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Public Interest Determination No. 1
PART VI - PUBLIC INTEREST DETERMINATION NO. 1
In respect of
|Application No :||1 (dated 5 September 1989)|
|Applicant :||Director of Public Prosecutions (the agency)|
|Nature of the Application:||Disclosure of personal information to the Victorian Mental Health Board, to assist the Board in assessing whether individuals (with a criminal history), should be continued to be detained in mental institutions.|
|Information Privacy Principle Concerned::||Information Privacy Principle 11|
|Issued :||14 August 1990|
|Tabled :||17 September 1990|
|Effective :||12 November 1990|
Under section 72 of the Privacy Act 1988 I give notice of my determination:
The agency is, in accordance with this determination, permitted to disclose the information set out below for a period of five years, after which time the Privacy Commissioner will review the application to consider whether the agency should be permitted to continue the practice.
Information permitted to be released in accordance with this determination is:
- a person's criminal record;
- depositions from committal;
- transcripts of trials;
- judge's comments on sentencing; and
- medical reports submitted to the court as part of the sentencing process.
This determination is subject to the following conditions:
(a) the information disclosed shall only relate to a person who is subject to an involuntary detention as prescribed by the Mental Health Act 1986 (the MH Act);
(b) the information disclosed by the agency must relate to a current proceeding/application/review before or by the Board of such an involuntarily detained person;
(c) the agency shall only disclose the information upon receipt of a formal written request by the Board;
(d) the agency shall provide the information only to the legal officer or in his/her absence a relevant administrative officer appointed by the Board;
(e) the agency shall obtain an undertaking from the President of the Board that subsequent access to and use of the information by the Board shall be in accordance with the spirit of the Information Privacy Principles;
(f) the agency is required, at the end of each financial year, to report to the Privacy Commissioner on the number of occasions during that year that information has been disclosed in accordance with this determination, and the type of information disclosed in each case.
Dated this 14th day of August 1990
KEVIN O'CONNOR Privacy Commissioner
REASONS FOR DETERMINATION
1. THE APPLICATION
On 5 September 1989 the Commonwealth Director of Public Prosecutions ("the agency") sought a public interest determination under section 72 of the Privacy Act in relation to the proposed practice of disclosing to the Victorian Mental Health Review Board ("the Board") certain personal information in its control, as the proposed practice would be in breach of Information Privacy Principle 11.1.
In accordance with section 74 of the Privacy Act I published, on 18 December 1989, a notice in a leading newspaper advising of the application and seeking expressions of interest or submissions from interested parties. In addition, invitations for submissions were mailed out to a cross section of potentially interested organisations. A list of organisations invited to make submissions forms attachment A.
I received eight submissions and a number of acknowledgements from interested organisations; see attachment B.
In summary the majority of submissions received indicated that there was no objection to the present application of the agency. Reservations expressed in a joint submission from two organisations concerned the need to identify the precise nature of the information to be disclosed and whether restrictions/conditions should be imposed, such as a requirement that consent be obtained from the person who is the subject of the disclosure and/or that the information disclosed should be confined to public documents.
1. The findings on material questions of fact relating to the present application are as follows:
(i) The agency is established under the Director of Public Prosecutions Act 1983 ("the DPP Act").
(ii) The functions of the agency are set out in section 6 of the DPP Act and include the following:
(a) To institute and carry on prosecutions on indictment for indictable offences against the laws of the Commonwealth;
(b) To institute and carry on proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth;
(c) To institute and carry on proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth;
(d) To assist a coroner in inquests and inquiries conducted under the laws of the Commonwealth;
(e) To appear in proceedings under the Extradition Act 1988 or the Mutual Assistance in Criminal Matters Act 1987;
(f) Where the Director, with the consent of the Attorney?General, holds an appointment to prosecute offences against the laws of a State ? to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences;
(g) To take, or co?ordinate or supervise the taking of, civil remedies;
(h) To institute, carry on, or co?ordinate or supervise the institution or carrying on of, proceedings for the recovery of pecuniary penalties under the laws of the Commonwealth; and
(i) To take proceedings under the Proceeds of Crimes Act 1987.
(iii) The Board is a quasi?judicial tribunal established under section 21 of the Mental Health Act 1986 (Vic) ("the MH Act").
(iv) The functions of the Board are set out in section 22 of the MH Act and include the following:
(a) To hear appeals against detention of involuntary patients and security patients;
(b) To periodically review the continued detention of each involuntary patient and security patient;
(c) To hear appeals against refusal of the chief psychiatrist to grant leave to security patients;
(d) To hear appeals against the transfer of involuntary patients and security patients;
(e) To receive reports on restraint and seclusion;
(f) To receive reports on electroconvulsive therapy given without the consent of the patient and to report thereon to the Minister; and
(g) To receive reports on consents to non-psychiatric treatment.
