locations
which provided hand basins placed on the outside of the facility
and could therefore not be used with dignity by persons with
disabilities who have particular toileting needs.
The applicant claimed that the conditions under which the
Council provided access to the various facilities constituted
indirect discrimination as defined by s 6 of the Disability
Discrimination Act 1992 (Cth) (‘DDA’), made
unlawful by s 23 which prohibits discrimination in access
to premises.
The Acting Disability Discrimination Commissioner, Dr Sev
Ozdowski, (‘the Commissioner’) was granted leave
to appear in the matter and make submissions as amicus
curiae on a number of issues surrounding the correct
interpretation and application of the DDA.
Baumann FM upheld the application in relation to the toilet
hand basins. The application was otherwise dismissed.
Decision
Baumann FM cited with apparent approval the submission
of the Commissioner that ‘in determining whether or
not an applicant can ‘comply’ with a requirement
or condition for the purposes of s 6(c), the Court should
look beyond ‘technical’ compliance to consider
matters of practicality and reasonableness’.
On the question of ‘reasonableness’ for the
purposes of s 6 of the DDA, his Honour adopted the summary
of the law provided by Madgwick J in Clarke v Catholic
Education Office [2004] 202 ALR 340, as follows:
(1) The onus of showing that the impugned requirement or
condition is not reasonable rests on the person aggrieved
by it.
(2) Reasonableness is to be determined having regard to
all the circumstances of the case. These include, but are
not limited to:
- the nature and extent of the effect of the discriminatory
requirement or condition;
- the reasons advanced
in favour of it;
- the possibility of alternative action;
and
- matters of “effectiveness, efficiency and
convenience”.
(3) The test is an objective one – neither the
preferences of the aggrieved person nor the mere convenience
of the service supplier can be determinative, though both
may be relevant factors.
(4) The test of reasonableness is “less demanding
than one of necessity, but more demanding than a test of
convenience”. Thus, if the aggrieved person can show
that it may have been convenient for the discriminator
to impose the requirement or condition but it was not reasonable
in all the circumstances, that will suffice. Likewise,
if it appears that although it was not necessary for the
discriminator to impose the requirement or condition, but
the aggrieved person does not establish that it was unreasonable
to do so, there is no indirect discrimination, as statutorily
defined.
(5) The test is reasonableness not correctness; that is,
a decision of the putative discriminator to impose the requirement
or condition, may be a reasonable one although not everyone,
or even most people, would agree with it.
Baumann FM cited with approval the submissions of the Commissioner
in relation to the relevance of the Building Code of Australia
(BCA) and Australian Standards under the DDA and concluded
as follows:
I regard the Australian Standards and the BCA as being
a minimum requirement which may not be enough, depending
on the context of the case, to meet the legislative intent
and objects of the DDA.
Baumann FM found that all three areas fell within the definition
of ‘premises’ for the purposes of s 4 of the
DDA, and concluded, upon a balancing of the evidence, that
the requirement/conditions imposed in relation to Community
Centre and the picnic tables were not unreasonable.
In relation to the toilet facilities, however, his Honour
found that the requirement/condition was unreasonable and
that persons were unable to comply with it.
On the question of unjustifiable hardship, Baumann FM found
that the benefits of the alteration work required to prevent
the discrimination were ‘real and important’.
His Honour noted that the benefits extended not only to local
residents but also visitors to the area. His Honour also
took into account the embarrassment and lack of dignity potentially
caused by having to use the facilities in their current state
following an ‘accident’. Baumann FM accepted
that the Council has ‘many priorities’, but that
it could make necessary adjustments to its budget to meet
the estimated cost ($75,250 being the highest quote in evidence).
The Court ordered that the respondent shall, within 9 months,
construct and install internal hand basins in the various
toilets the subject of the complaint.
Islamic Council of Victoria v Catch the Fire
Ministries Inc [2004] VCAT 2510.
Victoria makes both religious discrimination and vilification
unlawful under the Racial and Religious
Tolerance Act 2001 (Vic). On 17 May 2001, Premier Bracks gave his second
reading speech on the then Bill and explained that it ‘is
confined to prohibit only the most noxious form of conduct
which incites hatred or contempt for a person or group on
the basis of their religion’. He also said that ‘[T]he
Bill strikes an appropriate balance with freedom of expression
by imposing liability upon only the most repugnant behaviour
which actively urges and promotes hate. Freedom of expression
has never been an untrammelled freedom of any person to do
or say what they please.’
The following decision of the Victorian Civil and Administrative
Tribunal (VCAT) is the first decision under the Victorian
Act since it took effect on 1 January 2002.
