Department

1 November 2023
Read the keynote address prepared for delivery by Australian Information Commissioner and Privacy Commissioner Angelene Falk for the Australian Government Solicitor FOI and Privacy Law Conference on 31 October 2023.
Prepared speech – check against delivery

Acknowledgement of Country

• I acknowledge and respect their continuing culture and the contribution they make to the life of this city and this region.
• I also acknowledge and welcome other Aboriginal and Torres Strait Islander people attending today.

Fundamental human rights

• Both are fundamental human rights.
• Privacy is recognised in Article 12 of the UN Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and in many other regional and international agreements.
• So, access to information is also a fundamental principle that enables us to exercise other rights.
• Both rights are also challenged by the digital environment, and today I will share how we can stand up to this challenge.

Privacy’s wake-up moment

• First, I would like to turn to privacy, as it has been a wake-up year for the protection of personal information.
• The data breaches turned attention to the mass amounts of data that organisations can collect and store, and the risks this creates.
• We see the increased community’s awareness and experience of privacy issues reflected in the matters to my office.

Community attitudes

• And we know the community cares about their privacy as they told us in our Australian Community Attitudes to Privacy Survey (ACAPS).
• ACAPS is a survey we conduct every three years to gain a comprehensive view of Australians’ privacy attitudes and experiences and how recent events have impacted them.
• - Nine in 10 Australians told us they have a clear understanding of why they should protect their personal information.
• - 62% see the protection of their personal information as a major concern in their life.

AI

• The increasing adoption of AI – including generative AI – could have broad-ranging benefits and risks for Australia’s economy and society.
• The Australian Government identified AI as a critical technology in the national interest and has several initiatives underway to promote trusted, secure and responsible AI.

Privacy law reform

• Last month, the Australian Government responded to the Attorney-General’s Department’s proposals for reform to the Privacy Act.
• Other important developments include enabling individuals to exercise new privacy rights, including an enhanced right to access their personal information and a right of erasure, and take direct action in the courts if their privacy is breached.
• There are also changes proposed to ensure privacy policies and collection notices are clear and easy to understand, including the development of standardised templates.
• And the government has agreed in principle that organisations should be required to establish maximum and minimum retention periods for personal information, and specify these in their privacy policies.
• This will increase the OAIC’s ability to take regulatory action on behalf of the Australian people in a flexible and proportionate way, and to address systemic privacy issues.

Evolution, not a revolution

• It is a time of change, but I want to emphasise that what has been proposed is an evolution, not a revolution.
• Because these obligations have existed for government agencies since 2018, we expect most are already at best practice status.

Privacy: how to, not don’t do

• But one of the key messages that I hope you will leave with today is that privacy shouldn’t be viewed as a compliance exercise.
• Protecting privacy is about treating an individual’s personal information with respect and care, and remembering you are only its custodian.

Access to information

• Timely access to information promotes public scrutiny of government policy, participation in democratic processes, and allows individuals and governments to make informed decisions.
• The FOI Act also seeks to facilitate:
  - providing access to information in effective and efficient ways
  - that government-held information is used for the public’s benefit, as it can inform evidence-based policy making and support innovation.

From compliance to proactive release

• We advocate for administrative access schemes that provide individuals with fast access to their personal information, without having to make a formal FOI request.
• A quarter (25%) of FOI requests were granted in full, 52% were granted in part, and 23% were refused.
• Australians had the most success accessing their personal information and policy and procedural documents held by Australian Government agencies.

Open by design

• It requires agencies and ministers’ offices to be open by design, or move more to a ‘push’ model where information is proactively provided.
• The OAIC and our state and territory counterparts established the open by design principles in 2021 to encourage the proactive release of information and promote open government.
• - Implement a best practice open by design approach to proactive disclosure.
• I would also encourage those involved in the IPS review to use it as an opportunity to look more closely at proactive release in your agency and how it could be improved to foster an open by design culture.

Digital inclusion

• But in our increasingly digital world, it is imperative that we make government information easily accessible – by all Australians.
• And in thinking about making information available, and accessible, we must also consider what barriers people may face to digital access and inclusion, and factor these into the work we do at all times.
• In this digital age, we must ensure that access to government information is not only upheld, but continually improved.
• The premise of digital inclusion is that everyone should be able to make full use of digital technologies and the benefits they bring, while avoiding their potential negative consequences.

Conclusion

• Fifty years ago, on New Year’s Day in 1974, Wiradjuri woman Evonne Goolagong delighted spectators at Melbourne’s Kooyong Tennis Club by defeating American Chris Evert to win the women’s singles Australian Open championship.
• The overflow crowd of 12,000 people leapt to their feet for a tremendously long and emotional ovation.
• The Sydney Morning Herald reminded readers that no Aboriginal person had ever won an Australian tennis title.

