First, what is the ill to be solved? The ill to be solved is in part delay, the fact that the current model does not give sufficient incentives for government departments to provide submissions to us, and particularly well-thought-out submissions early on in the process. That leads to delays for the person who should benefit from the intervention of the Privacy Commissioner, the person who makes a complaint. The order-making recommendation is meant to give the complainant a timely response and a final response that will not drag on in the courts forever.
I've dealt with the issue of timeliness. In the current system, departments do not necessarily have to give us full submissions from the get-go. It's possible for them to make their real case before the Federal Court because we can only make recommendations but it is the Federal Court that can actually order a federal institution to do something consistent with the Privacy Act. We have seen cases where departments gave us a set of submissions in our investigation and have then augmented these submissions when they were before the Federal Court. I think that's also inconsistent with the desire to have timely final decisions for the complainant as soon as possible.
These are two issues that order making would try to address. I was originally and I am still of the view that there is a risk with order making as well as with the Newfoundland model that if the Privacy Commissioner has a promotional role, a privacy champion role, and an adjudicative role, these two roles can conflict. Our analysis over the past few months has confirmed that unless you take measures to divide certain functions internally, the courts will likely intervene and say you're not impartial when you adjudicate because you took a position as an advocate that showed how you were disposed to look at a certain issue, and you maintained that position and did not listen to the facts carefully. That's a real risk.
I was concerned with that risk from the get-go. We thought originally that the Newfoundland model could potentially offer a solution but after further review we think that actually the risk is the same whether it's order making or the Newfoundland model, so if the risk is the same, if the mitigation measures, namely division within the OPC, are the same, I'd rather have order making because between the two models it's the one that provides the most direct route, the faster route, for the person we should care about, which is the complainant.