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Aljunied GRC MPs Outreach...
- Thread starter sengkang
- Start date
[h=1]Speech on Data Protection Bill – MP Chen Show Mao[/h]
Mr Speaker,
The Bill before us has been a long time in coming. Back in 1990, the Law Reform Committee of the Singapore Academy of Law published a working paper entitled “Data protection in Singapore: A case for legislation.” Today we have a bill that proposes a baseline data protection framework to regulate the way organisations in Singapore collect, use, disclose and safeguard our personal data.
This Bill relates to the protection of personal data. It is developed based on principles derived from the OECD Guidelines on the protection of privacy. These principles include among others Accountability and Openness.
The data protection provisions being introduced will serve as a “baseline” law. That is, we legislate for a minimum standard of data protection that would apply across the board. There are then express provisions within the Bill for various exceptions, particularly that any other written laws shall prevail over these data protection laws, should there be any conflicting positions.
This is in part how, as the Government stated, “the general baseline law will apply concurrently with existing sectoral regulations”, such as for banking or telecommunications.
The Bill allows for various other exemptions. For example, an organization may collect, use or disclose personal data without having to comply with the data protection laws if doing so is “necessary in the national interest”. Or if the collection, use or disclosure of personal data is “necessary to respond to an emergency that threatens the life or safety of that individual or another individual”. Or if the personal data is “publicly available”. Or if the use or disclosure of personal data is “necessary for any investigation or proceedings”.
These exemptions would have been helpful in providing some flexibility to organisations, such as government agencies, when dealing with the interests of the public in specific cases. Unfortunately, this Bill will not apply to public agencies. It expressly carves out the application of personal data protection laws to public agencies that collect, use or disclose our personal data: these include government ministries, tribunals and upon notification by the Minister, statutory boards like the PA and the HDB. As an extension, the personal data protection laws will also not apply to private organisations when they act on behalf of a public agency.
Sir, this is an area in which the Bill is lacking. Like private organisations, public agencies that collect, use and disclose personal data of individuals should be required by law to comply with the minimum levels of data protection in this Bill.
A reason given by the Government is that public agencies do not need to be included, as they are already governed by their own set of rules, and that these rules provide similar levels of protection.
Sir, to the extent the government’s data protection rules are contained in our written laws such as the official secrets act, they will continue to apply even if we extend the coverage of this bill to our public agencies. This is because, as mentioned earlier, this bill is set up as a baseline law that is not intended to affect rights and obligations under existing law.
Sir, to the extent the government’s data protection rules are not contained in written laws then I do not know what they are. I do not know what these rules are, because they are not made known to the public. What I know is that if these rules are not laws then they are not subject to parliamentary scrutiny and oversight, and we do not know when (or how) they get created, amended or terminated. The people — who are directly affected by these rules — do not know what they are, much less have the chance to have their views on them heard.
Also, while individuals will be able to complain to the Data Protection Commission — the DPC — relating to suspected violations of these data protection laws, it is not clear if and how under current government data protection rules, individuals have any similar rights for complaint against public agencies relating to the wrongful collection, use or disclosure of personal information.
The government has also said that some of its rules are ‘more stringent in other areas’. That could continue to be the case even if this bill should apply to public agencies. There is nothing in these laws stopping organisations — both public and private — from having internal rules that afford even better protection for personal data should those be deemed necessary or desirable.
The concepts of accuracy, and individual access and correction, are key provisions contained in this Bill. This means that individuals have the right to request access to their personal data that an organisation holds, and also to request that individuals be provided with information about ways in which their personal data has been used, and to provide the names of parties to whom the data has been disclosed. Individuals also have a right to request that organisations correct any errors or omissions in the personal data.
It is just as important, if not more important, that these concepts of accuracy and access rights should also apply to public agencies that collect, use or disclose personal data. Public agencies during the course of their duties use personal data to make decisions, such as whether to grant somebody Workfare Income Supplement Payments, which have a direct impact on the lives of individuals, therefore it is important that individuals should be able to access their personal data on the basis of which the Government is making decisions on them, and to ask for such data to be corrected if they are inaccurate.
One reason we have been given for why the public sector needs to be excluded is that public agencies often have to share information with one another and to deal with national emergencies.
And indeed we do already have laws that allow public entities to share data. Examples include the Income Tax Act, the Medical Registration Regulations and the Immigration Act. As mentioned earlier, these would continue to apply as they are contained in existing written laws.
Also as mentioned earlier, we have broadly worded exemptions contained in the Bill relating to national interest and to emergencies, which may well be helpful to our public agencies looking to share information in a national emergency.
By ensuring that the public sector also falls within the remit of our personal data framework, individuals can be certain that there is at least a minimum baseline that applies to the way the public sector treats their personal data, and they can take comfort from how the processes and rules are clear to them.
