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Where am I now? Lawlink > privacynsw > NSW Privacy Laws > Public Interest Directions
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Public Interest Directions
About public interest directions
Under section 41 of the Privacy and Personal Information Protection Act, the Privacy Commissioner may make a direction to waive or modify the requirement for a public sector agency to comply with an information protection principle (IPP).
Most of the directions are intended to apply temporarily until an appropriate privacy code of practice is made by the Attorney General. A number of directions have been renewed periodically each time they have expired.
Agencies dealing with complaints or applications for internal review relating to conduct after 1 July 2000 may need to consider whether a current direction applies, or a former direction applied at the relevant date. In some cases the scope of the direction may have changed.
What the directions do (and what they don't do)
A section 41 direction modifies the application of the IPPs to particular projects or activities of one or more public sector agencies.
A direction does not permit conduct that would otherwise be unlawful. In other words, it does not override any other laws, contracts or agreements which may already affect an agency, such as obligations to protect confidentiality or secrecy.
For example, a section 41 direction which modifies IPPs 11 or 12 (the disclosure principles) doesn’t necessarily provide a new lawful excuse for a disclosure to occur. All it can do is say that the disclosure, if it goes ahead, will not breach the IPPs in the PPIP Act. The disclosure must itself be lawful under other laws or agreements. Therefore, even with a section 41 direction, some disclosures may still be prohibited for other reasons.
How is a public interest direction made?
Under section 41 of the PPIP Act, the Privacy Commissioner may make a direction to waive or modify the application of one or more of the IPPs to one or more NSW public sector agencies.
Public interest directions are usually temporary in nature. This allows the affected agency or agencies some time in which to either:
- amend their practices and procedures, to bring them into compliance with the IPPs, or
- draft a more permanent exemption, by way of a privacy code of practice or specific legislative authority by way of an Act or regulation.
Agencies may approach the Privacy Commissioner to request a public interest direction, or the Privacy Commissioner may recognise a need for a public interest direction without a request.
The Privacy Commissioner must weigh the public interest in the application of the IPPs to the conduct at issue, as against the public interest in allowing an exemption. This process may involve some consultation with affected parties, and the Privacy Commissioner may need to ask the agency or agencies concerned for more detailed information about their request and their reasons for seeking the exemption.
If the Privacy Commissioner is satisfied that the public interest in allowing an exemption outweighs the public interest in the application of the IPPs to the conduct at issue, the Privacy Commissioner will then draft a draft direction. The draft direction may then be the subject of a further round of consultation.
Finally the Privacy Commissioner must submit the draft direction to the Attorney General, and seek the Attorney General’s approval to make the direction. Once the Privacy Commissioner has made a direction, it is loaded on the Privacy NSW website.
What public interest directions have been made?
Directions made to date, and still current, apply to:
- Direction relating to the Anti-Social Behaviour Pilot Project. This direction applies to the agencies listed in Schedule 1 and the local Area Commands listed in Schedule 2. It operates from 2 September 2008 and replaces previous directions relating to the Pilot Project which can be found below under Previous Directions. A related direction has been made under section 62 of the HRIP Act.
- Direction relating to the Document Verification Service (This direction applies to the Roads and Traffic Authority participating in the Commonwealth Government's Document Verification Service. It operates from 1July 2007 until the end of the project.)
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- Direction relating to the Child Protection Watch Team Trial (This direction applies to agencies participating in the Child Protection Watch Team Trial. It was made on 7 August 2006 and has effect for until the completion of the CPWT Trial. Despite the wording of the s41 direction, a s62 direction under the HRIP Act has not yet been made. It may be made in the future.)
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- Direction relating to the Redfern Waterloo Partnership Project (This direction applies to agencies participating in the Redfern Waterloo Partnership Project. It was made on 2 February 2006 and has effect for 12 months from this date or until the completion of the project whichever occurs later. A related direction has been made under s62 of the HRIP Act .)
Previous directions
- Direction in relation to the Department of Housing (This direction was made 4 July 2000, and expired on the making of a Code of Practice in September 2000.)
- Direction for the Department of Education and Training (This direction was made on 27 June 2000, renewed 1 October 2000 and 31 October 2000, and expired on 31 December 2000.)
- The Inspector of the Police Integrity Commission (This direction was revoked on 18 January 2001 as a consequence of legislative amendment.)
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