Submissions and consultations

34.26 In DP 66 the Inquiry proposed that the definition of ‘employee record’ in the Privacy Act be amended to exclude genetic information and that the pending inter-departmental review of the employee records exemptionconsider whether health information generally should be excluded from the ambit of the exemption. The majority of submissions received in response expressed support for these proposals and concern about the lack of privacy protection currently provided for sensitive information held by employers.

34.27 The Australian Chamber of Commerce and Industry (ACCI) expressed general support for the employee records exemption, both before the House of Representatives and Senate Committees, and in consultations with this Inquiry, on the basis that the exemption allows employers to make informed decisions. ACCI did, however, acknowledge in its submission to the Inquiry that there is room for special provision to be made in respect of genetic information held by employers:

For this reason, there is a sound policy argument for allowing regulation of genetic information collected by employers to mirror regulation imposed on other bodies while leaving the employee records exemption otherwise intact.^[19]

34.28 The Law Institute of Victoria and the Australian Medical Association noted that job applicants or employees may feel under considerable pressure to provide genetic information on request given the possible consequences of a refusal to their employment prospects.^[20] The Law Institute expressed the view that, in these circumstances, it is particularly important to ensure that information is adequately protected.

34.29 The Department of Health and Ageing stated:

The Department agrees with the concerns raised … relating to the exemption of personal health information, including genetic information, that may be held in employee records. This is an issue that also arose in the context of the Privacy Act amendments—and it should be revisited following the current Commonwealth Department of Employment and Workplace Relations (DEWR) inquiry. Given the potential for discrimination in the workplace arising from inappropriate handling and interpretation of genetic information, this is an issue on which the Inquiry could provide valuable advice in the context of the DEWR review.^[21]

34.30 The ACTU stated:

The ACTU strongly opposed the exemption for employment records in the amendments to the Privacy Act extending it to the private sector … Many employers hold a great deal of sensitive information on their employees, including health information. There is nothing in the Privacy Act to prevent an employer passing on this information to a potential employer of a past or current employee.^[22]

34.31 The Genetic Support Council of Western Australia stated:

The genetic support groups felt that the Privacy Act (1988) was inadequate in covering genetic information in terms of its application to workforce issues. The groups felt that the Privacy Act should be modified to include current and past employee records.^[23]

34.32 The Office of the Federal Privacy Commissioner also expressed concern about the exemption and reiterated some of the points made before the Senate Committee:

The proposed exemption, as set out in the Bill, is also not consistent with the proposed treatment of sensitive information, including health information, proposed elsewhere in the Bill. This follows from the definition of ‘employee record’ as including, for example, trade union membership, membership of professional or trade associations and aspects of employee health information.

Sensitive information, and more particularly, health information are given more specific levels of protection in the Bill. I strongly support this approach. I do not support proposals that might then weaken that protection for the many Australians who are employees.^[24]

34.33 The Centre for Law and Genetics made the following comment in relation to the protection provided in the context of employment:

Inclusion of the ’employee records’ exemption within the privacy scheme applying to the private sector has been justified on the basis that whilst this type of personal information deserves privacy protection, such protection is more properly a matter for workplace relations legislation. The reality is, however, that workplace relations legislation does not provide such protection, leaving workers in the private sector in a precarious situation.^[25]

34.34 Privacy NSW was also of the view that

the current industrial relations framework has a limited capacity to deal with privacy issues and offers no adequate appeals mechanisms. The Australian Industrial Relations Commission does not have the power to establish provisions for workplace privacy through the award system. Given the inequality of bargaining power between employers and employees, it is unlikely that there would be a genuine capacity to negotiate.^[26]

34.35 Margaret Otlowski summarised the arguments as follows:

the current coverage of employee privacy in the workplace relations context is patently inadequate. While there are some statutory protections applying to the public sector, for the majority of workers in Australia there is little tangible protection of the privacy of their employment records … The protection available through the ordinary courts is also far from satisfactory. Whilst there are some contractual and equitable principles for maintaining confidentiality that offer some protection, these are, in practice, costly to pursue (involving private litigation in the civil courts) and not easy to establish. In short, neither existing legislation in the workplace context nor common law or equitable principles provide adequate protection of the privacy interests of employees.^[27]

34.36 Both the Centre for Law and Genetics and the Office of the Federal Privacy Commissioner expressed the view that the exemption should be repealed entirely.^[28]