I also note that of the jurisdictions in the world that have a personal data protection framework, only very few do not have personal data protection laws that are applicable to public agencies. Therefore, making this data protection framework applicable to public sector organisations will mean that Singapore will be truly in line with international standards, one of the three principles that the Bill is based on.
Sir, the protection of personal data is welcome not only because of its expected economic benefits. The protection of personal data is welcome because it acknowledges an important principle. That our personal data belongs to us as persons — much like our cash, phones and wallets or other forms of property — and this property needs to be safeguarded and protected by law against misuse, including by the Government.
We must remind ourselves that the proper function of our Government and its associated bodies first and foremost is to provide essential services to the people. The Government collects our personal data in order to be able to provide us with various services, such as administering our CPF accounts for our retirement needs, or our Medisave accounts for our medical expenses.
However, this information belongs to us, and our government agencies must handle our personal data with care. Above all, they should be accountable to the people and to Parliament about the way in which they use and safeguard our data while they carry out various services for us.
Mr Lui Tuck Yew, as MICA minister in 2011 said: “what we are doing, first and foremost, is to govern the proper processing of personal information such as the collection, the use, the disclosure and the transfer of this data, and to make sure that this is properly regulated.” Sir, There is no reason why that should not apply to our public agencies.
The Workers' Party
Top Guns Forum 2012
[url]www.nuspa.org
The ForumThe Top Guns Forum aims to be the platform for students and local politicians to engage in a session of robust yet responsible question and answer session.
[/URL]
NCMP Yee Jenn Jong will be attending the Top Guns Forum organised by the NUS Students' Political Association (NUSPA). It will be held tomorrow, 17 October 2012.
Speech on Voluntary Sterilization (Amendment) Bill – MP Sylvia Lim
by MP for Aljunied GRC, Sylvia Lim
Overall, this Bill takes an important step to better align our Voluntary Sterilization Act (VSA) with certain international norms concerning the rights of disabled persons. However, the proof of progress will be in its implementation. I will also raise a concern about the bill later in my speech.
The Explanatory Note to the Bill states that this amendment seeks to align the VSA with the UN Convention on the Rights of Persons with Disabilities (“CRPD”), “by removing provisions which may lead to discrimination against disabled persons”. Turning to the CRPD, Article 23 states that countries should ensure that “Persons with disabilities, including children, retain their fertility on an equal basis with others.” In other words, the amendment should put disabled persons on par with others, as far as the decision to undergo sexual sterilization is concerned.
To this end, I agree that the current law does require amendment, as it is not satisfactory in several respects.
Under the existing section 3 of the VSA, a person with “any hereditary form of illness that is recurrent, mental illness, mental deficiency or epilepsy” will be liable to be sterilized if two conditions are satisfied – first, that the spouse, parent or guardian consents, and second, that a doctor confirms that it is “in the interest of the person undergoing such treatment and of society generally”. The section seems to assume that any person with a recurrent hereditary illness or any mental deficiency would be incapable of making up his or her own mind about sterilization, thus justifying the spouse, parent or guardian and a doctor taking over that decision. The current law also states that the doctor is the final gatekeeper of whether such sterilization is in the best interest of the person and of society generally. It is not clear from section 3 itself what considerations the doctor should take into account or how decisions had in fact been made in the past. The need to consider “society generally” also appears ambiguous, and may open the floodgates to eugenics where we only allow the fit to reproduce and the weak are denied the right to be accorded full human dignity.
To that extent, Clause 3 of this amendment bill seems to improve things. First, there is no longer a sweeping assumption that a person with a recurrent hereditary disease, epilepsy or mental deficiency is automatically not able to make these decisions; the new section 3 will allow others to decide only if the person is considered to be “mentally incapable” as defined by the Mental Capacity Act (MCA). Secondly, potential sterilizations of persons without mental capacity must be approved by the High Court. Such judicial oversight in itself will introduce more transparency and consistency in decision-making, as reasoned judgments may be published in law reports and serve to guide future cases. Thirdly, the amendment now makes it irrelevant to consider the interests of “society generally” as this phrase will be deleted from the section. The decision now whether a mentally incapable person should be sterilized will be based on the consideration of the “best interests of the person” alone.
What then amounts to the person’s best interests? This is not defined in the Bill, which instead directs us to Part II of Mental Capacity Act for the relevant principles and definitions. Under S 6 of the MCA, determining the “best interests of the person” lists many considerations including the person’s past and present wishes and feelings; it also requires the decision-makers to place themselves in the shoes of the person, to ascertain what the mentally incapable person would have likely decided on his / her own, considering the person’s wishes, beliefs and values. In addition, in deciding whether sterilization should be done on a mentally incapable person, the MCA principles would suggest that decision-makers should not be motivated by a desire to bring about the person’s sterility; this is analogous to S 6(5) of the MCA, where decisions on life-sustaining treatment should not be tainted by a desire to bring about that person’s death.