The Islamic Council of Victoria brought the action in a
representative capacity, alleging a breach of s 8 of the
Act, which prohibits conduct ‘ that incites hatred
against, serious contempt for, or revulsion or severe ridicule
of” others on the grounds of religious belief. It complained
of an all-day seminar organised by Catch the Fire Ministries
Inc in March 2002, which was billed as an ‘Insight
into Islam’. Judge Higgins found that Pastor Scot,
who led the seminar, made statements such as:
- the Qur'an promotes violence, killing and looting, encourages
domestic violence and that Muslims are liars and demons;
- Muslims use money to induce people to convert to Islam
and have a plan to overrun western democracy by the use
of violence and terror, and Muslims intend to take over
Australia and declare it as an Islamic nation;
- people we call terrorists are true Muslims; and
- Muslims in Australia are increasing at substantial rates
and have influence or control over the migration of people
to Australia (quoting incorrect figures).[1]
A newsletter written by the second respondent, Pastor Nalliah,
described Muslims as ‘the enemy’ and included
an article entitled ‘2002 - Will Australia be a
Christian Country?’ His Honour found that the
article included statements such as ‘Muslims obtain
visas from the very countries where Christians are being
raped, tortured and killed’, and goes on to ask: ‘What
stops the Muslims from doing the same in Australia?’[2]
In addition, an article entitled ‘An Insight
Into Islam by Richard’ was found to suggest
that Islam is an inherently violent religion and implied
that Muslims endorse the killing of people based upon their
religion. While the article was not written by Pastor Nalliah,
he did place it on the Catch the Fire Ministries Inc website.[3]
Judge Higgins took into account expert evidence that the
seminar did not provide a fair representation of Islamic
religious beliefs and, having listened to tapes of the seminar,
found that the ordinary, reasonable person would understand
from the seminar that they were being incited to hatred towards
or serious contempt or ridicule for Muslims.[4]
His
Honour found that the seminar, the newsletter and the article
all constitute acts which incited hatred, ridicule and contempt
of Muslims, in breach of s 8 of the Act.[5]
The Act provides exceptions to the vilification provisions
under s 11, where the conduct was engaged in reasonably and
in good faith, for example for any genuine academic or religious
purpose, or in the public interest. However His Honour held
that the seminar, newsletter and article were neither reasonable
nor acts done in good faith.[6]
Orders
about remedies will be made in 2005 after VCAT has heard
further submissions from the parties.
This case attracted considerable media attention, with
debate centred on the issue of freedom of speech. However,
the s 11 exceptions to the Act are specifically concerned
to protect aspects of freedom of speech. As the second reading
speech makes clear, the legislation was drafted to carefully
draw the boundary between the competing rights of freedom
of expression and the right to be free of offensive behaviour
based on religious hatred.
A person who believes they have been discriminated against
solely because of their religion has no legally enforceable
rights in NSW or South Australia.[7]
A
person who believes they have been vilified because of their
religion has no legally enforceable rights in the ACT, NSW,
South Australia, Western Australia or the Northern Territory.[8]
At the federal level, HREOC has limited powers in relation
to discrimination on the basis of religion in employment
and acts by the Commonwealth, but does not have the power
to order legally enforceable remedies.[9]
4. Selected Developments
in International Law
4.1 Human Rights Committee
Hudoyberganova v Uzbekistan (Communication
No. 931/2000) (18/01/2005)
The author was a student at the Faculty of languages of
the Tashkent State Institute for Eastern Languages and later
the Islamic Affairs Department. In September 1997 the Institute “invited” students
wearing the hijab to leave the Institute and go and study
at the Tashkent Islamic Institute. In January 1998 the author
claimed that the Dean of Ideological and Educational matters
informed her that new regulations of the Institute had been
adopted under which students were prevented from wearing
religious dress and she was requested to sign them. She signed
them though she noted that she disagreed with them. However,
she continued to wear the hijib and consequently was excluded
from the students’ residence. She was also transferred
from the Islamic Affairs Department to the Faculty of Languages,
the Islamic Affairs Department having been closed by the
Institute. She claimed that students were told that that
department would only re-open if students ceased wearing
the hijab. In March 1998 the author was excluded from the
Institute.
On 15 May 1998 a new law “On the Liberty of Conscience
and Religious Organisations” entered into force in
Uzbekistan prohibiting Uzbek nationals wearing religious
dress in public places.
The author claimed that her expulsion from the Tashkent
State Institute for Eastern Languages because she wore the
hijab for religious reasons violated her rights under article
18 (freedom of thought, conscience and religion) and article
19 (hold opinions without interference) of the ICCPR.
The Committee upheld the author’s complaint of a
violation of article 18. The Committee held that the freedom
to manifest one’s religion encompasses the right to
wear clothes or attire in public which is in conformity with
the individual’s faith or religion and that to prevent
a person from wearing religious clothing in public or private
may constitute a violation of article 18(2). The Committee
reiterated that policies or practise that have the same intention
or effect as direct coercion are inconsistent with article
18(2) (see the Committee’s General Comment No.22 (paragraph
5)). However, the Committee noted that under article 18(3),
the freedom to manifest one’s religion or beliefs is
not absolute; it may be subject to limitations which are
prescribed by law and are necessary to protect public safety,
order, health, or morals, or the fundamental rights and freedoms
of others.
