Privacy

  • Consider privacy issues early in the policy process to avoid and mitigate unintended potentially adverse impacts on privacy and to ensure appropriate safeguards are in place.
  • When vetting legislation or a policy or program involving powers of investigating officers, you will need to consider whether a particular power breaches s. 13. You need to ensure both that the authorising power is reasonable and that the power is exercised in a manner that is reasonable.
  • When preparing legislative proposals that would require or authorise acts and practices that may be an interference with privacy or may adversely affect the privacy of an individual, consult with the Victorian Privacy Commissioner. Note that the Privacy Commissioner has a statutory function to examine and assess legislative proposals for adverse privacy impact and to advise the Attorney-General of his or her view: s. 581, Information Privacy Act (Vic.).
  • For policy proposals, consider legislative and non-legislative ways to avoid or mitigate adverse impacts upon privacy and encourage the early consideration and adoption of privacy-enhancing amendments or policy alterations.
  • In relation to information privacy:
    • understand how the Information Privacy Act (Vic.) and the Health Records Act (Vic.) interact with the existing privacy laws and the Charter;
    • utilise checklists and other guidance prepared by the Office of the Victorian Privacy Commissioner and the Office of the Health Services Commissioner to help identify privacy concerns. Information is available by contacting those offices;
    • you may wish to consult directly with one of the specialist government bodies on privacy:
    • Office of the Victorian Privacy Commissioner;
    • Office of the Health Services Commissioner (if the policy or the legislation involves issues relating to health privacy).

Family and home

  • If you are vetting legislation or a policy or program and wish to know if a certain collection of persons is a ‘family’ for the purposes of s.13, ask:
    • Are they regarded as a family under Victorian law?
    • Are they regarded as a family under international and comparative case law?
  • Where the policy or legislation involves children, ensure that it takes into account the best interests of the child as a paramount consideration.104
  • Also refer to the measures to achieve compliance on s. 17 of these Charter Guidelines (Protection of families and children).


Correspondence

  • If you are reviewing legislation or developing a new policy or program that provides for the censorship, monitoring or interception of correspondence, ensure that:
    • there is a legislative power to censor, monitor or intercept correspondence;
    • the scope of the power is limited to doing so in situations where it is necessary to do so;
    • the reasons for censoring, monitoring or intercepting correspondence in a specific case are considered; and
    • censoring, monitoring or intercepting correspondence will be effective to achieve the policy goal.
  • If you are developing a new policy or program that provides restrictions and controls on a person’s correspondence, ensure that the above considerations are taken into account.

 

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104 The ‘best interests of the child’ principle derives from Article 3 of the Convention on the Rights of the Child, to which Australia is a party: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990). See also section 17(2) regarding the right of a child to have such protection as is in his or her best interests.