Explanatory Statement
Privacy Commissioner’s
Temporary Public Interest Determination
2010-1
To allow collation of victims of crime statistics involving student visa holders for research purposes
May 2010
Explanatory Statement
1. PURPOSE AND AUTHORITY
1.1 Temporary Public Interest Determination 2010-1
This explanatory statement fulfils the Privacy Commissioner’s obligations under section 26(1) of the Legislative Instruments Act 2003 (Cth).
This explanatory statement refers to a determination issued under section 80A(2) of the Privacy Act 1988 (Cth) (the Privacy Act):
- Temporary Public Interest Determination 2010-1
1.2 Purpose
The purpose of Temporary Public Interest Determination (TPID) No. 2010-1 is to determine that the applicant, the Department of Immigration and Citizenship (the Department) will not be committing a breach of Information Privacy Principle (IPP) 11 of the Privacy Act in specified circumstances.
TPID 2010-1 permits the Department to disclose a limited set of specific personal information about student visa holders to all police jurisdictions in Australia and to the Australian Institute of Criminology (AIC). The information disclosed by the Department will be used by the AIC to compile a report on the victimisation rate for student visa holders from the top five source countries (the People’s Republic of China, India, the Republic of Korea, Malaysia and the United States of America) who have studied in Australia since 1 July 2004.
1.3 Provisions for Public Interest Determinations
The Privacy Act provides a mechanism in Part VI for dealing with matters where the public interest in an agency doing an act or a practice that may breach an Information Privacy Principle substantially outweighs the public interest in adhering to that Principle.
This mechanism is given effect through the Privacy Commissioner’s power to make a public interest determination (PID). The Privacy Commissioner may make a PID by declaring that a specific act or practice of the agency will not be a breach of the Information Privacy Principles, where the Privacy Commissioner is satisfied there is a substantial public interest in doing so.
The Privacy Act also provides a method for dealing with urgent matters by giving the Privacy Commissioner the power to make a temporary public interest determination in certain circumstances.
1.4 Authority for making these determinations
The authority for the Privacy Commissioner (the Commissioner) to make TPID 2010-1 rests in subsection 80A(2) of the Privacy Act. Subsection 80A(2) states that the Privacy Commissioner may make a written determination about an agency’s acts and practices if the Commissioner is satisfied that:
(a) an act or practice of an agency breaches, or may breach, an Information Privacy Principle but
(b) the public interest in the agency doing the act, or engaging in the practice, substantially outweighs the public interest in adhering to that Principle and
(c) the application raises issues that require an urgent decision.
1.5 Application for a Public Interest Determination
On 23 April 2010, the Department made an application under section 73 of the Privacy Act for a PID to be issued under section 72 of the Privacy Act.
The application concerns the once only disclosure of a limited set of specific personal information about student visa holders to the Australian Institute of Criminology (AIC) and all police jurisdictions in Australia. The information disclosed by the Department will be used by AIC to compile a report on the victimisation rate for student visa holders from the top five source countries (the People’s Republic of China, India, the Republic of Korea, Malaysia and the United States of America) who have studied in Australia since 1 July 2004.
To enable police jurisdictions to identify police recorded incidents which involved student visa holders since 1 July 2004, the Department will disclose a limited set of specific personal information from its visa holder records to Australian police jurisdictions. This information will include the unique Person Identification number (Person ID) allocated to each student visa holder by the Department. The police jurisdictions will data match the information provided by the Department to police recorded incidents. The result of the data matching will be de-identified and then provided to the AIC.
The Department will also provide the AIC with additional de-identified information including the Person ID for each student visa holder. The Person ID will enable the AIC to match the data provided by police jurisdictions to the information held by the AIC. The AIC will be unable to re-identify any individual from the information provided to it, as the AIC will not have access to the individuals’ names and dates of birth at any point in the process. The statistical information generated by the AIC’s research will not contain any personal information and matched information will not be provided to the Department at any stage.
As required under section 74(1) of the Privacy Act, on 28 April 2010 the Privacy Commissioner published a notice of receipt of the application on the Office’s website at: http://www.privacy.gov.au/law/act/pid#notices
2. REASONS FOR MAKING DETERMINATIONS
2.1 Issues raised by the applicant
The Department has requested a determination to exempt it from complying with IPP 11 in limited and specified circumstances.
In applying for a public interest determination, the Department submitted that the international education sector is Australia’s third largest national export and plays a critical role in fostering stronger international links and developing diverse skills in Australia and overseas. However, recent attacks on some student visa holders in Australia, including Indian students, have damaged Australia’s standing and reputation in India. More broadly it has been claimed that Australia’s international standing and Australia’s international education sector risks being damaged by perceptions Australia is unsafe for international students.