In the present case Uzbekistan did not invoke any specific
ground for which the restriction would be necessary within
the meaning of article 18(3). In the absence of any such
justification the Committee therefore concluded that there
had been a violation of article 18(2).
The Committee did not consider the application of article
19.
Mr Hipolito Solari-Yrigoyen dissented on the basis that
the evidence provided by Uzbekistan in response to the complaint
revealed that the true basis for her exclusion from the university
was her “rough immoral attitude toward a teacher” and
not her religious dress.
4.2 European Court of Human Rights
There are no relevant cases on which to report.
4.3 Other
Jurisdictions
United Kingdom
A (FC) and others (FC)
v Secretary of State for the Home Department [2004]
UKHL 56
The nine appellants had been detained by the Home Secretary
under the Anti-Terrorism, Crime and Security Act 2001.
All of the appellants were non-UK nationals and none were
the subject of any criminal charges in the United Kingdom
(UK) or elsewhere.
The appellants challenged the lawfulness of their detention
on the basis that:
- the provisions of the Anti-Terrorism, Crime and
Security Act 2001 pursuant to which they were detained
were inconsistent with the UK’s obligations under
the European Convention on Human Rights (ECHR) (as given
domestic effect in the Human Rights Act 1988);
- the UK was not legally entitled to derogate from its
obligations under the ECHR (as it had done pursuant to
the Human Rights Act (Designated Derogation) Order
2001 (SI 2001/3644)) (the Derogation Order), but if
it was, the purported derogation was inconsistent with
the ECHR and hence ineffective.
The UK National Council of Civil Liberties and Amnesty
International appeared as interveners.
The majority of the Court allowed the appeals, Lord Walker
of Gestingthorpe dissenting. Lord Bingham of Cornhill delivered
the main judgement with which the other members of the majority
concurred.
The impugned legislative provisions
In response to the terrorist attacks in New York on September
11 2001, the UK parliament enacted a new Part 4 in the Anti-Terrorism,
Crime and Security Act 2001. Part 4 empowered the Secretary
of State to certify and indefinitely detain non-UK nationals
as a ‘suspected international terrorist’ if the
Secretary ‘reasonably’ believed that the person’s
presence in the UK was a risk to national security and ‘reasonably’ suspected
that the person was a terrorist.
At the time of its enactment, the government (and the Parliament)
accepted that Part 4 put the UK in breach of its obligations
under article 5(1)(f) of the ECHR as that article required
the detention of non-UK nationals regardless of whether they
were persons in respect of whom ‘action [was] being
taken with a view to deportation’. Article 5(1)(f)
provides that:
Article 5
(1) Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure
prescribed by law:
f) the lawful arrest or detention of … a
person against whom action is being taken with
a view to deportation.
Consequently, pursuant to s 14 of the Human Rights
Act 1998, the Home Secretary made a Derogation Order
indicating its intention to derogate from article 5(1)(f)
of the ECHR within the terms of article 15. The Secretary-General
of the Council of Europe was then formally notified of
the derogation. (Corresponding steps were also taken by
the Home Secretary to derogate from article 9 of the International
Covenant on Civil and Political Rights (ICCPR)).
Was the purported derogation a valid derogation?
Did a ‘public emergency threatening the life of the
nation’ exist?
Article 15(1) of the ECHR allows States Parties to derogate
from their obligations in certain circumstances:
Article 15
Derogation in time of emergency
(1) In time of war or other public emergency threatening
the life of the nation any High Contracting Party
may take measures derogating from its obligations under
this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures
are not inconsistent with its other obligations under
international law.
The appellants argued that there was no ‘public emergency
threatening the life of the nation’ within the meaning
of article 15(1) entitling the UK to derogate from its obligations
under the ECHR on the basis that:
- the emergency must be ‘actual’ or at least ‘imminent’,
which could not be shown in this case;
- the emergency must be of a temporary nature, which could
not be established in relation to the ‘war on terrorism’;
and
- none of the other States Parties to the ECHR had similarly
sought to derogate from their obligations, suggesting that
there was no public emergency which called for derogation.
In reply the Home Secretary argued that:
- an emergency could properly be regarded as ‘imminent’ if ‘an
atrocity was credibly threatened by a body such as Al-Qaeda
which had demonstrated its capacity and will to carry out
such a threat and where the atrocity might be committed
without warning at any time’;
- the Government did not have to wait for a disaster to
strike before taking necessary preventative measures;
- the Court should not impose any artificial temporal
limit to an emergency of the type posed by Al-Qaeda; and
- little guidance could be gained from the practice of
other States Parties. It was submitted that it is for each
national Government to make its own judgement on the basis
of the facts known to them. Insofar as any difference in
practice between the UK and other States Parties called
for justification, it was to be found in the UK’s
prominent role as “an enemy of Al-Qaeda and an ally
of the United States”. It was further submitted that
this issue was one pre-eminently within the discretionary
area of judgement reserved to government and the Parliament,
exercising their judgement with the benefit of advice.
