Lawyers & bureaucrats


In all the concern about the Howard Government’s impending blitz on workers’ entitlements, one area that hasn’t had the same level of coverage is the protection of workers’ rights to privacy.

In April 2005, the Senate’s Legal and Constitutional Committee held public hearings into the operation of the Privacy Act. (The Committee’s Report was published on 23 June and is accessible here)

A week or so before the April hearings, I took a look at the Act – which was passed by Federal Parliament back in 1988, when ‘Big Brother’ was just an Orwellian concept rather than a piece of reality TV.

I didn’t read the whole Act, and I doubt that many have. Even the Federal Members of Parliament who added their ‘aye’ to the vote. Orwell would have been convinced that his worst fears had been realised. I’m still reeling from the exercise, although I have the dubious advantage of being a lawyer, accustomed to the arcane language of statutes.

How can it take 238 pages, 101 sections and another two Schedules stretching for more than 10 pages to protect people’s privacy? Who has time to wade through this prime example of the waste of trees?

Thanks to Scratch

Thanks to Scratch

But it’s not just the length of the Act that confounds the spirit. It’s what the Act does and doesn’t cover, and the time it takes to find out.

I wanted to know how the personal privacy of workers is protected against invasion by employers. How can employees rectify errors or even access their files to satisfy themselves about the content? Or, what protects job applicants from having to complete application forms that invade their privacy by asking for their age, place of birth, race, religion and marital status? Or, application forms that ask whether they’ve ever made a workers compensation claim a question many job applicants see as a way of cutting them out of any shortlist despite a full recovery, when honesty requires that they answer ‘yes’ rather than ‘no’ or simply leave a blank space.

At page 11 of the Act, the full wording of the ’employee record’ is given as: ‘Employee record, in relation to an employee, means a record of personal information relating to the employment of the employee.’

Why can’t it just say: ’employee record is a record of personal information held by an employer’? Sure, lawyers could argue about this, but lawyers can argue about anything and the shorter wording is hardly more likely to generate legal argument than the version in the Act. Is an employee record likely to be anything other than a record ‘in relation to an employee’? Do we need to wade through this surplus-age? It’s only five words, yes, but if they’re not necessary, why put them in?

Further on, examples of ‘personal information’ are defined as ‘health information about the employee and personal information about all or any of’ a list from (a) to (k), including 27 items, such as ‘the engagement, training, disciplining or resignation of the employee’, ‘the termination of the employment of the employee’, ‘the terms and conditions of employment of the employee’, and so on.

Yet as we’ve already been told that the employee record is ‘in relation to an employee’ and ‘relates to the employment of the employee’, could the ’employee record’ be about anything or anyone other than the employee? And why distinguish between ‘health information’ and ‘personal information’. Particularly since we’ve already been told that an employee record is a ‘record of personal information’. Is health information anything other than personal information?

There’s no definition of ’employer’ so is it safe to assume that all employers are covered by the Act? Well, no. Eleven pages on, in an entirely different section, there’s a heading ‘organisations’, telling the reader that bodies corporate, partnerships, unincorporated associations, individuals and trusts are ‘in’, but ‘a small business operator’ is out. Then we’ve got to move on four more pages to find out what a small business operator is. But there’s reference not only to ‘small business operators’, but to ‘small business’ as well. The definition of each goes on for some five pages.

Then comes the crunch. Twenty-five pages after locating the definition of ’employee record’, under a heading that hardly catches the eye, we are told that any act or practice directly related to ‘a current or former employment relationship between the employer and the individual’, and ‘an employee record held by the organisation and relating to the individual’ is exempt from the entire Act!

The Privacy Commissioner’s website announces that the government exempted employee records, so that the Workplace Relations Act could do the job. But does it? Well, no, it doesn’t.

But then, that’s another story in this sad, legislative tale.

Riddle: When is a statute otiose or inscrutable?
Answer: When even lawyers are lost in the verbiage.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.