Privacy Protection in Australia: The Need for an Effective Private Sector Regime
| Date | 01 June 1998 |
| Author | Moira Paterson |
| DOI | 10.22145/flr.26.2.6 |
| Published date | 01 June 1998 |
| Subject Matter | Article |
PRIVACY PROTECTION
IN
AUSTRALIA:
THE
NEED
FOR
AN
EFFECTIVE PRIVATE SECTOR REGIME
Me*
Olra
Paterson
INTRODUCTION
Australia
in
the 1990s, like most other industrialised countries, is characterised by its
high level of technological development, the increased automation of transactions
between businesses
and
their customers
and
the reversal of pre-existing trends towards
large government. These factors have combined to create
an
environment
in
which the
issue of privacy and,
in
particular, the need for aprivate sector regime to protect
privacy has begun to feature
on
the political agenda.
The
need
to regulate personal information became amatter of concern for the first
time
in
Australia
in
the context of the controversy generated by
an
unsuccessful
attempt
to introduce anational identity card, the Australia Card.1The main concern
at
that
time focussed
on
the need to regulate the activities of the government; the Privacy
Act 1988 (Cth), which was enacted in conjunction with initiatives to extend the use of
the tax file number as a
de
facto identifier, covered only the activities of the
Commonwealth public sector. Today, however, the impact of technology
on
the
collection
and
use of personal information by Australian businesses
and
the concerns
about
the adverse trade implications of failing to regulate these activities
have
led to a
growing realisation
that
there is aneed to regulate the activities of the private sector,
including the large
number
of bodies which have been formally transferred from the
public to the private sector or which are performing functions
that
were once
performed
by
government organisations.
The momentum for comprehensive private sector privacy protection has been
building across the political spectrum over the last few years
and
is reflected
in
the
recommendations of anumber of public bodies including the Broadband Services
Expert Group,2 the House of Representatives Standing Committee
on
Legal
and
1
2
BEc
(Mon)
LLB
(Hons)(Melb) LLM(Lond). Moira Paterson is asenior lecturer
in
law,
Monash University.
PGraham,
tiThe
Australia Card: ABurden Rather
than
a
Relief?tI
(1986) 58(1) Australian
Quarterly 14; GGreenleaf
and
JNolan,
tiThe
Deceptive fIistory of the Australia
Card
tl
(1986) 58(4) Australian Quarterly 407.
Broadband Services Expert Group, Networking Australia's Future:
Final
Report (1994)
[Internet-
http://www.dca.gov.au/pubs/network/toc.htm#af
(accessed
20
June 1997)].
372
Federal
Law
Review
Volume
26
Constitutional Affairs,3 the Senate Economic References Committee,4 the National
Information Services Councils
and
the Australian Law Reform Commission.6
At
the
same
time a1996
survey
of Australian businesses conducted
by
Price Waterhouse
revealed
that
64
per
cent favoured such acourse.7
In
September 1996 the federal
government
released aDiscussion
Paper
8which
gave
effect to its election
commitment
that
it
would
lias
apriority,
and
in
consultation
and
development
with
the states
and
territories, ensure the implementation of aprivacy
law
regime
in
Australia comparable
with
best international practice".9 This contained
detailed proposals for the introduction of aco-regulatory scheme for the private sector
which
was
to be
based
on
the existing structure of Information Privacy Principles
together
with
provision for the development of binding codes of practice.
It
was
originally envisaged
that
there
would
be
aPrivacy Bill before the federal Parliament
by
the
end
of the 1997
autumn
session
but
in
March 1997 the Prime Minister
announced
that
the
government
did
not
intend
to proceed
with
privacy legislation for the
private
sector
and
specifically requested the States
not
to enact such legislation.
10
Instead,
he
requested
the Privacy Commissioner to liaise
with
industry
with
aview to establishing
a
voluntary
self-regulatory scheme.
Since
that
time there
have
been a
number
of
important
legislative initiatives
at
both
Commonwealth
and
State levels which threaten to
produce
a
patchwork
of different
laws. These include a
proposed
extension of the Privacy Act 1988 (Cth) to cover the
outsourcing of federal information technology services, the enactment of legislation
in
the Australian Capital Territory to protect the privacy of medical records
in
the
private
sector
and
the
announcement
by
the Victorian
government
that
it
will
enact
legislation
to protect the private sector.
3
4
S
6
7
8
9
10
Commonwealth
Parliament,
House
of
Representatives
Standing
Committee
on
Legal
and
Constitutional
Affairs,
In
Confidence
(1995)
recommendation
38.
Senate Economic References Committee, Telecommunications
Towards
the
Year
2000 (1995)
ch5.
Commonwealth
Department
of
the
Prime
Minister
and
Cabinet, Office
of
the
Chief
Scientist, Agenda
papers
from
the
first meeting
of
the
Council, 10 August 1995 (1995)
at
89-90.
These
papers
are
available
via
the
Internet
at
http://www.nla.gov.au/archive/
gov
/
pmc/nisc/aug95/niscl.html.
See
Australian
Law
Reform
Commission
and
Administrative
Review Council, Open
Government: a
revie1,o
of
the
Federal
Freedom
of
Information
Act
1982 (ALRC
Report
No
77; ARC
Report
No
40, 1995)
recommendation
103. See also
Queensland
Parliament,
Legal,
Constitutional
and
Administrative
Review Committee, Issues Paper, Privacy in Queensland
(1997).
Price
Waterhouse,
Privacy Survey 1996. 32% believed
that
aPrivacy Act
which
regulated
both
the
public
and
privates
sectors
was
the
best
way
to
address
the
issue
of
information
privacy
while
another
32%
favoured
the
option
of
a
National
Privacy Act
together
with
industry-specific codes
along
the
lines of
the
New
Zealand
Act.
Commonwealth
Attorney-General's
Department,
Privacy Protection in
the
Private
Sector,
(September 1996) (the Attorney-General's Discussion Paper).
Extracts
from
Liberal
and
National
Parties'
Law
and
Justice Policy,
February
1996 (1996) 3
Privacy
Law
and Policy Reporter
4.
Prime
Minister's Press Release of
21
March
1997 [Internet -
http://www.efa.org.au/
Issues/Privacy/pmpr0321.html
(accessed 30
June
1997)]. See also JBrough,
"Another
Key
Election
Promise
Bites
the
Dust" Sydney Morning
Herald
31
March
1997
at
11 [The
Sydney
Morning
Herald
Quarterly
on
CD-ROM, Issue 12].
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