The majority of the Court held that the appellants had
not established that the Special Immigration Appeals Commission
or Court of Appeal committed an error of law in finding,
as a matter of fact, that a ‘public emergency threatening
the life of the nation’ existed post 11 September 2001.
Lord Bingham noted that that finding of the lower courts
was not inconsistent with relevant jurisprudence of the European
Court of Human Right and that in cases involving national
security, ‘great weight’ should be given to the
judgement of the Government and Parliament in such matters.
Were the derogating measures “strictly required by
the exigencies of the situation”?
The question for the Court was then whether the derogating
measures (ie Part 4 of the Anti-Terrorism, Crime
and Security Act 2001) were authorised by article 15
in that they were measures “strictly required by the
exigencies of the situation”. The majority of the Law
Lords found against the Home Secretary on this point.
The majority affirmed the test of “strict necessity” or “proportionality” as
being that set out in the Privy Council decision de Freitas
v Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing [1999] 1 AC 69; in determining whether
a limitation is arbitrary or excessive, the court must ask
itself:
[W]hether: (i) the legislative objective is sufficiently
important to justify limiting a fundamental right; (ii) the
measures designed to meet the legislative objective are rationally
connected to it; and (iii) the means used to impair the right
or freedom are no more than is necessary to accomplish the
objective.
The appellants argued that even if the legislative objective
of protecting the British people against the risk of catastrophic
Al-Qaeda terrorism was sufficiently important to justify
limiting the fundamental right to personal freedom of those
facing no criminal charge, the Anti-Terrorism, Crime
and Security Act 2001 was not designed to meet that
objective and not rationally connected to it because (a)
it did not address the threat posed by UK nationals; (b)
it permitted foreign nationals suspected of being Al-Qaeda
terrorists or their supporters to pursue their activities
abroad if there was any country to which they were able to
go; and (c) the Act permitted the certification and detention
of persons who were not suspected of presenting any threat
to the security of the UK as Al-Qaeda terrorists or supporters.
The appellants further argued that the legislative objective
of the Act could have been achieved by means that did not
so severely restrict the fundamental right to personal freedom.
In relation to the first argument, the Court upheld the
appellant’s argument that Part 4 of the Anti-Terrorism,
Crime and Security Act 2001 did not address the potential
terrorist threat presented by UK nationals, Part 4 only providing
for the detention of non-UK nationals. The majority also
agreed that allowing a suspected international terrorist
to leave the UK for another country to ‘pursue his
criminal designs [was] hard to reconcile with a belief in
his capacity to inflict serious injury to the people and
interests of the UK’ (Lord Bingham). In addition, the
majority accepted that the appellant’s submission that
the Anti-Terrorism, Crime and Security Act 2001 was
capable of applying to those with no link to Al-Qaeda or
those who support the general aims of Al-Qaeda ‘reject
its cult of violence’.
Accordingly, the House of Lords held that the relevant
provisions in Part 4 of the Anti-Terrorism, Crime and
Security Act 2001 were disproportionate to the objective
sought to be achieved by the legislation and, hence, incompatible
with the UK’s obligation under article 15 of the ECHR
to ensure that any derogation from its obligations be limited
to those ‘strictly required by the exigencies of the
situation’.
In relation to the weight that the Court ought to give
to the judgement of the Executive and Legislature in relation
to matters of proportionality, Lord Bingham (the other members
of the majority concurring) stated that while ‘courts
are not specialists in the policy-making realm’ and
due regard must be had to the judgement of the Government
and the Parliament in cases involving national security,
the courts’ role under the Human Rights Act 1998 is ‘as
the guardian of human rights’ and ‘national security
must not be used to protect governmental actions from close
scrutiny and accountability’:
[J]udges nowadays have no alternative but to apply the Human
Rights Act 1998. Constitutional dangers exist, no
less in too little judicial activism as in too much.
There are limits to the legitimacy of executive or legislative
decision-making, just as there are to decision-making
by the courts.
Lord Bingham (the other members of the majority concurring)
also rejected the assumption that ‘judicial decision-making
is somehow undemocratic’ saying:
[T]he function of independent judges charged to interpret
and apply the law is universally recognised as a cardinal
feature of the modern democratic state, a cornerstone of
the rule of law itself.
Were the derogating measures discriminatory and hence contrary
to article 14 of the ECHR?
The appellants also argued that the indefinite detention
provisions of the Anti-Terrorism, Crime and Security
Act 2001 violated article 14 of the ECHR (prohibition
against discrimination) because they only applied to non-UK
nationals suspected of being international terrorists. They
argued that, as such, those provisions could not be characterised
as being ‘strictly required’ within the meaning
of article 15.
However, the Home Secretary had not derogated from article
14 of the ECHR (or the corresponding article 26 of the ICCPR).