The Australian Government is keen to ensure that our community is a safe environment for everyone, including international students. Australian governments at all levels are treating the attacks seriously and taking steps to address these attacks and related issues. The research undertaken by the AIC is designed to inform government policy and the law enforcement responses to attacks on students.
The Department considers that the disclosure of information required for the AIC’s research may breach IPP 11, as it is impractical to gain consent for the disclosure and no other exceptions seem to apply.
2.2 Public interest considerations
In issuing TPID 2010-1, the Privacy Commissioner took account of the matters raised in the application.
2.2.1 Consideration given to IPP 11
Under IPP 11, a record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless certain specified circumstances, which are set out in paragraphs 11.1 (a) to (e)[1], exist.
When making TPID 2010-1, the Privacy Commissioner was satisfied that the disclosure of the personal information of student visa holders in these circumstances would or may constitute a breach of IPP 11.
The Privacy Commissioner accepted the Department’s view that it is impractical to gain consent in these circumstances and that, given the circumstances set out in the application, it is unlikely the applicant could rely on any other exception.
2.2.2 Consideration given to the public interest
When considering a potential interference with privacy, the Privacy Commissioner considered other matters that may compete with privacy such as the possibility of risks to the safety of members of the community. In particular section 29 of the Privacy Act requires that the Privacy Commissioner have due regard for the protection of important human rights and social interests that compete with privacy.[2]
The Privacy Commissioner considered that it is in the interest of the broader Australian community that an accurate understanding is gained about whether the nationality of victims is relevant to the perceived victimisation of international students. Further, it was considered that the community will benefit from the knowledge gained from the research as it will assist in the development of better targeted responses to ensure public safety and community cohesion.
The AIC research will assist in addressing the concerns of foreign governments over the safety of their nationals within Australia. The Privacy Commissioner also acknowledged that there are public interest reasons in maintaining Australia’s international standing. Specifically, international education constitutes an important segment of Australia’s economy and is of significant export value. This value has a flow-on effect for other parts of the economy and the community in general.
Accordingly, the Privacy Commissioner found that the public interest in allowing the Department to disclose information about student visa holders in the circumstances set out in Attachment A of the TPID substantially outweighs the public interest in adhering to IPP 11.
2.3.3 Does the application require an urgent decision?
As required by section 80A(1)(c), the Privacy Commissioner was satisfied that the matter is urgent and there was a requirement to issue a TPID.
The Privacy Commissioner considered that timely AIC research will assist in achieving the Australian Government’s objectives of obtaining a better understanding of the level and nature of crime against international students, and the underlying issues and perceptions about Australia.
3. CONSULTATION PROCESS
A temporary public interest determination may only be issued when the matter is of an urgent nature.
Targeted consultation has been undertaken by the Department. In particular, the Department advised that it has undertaken consultation with key stakeholders such as the Department of Foreign Affairs and Trade (DFAT), the Department of the Prime Minister and Cabinet, the AIC and, through the AIC, state and territory police jurisdictions. The Department also asked DFAT to discuss the research proposal with the five source countries and seek their views about the Department disclosing information about their students for this purpose.
DFAT consulted the Canberra-based diplomatic representatives of the five countries with current and former students affected by the proposed disclosure of personal information. In response, the Republic of Korea Government informed the Australian Embassy that the Republic of Korea supported the AIC study because of its objective of informing Australian Government policy on reducing the risk of violence to foreign students. The Indian Government has publicly asked Australia for more data on crimes against international students.
The diplomatic representatives from the three other countries noted that they would consult their capitals and would advise the Australian Government if their governments had concerns about the data release. However, also, on being informed about the proposed research, these representatives commented about the importance of the security of their students in Australia and that Australia has a good reputation for information security.
In addition the Department has consulted with two student groups who have previously expressed an interest in the issue of student safety, the Australian Federation of International Students and the National Union of Students (NUS). The Department advises that both groups were open to the concept of sharing information for this purpose. The NUS also indicated that they considered the objectives of the research to be in the public interest.
4. OPERATION OF PUBLIC INTEREST DETERMINATION 2010-1
TPID 2010-1 applies directly to the Department of Immigration and Citizenship. This determination is a temporary measure to allow the disclosure of specific personal information about student visa holders to all police jurisdictions in Australia and to the AIC for the purposes of compiling a report on the victimisation rate of student visa holders.
TPID 2010-1 will operate from 7 May 2010 to 6 May 2011 inclusive.
[1] The text of IPP 11 is available at: http://www.privacy.gov.au/materials/types/infosheets/view/6541#k
[2] See Section 29(a) of the Privacy Act 1988 (Cth)