70.1 This chapter considers existing laws and practices applying to third parties that assist an individual to make decisions under the Privacy Act 1988 (Cth), or make decisions on behalf of the individual. Individuals may require assistance from a third party because of a failing or fluctuating capacity to make decisions, possibly because of a disability, injury, illness or cognitive impairment. Third parties may also be required to facilitate communication for non-English speakers or persons with a communicative disability. Alternatively, allowing third parties to act on behalf of the individual may be a matter of convenience for the individual. The third parties involved may be carers, spouses, parents, adult children, interpreters, counsellors, legal representatives or any other person chosen by the individual. The arrangements may be temporary, one-off, short-term arrangements, or permanent.

70.2 Two decision-making situations are considered in this chapter: where the individual has limited or no capacity to make decisions, and a third party is required to represent the individual; and where the individual provides consent for a third party to assist, or make the decision for, the individual.

70.3 Stakeholders highlighted numerous problems for individuals and their third party representatives in gaining access to benefits and services due to perceived or real conflicts with the Privacy Act. The ALRC has considered how the Privacy Act can be amended to give better recognition to third party representatives and facilitate improved interactions without leaving individuals at risk of abuse.

70.4 There does not appear to be any need to amend the Privacy Act to deal with issues concerning assessment of capacity, application of a presumption of capacity, or to ensure recognition of third parties who are authorised as substitute decision makers by another federal, state or territory law. The ALRC recognises that dealings with individuals under the Privacy Act are often only a part of the overall relationship between the individual and the agency or organisation, and should not be considered in isolation. Any attempt by the Privacy Act to impose specific provisions relating to capacity would add greater complexity to the already complicated operation of the often inconsistent state and territory guardianship and administration laws. In addition, the power for a third party authorised by another federal, state or territory law to act in place of the individual for the purposes of the Privacy Act is given by the relevant appointment or legislation.

70.5 The ALRC acknowledges, however, that problems can arise in practice when agencies and organisations subject to the Privacy Act deal with issues of capacity and the recognition of substitute decision makers authorised by another federal, state or territory law. The ALRC recommends that the Office of the Privacy Commissioner (OPC) should develop and publish guidance to assist agencies and organisations to understand the application to the Privacy Act of relevant guardianship and administration and power of attorney legislation. The ALRC also recommends that agencies and organisations, that regularly handle personal information about adults with an incapacity, ensure that relevant staff receive training on issues concerning capacity, and in recognising and verifying the authority of third party representatives.

70.6 The ALRC does not recommend that the Privacy Act give specific authority to informal representatives—such as carers and family members who are not otherwise authorised by another law to act as a substitute decision maker—to make decisions automatically on behalf of an individual with an incapacity. Such authority is provided for in Australian guardianship and administration regimes in limited circumstances, involving routine medical treatment. Providing such authority in the Privacy Act would expose individuals to an unacceptable risk of invasion of their privacy.

70.7 It is consistent with the operation of the Privacy Act, however,to give recognition to third parties acting with the consent of the individual. The ALRC recommends that the Privacy Act should be amended to give greater certainty to arrangements that allow a third party nominated by the individual to act on his or her behalf. A nominee would act as a substitute decision maker for the individual, and an agency or organisation could deal with the nominee as if he or she were the individual for the purposes of the Privacy Act.

70.8 Key elements of the nominee arrangement should be incorporated into the Privacy Act. These arrangements should allow sufficient flexibility for each agency and organisation to develop administrative arrangements that are suitable for the context in which it operates. The ALRC recommends that the OPC develop and publish guidance on establishing and administering nominee arrangements. The ALRC also recommends that the OPC guidance cover other consensual third party arrangements that assist the individual to make and communicate privacy decisions, including the use of interpreters, counsellors, and legal representatives.