The Privacy Act 1988, is an act that aims to protect the privacy of individuals. However, the protection of individuals privacy is balanced against the interests of entities carrying out their functions or activities. As a result, the Act explains the way that personal information should be handled, this way protecting individual privacy. Personal information is defined under the Act as being information or an opinion about an individual who is reasonably identifiable. Under the Act, all entities have the responsibility to handle your information in a safe manner that would not jeopardize your privacy.
The Privacy Act also includes thirteen Australian Privacy Principles (APPs), which are a legislative instrument under the Act, and apply to all Government agencies and some private sector organisations, detailing how all personal information should be collected and handled. Individuals are given extra privacy protection when it comes to ‘sensitive information’, which includes information about; health, racial or ethnic origin, religious beliefs, criminal record and the like. Sensitive information is allowed to be collected under the Act under two circumstances; firstly, where it is authorised under law, and secondly, where it is reasonably necessary for, or directly related to, one or more of the departments functions or activities. Sensitive information is the kind of information that is collected by the Department of Immigration and Border Protection for the processing of visa applications.
The question of whether or not the Department is permitted to collect your personal information comes down to consent. Under the Australian Privacy Principles there are two main requirements that have to be determined before personal information is permitted to be collected; firstly the individual must consent to the information being collected, and secondly, if the entity is an agency, the information has to be reasonably necessary, or directly related to, one or more of the Departments functions or activities.
The four key elements to consent are:
- The individual is adequately informed before giving consent
- The individual gives consent voluntarily
- The consent is current and specific
- The individual has the capacity to understand and communicate their consent
One of the key aspects of consent, as listed above, is that it is supposed to be given voluntarily. Under the APP guidelines, consent is held to be voluntarily given if an individual has a genuine opportunity to provide or withhold consent. Consent is not considered voluntary where there is duress, coercion or pressure that could overpower a person’s will. Relevant factors to decide whether the consent is given voluntary include:
- the alternatives open to the individual, if they choose not to consent
- the seriousness of any consequences if an individual refuses to consent
- any adverse consequences for family members or associates of the individual if the individual refuses to consent.
Due to the above consent requirements, an individual does have the ability to refuse to consent to the Department accessing their information. In some online visa application forms, applicants are informed that selecting ‘no’ to one or more of the questions in the Declarations section will result in a delay in the processing of an application. In this kind of situation, an argument about involuntary consent may be able to be made in serious circumstances, for example if there was a severe deadline on a protection visa and this delay would have a detrimental impact on the granting of the visa. This can be classified as pressure that is affecting the consent that has been given by the applicant. However, in other applications, no such warning appears, meaning that in these circumstances an applicant is free from detrimental consequences, when they select ‘no’. Therefore, in those circumstances there is a viable alternative available to visa applicants, meaning that do not have to feel pressured into granting the Department access to their personal information.
Necessary to Department’s Function
The second limb of the test to determine whether the department is authorised to collect personal information can be summarised as to whether or not the information is reasonably necessary for the Department to be able to carry out one or more of theiractivities. The Department is responsible for the migration programme, the humanitarian programme, Australian citizenship, trade and customs, offshore maritime security and revenue collection. Under the Act, when the department is conducting one of their functions as defined in relation to conducting these programmes, they are authorised, with your consent, to have access to your personal information. Whilst the department may need to be able to access your personal information in order to better protect Australia’s borders, it is a two part test that details whether the department is authorised to access personal information, and as previously discussed, individuals have the choice as to whether or not they consent to the Department having access to this information. Due to the nature of the two part test, even if the information would be necessary for their departmental functions, they would have to expressly ask for your consent in order to obtain this information.
However, under the APP there are exceptions to this requirement to consent. In other words, certain situations exist that enable the Department to access your personal information, regardless as to if consent has been given. The five exceptions to the consent requirement are:
- Collecting sensitive information as required or authorised by law
- Collecting sensitive information where a permitted general situation exists
- Collecting sensitive information where a permitted health situation exists
- Collecting sensitive information for an enforcement related activity
- Collection of sensitive information for a non-profit organisation
The exceptions that would be most relevant to Departments functions include numbers (1) and (4).
In Form 1442i, the Department claims that they are authorised by law to request any information that is relevant to the application, including personal identifiers, pursuant to theMigration Act 1958.s 56 of the Act, authorises the Minister to obtain any information that they consider to be relevant to the visa application, however does not go into specifics of what is meant by the term ‘information’. This is of particular importance, as ‘sensitive information’ is supposed to be given extra protection, according to the APP. Furthermore, ss 40 and 46 allow the department to collect personal identifiers, which include your signature, a photograph and fingerprints. All of this information has the capacity to be collected without your consent as it has been authorised by law. However, people can be exempt from giving out this information due to Ministerial discretion. As can be seen, the Minister, under the Act, is given a broad range of powers that give the Department access to your information without express consent.
The second way in which the Minister can override the consent requirement, is if they reasonably believe that the information is connected to an enforcement related activity. Enforcement related activities are defined under the Privacy Act, but the one that would be most relevant to activities conducted by the Department is::
(b) the conduct of surveillance activities, intelligence gathering activities or monitoring activities;
Under this subsection, if the Department has reason to believe that you are not complying with your visa conditions or have provided incorrect information to the Department, they can have access to more of your personal information, as one of their enforcement related activities involves conducting surveillance and intelligence gathering, in order to better protect Australia’s borders and manage who is entering the country. This is also authorised under law and acts as way for the Department to not require your express voluntary consent. Essentially, what this means is that even if an individual chooses not to give their express consent to the Department to collect an individual’s personal information, pursuant to their rights under the Privacy Act,this same Act, contains certain exceptions which can override the necessity for an individual to give their express consent.
So what does it all mean?
It means that visa applicants are free to deny the Department access to their personal information. Whilst in some online applications, a warning appears when an individual selects ‘no’ to a question, advising them that this response may result in a delay in the visa processing time, however this is not always the case. In the cases where this warning does appear, it may influence whether the consent is able to be given voluntarily as applicants may fear the time consequences of their refusal to grant consent. However, as this warning does not always appear, meaning that these individuals are free to select ‘no’, free from the fear of any detrimental consequences this may cause their application. Nonetheless, there are certain situations which grant the Department access to your information without your consent, but only when it is authorised by law or when the Department is performing one of their enforcement related activities.
Australian Immigration Law Services