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Profiles
& Notes:
Australian
privacy
regimes
Human
Rights
Australian
Constitution
& Cyberspace
Australia
Card
Registers
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Australian legislation
This
page provides an overview of the Australian privacy regimes.
It covers -
There
is a more detailed examination of Commonwealth and state/territory
privacy legislation and industry codes in in the supporting
profile for this
page
introduction
Like most Australian information law the nation's privacy
regimes involve -
- a
range of Commonwealth and state/territory enactments,
often with sectoral (eg health) or functional (wiretapping)
basis
- judicial
decisions, with variation between jurisdictions
- industry
codes of practice
-
action by individual players (consumers, businesses,
other entities).
As
of 2008 there is no statutory tort for breach of privacy,
although establishment of that cause of action is recommended
in the 2008 For Your Information: Australian Privacy
Law & Practice report
by the Australian Law Reform Commission. That report highlighted
in the Australian privacy regime and recommended major
changes.
Commonwealth legislation
The 1981 Organisation for Economic Cooperation & Development
Guidelines
Governing the Protection of Privacy & Transborder
Data Flows of Personal Data were formally adopted
by the Federal Government in 1984.
The adoption followed a series of reports - highlighted
here - by the Australian
Law Reform Commission and other bodies. In 1988 a Commonwealth
Privacy Act was passed, covering federal government agencies.
A more detailed view of the Act is here.
That legislation, like enactments within Australia's states
and territories (highlighted here),
essentially dealt with privacy aspects of government information
handling activity - including social security, health
insurance and taxation. It was extended through a series
of enactments to cover medical research and some other
activities.
It complemented existing Commonwealth legislation, often
dating from the first years of federation, regarding postal,
telecommunication, electoral or other government-related
privacy.
It also complemented a range of state/territory legislation.
A federal Privacy Amendment (Private Sector)
Bill was introduced in February 2000 and was unsurprisingly
endorsed in the report
of the House of Representatives Legal & Constitutional
Affairs Committee, released mid-June 2000, the Bill. Like
the legislation, the report was criticised for lack of
attention to EU Data Directive implications. At the same
time the Senate Committee on Information Technologies
conducted an independent inquiry
into e-Privacy.
Following substantial criticism of the legislation, the
Attorney-General announced a succession of changes to
the legislation. The Bill was finally passed in December.
The Privacy Amendment (Private Sector)
Act
2000 received royal assent on 21 December 2000 and
came into effect on 21 December 2001.
It provides for a "light touch legislative regime",
built around National Privacy Principles that set standards
for how business should collect, secure, store, use and
disclose personal information. It includes exemptions
for the media and for many businesses and other organisations.
The legislation has significant exceptions and much will
depend on the development of codes of practice. Like similar
regimes overseas it is substantially reliant on industry
self-regulation. The Act begins the process of extending
Commonwealth privacy legislation to non-government bodies.
Our assessment is that the Act will be strengthened in
future to bring Australia into line with overseas standards
and, more broadly, reflect the concerns of business and
consumers.
A perspective is provided by Terry Gygar's 2000 paper
At Last - Enforceable Privacy Rights in Australia?
The Potential for Treaties to Give Protection Against
Uninvited Media Attention and Brett Mason's Privacy
Without Principle: The Use and Abuse of Privacy in Australian
Law and Public Policy (Melbourne: Australian Scholarly
Publishing 2006).
background
As we noted at the beginning of this guide, the Australian
constitution does not provide an explicit right to privacy.
Proposals for a broad human rights protection in the constitution
or a subsidiary charter of rights have not been implemented.
Overall, the development of privacy regimes in Australia
has involved incremental episodic changes by legislatures
and courts in response to particular abuses and community
concerns regarding intrusions by the media,
government and business. As a result the level of protection
across Australian states and territories is uneven.
During the past century four basic 'themes' are evident
-
- throughout
most of the nation's history the bulk of legislation
(and enforcement action) related to the telecommunications
infrastructure,
notably regulation of wiretapping by law enforcement
agencies and private investigators. Complementary legislation
dealt with covert surveillance
- a
focus on information assembled and maintained by government,
for example provisions relating to census and taxation
information, rather than on the private sector activity
- a
reliance on industry self-regulation, particularly within
the media industries (discussed here),
and a reluctance to provide commercial remedies to invasions
of privacy, in line with the High Court's 1937 ruling
in Victoria Park Racing v Taylor
- legislators
have encountered difficulty as community thinking and
overseas legal models have widened the protection of
information from traditional notions of commercial information
provided on a confidential basis under contract or other
law to personal information that identifies individuals
and that now, using information technology, can be commodified
The
development of legislation at the Commonwealth and state/territory
levels has been spasmodic - a chronology is here
- with a history of abandoned proposals and disregarded
reports.
At the Commonwealth level key documents are the Australian
Law Reform Commission's 1979
report
on Unfair Publication: Defamation & Privacy,
its 1979 report
on Privacy & the Census,
the 1983 report
on Privacy
and the 2008
For Your Information: Australian Privacy Law &
Practice report.
Parliamentary
committees at the state/territory and Commonwealth levels
have produced reports of varying quality; we'll be highlighting
particular documents in the near future.
Reports from the NSW Privacy Committee and Law Reform
Commission are of particular importance. They include
the 1997 LRC report
on Surveillance and the 1995 PC Invisible Eyes:
Report on Video Surveillance in the Workplace study.
and in the digital era
A thoughtful analysis
of Australian and international thinking about Privacy
in Cyberspace was provided by the Hon Justice Michael
Kirby of Australia's High Court in the 1998 University
of NSW Law Journal. It is also available, along
with other Kirby papers, in his Through The World's
Eye (Annandale: Federation Press 2000).
Leading academic Graham Greenleaf edits the Australian
Privacy Law & Policy Reporter (APLPR).
Back issues of that journal are available online.
In Australia major documents include the Commonwealth
Principles
for the Fair Handling of Personal Information and
the Guidelines
for Federal & ACT Government Websites.
detailed info
Other Commonwealth laws contain privacy provisions relating
to information about health insurance claims, data matching,
information about old criminal convictions and personal
information disclosed by telecommunications
companies, video surveillance, telephone interception
or 'bugging', and physical intrusion into private spaces.
There is a detailed examination of the Commonwealth and
state privacy legislation in the supporting profile
for this page. It is supplemented by a note on government
registers and by a detailed
discussion of moves towards an Australia
Card.
Private sector credit reporting and other 'reference'
services are explored here.
next page (the
European Union)
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