Accordingly, the question for the Court was not whether the
differential treatment was ‘strictly necessary’ (under
article 15), but whether it was ‘reasonable and justifiable’ within
the meaning of article 14.
The majority reaffirmed that the rights contained in the
ECHR applied to non-UK nationals in the UK and accepted that
the indefinite detention provisions of the Anti-Terrorism,
Crime and Security Act 2001 discriminated against non-UK
nationals on the basis of “nationality” or “immigration
status”.
The majority found that the discriminatory treatment of
non-UK nationals was not ‘justified and reasonable’ having
regard to the objective of the legislation ‘since the
threat presented by suspected international terrorists did
not depend on their nationality or immigration status’.
Hence, the majority of the Court held that the indefinite
detention provisions of the Anti-Terrorism, Crime and
Security Act 2001 breached article 14 of the ECHR (and
the corresponding article 26 of the ICCPR).
5. Australian and International
Privacy Law
5.1 Australian Privacy Law Developments
Federal Court
Australian Institute of Private Detectives
Ltd v Privacy Commissioner [2004]
FCA 1440 (5 November 2004)
The Australian Institute of Private Detectives Ltd (the
Institute) , which represents the interests of 600 licensed
private inquiry agents and commercial agents, claimed to
be aggrieved because the Privacy Act 1988 (Cth)
(‘Privacy Act’) prevents organisations divulging
certain kinds of information that the members of the Institute
wished to obtain on behalf of their clients.
The Institute sought to address this grievance by claiming
the following declaratory relief against the Privacy Commissioner:
‘1. The disclosure by an organization of personal
information to the plaintiff or its members for the purpose
of enabling the plaintiff or member to investigate, on behalf
of private citizens and corporations, matters concerning
litigation, or potential litigation, constitutes disclosure
or use "required or authorised by or under law" within
the meaning of National Privacy Principle 2.1(g) and is
not a disclosure or use which is contrary to the provisions
of the Privacy Act 1988.
2. The disclosure of personal information by the plaintiff
or its members which has been obtained by them for the
purpose of enabling them to investigate, on behalf of private
citizens or corporations, matters concerning litigation,
or potential litigation, constitutes disclosure or use "required
or authorised by or under law" within the meaning
of National Privacy Principle 2.1(g) and is not a disclosure
or use which is contrary to the provisions of the Privacy
Act 1988.’
The Court dismissed the application because it did not
have jurisdiction to grant the declarations sought by the
Institute. It rejected the Institute’s submission that
s 55 of the Privacy Act gave the Court jurisdiction
as that section is concerned with the enforcement of a determination
made by the Privacy Commissioner following the investigation
of a complaint- circumstances that did not occur here. The
Court stated that if the Court has jurisdiction it must be
pursuant to s 39B(1A)(c) of the Judiciary Act 1903 which
provides:
‘The original jurisdiction of the Federal Court
of Australia also includes jurisdiction in any matter:
...
(c) arising under any laws made by the Parliament ...’
The Court held that the proceedings did not involve a ‘matter’ within
the meaning of s 39B(1A)(c). This was because, “In
effect the Institute, seeks an advisory opinion from the
Court without reference to any concrete facts. The declarations,
if made, would not determine finally the rights of the parties
and could not amount to a binding decision creating a res
judicata between them. They would not establish any ‘immediate
right, duty or liability’ as between the parties.”
As the proceedings did not involve a ‘matter’ within
the meaning of s 39B(1A)(c) the Court held that it lacked
jurisdiction to entertain the applicant’s claim.
Administrative Appeals Tribunal
Rummery and Federal Privacy Commissioner and
Anor [2004] AATA
1221 (22 November 2004)
The applicant sought a review of the decision of the Privacy
Commissioner not to award him compensation after having found
his privacy complaint substantiated.
In December 1998 Mr Alan Rummery was an employee of the
Australian Capital Territory Department of Justice and Community
Safety. On 30 December 1998 Mr Rummery made a public interest
disclosure to the ACT Ombudsman under the Public Interest
Disclosure Act 1994 (ACT) alleging that the Department
had failed to enforce provisions of the Liquor Act 1975 (ACT).
The Department disclosed personal information relating to
Mr Rummery to an officer of the Ombudsman during the investigation.
Mr Rummery made a complaint to the Federal Privacy Commissioner
that his privacy had been interfered with. The Commissioner
found (in accordance with s 52(1)(b)(i)(B) of the Privacy
Act 1988 (Cth)) that Mr Rummery’s complaint was
substantiated as the Department’s disclosures to the
Ombudsman’s Office were not authorised by Information
Privacy Principle (IPP) 11.1(a) or IPP 11.1(d). The Commissioner
declared that the Department should apologise to Mr Rummery.
A written apology was issued by the Department. The Commissioner
decided not to make a declaration as to compensation (pursuant
to s 52 of the Privacy Act) as the disclosures were
made to two staff members of the Ombudsman’s Office
and the disclosures did not occur outside the confines of
the investigating team and were not more widely known.
