By Peter Chiltern
Federal Police broke the law by handing over a list of 238 protesters arrested at the November 1991 Aidex armaments exhibition in Canberra, says a report to federal parliament by Human Rights Commission privacy commissioner Kevin O'Connor. The report says that passing on the names violated the Privacy Act.
The Federal Police (AFP) claim the list, initially held by the Strategic Intelligence Branch, was handed over "inadvertently" by junior officers in the Fraud Squad after an official decision not to release it. The list was released twice in this way, once in late December and again in early January.
Most of the people on the list had committed no crime, as they had either been acquitted by the courts or released without charge. On December 2, around 180 protesters were acquitted, well before the initial hand-over of the list on December 20.
Besides pointing to unlawful behaviour by the police, the report questions whether DSS took sufficient care to ensure that it acted lawfully and reasonably, firstly in obtaining the list, and later in using it. DSS did not suspend its investigation of Aidex protesters on the dole and on pensions even after verbal advice on January 20 that the list had been provided improperly. The department didn't advise the AFP that it already had the list, nor did it take any action to return the list.
Commissioner O'Connor indicates that the DSS investigations may have continued even after it received written advice that the list had been improperly obtained. A letter to this effect should have been received in January, though it appears to have been lost or never to have arrived; but it was certainly delivered by February 18.
O'Connor is critical of the DSS approach, and calls for clarification of privacy guidelines for federal departments: "in cases where an agency has received information irregularly and then becomes aware of that fact, it seems to me that an obligation should exist to return the information and to cease taking action on the information".
DSS found that 51 of the 238 protesters were receiving benefits, and it decided investigation would be appropriate in 39 cases. It eventually cut off four people, of whom two were later reinstated.
O'Connor rejected attempts by both AFP and DSS to argue that the hand-over was legal under an exemption to the Privacy Act, which permits federal agencies to disclose personal information if this is considered "reasonably necessary" for protection of public interests, including public revenue. He said it was dubious that an unintentional release of information could ever be covered by this clause.
O'Connor also called for clarification of what he considered an excessively "liberal" interpretation of powers of investigation available to government departments. This seems to flow from the "relatively unlimited" powers available to the Taxation, Social Security and Customs departments.
The report says it is "particularly desirable that prudence be exercised where arrests have occurred in the context of political demonstrations. It is important, I consider, for no impression to be given that merely because a person is arrested in the context of a political demonstration that that is sufficient to justify the disclosure of personal details to other agencies of government."
The DSS investigation was sparked by a dubious report in the November 30 Sydney Telegraph Mirror, which described 24-year-old graphic artist Tony Selke as a "full-time protester who lives on the dole". No such name was on the list supplied to DSS. The cost of the DSS investigation, and subsequently O'Connor's investigation and 50-odd page report, has clearly been a great deal more than any saving from knocking two people off the dole!