Privacy Act 1988
- Notice is hereby given of a public interest determination made by the Privacy Commissioner under section 72 of the Privacy Act 1988.
2. The determination permits an agency (the Department of Foreign Affairs and Trade) to engage in acts or practices which otherwise breach, or may breach an information privacy principle.
3. The determination was tabled on 23 October 1997. Unless disallowed, the determination is effective 15 sitting days after this date.
4. The text of the determination follows.
5. Copies of the determination and reasons are availably from my office.
Privacy Commissioner
GPO Box 5218
Sydney NSW 2001
Privacy Hotline 1800 023 985
Dated 10 November 1997
Moira Scollay
Privacy Commissioner
DETERMINATION
Under section 72 of the Privacy Act 1988 I give notice of my determination as follows:
A waiver is granted from compliance with Information Privacy Principle 11.1 in relation to the acts or practices outlined in this determination. Information Privacy Principle 11.1 of the Privacy Act 1988 places limits on disclosure of personal information as follows:
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:
(a) the individual concerned is reasonably likely to be aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
(b) the individual concerned has consented to the disclosure;
(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d) the disclosure is required or authorised by law;
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
1. Acts or Practices Permitted
The Department of Foreign Affairs and Trade (“the Department”) may disclose personal information about Australian nationals travelling overseas in the following circumstances:
(1) Where:
the Department believes on reasonable grounds that:
(a) there is a serious threat to the health of an Australian overseas, and
(b) the individual concerned is unable because of the nature of his or her illness to give informed consent to the disclosure, and
(i) the disclosure is necessary to reduce a threat to the life or health of the individual concerned, or
(ii) the disclosure is necessary for humanitarian reasons related to the individual or the family
the Department may disclose, on its own initiative, personal information about the individual to his or her next of kin.
(2) Where:
(a) an Australian overseas has been arrested or imprisoned, and
(b) information about such an event has been made publicly available,
the Department may, in response to a request from the individual’s next of kin, confirm, correct or clarify information about the facts of the event that have already been made publicly available. Any disclosure of additional personal information must be permitted by another provision of this determination or by IPP 11.
(3) Where:
(a) a request for welfare and whereabouts information about an Australian overseas has been made by that individual’s next of kin, and
(b) the individual has refused his or her consent to the disclosure of some or all of the requested information
the Department may disclose to the next of kin the fact that the individual has refused his or her consent to the disclosure of some or all of the requested information. In making such disclosure, the Department should have regard to any compelling reasons given by the individual for no information to be provided at all.
2. Conditions
The determination shall be subject to the following conditions:
(1) Decisions concerning disclosures made under this Determination may only be made by a senior officer of the Department authorised by the Minister.
(2) The Department should develop guidelines subject to the Privacy Commissioner’s approval to assist with the application of this Determination. The guidelines should stipulate that the provisions of the Determination should not be relied upon if a disclosure can otherwise be permitted by Information Privacy Principle 11. They should, inter alia:
(a) provide guidance on ascertaining the status of a person as the “next of kin” of an Australian national overseas;
(b) clarify the interpretation of the terms “humanitarian reasons” and “publicly available information”;
(c) require the senior authorised officer to take into account the sensitive nature of health or criminal records in coming to a view.
(3) The Department should take reasonable steps to ensure that there is general public awareness about the Determination.
(4) The Department is required, at the end of each financial year, to report to the Privacy Commissioner on the number of occasions when disclosure of information under this Determination took place, and under which provision of the Determination each disclosure was authorised.
3. Monitoring
The Privacy Commissioner shall monitor the operation of this determination and notes that if her office considers that the determination is not being observed, she may make a further determination revoking or varying her determination.
Dated this 21st day of October 1997.
MOIRA SCOLLAY
Privacy Commissioner