Sub-section (2) provides that the Board must, in determining any review or appeal, have regard primarily to the patient's current mental condition and consider the patient's medical and psychiatric and social circumstances.
(v) The Board exercises jurisdiction in relation to persons committed under section 12 of the MH Act, known as civilly committed persons, persons ordered by a court under section 15 of the MH Act to be detained in a psychiatric in-patient service following a guilty finding for a criminal offence and persons lawfully detained in prison who are ordered by the Director General of Corrections to be transferred to a psychiatric in-patient service under section 16 of the MH Act.
In the performance of its functions and in accordance with sections 8(1), 15(1)(b) and 16(2)(a) of the MH Act the Board is required to consider in respect of the persons referred to above whether the person should continue to be detained for the person's health or safety or for the protection of members of the public.
Further section 16(4) of the MH Act specifically provides that in determining whether to make a hospital order or a restricted hospital order pursuant to sub?section (1) the Board must have regard to the public interests and all the circumstances of the case including the person's criminal record and psychiatric history.
(vi) Section 24 of the MH Act governs the procedures of the Board. Section 24(1) of the MH Act provides that the Board must, in hearing any matter, act according to equity and good conscience without regard to technicalities or legal forms. It is bound by the rules of natural justice and is not required to conduct any proceedings in formal manner.
The Board is not bound by the rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit (section 24(3) of the MH Act).
Further, evidence given before the Board cannot be used in any civil or criminal proceedings other than proceedings for an offence against the Act or for perjury (section 24(6) of the MH Act).
The Board may of its own motion or on the application of any party issue a summons requiring a person to appear before the Board to give evidence or to produce such documents as are specified in the summons (section 24(7) of the MH Act).
(vii) Section 33 of the MH Act provides that unless the Board directs to the contrary proceedings before the Board are closed to the public.
Section 34 of the MH Act prohibits the publication of any report of proceedings before the Board unless the Board orders otherwise and even if there is such an order no publication is permitted which may lead to the identification of any person concerned in the proceedings.
(viii) Section 35 of the MH Act is a secrecy provision. It provides, except in limited circumstances, that it is a criminal offence for a person who is or has at any time been a member of the Board or is or has been present at any proceedings of the Board either directly or indirectly, to make a record of, or divulge or communicate to any person, any information that is or was acquired by the person by reason of being or having been so appointed, engaged, authorised or present or make use of any such information, for any purpose other than the performance of official duties or the performance or exercise of that function or power.
(ix) In handling personal information, the agency is required to comply with the Information Privacy Principles set out in section 14 of the Privacy Act 1988. Principle 11.1 limits the disclosure of personal information held by the agency as a record keeper to certain prescribed circumstances. None of these circumstances apply to the disclosure practice in question, and the agency would therefore be in breach of Principle 11 if it makes such disclosures.
3. REASONS FOR THE DECISION
(i) I accept that the agency's proposed practice of disclosure to the Board of certain information concerning a person's criminal record, the depositions from committal proceedings, transcripts of trials, judge's comments on sentencing and medical reports submitted to the court as part of the sentencing process, that person being involuntarily detained in accordance with the provisions of the MH Act, will assist the Board in its task of determining whether people should continue to be detained.
(ii) The procedures of the Board are strictly regulated and it must, when hearing any matter, act according to equity and good conscience and is bound by the rules of natural justice.
(iii) The MH Act specifies that generally there shall be no publication of its proceedings and secrecy is prescribed.
(iv) In accordance with the objects of the MH Act the Board is enjoined to ensure that persons who are mentally ill receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given and that in providing for the care and treatment of persons who are mentally ill and the protection of members of the public any restriction upon liberty of patients and other persons who are mentally ill and any interference with their rights, dignity and self-respect is kept to the minimum necessary in the circumstances.
I am satisfied that the proposed practice of the agency of disclosing certain information on files in the control of the agency to the Board may be in breach of Information Privacy Principle 11 but the public interest in the agency disclosing certain information to the Board outweighs to a substantial degree the public interest in adhering to that Information Privacy Principle.
5. This decision was made in light of and pursuant to the filing of the application by the agency on 5 September 1989 and all written submissions received from the organisations set out in attachment B.
