Scrutiny of Acts and Regulations Committee
Privacy Code of Conduct for Members
of the Victorian Parliament
Final Report, March 2002
Appendix 2: Frequently Asked Questions
What reaction has the Committee had to its Report
and Interim Code?
The Committee received seven written submissions.
A public hearing was held on 30 August at which an additional three oral
submissions were made (see Hansard). Some members who have expressed views
either formally or informally appear uneasy or unsure about what effect
a Code would actually have on their practices and others have identified
implications that they believe must be avoided. The Committee has produced
this Frequently Asked Questions paper and the attached compliance checklist
to try to clarify the purpose and effect of a privacy Code and to encourage
more discussion
Why are we preparing a privacy Code?
Because when Victorian Members of Parliament
were exempted from the provisions of the Information Privacy Act, in December
2000, there was cross-party agreement that it would not be acceptable
to leave Members entirely outside a privacy protection framework. The
Minister for State and Regional Development gave a reference to the Scrutiny
of Acts and Regulations Committee to draft a Code of Conduct by 31 December
2001.
Why do we need a privacy Code?
Three reasons. First, the community is concerned
about privacy, which was why the Victorian Parliament recently passed
the Information Privacy Act and Health Records Act and the federal Parliament
extended the coverage of the federal Privacy Act. Second, as Parliament
and individual Members take full advantage of new and emerging technologies
to communicate with the electorate, constituents need to be confident
that this will not erode their privacy. Third, Members are required to
comply with the Health Records Act when handling personal health information,
and a privacy Code can provide a seamless way of handling all personal
information while complying with legal requirements.
Will a Code interfere with confidentiality?
No - the Code will re-inforce confidentiality,
and provide a firm basis for refusing to disclose personal information
without an individual’s consent, unless it is required by another
law.
Will the Code limit the sort of information I can
collect?
No – Members can collect all sorts
of information including some which is particularly sensitive, and ‘local
knowledge’ some of which will be about individuals. This can continue
–as long as the information is necessary for the Member’s functions
or activities and it is collected by lawful and fair means. In accordance
with the Health Records Act, personal health information must be collected
only if the individual consents, or if another condition set out in Health
Privacy Principle 1 applies.
Members can continue to add other information,
obtained both from constituents themselves and from third parties, to
the basic details contained in the electoral roll, including telephone
numbers. Reverse telephone directories used to obtain a name and address
from a number are unlawful under telecommunications law but are unfortunately
still available. Members using these products could be in breach of the
collection principle.
Will I have to tell people about my collection and
use of personal information?
Yes. General information on what personal
information is collected and why, and how it is handled, would need to
be available to the public on request. A similar requirement exists under
the Health Records Act. This could largely be taken care of collectively
rather than by individual Members. For example, statements could be produced
and publicised collectively by the Joint Services Department (JSD). However,
in addition, Members would need to give constituents who complete forms
or questionnaires more specific details about how the information they
are providing at that time will be used. Again, this is similar to the
legal requirement under the Health Records Act for notice when collecting
personal health information.
What about collection through my web-site?
If you allow people to respond to you by
E-mail from your web-site, you will need to notify them of the way in
which you will use the information. This should ideally be linked to a
privacy policy – such as the Code if it is adopted. Templates for
an appropriate notice and link could be provided by JSD for Members’
use.
If a web-site collects information by means
of ‘cookies’ or web bugs that could be used to identify an individual,
this should be made clear – again with a link to a privacy policy.
Will the Code stop me communicating with my electorate?
No – communication with electors is
an integral part of the political process, and in a compulsory voting
context it is arguably a ‘duty’ which overrides any preference
that individuals may have not to receive it. Communication with electors
both about constituency matters and for campaigning is one of the purposes
for which personal information is held and therefore consistent with Clause
2. Communication can be either to all constituents or to a selected group,
based on known characteristics such as address, interests, affiliations
etc.
In some overseas jurisdictions elected representatives
and political parties are required to offer constituents the opportunity
to ‘opt-out’ from political communication, but there appears
little support for this in Australia. However, Members (and political
parties) should be aware that public opposition to direct marketing –
particularly by telephone, fax and email - could increasingly transfer
to political communication, leading to calls for similar rules on ‘opt-out’
as now apply to other organisations under the federal Privacy Act.
Will the Code apply to political parties?
No – although because of the difficulty
of separating Members’ roles, it is suggested that the Code should
apply to all personal information held in electorate and parliamentary
offices and this will include ‘campaign’ information about voters’
affiliations and preferences. But the Code will not apply to any purely
party databases held in State or federal party offices (political parties
are exempt from the federal Privacy Act).
Will the Code interfere with the operation of Parliamentary
Privilege?
No - privilege remains an overriding ‘authority’
for disclosure of personal information in formal parliamentary proceedings,
subject only to the jurisdiction of the privileges committees. But privilege
does not extend to the conduct of Members outside formal proceedings,
and will not ‘protect’ uses and disclosures of personal information
in those other contexts, which will be subject to the Code.
Will I have to show anyone who asks the information
I hold about them?
No – the Code gives Members an absolute
discretion to withhold information on any grounds they consider necessary
(Clause 6), although they will have to explain their reasons for withholding,
if asked. This is a far broader discretion than that permitted under the
Health Records Act. For this reason, the breadth of this discretion is
likely to be criticised. The draft Code suggested that the discretion
could be subject to appeal [to the Presiding Officer].
Will I have to keep constituents’ records longer
than I have done in the past?
Not because of the Privacy Code. The relevant
privacy principle says that you should securely dispose of personal information
once you no longer have a need for it and there is no legal requirement
to keep it.
What will I have to do initially to comply with
the Code?
A simple review of your record-keeping practices
should be sufficient. You may need to pay more attention to security,
including supervision of volunteers. The attached ‘compliance checklist’
is designed to help you and your staff carry out this review.
Will individuals be able to complain about breaches
of the Code?
Yes - It is proposed that there should be
some mechanism for handling complaints. The preferred system appears to
be through the Presiding Officers, who would investigate alleged breaches
and take appropriate action.
The Committee would welcome suggestions
for additional FAQs and comments on those above and on the attached compliance
checklist.
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria |