PART VI - PUBLIC INTEREST DETERMINATION No. 2

(PID 2)

In respect of

DETERMINATION

Under section 72 of the Privacy Act 1988, I give notice of my determination, as follows:

That the Department of Immigration, Local Government and Ethnic Affairs:

(i) may disclose to

• the Official Secretary to the Governor-General and Secretary to the Order of Australia, and
• the Awards and National Symbols Branch of the Department of Administrative Services

for the purpose of assisting the deliberations of relevant committees or foreign governments information about the Australian citizenship of foreign-born people who are

(a) nominees for the award or honorary award of the Order of Australia; (b) nominees for approval by the Governor-General in relation to the acceptance and wearing of foreign awards; or (c) nominees for other awards in the Australian honours system

(ii) in that regard, must satisfy itself that the information being disclosed will only be used for the purpose of the deliberations referred to in (i)

(iii) must keep a record of each occasion on which information is disclosed in accordance with the determination and must include in that record the name of the recipient agency or agencies and the particulars of the information disclosed.

Dated this 16th day of July 1990

KEVIN O'CONNOR Privacy Commissioner

REASON FOR DETERMINATION

1. THE APPLICATION

On 6 March 1990 the Commonwealth Department of Immigration, Local Government and Ethnic Affairs (the agency) sought a public interest determination under section 72 of the Privacy Act. Its application related to its practice of verifying the Australian citizenship of foreign-born people who are nominees for the award of the Order of Australia or are nominees for approval by the Governor-General in relation to the acceptance and wearing of foreign awards. It has in the past disclosed this information on request to the office of the Governor-General and to the Awards and National Symbols Branch (ANSB), Department of Administrative Services (DAS). Both of these offices handle matters relating to the award of honours. The Department's original application only sought a public interest determination in respect of its disclosures to the office of the Governor-General.

The agency considers that its practice may be seen to breach the Privacy Act. Citizenship information which it holds in respect of foreign-born people has, normally, been collected in the context of a citizenship application and the associated naturalisation process.

Information Privacy Principle 11 of the Privacy Act governs the circumstances under which an agency receiving information for one purpose can disclose it for another purpose to a separate agency. This principle clearly applies to the Department in dealing, as proposed, with the office of the Governor-General and with the Awards and National Symbols Branch in DAS. As it is not the practice to give notice of a possible disclosure of the kind in issue at the time of collection of citizenship information, exception (a) to Information Privacy Principle 11 does not apply. Nor do the other exceptions, (b) to (e), apply. Of these exceptions (b) may seem to be the most relevant. It provides that a disclosure may occur where the individual consents to that course.

The Department and the office of the Governor-General, in support, submitted in essence, that it would be inconsistent with the spirit of awarding honours and possibly contribute to public controversy, if people who are under consideration were aware of that fact in advance.

In its application, the agency (and the office of the Governor-General in support), indicated that there was a degree of urgency attaching to the disposition of this matter. That is because the office of the Governor-General will, in August, embark on its next round of consideration of persons nominated for awards. For it to proceed expeditiously it needs to have guidance by that point as to what its powers are in relation to receiving citizenship information from the agency.

In accordance with section 74 of the Act, the Privacy Commissioner on 11 April 1990 published a notice in leading newspapers advising of the application and seeking expressions of interest or submissions from interested parties.

In the case of this application the Privacy Commissioner dispensed with his usual procedure of inviting views from interested individuals and organisations before issuing a draft determination.

2. SCOPE OF THE DRAFT DETERMINATION

• Additional Category of Disclosure

  Following issue of the Draft Determination, a submission was received from the Awards and National Symbols Branch drawing attention to its integral role in the awards and honours system and requesting that the Determination authorise disclosure of citizenship information to ANSB. ANSB processes requests from foreign governments wishing to confer awards and honours on Australian citizens. It also processes awards under the Order of Australia, as well as other awards in the Australian honours system. Citizenship verification is a part of the process used to approve nominees under such awards. The information provided by ANSB, with which the Department agrees, has been taken into account in formulating the findings, reasons for decision and final determination.

• Procedural Matters

  As noted above, I have accepted that the scope of the draft determination should be extended to permit ANSB to receive citizenship information from DILGEA, even though DILGEA's original application did not seek a determination permitting disclosure to ANSB.

  The reasons for adopting this procedure are as follows:

  1. Upon receipt of the submission from ANSB it was evident that failure to include a reference to ANSB in the determination would adversely impact upon the the performance of its functions in relation to the awards and honours system. Under the current Administrative Arrangements Order, DAS (through its Awards and National Symbols Branch) has responsibility for policy matters relating to Australian honours and symbols, as well as for processing requests from foreign governments wishing to confer awards upon Australian citizens. Access by ANSB to citizenship information from DILGEA is necessary to enable ANSB to perform the functions allocated to it within the DAS portfolio.

  2. In view of the uncontroversial nature of the issue, the general lack of interest (there being only one submission received), the absence of any likelihood of detriment to any individual and the urgency attaching to the case, I considered it appropriate to obtain the agreement of the applicant and the office of the Governor-General to extend the scope of the draft determination to permit disclosure of citizenship information to ANSB.

I consider that the procedure I have followed in this instance is exceptional. Where it is found that the scope of a draft determination may require variation to deal with a circumstance not raised in the original application, it would normally be necessary either to direct that the new material be the subject of a fresh application or, at least, that a conference of interested parties be convened before proceeding with the application.

3. FINDINGS

The findings on material questions of fact relating to the present application are as follows:

(i) The agency is established under Commonwealth administrative arrangements.

(ii) The functions allocated to the agency include the function of collecting citizenship information in relation to foreign-born persons.

(iii) It has been the practice of the agency in the past to verify citizenship particulars on request from the office of the Governor-General and from ANSB to assist those offices in discharging their responsibilities in regard to the award of Orders of Australia, awards made by foreign governments, and other awards in the Australian honours system.

4. REASONS FOR THE DECISION

The application and the submission in support explain the interest that the office of the Governor-General has in maintaining existing procedures and the role of the agency from which relevant citizenship information is obtained. The submission put forward by ANSB in response to the Draft Determination explains its role in the honours and awards system, and requests that it be allowed to receive citizenship information from DILGEA in order to enable the Minister for Administrative Services to fulfil his functional responsibilities.

In my view the considerations raised in the material are persuasive. The tradition of surrounding the award of honours in our community with confidentiality as against the person under consideration is long established. I am not aware of any evidence or suggestions that this practice is seen as adversely affecting the privacy interests of individuals. It should be understood that this is a situation where a privilege is being conferred on an individual; there is no suggestion that the process can in any way lead to an individual suffering detriment or harm, which is a common characteristic of many of the decision-making settings to which the Privacy Act applies.

The only option for complying with the relevant information privacy principle (IPP 11) reasonably open to the agency would be to seek an individual's consent prior to disclosure of citizenship particulars to the office of the Governor-General and to ANSB. It would, I consider, not be in the public interest for individuals to be apprised of the fact that they were under consideration for an honour.

Moreover, to require the agency to apply the Act in the circumstances raised would lead to some people (foreign-born Australians) and not others knowing that they were under consideration. There is also a danger that, if the process of deliberation is opened up to wider scrutiny, people may ultimately find themselves embarrassed by not being awarded an honour or there might be controversy as to those under consideration.