Information Commissioner finds that she has no jurisdiction regarding complaints of interference with privacy against Tim Wilson and ‘stoptheretirementtax.com’ website
April 10, 2019 |
The Information Commissioner announced, on 8 April 2019, that she does not the power to investigate a complaint about a breach of the Privacy Act by Tim Wilson or Wilson Asset Management (International) Pty Ltd in relation to the collection and use of personal information through the ‘stoptheretirementtax.com’ website.’ The website and the collection of data caused some controversy. In Tim Wilson’s ‘retirement tax’ website doesn’t have a privacy policy. So how is he using the data? Andre Oboler in a traditional academic “on – the – one – hand – and – on – the – other” analysis raised the complications of determining whether a Parliamentarian operating a web site falls within the political exemption provisions of the Privacy Act of is covered by parliamentary privilege, by virtue of his work as a chair of the standing committee on Economics, either of which would deny the Commissioner jurisdiction. The other coverage, such as Liberal MP Tim Wilson faces ‘breach of privacy’ claims and Labor pushes to refer Tim Wilson to privileges committee is more red blooded political reporting.
Mr Oboler was prescient in highlighting the issues that the Commissioner had to consider. He was also able to show the errors made by the web site in the handling of data.
The Commissioner’s announcement is as follows:
On 13 February 2019 the OAIC commenced preliminary inquiries in relation to the actions of Mr Tim Wilson MP and Wilson Asset Management (International) Pty Ltd, in respect of alleged interferences with privacy related to the handling of personal information collected through the ‘stoptheretirementtax.com’ website.
The Privacy Act 1988 (Cth) (the Privacy Act) confers a range of regulatory powers on the Australian Information Commissioner and Privacy Commissioner, including the power to investigate an act or practice that may be an interference with the privacy of an individual.
The Office of the Australian Information Commissioner (OAIC) made preliminary inquiries to establish whether it had jurisdiction under the Privacy Act to investigate the actions of Mr Wilson.
On the basis of the OAIC’s preliminary inquiries, the Commissioner has formed the view that there is no jurisdiction to investigate Mr Wilson’s actions. This is because the information before the Commissioner indicates that Mr Wilson was acting as a Member of Parliament in the operation of the website. Registered political parties, and acts or practices by a political representative for any purpose in connection with the participation by the political representative in an aspect of the political process, are exempt from the Privacy Act.
Even if Mr Wilson was acting in his capacity as Chair of a Committee, the Commissioner considers that the appointment as a chair of a parliamentary committee is unlikely to come within the definition of ‘agency’ for the purposes of the Privacy Act. The reference to an appointment made by the Governor-General, or by a Minister, in the definition of an agency in s 6(1) of the Privacy Act means it is more likely a reference to executive appointments, rather than non-executive appointments in relation to the membership of a Committee.
In any case, the transacting of the business of a House or a committee constitutes proceedings in Parliament for the purpose of the Parliamentary Privileges Act 1987 (Cth) and is accordingly subject to parliamentary immunity. The Privacy Act is unenforceable in circumstances where parliamentary immunity applies.
The OAIC’s inquiries regarding Wilson Asset Management (International) Pty Ltd are continuing and accordingly the OAIC will not make any further comment at this time.
The political exemption provision highlights the weakness in the Privacy Act. the collection, analysis and use of personal information is critically important to political parties, politicians and those employed by them. In the digital age the phrase information is power has much greater force. The Cambridge Analytica scandal and Facebook highlights the steps some players will go to collect data, sometimes by any means necessary.
