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Friday, October 2, 2009

Privacy, schmivacy

Here in Australia, we have a wonderful little thing called the Privacy Act, 1988. The Act contains ten core principles for the protection of personal information with the remainder of the Act largely devoted to administering the Act's protections. More recently, the jurisdiction of the Act was extended to cover both the public and private sectors. The application of the Act is overseen by the Office of the Privacy Commissioner.

There is only one problem with this setup – it's a load of bollocks.

A reality check – it is entirely feasible and possible for a large employer to entirely disregard the Act, lie to the staff of the OPC and essentially do whatever they want. The final finding in a recent formal complaint 'investigated' by the OPC has actually firmly established a precedent which indirectly gives employers a green light to behave in just a fashion.

All the large employer has to do has fail to keep any records. The OPC will not express the slightest concern about engaging of external consultants on the strength of a verbal contract and zero records kept about any briefing of the consultant or even what personal records are made available to them. The OPC takes a position that whatever said employer tells them will be considered to be the truth by default. Consequently, said employer can tell the OPC the biggest load of codswallop it feels like, secure in the knowledge that the OPC will consider it to be truth. A complainant on the other hand, is required to furnish evidence. On the surface that may seem fair enough, but if the employer has not kept records, then it is going to be dashed difficult to furnish any evidence to contract the employer. And the complainant's word is simply not good enough.

Now for where things get really ridiculous. The Act expressly puts a duty on the employer to ensure that its relevant records are complete and accurate. If this material is considered to be public sector Official Records, then these duties and obligations are supposedly even stronger. However when push comes to shove, nobody gives a flying fruit bat's fundamental if the employer has not made any attempt to keep any records of how it has used the employee's information.

Where things become rather alarming is when you learn that even if the complainant furnishes hard evidence that the employer has been dishonest in its dealings with the OPC, the Commissioner's staff will fail to even respond to those matters. For example, my former employer claimed in writing to the OPC that it had held express permission from me for the engagement of a external consultant to review certain matters. In point of fact, no such express permission was ever held. I denied ever providing any such express permission and challenged the employer via the OPC to produce it. No such evidence was ever provided. The employer then claimed in writing that I had threatened to commit self-harm if the employer did not undertake the external review of these matters. Yet another bald-faced lie. Another denial of ever making such a threat was similarly ignored. And another outrageous claim accepted by officialdom without the slightest evidence to prove it.

My former employer repeatedly attempted to mislead the OPC by a combination of exaggeration, misleading material and outright lies. And the OPC accepted every bit of it despite the employer being unable to produce one single piece of evidence supporting those claims. In contrast, I not only provided a degree of evidence disproving certain claims, I further provided a body of evidence which suggests that on the balance of probabilities, that employer word wasn't worth a flatulant goat's rectal emanations. But my case was doomed from the outset simply because the OPC values the employer over the complainant, to the point of having not a single concern about the employer's record keeping practices not even meeting the required standards of the Act and other legislation and regulation. There wasn't even any concern about the party responding on behalf of the employer having a significant conflict of interest in the matter. Nor any concern about the workplace Privacy Officer failing to investigate thoroughly.

The harsh reality is that the entire foundation on which the operations of the Privacy Act, 1988 rests, is utter bollocks.

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