36.5 Section 7(1) of the Privacy Act provides that an agency listed in sch 1 of the FOI Act is exempt from the operation of the Privacy Act, except in respect of matters of an administrative nature. One of the agencies listed under sch 1 of the FOI Act is the Australian Fair Pay Commission (AFPC). The other agencies listed in sch 1 of the FOI Act are the Australian Industrial Relations Commission (AIRC), and the Industrial Registrar and Deputy Registrars. The exemption of these other agencies is considered in Chapter 35.
36.6 Section 7(1) was originally intended to exempt from the operation of the Privacy Act ‘industrial tribunals referred to in sch 1 of the FOI Act in respect of administrative matters’. In 2006, the FOI Act was amended to include the AFPC in sch 1 of that Act. The secondary materials relating to the regulations that amended the FOI Act in this way do not disclose the policy behind the exemption of the AFPC from the FOI Act and hence the Privacy Act.
36.7 The AFPC is an independent, statutory body established under the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The AFPC took over the functions of setting and adjusting federal minimum wages from the AIRC, which retained its role as a national industrial tribunal dealing with employment disputes. The primary functions of the AFPC are to conduct wage reviews and exercise its wage-setting powers as necessary. The main wage-setting powers of the AFPC include adjusting the standard federal minimum wage, as well as determining and adjusting: minimum classification rates of pay; special federal minimum wages for junior employees, employees with disabilities or employees to whom training arrangements apply; basic periodic rates of pay and basic piece rates of pay payable to employees or employees of particular classifications; and casual loadings.
36.8 In exercising its wage-setting powers, the AFPC may inform itself in any way it thinks appropriate, including by: undertaking or commissioning research; consulting with any other person, body or organisation; or monitoring and evaluating the impact of its wage-setting decisions. The AFPC must publish written wage-setting decisions and include reasons in its decisions.
Submissions and consultations
36.9 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC expressed the view that the APFC appeared to be exempt from the Privacy Act only by virtue of the fact that it is listed in sch 1 of the FOI Act, and not for any sound policy reasons. The ALRC therefore proposed that the Privacy Act be amended to remove the partial exemption that applies to the AFPC under s 7(1) of the Act. There was some support in submissions for the removal of this exemption.
36.10 The Cyberspace Law and Policy Centre supported the proposal on the basis that agencies should not be exempt under the Privacy Act simply by virtue of their exempt status under the FOI Act. It argued that any difficulties in compliance with privacy principles should be dealt with by way of selective exceptions to particular principles on the basis of detailed justification. The Public Interest Advocacy Centre also supported the ALRC’s proposal, stating that the exemption ‘appears to be an anomaly, and has no sound policy justification’.
36.11 In contrast, the Department of Employment and Workplace Relations (DEWR) submitted that the partial exemption that applies to agencies specified under sch 1 of the FOI Act should remain, because agencies that exercise standard-setting, conciliation and quasi-judicial functions should be exempt to the same extent as federal courts. It stated that it was not aware of any compelling arguments to remove the exemption.
36.12 The Office of the Privacy Commissioner (OPC) stated that it has no specific view on whether the AFPC should be exempt from the operation of the Privacy Act. It submitted, however, that any decision to maintain the exemption should be justified by ‘a clear and demonstrable public interest which reflects community attitudes and values’. The OPC suggested further that consideration should be given to the benefits of treating entities with similar functions consistently under the Privacy Act.
36.13 The Office of the Victorian Privacy Commissioner (OVPC) also had no specific view on whether the exemption that applies to the AFPC should be removed, but stated that ‘agencies should, as a matter of principle, not be exempted completely’. It submitted that exemptions or exceptions only should apply to specific practices or principles; and that some principles should apply universally, such as the ‘Data Security’ and ‘Data Quality’ principles. In addition, the OVPC submitted that ‘privacy legislation should only be subject to such reasonable limits … as can be demonstrably justified in a free and democratic society’.
36.14 The original exemption of agencies that are listed in sch 1 of the FOI Act from the operation of the Privacy Act was intended to apply to industrial tribunals, such as the AIRC. Since the AFPC has taken over only the AIRC’s wage-setting function and not its dispute resolution function, the original policy justification that applied to industrial tribunals does not apply to the AFPC. Further, there appears to be no stated policy reason for exempting the AFPC from the requirement to comply with the Privacy Act in respect of its non-administrative functions. Therefore, it would appear that this exemption of the AFPC from the Privacy Act only applies by virtue of the fact that the AFPC is now listed in sch 1 of the FOI Act.
36.15 As discussed in Chapter 33, any exemption from the operation of the Privacy Act should be limited to the extent possible and justified on sound policy grounds. There does not appear to be any policy justification for the AFPC’s exemption. The function of standard setting is not analogous to the exercise of judicial power, which is conferred by the Australian Constitution; or to dispute resolution, where there may be an argument that the Privacy Act presents barriers to information exchange that is necessary for effective and efficient dispute resolution. The ALRC, therefore, recommends that the exemption that applies to the AFPC be removed.
36.16 In Chapter 35, the ALRC recommends that federal tribunals, commissions and boards whose primary functions involve dispute resolution, administrative review or disciplinary proceedings should be exempt from the operation of the Privacy Act except in relation to an act done, or a practice engaged in, in respect of a matter of an administrative nature. Since the AFPC’s primary function is wage setting, it does not qualify for the recommended exemption. It may fall under the recommended exemption, however, in the event that the primary function of the AFPC changes to include dispute resolution or administrative review.
36.17 Currently, the AFPC is partially exempt from the provisions of the FOI Act, which does not apply to any request for access to a document of the AFPC unless the document relates to matters of an administrative nature. In Chapter 29, the ALRC recommends that access to personal information held by agencies should continue to be subject to the applicable provisions of any Commonwealth law. Therefore, access to personal information held by the AFPC should remain subject to the FOI Act. The appropriateness of the partial exemption that applies to the AFPC from the operation of the FOI Act could be considered in the ALRC’s separate inquiry into the operation of the FOI Act.
Recommendation 36-1 The Privacy Act should be amended to remove the partial exemption that applies to the Australian Fair Pay Commission under s 7(1) of the Act.
Privacy Act 1988 (Cth) s 7(1)(a)(i)(A), (b).
Explanatory Memorandum, Privacy Bill 1988 (Cth), .
Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations (No 1) 2006 (Cth) sch 36.
Australian Fair Pay Commission, About the Commission <www.fairpay.gov.au/fairpay/About> at 25 March 2008; Workplace Relations Act 1996 (Cth) s 23.
Workplace Relations Act 1996 (Cth) s 22(1).
Ibid ss 24(2).
Ibid ss 24(4), 26(1).
 Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 33–1.
Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; P Youngman, Submission PR 394, 7 December 2007.
 Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
 Public Interest Advocacy Centre, Submission PR 548, 26 December 2007.
 Australian Government Department of Employment and Workplace Relations, Submission PR 211, 27 February 2007.
 Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.
 Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007.
 Rec 35–2.
Freedom of Information Act 1982 (Cth) s 6.
 Rec 29–2.
 The ALRC has received Terms of Reference to review the FOI Act and related laws to determine whether they continue to provide an effective framework for access to information in Australia.