LIST OF ATTACHMENTS
A: List of organisations invited to make a submission
B: Submissions and Acknowledgments
Note: These attachments are not being distributed routinely, but are held with the original determination and are available on request from:
Privacy Branch Human Rights and Equal Opportunity Commission GPO Box 5218 SYDNEY NSW 2001 Phone: (02) 9229 7600
Attorney-General's Department NSW Attorney-General's Department VICTORIA Attorney-General's Department SA Department of Justice TAS ACT Government Law Office CANBERRA Attorney-General's Department ACT Department of Justice QLD Attorney-General's Office WA Department of Law NT Premier of New South Wales Minister for Police and Emergency Service NSW Attorney-General VIC Premier of Queensland Minister for Police QLD Premier of South Australia Minister for Emergency Services SA Attorney-General NSW Premier of Victoria Minister for Police and Emergency Services VIC Attorney-General QLD Minister' for Justice QLD Premier of Western Australia Attorney-General SA Minister for Police WA Premier of Tasmania Minister for Police and Emergency Services TAS Attorney-General WA Minister for Justice WA Attorney-General and Minister for Justice TAS Chief Minister NT Attorney-General's Department ACT Department of Administrative Services ACT Department of Defence ACT DILGEA ACT Department of Industry, Technology and Commerce ACT Department of Social Security ACT Department of Aboriginal Affairs ACT Department of Community Services and Health Act DEET ACT Department of Industrial Relations ACT Department of Primary Industries and Energy ACT Department of Transport and Communications ACT The Treasury ACT Department of the Prime Minister and Cabinet ACT Department of Foreign Affairs and Trade ACT Strategic Policy and Co-ordination Division Act Attorney-General's Department ACT Department of Veterans' Affairs ACT Department of Finance ACT Department of the Arts, Sport, the environment, Tourism and Territories ACT Australian War Memorial ACT Australian Archives ACT Australian Chamber of Commerce ACT Melbourne Chamber of Commerce South Australian Chamber of Commerce Queensland Chamber of Commerce Sydney Chamber of Commerce Western Australian Chamber of Commerce Australian Stock Exchange Ltd NSW Australian Bankers Association VIC Life Insurance Federation of Australia (Inc) VIC Business Council of Australia VIC Aust Association of Permanent Building Societies ACT Australian Finance Conference NSW Confederation of Australian Industry VIC NSW Council for Civil Liberties SA Council for Civil Liberties Queensland Council for Civil Liberties Tasmanian Council for Civil Liberties Australian Council for Civil Liberties NSW Victorian Council for Civil Liberties Council for Civil Liberties in WA
(i) Department of Industrial Relations dated 18 December 1989;
(ii) Mental Health Review Board dated 5 January 1990;
(iii) Offenders Aid and Rehabilitation Services of South Australia dated 11 January 1990;
(iv) Communications Law Centre, NSW dated 15 January 1990;
(v) Acting Attorney?General, Northern Territory dated 18 January 1990;
(vi) Department of the Arts, Sport, the Environment, Tourism and Territories dated 19 January 1990;
(vii) NSW Bar Association dated 30 January 1990;
(viii) Privacy Foundation undated.
(i) Office of the Attorney-General dated 9 January 1990;
(ii) Ministry for Police and Emergency Services, Victoria dated 10 January 1990;
(iii) Law Institute of Victoria dated 10 January 1990;
(iv) Department of Industry, Technology and Commerce dated 10 January 1990;
(v) Department of Foreign Affairs and Trade dated 11 January 1990;
(vi) Public Interest Advocacy Centre, NSW dated 11 January 1990;
(vii) Law Society of New South Wales dated 11 January 1990;
(viii) Prices Surveillance Authority dated 12 January 1990;
(ix) Minister for Justice, WA dated 12 January 1990;
(x) Department of Premier and Cabinet, Tasmania dated 12 January 1990;
(xi) Department of the Premier, Economic and Trade Development, QLD dated 15 January 1990;
(xii) Mental Health Advocacy Service, NSW dated 15 January 1990;
(xiii) Attorney-General's Department dated 15 January 1990;
(xiv) Department of Veteran's Affairs dated 16 January 1990;
(xv) Department of the Prime Minister and Cabinet dated 17 January 1990;
(xvi) Australian Archives dated 17 January 1990;
(xvii) Commonwealth Banking Corporation dated 18 January 1990;
(xiii) Commonwealth Attorney-General's Department received on 22 January 1990.
(xix) Department of Aboriginal Affairs dated 22 January 1990;
(xx) Department of Justice, Tasmania dated 22 January 1990;
(xxi) Commonwealth Public Service Commission dated 25 January 1990;
(xxii) Law Society of South Australia dated 25 January 1990;
(xxiii) Department of Administrative Services dated 29 January 1990; and
(xxiv) Attorney General's Department, NSW dated 30 January 1990