Secret attack on privacy a real danger

Greg Barns strikes at Attorney-General’s bid to change rules on personal information

HANDS up if you read the Tasmanian Government Gazette? This important but obscure publication is where the government makes announcements, probate notices are published, and public service jobs listed. But, unless you are a public servant or lawyer, you’ve probably not heard of it, let alone read it.

So, why, as Mercury reporter Amber Wilson revealed, did Attorney-General Elise Archer not bring to the community’s attention the fact, as published in the Gazette on November 25, she has approved exemptions to rules governing personal information held by government? In a series of announcements in the Gazette, Ms Archer has given the green light to departments to release information about individuals to her department. Any situation “whereby such information is, or has the potential to be, relevant to an actual or potential civil claim against the State of Tasmania” is exempt from the rules.

So, when the Tasmanian government gets sued by a person alleging abuse, sexual or otherwise, by a government employee the lawyers acting for the state can get easy access to information about that individual and the alleged abusers without being impeded by rules that prevent disclosure.

The second part of Ms Archer’s notice says that, if information is returned to the department it came from because it is not relevant and is not “potentially relevant to an actual or potential civil claim, it will be returned or destroyed as per the election of the agency of origin, and in compliance with the Archives Act 1983. This does not include information that may become relevant to a claim, information that should be retained so as to preserve the integrity of a record as a whole, or for similar or related purposes.”

As Sebastian Buscemi, a leading lawyer in abuse claims in Tasmania and Australian Lawyers Alliance (disclaimer: this columnist is a member) spokesman, has said: Public servants will be making the decision to destroy documents that might actually be relevant at some stage in the future to an investigation into abuse.

The right to privacy and the obligation of government to ensure personal information is not disclosed are important features of democracy. Erosion of those rights and obligations should be brought to the community’s attention and discussed. If there is an exemption provided to a department, the community is entitled to know what it is, why it is being sought, and what scrutiny there will be.

By publishing these notices in a publication that few know exists is poor form on the part of the Attorney-General.

The sharing of personal information and handling of that information by government needs to be independently scrutinised to reduce risk of abuses of the power or sloppy administration. Destruction of documents about individuals ought be the province on an independent entity, not the government department.

Who might such an entity be? An Information Commissioner such as exists as the Commonwealth level and in most Australian jurisdictions. In terms of scrutiny of personal information management, Tasmania lacks an independent office to “keep the bastards honest”.

If we had an information commissioner, he or she would have input into the decision by the Attorney-General in this case, and could seek input from stakeholders.

Ensuring all parties in legal actions about institutional abuse have access to the full suite of information and records relevant to the claim is critical. When a government minister decides to exempt departments from rules to protect personal information it should be done only after there has been consultation with the community and the announcement is made public.

We’re sliding into secretive authoritarian government territory in Tasmania.

Hobart barrister Greg Barns SC is a human rights lawyer and former adviser to state and federal Liberal governments.