End police privacy exemption, says NSW committee

By Harley Dennett

March 4, 2016

It’s time to close a loophole in New South Wales law has allowed some state government employees to violate the privacy of individuals without consequence, and expand the powers of the state’s privacy commissioner, a parliamentary committee has recommended.

Blanket exemptions to the state’s privacy principles legislation covering entire agencies, including NSW Police, have been upheld by the Administrative Decisions Tribunal (now NCAT) and the state courts, voiding compensation for victims of malicious and negligent privacy breaches.

The Standing Committee on Law and Justice on Thursday proposed new statutory cause of action that would enable people who have suffered a serious invasion of privacy to commence civil action. The cause of action can include factors such as government agencies’ intent, recklessness or negligence.

NSW Police employees are also in need of sensitivity training, the committee found, after it heard victims reporting privacy breaches were not taken seriously by front counter officers.

SCLJ chair Natasha Maclaren-Jones said the existing framework, including the equitable action of breach of confidence, was insufficient. In addition to the overreach of police exemptions, the state’s framework was ill-prepared for new forms of privacy violations such as “revenge porn”, big data breaches, and drone surveillance. In the forward to the report, she states:

“Privacy is an asset, which cannot be recovered once it is lost. The impacts of that loss can be devastating. The committee considers that there is a clear need to ensure better protection of privacy, and to provide adequate remedies to people who experience a serious invasion of privacy.”

Their preferred model is the one first proposed by the Australian Law Reform Commission in its 2014 “Serious Invasions of Privacy in the Digital Era” report.

Elizabeth Coombs
Elizabeth Coombs

The NSW privacy commissioner’s jurisdiction should also be expanded, the report recommends. The commissioner, Dr Elizabeth Coombs, should be able to hear complaints between individuals relating to serious invasions of privacy, such as “revenge porn”, and make determinations for non-financial forms of redress including apologies.

Coombs’ submission to the committee posited that the Privacy and Personal Information Protection Act had not kept pace with technological changes. Yesterday she applauded the committee for the recommendations:

“NSW was the second jurisdiction in the world to introduce laws dealing directly with privacy, so it is appropriate that today NSW again takes a leadership role and hopefully act as the catalyst for other Australian jurisdictions to take similar action.

“This is a win for those people who have had their privacy breached in unimaginable ways and then suffered further indignity in discovering that they had no right to recourse.”

The government does not need to provide a response to the commendations until September.

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