The Tribunal accepted that Mr Rummery suffered injury to
his feelings and humiliation as a result of the disclosures.
The Tribunal stated that once loss is proved, there would
need to be good reason shown to the Tribunal as to why compensation
for that loss should not be awarded and in this case no such
reason appears.
In assessing the injury to Mr Rummery’s feelings
and humiliation the Tribunal had regard to the fact that
the breach of Mr Rummery’s privacy was serious. It
declared that Mr Rummery was entitled to $8000.
Federal Privacy Commissioner Case Notes
In December 2004 the Federal Privacy Commissioner published
case notes 16, 17, 18 and 19 in respect of finalised complaints:
Z v Credit Provider [2004]
PrivCmrA 16
The complainant attended a bank branch and presented a
cheque marked to ‘cash’ to the bank teller. The
bank teller asked the individual for identification and recorded
the information on the back of the cheque.
The complainant argued that the bank did not need to collect
the personal information because the cheque was made out
to cash and could be exchanged only for cash.
Under National Privacy Principle 1.1, organisations must
not collect personal information unless the information is
necessary for one or more of its functions or activities.
National Privacy Principle 8 provides that wherever it is
lawful and practicable, individuals must have the option
of not identifying themselves when entering transaction with
organisations.
The Commissioner’s view was that, given the potential
liability for the cashing bank (eg if it refused to pay the
cheque), the collection of identification details is necessary
for one or more of the functions and activities of the organisation.
In the circumstances the Commissioner was of the view that
it would not be practicable for the complainant to have the
option of not identifying themselves in this transaction.
The Commissioner decided under s 41(1)(a) of the Privacy
Act 1988 to cease investigation of the matter on the
grounds that the collection of personal information to
identify an individual who wanted to exchange a cash cheque
did not breach National Privacy Principles 8 and 1.1.
C v Service Provider [2004]
PrivCmrA 17
The complainant was stopped by the police, required to
attend hospital for a blood test and advised that he could
not drive his car. He was given the choice of being driven
to hospital in the police vehicle or using an ambulance.
He chose the ambulance.
The complainant did not receive any information about payment
arrangements prior to using the ambulance service. Later,
the complainant received an invoice for the cost of the ambulance
journey which allowed 30 days to pay. He did not pay the
account. The ambulance service attempted to collect the debt
and as it was not paid, listed a payment default on the individual’s
consumer credit information file.
The Commissioner took the view that there was no contract,
arrangement or understanding between the service provider
and the complainant that he was applying for credit at the
time he used the ambulance service and that listing the payment
default was a breach of s 18E(1)(b)(vi) of the Privacy
Act 1988. Section 8E(1)(b)(vi) permits a credit reporting
agency to include information in an individual’s credit
information file that shows the individual has been provided
with credit by a credit provider and that the individual
is at least 60 days overdue in making a payment and the credit
provider has taken steps to recover the whole or part of
the amount of credit (including any amounts of interest)
outstanding.
In addition the Commissioner was of the view that the purported
payment default listing did not meet the requirements of
s 18E(8)(c) which provides that a credit provider must not
give a credit reporting agency personal information relating
to an individual if it did not, at the time of, or before,
acquiring the information advise the individual that the
information might be disclosed to a credit reporting agency.
The ambulance service accepted these views and removed
the default listing from the complainant’s credit report.
It also advised that it would cease the practice of listing
payment defaults in relation to its customers.
H
v Credit Provider [2004]
PrivCmrA18
The complainant, when applying to be engaged as a consultant
with the respondent, was asked to complete a standard loan
form rather than a form specific to his engagement as a consultant.
The complainant later found that that the respondent had
accessed his consumer credit information file.
The Commissioner’s investigation revealed that the
complainant’s consumer credit information file contained
a record of an enquiry by the respondent in relation to a
real property mortgage for an unspecified amount. The respondent
organisation told the Privacy Commissioner that the complainant
had been made aware that each consultant would be provided
with a loan for payment of his or her share of professional
indemnity insurance, and that as a condition of granting
the loan each consultant would be required to undertake a
credit check. The respondent denied the complainant’s
allegation that he was told that the information on the form
would only be used for employment purposes.
The Commissioner’s investigation found that the terms
of engagement did not refer to professional indemnity insurance.
The respondent company was asked to provide evidence that
it paid for the complainant’s indemnity insurance and
that the complainant was required to repay his share of the
insurance, but it failed to do so. The respondent also failed
to produce evidence of a contract, agreement or understanding
between itself and the complainant for the provision of a
loan.
In addition to arguing that the complainant was aware of
and consented to the loan application for the purpose of
contributing to the indemnity insurance, the respondent also
argued that the credit given was commercial credit, and its ‘mistake’ was
merely listing it on the complainant’s consumer file.
