Galexia

ACCAN Informed Consent Project (21 August 2009)

2.4. Privacy Act 1988 (Cth)

The Privacy Act 1988[7] defines consent in section 6:

‘consent means express consent or implied consent’.

This very brief definition is fortunately supplemented by interpretation guidelines issued by the Office of the Privacy Commissioner.[8] These guidelines contain several key additional recommendations:

Informed consent
If an agency wants to use [relevant consent exceptions to privacy principles] they must be able to show that the person the information is about:
  • is accurately informed of what they are consenting to, or
  • can reasonably be assumed to understand what they are consenting to, at the time they consent.
This may require the agency to take special measures, for example, when seeking consent from a person who has difficulty with English.
Free consent
If an agency wants to use [relevant consent exceptions to privacy principles] then the person the information is about must freely consent to the use or disclosure.
A ‘consent’ from a person who has or reasonably believes they have no real choice but to consent, is not adequate. If, for example, the person the information is about knows or believes that serious adverse consequences will follow if they refuse to consent, any consent they give is not freely given. An agency should not suggest that it is obtaining consent if the person the information is about has no practical alternative but to consent.

[7] Privacy Act 1988 (Cth), <http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401860>.

[8] Office of the Privacy Commissioner, Plain English guidelines to Information Privacy Principles 8 – 11: Advice to agencies about using and disclosing personal information, OPC, Sydney, November 1996,
<http://www.privacy.gov.au/publications/ipp8_11.pdf>.