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Privacy rights of Christmas Island deportees Charles Mabbett
19 January 2016

Christmas island

The ongoing issue of New Zealand citizens with criminal records being deported from Australia has prompted questions as to what their privacy rights are under Australian law and whether they can access those rights from New Zealand.

After consulting with our counterparts over the Tasman, we can advise that Australia’s Privacy Act gives those awaiting deportation, as well as those have already been deported, the same rights as Australian citizens to access personal information.

Right to complain to Australian Information Commissioner

The individuals concerned generally fall into three categories - those who are proceeding through Australia’s justice system, those who are exercising appeals while being detained on Christmas Island, and those who have already been taken to New Zealand but are intent on exercising their right of appeal in Australia.

In all three cases, including those who have voluntarily returned to New Zealand, individuals can make a complaint to the Office of the Australian Information Commissioner (OAIC), if they believe their rights over personal information held by Australian agencies have been infringed.

This includes their right to access or seek correction to personal information held by an Australian government agency (such as the Australian Department of Immigration and Border Protection). Service providers contracted to run immigration detention facilities are also required to comply with Australia’s Privacy Act.

Freedom of information

Similarly, under Australia’s Freedom of Information Act (FOI), any person has the right to apply for access to a document held by an Australian government agency or an official document of an Australian government minister.

An applicant does not have to reside in Australia or be an Australian citizen to be able to exercise that FOI Act right, and the three categories of New Zealand citizens mentioned above have the right to apply for access to government documents.

While an agency or minister is generally required to release the requested document in response to an application, they may be permitted to withhold a document or part of it under one of the exemptions in the FOI Act, depending on the circumstances.

As with the FOI Act, Australia’s Privacy Act gives the Commissioner a range of regulatory powers to ensure that agencies comply with the requirements of the law. The OAIC has guidelines for agencies which make it clear that any procedures for individuals accessing personal information under the Privacy Act should be flexible, and they should facilitate rather than hinder access.

This is particularly relevant to individuals held in offshore immigration detention centres, such as Christmas Island, where there are likely to be practical communications obstacles for individuals to exercise their rights.

In resolving a complaint, the OAIC has a duty to try to overcome any practical difficulties that might impact upon the complainant’s ability to engage with it.

Request for removal

A complicating aspect has been media reports that New Zealanders in Australian detention centres were being asked to sign ‘Request for removal from Australia’ forms that waived their guaranteed right to an appeal if they agreed to return to New Zealand voluntarily. Since then, after a request from the New Zealand Minister of Justice, Amy Adams, Australia's Immigration Minister has ordered changes to the form to make it clear that New Zealand detainees who chose to leave Australia would retain the right to appeal the decision to deport them.

The right of New Zealand deportees to seek information about themselves is part of the right to seek an appeal. If it receives a complaint, the OAIC would undertake a process similar to the one we have to resolve in resolving privacy complaints. For more information about how to make a complaint to the OAIC, visit its website.

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