Expert panels

Background

46.101 In considering whether the current structure and role of the Privacy Advisory Committee is appropriate, the ALRC canvassed two main options for reform.

46.102 The first was to retain the current structure of the Committee, but make any necessary amendments to the membership requirements to reflect contemporary issues and community concerns. The second option was to change the Committee’s legislative structure to make it a more flexible, informal body with a more projects or inquiry-oriented role. This could involve changing the appointment process, so that members are not statutory appointees for a set term, but are appointed by the Privacy Commissioner. Instead of mandating membership criteria, the Act could require that the Committee is broadly representative of the general community and set out a non-exhaustive list of criteria to achieve broad representation. This kind of membership structure would give the OPC flexibility to set up an Advisory Committee with specific expertise to assist with a particular project. An example of this model is found in the Human Rights and Equal Opportunity Commission Act 1986 (Cth).^[128]

46.103 Given the support for the continuation of the Privacy Advisory Committee in its current form, with some amendment to the membership criteria, the ALRC developed a compromise between these two options. While proposing the necessary changes to the Committee in order to make it a more relevant body, the ALRC also proposed that the Commissioner be empowered to establish expert panels at his or her discretion.^[129] While recognising it was not necessary to include such a power in the Act, the ALRC’s preliminary view was that an express power would be consistent with the legislative approach adopted with the Privacy Advisory Committee.

Submissions and consultations

46.104 A number of stakeholders expressed support for this proposal.^[130] PIAC noted other proposals made by the ALRC in DP 72 for the Commissioner to issue guidance in highly specialised and complex areas, and suggested that:

Temporary or standing panels of persons with expertise in these areas would be of great assistance to the Privacy Commissioner in formulating this guidance, especially where the relevant expertise may not be located within OPC itself.^[131]

46.105 In contrast, the OPC disagreed with the ALRC’s proposal, submitting that ‘as the Privacy Commissioner may already do so, it is unnecessary to amend the Privacy Act to empower the Privacy Commissioner to establish expert panels at his or her discretion to advise the Privacy Commissioner’. The OPC noted that it currently convenes expert panels as required, providing the example of the Health Privacy Forum, whose members provide a range of health expertise to the Commissioner.^[132]

ALRC’s view

46.106 Empowering the Privacy Commissioner to establish expert panels provides a valuable tool to deal with difficult and emerging areas of privacy regulation. While the ALRC recognises that the OPC already convenes expert panels without an express power, there is an advantage to setting out clearly that power in the Privacy Act. This is particularly the case as the Act already specifies the establishment and constitution of the Privacy Advisory Committee; it would be inconsistent to not also specify the Commissioner’s power to establish expert panels.

46.107 The use of expert panels could address some of the concerns raised by stakeholders about a lack of more specific expertise on the Advisory Committee. For example, as noted above, the National Association for Information Destruction submitted that the Advisory Committee could have a role in establishing a standard for secure document destruction, in which case the Association suggested the Committee should include representatives from the secure information destruction industry.^[133] In this instance, rather than mandating a permanent representative on the Advisory Committee, a better route would be to create an expert panel with representatives from the document destruction industry to provide expertise to the OPC in developing the standard.^[134]

46.108 Expert panels could also be used to assist the OPC in the development of education and guidance materials relating to new and developing technologies. The work of such panels should be informed by the work of relevant government bodies in the area of information and communications technologies. This is discussed further in Part B of the Report.