Sir, the reference in section 6 of the MCA to respecting the person’s beliefs and values is vitally important in decisions concerning sterilization. As we are aware, there is a sizeable group of Singaporeans, particularly from the Muslim and Catholic faiths, who do not endorse sexual sterilization for contraceptive purposes. The Voluntary Sterilization Act itself at Section 10 recognizes that there are Singaporeans who have “conscientious objections” to sexual sterilization. While those with mental capacity can decide for themselves what they wish to do, those without mental capacity will have this very personal and intimate decision made by others. Extra care should therefore be taken in implementing these provisions. Those entrusted with assessing whether sterilization would be in the best interest of a person with mental incapacity should accordingly give due weight to the person’s beliefs and values.
by MP for Aljunied GRC, Sylvia Lim
Overall, this Bill takes an important step to better align our Voluntary Sterilization Act (VSA) with certain international norms concerning the rights of disabled persons. However, the proof of progress will be in its implementation. I will also raise a concern about the bill later in my speech.
The Explanatory Note to the Bill states that this amendment seeks to align the VSA with the UN Convention on the Rights of Persons with Disabilities (“CRPD”), “by removing provisions which may lead to discrimination against disabled persons”. Turning to the CRPD, Article 23 states that countries should ensure that “Persons with disabilities, including children, retain their fertility on an equal basis with others.” In other words, the amendment should put disabled persons on par with others, as far as the decision to undergo sexual sterilization is concerned.
To this end, I agree that the current law does require amendment, as it is not satisfactory in several respects.
Under the existing section 3 of the VSA, a person with “any hereditary form of illness that is recurrent, mental illness, mental deficiency or epilepsy” will be liable to be sterilized if two conditions are satisfied – first, that the spouse, parent or guardian consents, and second, that a doctor confirms that it is “in the interest of the person undergoing such treatment and of society generally”. The section seems to assume that any person with a recurrent hereditary illness or any mental deficiency would be incapable of making up his or her own mind about sterilization, thus justifying the spouse, parent or guardian and a doctor taking over that decision. The current law also states that the doctor is the final gatekeeper of whether such sterilization is in the best interest of the person and of society generally. It is not clear from section 3 itself what considerations the doctor should take into account or how decisions had in fact been made in the past. The need to consider “society generally” also appears ambiguous, and may open the floodgates to eugenics where we only allow the fit to reproduce and the weak are denied the right to be accorded full human dignity.
To that extent, Clause 3 of this amendment bill seems to improve things. First, there is no longer a sweeping assumption that a person with a recurrent hereditary disease, epilepsy or mental deficiency is automatically not able to make these decisions; the new section 3 will allow others to decide only if the person is considered to be “mentally incapable” as defined by the Mental Capacity Act (MCA). Secondly, potential sterilizations of persons without mental capacity must be approved by the High Court. Such judicial oversight in itself will introduce more transparency and consistency in decision-making, as reasoned judgments may be published in law reports and serve to guide future cases. Thirdly, the amendment now makes it irrelevant to consider the interests of “society generally” as this phrase will be deleted from the section. The decision now whether a mentally incapable person should be sterilized will be based on the consideration of the “best interests of the person” alone.
What then amounts to the person’s best interests? This is not defined in the Bill, which instead directs us to Part II of Mental Capacity Act for the relevant principles and definitions. Under S 6 of the MCA, determining the “best interests of the person” lists many considerations including the person’s past and present wishes and feelings; it also requires the decision-makers to place themselves in the shoes of the person, to ascertain what the mentally incapable person would have likely decided on his / her own, considering the person’s wishes, beliefs and values. In addition, in deciding whether sterilization should be done on a mentally incapable person, the MCA principles would suggest that decision-makers should not be motivated by a desire to bring about the person’s sterility; this is analogous to S 6(5) of the MCA, where decisions on life-sustaining treatment should not be tainted by a desire to bring about that person’s death.
Sir, the reference in section 6 of the MCA to respecting the person’s beliefs and values is vitally important in decisions concerning sterilization. As we are aware, there is a sizeable group of Singaporeans, particularly from the Muslim and Catholic faiths, who do not endorse sexual sterilization for contraceptive purposes. The Voluntary Sterilization Act itself at Section 10 recognizes that there are Singaporeans who have “conscientious objections” to sexual sterilization. While those with mental capacity can decide for themselves what they wish to do, those without mental capacity will have this very personal and intimate decision made by others. Extra care should therefore be taken in implementing these provisions. Those entrusted with assessing whether sterilization would be in the best interest of a person with mental incapacity should accordingly give due weight to the person’s beliefs and values.
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