Problems with the Privacy Act

Impeding access to benefits and services

70.19 Many examples of situations where third parties were denied access to the personal information of another individual or experienced difficulty in communicating with an agency or organisation because of actual or perceived conflict with the Privacy Act were brought to the ALRC’s attention during the course of this Inquiry. These included:

• a person unable to assist a sick friend to make payments or defer payments on a phone service while the friend was in hospital;^[20]

• a husband unable to book a service on a washing machine because it was purchased in the wife’s name;^[21]

• widows and widowers having difficulties in changing financial details on joint accounts with banking institutions;^[22]

• organisations refusing to accept a verbal authorisation of the individual to release personal information to lawyers, financial counsellors and interpreters;^[23]

• a friend assisting an individual who speaks English as a second language, being denied access to personal information despite being in the same room as the consenting individual at the time a phone call was made;^[24]

• a parent unable to access information about a telecommunications service provided to the teenage child, despite the parent having established and paid for the service;^[25] and

• other third party assistants, including lawyers, financial counsellors and social workers, authorised to speak on behalf of the individual to negotiate suitable outcomes, but unable to access personal information about the individual.^[26]

70.20 Similar concerns were raised in stakeholder forums conducted as part of the OPC review of the private sector provisions of the Privacy Act in 2005 (OPC Review).^[27]

70.21 Concerns and complaints about the impact of the Privacy Act on the ability of domestic partners to assist each other with account facilitation and payments were also commonly received during the ALRC’s National Privacy Phone-in held in June 2006.^[28]

Current privacy laws are so heavily weighted against information flow that it is difficult for a modern family to operate effectively. What is classed as protection to some, is a hindrance to others. As a married man with children the levels of frustration my wife and I incur when trying to make enquiries or to alter contracts for phones, electricity, etc or anything really is way over the top. The amount of paper work that organisations claim to need under the umbrella of privacy is extreme. The number of times I am asked to put my wife on the phone or vice versa is an insult to us and hits at our own integrity … Privacy laws need to have some way of lifting all the restrictions married couples etc have to incur. It is not good enough to have a system where there are provisions for heaps of paperwork to be prepared. We are a family and should be treated as such.^[29]

70.22 A number of the concerns raised above could have been facilitated, consistently with the Privacy Act, if the agency or organisation had a process in place to obtain the consent of the individual whose personal information was in issue.

Vulnerable adults

70.23 General concerns were raised in submissions to this Inquiry about the balance between protecting vulnerable adults from unnecessary interference with their privacy and ensuring that they gain access to required services and benefits.^[30]

The particular circumstances of people with a decision-making disability can mean that many aspects of their lives are unnecessarily exposed to others, and their privacy is compromised. However, it is important that protection of privacy does not have an undesired effect of creating further barriers to necessary service provision, which would result in poorer outcomes and reduced quality of life for the individuals concerned.^[31]

70.24 An important practical issue raised in submissions was the need to ensure that privacy legislation enables appropriate third parties to act on behalf of those who cannot act for themselves. An incapacity may be temporary or permanent, and can be caused by many different circumstances, including disability, injury, illness or cognitive impairment. It was suggested that there are inadequate alternative decision-making mechanisms in the Privacy Act to facilitate an exchange of information where an individual is unable to provide consent.^[32]

70.25 In 2003–04, the Australian Guardianship and Administration Committee (AGAC) undertook a small survey designed to determine whether there have been any unanticipated adverse consequences as a result of privacy legislation for people who have a decision-making disability. While finding that the legislation generally worked well, the AGAC concluded that there was ‘significant room for improvement in how a range of service providers interpret and apply the legislation in cases involving people who have a decision-making disability and their family members and allies’.^[33] The AGAC speculated that problems arise primarily because organisations, in an attempt to comply with the Privacy Act, require individuals expressly to authorise another person to transact business on their behalf—something that cannot be done if the individual does not have capacity.

70.26 Concerns have been raised that, even in situations where a formal arrangement, such as an enduring power of attorney or a guardianship or administration order, is in place, these orders are not always respected.^[34] While there is no provision in the Privacy Act that would prevent these transactions from proceeding, often in practice the formal arrangements are not recognised.

70.27 In Older People and the Law, the House of Representative Standing Committee on Legal and Constitutional Affairs considered substitute decision-making laws and practices on a national basis.^[35] It recognised that the ‘patchwork’ of legislation on powers of attorney and, more generally, guardianship and administration legislation, leads to confusion about requirements for signing, registering, executing and recognising powers of attorney—particularly across state boundaries. It noted that the Department of Health and Ageing, through the Australian Health Ministers’ Conference, is seeking to develop a nationally coordinated approach across a range of substitute decision-making mechanisms, including guardianship, advance care planning and wills.^[36] The Committee considered that further work was required; and recommended that the Standing Committee of Attorneys-General (SCAG) work towards the implementation of uniform legislation on powers of attorney, and on guardianship and administration, in all states and territories.^[37] Other issues considered by the Committee that would improve existing laws and practices for substitute decision making included the development:

• of campaigns to promote awareness of powers of attorney and their advantages, and better information strategies to inform principals of the implications of making a power of attorney, and attorneys of their responsibilities;^[38]

• and implementation by SCAG and the Standing Committee of Health Ministers of a nationally consistent approach to the assessment of capacity;^[39] and

• by SCAG of a national register of enduring powers of attorney.^[40]

70.28 Problems for carers are most acute where there are informal arrangements in place for making decisions on behalf of an adult. This occurs where a family member, carer or friend makes decisions or assists in decision making without formal authority provided by an instrument such as an enduring power of attorney, or appointment as a guardian or administrator by a tribunal, board or court. The existence of informal arrangements is consistent with the philosophy underpinning Australian guardianship and administration legislation, which seeks to maximise involvement in decision making by the individual and ensure that the least restrictive decision-making processes are available. Formal guardianship or administration orders are made as a last resort where informal arrangements have broken down.^[41] Many service providers, however, will deal with third parties only where formal authorisation is provided. While the aim of the service providers is to protect the personal information of individuals, this practice may, as has been illustrated above, create problems for those individuals who need third party assistance to gain access to necessary services and benefits.