From stamps to theatre productions

• Yorta Yorta/Gunaikurnai playwright Andrea James brought Goolagong Cawley’s life story to the stage several years ago and Australia Post has honoured her twice with her own stamps.
• She has been inducted into the Sport Australia Hall of Fame, the International Tennis Hall of Fame and the Australian Tennis Hall of Fame.
• Read more:
  Sydney Festival review: Sunshine Super Girl is destined to become a legacy piece of Australian theatre

Contending with racism

Evonne Goolagong was born in 1951, which was a fraught period for First Nations people in this country. On the day she was born (July 31), a quick glance of the national media reflects the widespread racism, discrimination, ignorance and suspicion that many Aboriginal and Torres Strait Islander people faced. There were stories about:
protests in a NSW town over the decision to give “liquor freedom” to Aboriginal people
misgivings about the ability of Aboriginal people to accept Christianity
assertions that Aboriginal people didn’t actually live in North Queensland
a requirement for half-caste (sic) people in the Northern Territory to carry certificates of exemption
and an actress’s black-face make-up tips.

• In an interview in 2015, she recalled her mother being worried the “welfare man” might steal her children.
• In a biography in 1993, she also said her father feared that “whatever he tried to accomplish, the white man would take away”.
• First Nations people had been granted the right to vote in all states and territories, though full equality wasn’t reached until enrolment was compulsory in 1984.
• But what it can tell us about 2023 is complicated

  Yet, terrible racism remained.

Gary Osmond does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

• That might be a traditional beach read – typically a genre paperback with a propulsive plot – or an opportunity to catch up on the classics you never got around to during the year.
• We asked six experts in reading and writing to share what they plan to read on the beach.

Love and Other Scores by Abra Pressler (and other Australian romantic comedies)

• The book I’ll be taking to the beach this summer, just in time for the tennis, is one of Pan Macmillan’s latest offerings: Love and Other Scores by Abra Pressler.
• • Harper Collins published Steph Vizard’s The Love Contract (what if pretending to date your neighbour was the solution to your childcare problems?).
• • Simon & Schuster published Amy Hutton’s Sit, Stay, Love (the ultimate rom-com for dog people), my own Can I Steal You For A Second?

Three Assassins by Kotaro Isaka

• With winter receding (David Copperfield, followed by Demon Copperhead), I am looking to what kinds of books might fill my summer, so I’m reading a new-to-me crime/thriller writer, Kotaro Isaka.
• The novel follows three men who’ve made careers out of hiring themselves as assassins.
• And best of all, there is a new Kotaro Isaka novel, Mantis, published this month – just in time for the height of summer, under a shady tree by the sea.

War and Peace by Leo Tolstoy and The Flying Doctor’s Christmas Wish by Kathleen Ryder

• Middlemarch and Moby Dick, and this year will be War and Peace.
• On a recent trip to central Australia, I met romance fiction author Kathleen Ryder.
• Her books include Christmas-themed novellas set in Alice Springs, and my pick for this summer is The Flying Doctor’s Christmas Wish.

Skeletons in the Closet by Jean-Patrick Manchette

• The much-anticipated English translation of the only untranslated novel by the reinventor of dark and darkly witty crime novels, Jean-Patrick Manchette, is the book I most hope to read this summer.
• Skeletons in the Closet features the hermetic, alcoholic Parisian private eye Eugène Trapon, the only fictional creation of Manchette’s to appear in more than one novel.
• Trapon is obviously an heir to Dashiell Hammett’s Sam Spade, but Manchette’s novels are only superficially hard-boiled.

Daisy and Woolf by Michelle Cahill and Between You and Me by Joanna Horton

• Some books can’t be digested at once, so this summer I will be returning to Daisy and Woolf by Goan-Anglo-Indian poet and author, Michelle Cahill.
• Also on my list is Between You and Me by Brisbane author, Joanna Horton.

The science fiction of Samuel R. Delany and Babel, or the Necessity of Violence by R.F. Kuang

• This summer, I’m aiming to dive deeper into the works of Samuel R. Delany, who was memorably profiled in the New Yorker earlier this year.
• Delany is most commonly associated with the New Wave science fiction movement of the 60s and 70s, but his writing spans a fascinating range of genres and subjects.
• I’ve also wanted to read Babel, or the Necessity of Violence by R.F.

• Beth Driscoll receives funding from ARC Linkage Project grant LP210300666 Community Publishing in Regional Australia Liz Evans' debut novel will be published by Ultimo Press in 2024.
• Michelle Cahill is the current Hedberg Writer-in-Residence at the University of Tasmania.

• The Court of Appeal has ruled against the Information Commissioner’s Office (ICO) in a Freedom of Information Act 2000 appeal regarding the ability to aggregate public interest factors for and against disclosure when applying exemptions under the Act.
• The Department for Business and Trade appealed the Upper Tribunal’s judgment that the public interest exemption cannot be combined when more than one exemption applies to the same information.
• Upholding the appeal, the Court of Appeal concluded that section 2(2)(b) of FOIA does permit the public interest to be aggregated when deciding whether the public interest in maintaining the exemption of information from disclosure, outweighs the public interest in its disclosure.
• Update: 19 December 2023
  The ICO has today sought permission to appeal the Court of Appeal ruling to support information rights and access to information for individuals.