Why has the Commissioner adopted this policy?
The policy aims to show Ministers and agencies how the Commissioner would view the operation of the Privacy Act in particular circumstances. The policy also aims to show how the Commissioner would be likely to approach a matter if it were raised in proceedings.
Does an advisory opinion provide the ‘final word’ on a point of legal interpretation under the Act?
No. The advisory opinion will indicate to agencies how the Commissioner would view the operation of the Act in particular circumstances, but the‘final word on cases is the job of the Human Rights Review Tribunal and higher courts.
What matters will be considered when determining whether to accept the request?
Requests will be considered on public interest considerations, such as whether the matters raised are systemic, the extent to which the opinion will help clarify the law and the Privacy Commissioner’s resources.
Requests also must also meet certain policy requirements.
Why do agencies have to seek legal advice first?
The advisory opinion process is not a substitute for agencies taking their own legal advice. The purposes of the advisory opinion are to address matters of wider public interest and importance, including where an agency has obtained conflicting advice.
Why will the requester usually be identified in the opinion and associated statements?
When issuing an advisory opinion, the Commissioner is acting in the wider public interest and not as a personal legal adviser to the agency. Identifying the agencies and publishing the opinions maintains a level of transparency in the advisory opinion process.