The Commissioner found that no such arrangement was in place,
and that the complainant had not obtained a loan for professional
indemnity insurance with the respondent. The respondent could
not supply contemporaneous evidence of a commercial loan
with the respondent. In any case, the Commissioner formed
the view that the provision of professional indemnity insurance
did not fall within the definition of ‘credit’ for
the purposes of the Privacy Act 1988.
At the conclusion of the investigation the Privacy Commissioner
formed the view that the conduct complained about did not
comply with the requirements in section 18E(8)(a) of the
Act, because the respondent had provided information to a
credit reporting agency which was not information relating
to the complainant’s application for credit as required
under section 18(E)(1)(b)(i). Further, the respondent was
aware that it had provided inaccurate information to the
credit reporting agency.
The Commissioner therefore formed the view that the information
provided by the respondent to the credit reporting agency
was incorrect and that it had failed to take steps to ensure
that the information was accurate, up-to-date and not misleading,
thereby breaching section 18E(8)(b) and 18G(a) respectively.
The Commissioner also formed the view that by providing incorrect
information to the credit reporting agency the respondent
had breached paragraph 2.5 of the Credit Reporting Code of
Conduct.
Following conciliation, the respondent agreed to advise
the credit reporting agency that the information it supplied
regarding the complainant was inaccurate. It also agreed
to pay the complainant $2,500 in resolution of the complaint.
E v Motor Vehicle Retail Organisation [2004]
PrivCmrA 19
The complainant received direct marketing material sent
by the respondent. The material advertised the respondent’s
retail business and targeted the complainant as an owner
of a particular type of motor vehicle. The complainant complained
about the use of his personal information in this way without
his consent.
Enquiries of the respondent revealed that the respondent
had collected the personal information as part of a marketing
list specifically obtained from another organisation for
the purpose of direct marketing.
National Privacy Principle 2.1 of the Privacy Act 1988 provides
that personal information collected for a primary purpose
may only be used or disclosed for a secondary purpose if
one of a number of exceptions in National Privacy Principle
2.1(a)-(h) applies. The effect of this provision is that
an organisation may use and disclose personal information
for the primary purpose of collection.
The respondent advised that it had collected the personal
information from another organisation in the form of a direct
marketing list. It was apparent that the personal information
had then been used for the purpose of direct marketing. The
issue for the Commissioner was whether the respondent’s
use of the complainant’s personal information was within
the primary purpose of the collection of the personal information.
The Commissioner was of the view that the respondent collected
the complainant’s personal information for the primary
purpose of direct marketing and used the personal information
for this same purpose. There was therefore no breach of National
Privacy Principal 2 as the respondent’s use of the
personal information was within the primary purpose of the
collection.
The Commissioner declined to investigate the complaint
on the basis that there was no interference with privacy
since the use of the complainant’s personal information
was permitted under the Act.
However, subsequently, both the respondent and the organisation
that supplied the complainant’s personal information
to the respondent agreed to remove the complainant’s
information from their database.
Federal Privacy Commissioner Temporary Public Interest
Determinations
On 10 February the Privacy Commissioner issued Temporary
Public Interest Determinations 2005-1 and 2005-1A.
See: http://www.privacy.gov.au/act/publicinterest/index.html#3
Temporary Public Interest Determination 2005-1
The purpose of Temporary Public Interest Determination
2005-1 is to determine that the Applicant (a general practitioner
in private practice) will not be committing a breach of National
Privacy Principle 10 of the Privacy Act 1988 in
certain limited circumstances. This is where the Applicant
is collecting information about the Pharmaceutical Benefits
Scheme (PBS) history of a patient from the Health Insurance
Commission’s (HIC) Prescription Shopping Project Information
Service (the Information Service) without the consent of
that individual.
National Privacy Principle 10 concerns the collection of
sensitive information including information about an individual’s
health. NPP 10 provides that, subject to certain prescribed
exceptions, sensitive information cannot be collected by
an organisation.
The Applicant submitted that in order to provide appropriate
diagnosis, assessment and treatment of an individual, there
may be occasion where there is a need to collect information
through the Information Service. The Applicant envisaged
that collection would occur in the context of providing a
health service to an individual, where the individual is
suspected by the Applicant of seeking prescriptions for PBS
medicines in excess of their therapeutic need, including
where they may have a drug dependency. The Applicant submitted
that such an individual may be unwilling, if asked, to provide
their consent to the collection of health information from
the Information Service, as this collection may disclose
their status as an ‘identified’ person in the
Prescription Shopping Project.
The Privacy Commissioner was satisfied that the public
interest in the Applicant collecting health information from
the Information Service outweighs to a substantial degree
the public interest in the Applicant adhering to National
Privacy Principle 10 in these circumstances. This is because
the information sought by the Applicant may immediately and
directly affect the health care and treatment of an individual.
The central public interest objective being served by this
determination is the provision of quality health care to
the individual and ultimately good public health outcomes
for the community.
