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Chapter 5: Options for Reform
Law Commission Issues Paper
public safety concerns, such as recall of dangerously faulty goods).
the legislation should spell out when and how this residual discretion
may be exercised.184
253
One of the advantages of requiring statements setting out the purpose of the
register, particularly when a register is first being established, is that they assist
in focusing the collecting agency on what information is actually required to be
collected and held on the register. Identification of the purpose of the register
also guides compliance with IPPs 2, 3, 9, 10 and 11, which refer to the purposes
for which information was obtained and/or collected.
254
If purpose statements are prepared by Parliament, this approach allows a full
debate at the time legislation is being designed or amended about the purpose for
which the register is established, the need for public access to it, and various
legitimate uses of a register that are in the public interest. Privacy and other
interests in favour of withholding information can be identified and weighed
against competing public interests in favour of access. this is important for
democratic decision-making, especially where change is likely to be controversial,
as the recent heated discussions about the births Deaths Marriages and
Relationships Registration Amendment
255
An alternative to setting out the purposes of the register and the purposes of search
in each statute would be to allow each agency to set the purpose of the public
register it maintains, and to make such purposes an administrative rather than a
statutory requirement. However, in our view it is preferable that this exercise is
done at a Parliamentary level. Making purpose statements an administrative
requirement to be carried out by the agency concerned limits the opportunity for
consultation and debate about key issues. It also means that the right of search
may not be clearly specified in the establishing statute. Setting out the purposes of
access in the legislation is also consistent with the interests of transparency.
256
Another significant advantage of the approach preferred by the Privacy
commissioner is that limited discretion is given to the register holder: the
legislation itself determines access except in a minority of cases. t
his increases
the efficiency of handling of requests, and improves certainty f
257
However, purpose provisions may not be easy to articulate in relation to some
public registers, or may be unnecessary in others, resulting in redundancy in the
establishing legislation. Where purpose statements are too narrow, they may
unduly restrict access to the register. Where they are too general, or are circular
in nature, they provide little or nothing in the way of guidance, or a workable
control mechanism. For example, section 22 of the charities Act 2005 states that
the purpose of the register is:
(a) to enable a member of the public to (i) determine whether an entity is registered
as a charitable entity under this Act; and (ii) obtain information concerning the
nature, activities, and purposes of charitable entities; and know how to contact
a charitable entity; and
(b) to assist any person (i) in the exercise of the personfs powers under this Act or
184 Ibid, para 3.4.