Temporary Public Interest Determination 2005-1A
The purpose of Determination 2005-1A is to give general
effect to Temporary Public Interest Determination 2005-1
so that other organisations, in the same circumstances as
set out in the application, may carry out the same act or
practice as the Applicant without breaching National Privacy
Principle 10 of the Privacy Act.
These Temporary Public Interest Determinations are effective
until 9 February 2006.
International Privacy Law
Developments
European Court of Human Rights
Case of Wood v United Kingdom (Application
no 23414/02) 16 November 2004
Between 4 July 1998 and 1 April 1999 a series of robberies
and burglaries took place in the Coventry area. As a result
of their investigations, the police considered that there
were some nine persons involved in the commission of these
offences, including the applicant and his three co-defendants.
The police had difficulty obtaining evidence against those
who they thought were responsible, and therefore sought the
authority from the Chief Constable for the West Midlands
to carry out a covert operation (“Operation Brassica”).
The operation was to be carried out by arresting the suspects
in groups, on suspicion of having committed different offences,
and detaining them together in a police cell which had been
specially fitted with covert audio equipment. It was hoped
that the suspects would discuss the reasons for their arrest
and that their ensuing conversation would be incriminating.
The authority was granted and the operation took place.
The applicant and two others were arrested on 20 May 1999.
Their conversations, whilst in police detention, were covertly
recorded on 21 and 22 May 1999 and again on 16 and 17 June
1999. The tapes formed the basis of the prosecution against
the applicant.
The applicant submitted at the trial that the method of
obtaining the evidence contravened, inter alia, Article 8
of the Convention and that the judge should exercise his
discretion under the Police and Criminal Evidence Act
1984 to exclude the tapes.
Article 8 provides in so far as relevant:
1. Everyone has the right to respect for his private
... life...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in
the interests of national security, public safety or the
economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
The judge stated that, “A man in a police cell is
entitled to privacy just as much as a man sitting at his
fireside at home”. However, the judge noted the importance
of the evidence and exercised his discretion under the Police
and Criminal Evidence Act 1984 to admit the tapes in
evidence. The applicant was sentenced to eight years imprisonment.
The Court of Appeal dismissed the applicant’s appeal.
It stated however that there had been a violation of Article
8 because the surveillance was not conducted according to
law. Lord Woolf CJ said:
“This is because of the lack of any legal structure
to which the public have access authorising the infringement.
If there had been such authorisation there would have been
no breach.” [§ 65]
He went on to say:
“The non-compliance with Article 8 does not, however,
mean that the tape-recordings cannot be relied upon as
evidence.
...
It is the responsibility of the Government to provide
remedies against this violation of Article 8. However,
the remedy does not have to be the exclusion of the evidence.
The remedy can be the finding, which we have now made,
that there has been a breach of Article 8 or it can be
an award of compensation. The European Court of Human Rights
recognises that to insist on the exclusion of evidence
could in itself result in a greater injustice to the public
than the infringement of Article 8 creates for the appellants.
The infringement is, however, a matter which the trial
judge was required to take into account when exercising
his discretion under section 78 of PACE.” [§§ 66-67]
The European Court of Human Rights found that the covert
surveillance measures constituted an interference which was
not in accordance with the law and was in breach of Article
8. The Court held that “the finding of the violation
constitutes in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant. It further
held that the UK should pay EUR 550 to the applicant in respect
of the costs of his preparation for the hearing.
1. Ibid [383].
2. Ibid [391].
3. Ibid [394].
4. Ibid [382], [384].
5. Ibid [395].
6. Ibid [388]-[390]; [393]-[394].
7. Discrimination on the basis of religion is unlawful in the ACT, Western Australia, Queensland, the Northern Territory, Tasmania and Victoria: Discrimination Act 1991 (ACT) s 7(1)(h); Equal Opportunity Act 1984 (WA) s 53; Anti-Discrimination Act (1991) (QLD) s 7(i); Anti-Discrimination Act 1992 (NT) s 19(1)(m); Anti-Discrimination Act 1998 (Tas) ss 16(o) and 16(p); Equal Opportunity Act 1995 (Vic) s 6(j). In NSW, discrimination on the ground of religion is not unlawful, however discrimination on the ground of ethno-religious origin is. A recent decision of the Administrative Decisions Tribunal indicates that in order to establish a complaint under the ethno-religious ground, a person cannot rely solely on their religion, such as Islam: Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131.
8. Vilification based on 'religion' is against the law in Queensland, while vilification based on 'religious belief or activity' is against the law in Victoria and Tasmania (the Tasmanian provisions also cover vilification based on 'religious affiliation'): Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Anti-Discrimination Act 1998 (Tas) s 19; Racial and Religious Tolerance Act 2001 (Vic) ss 8, 25.
9. The President, on behalf of HREOC, may report to the federal Attorney-General concerning his findings, reasons and any recommendations, and this report is tabled in Parliament. |
