Overview of ALRC work on privacy law reform

Speech by Professor Rosalind Croucher, President ALRC, at the launch of Dr Robert Dean’s Trade Secrets and Privacy (Thomson Reuters), by the Hon Michael D Kirby AC CMG.


In beginning the formalities this evening, I wish to acknowledge the Gadigal people of the Eora nation, the traditional custodians of the land on which we meet—and pay my respects to their elders, both past and present, and acknowledge Indigenous guests attending today.

I am deeply honoured to be the warm-up act tonight, to the greatest book launcher in Australian history—if not the world!  I am also very privileged to be the current incumbent of the position held originally by the Honourable Michael Kirby to lead the Australian Law Reform Commission. ‘Mr Kirby’, as he said that he would like to be called in his fine ‘passing out parade’ in the High Court in February 2009, was the foundation Chairman of the ALRC when it commenced its work in 1975—an initiative of the Attorney-General, Senator Lionel Murphy. In pride of place, hanging on the wall at the entrance to our offices, there is a photograph of the initial Commissioners. They were appointed by an instrument signed by the Governor General and Senator Murphy, dated 31 December 1974—no office close-down between Christmas and New Year those days.

In that photograph, seated in front, are Michael Kirby, on the cusp of 36 years of age, a bearded Gareth Evans, only 30 years old and then a Senior Lecturer at Melbourne Law School, and Associate Professor Gordon Hawkins, the late Sydney University criminologist, nude sunbather and star of 1960s daytime television, are seated in front, on rather elegant velvet-covered Victorian armchairs—Kirby’s red, the others green. Behind them stand Gerard Brennan QC (as he then was), 46, the late Professor Alex Castles (41 years old)—legal historian par excellence—and John Cain, 43. Mr Kirby was a dapper young man, in double-breasted pinstripe suit, white handkerchief tucked neatly in breast pocket, looking confidently at the camera. If you look more closely you see the well-scuffed soles of his shoes and, although, possibly unawares, displaying a little leg above his sock. (These days it would be photoshopped out!) Metaphors for the Commission? Treading the roads of consultation, exposing the thinking … maybe drawing too much from a photograph … but it is a charming moment.  There is freshness, innocence even, commitment, confidence and optimism in the faces that are captured in the photograph. All, except Hawkins, the senior of the group at age 56, are looking directly to camera.

What an impressive line-up to begin the work of the newly constituted Commission!

One of the last reports over which Michael Kirby presided as Chairman was the report on privacy, which provides the immediate connection with this evening’s purpose, concerning the launch of Dr Dean’s work. Hence as part of my introduction of Mr Kirby, I was asked to give a quick sketch of the ALRC’s privacy work.

On 9 April 1976, the then Attorney-General, the Hon Robert Ellicott, QC, gave the ALRC its first brief on Privacy. The seven-year inquiry resulted in the magnum opus, Privacy, report No 22, in 1983, in two volumes, comprising over 900 pages plus a Summary Report of 50, together with a third volume of extra material running to 377 pages. The report had been preceded by:

  • 13 research papers
  • 12 internal working documents
  • two comprehensive discussion papers
  • a series of public hearings
  • three extensive and detailed surveys of opinion about privacy
  • 5 related reports

The Executive Summary began with the heading, ‘1984 Arrives’. Orwellian in reference; Orwellian in fact. The conclusion of the inquiry was that ‘privacy is in danger, both in actuality and, even more so, in prospect’. The dangers? Growing official powers; new business practices; new information technology.

On 30 January 2006, the then Attorney-General, the Hon Philip Ruddock MP, gave the ALRC another opportunity to contribute to privacy law reform—post Privacy Act, introduced in 1988 after the first ALRC inquiry.  The second privacy inquiry, conducted over 28 months—much shorter than the seven years taken for the first inquiry—looked at the extent to which the Privacy Act 1988 (Cth) and related laws continued to provide an effective framework for the protection of privacy in Australia.

In the intervening years since Report 22 under Kirby’s Chairmanship, the implications of information technology advances (recognised with considerable prescience by the earlier Commission) were transforming the information landscape—and at an exponential rate. In 1984—I remember it well—I went from a small Brother typewriter with memory capability of about a short sentence, to an IBM PC, with disks the size of photographs. These were the days when disks were ‘floppy’. I was lucky to fit one, quite short, chapter of my doctoral thesis on a single disk. When I joined the ALRC at the beginning of 2007 my entire seven years’ work as Dean of Law at Macquarie University fitted onto a small USB drive no bigger than my little finger.

Rapid advances in information, communication and surveillance technologies had created a vast range of previously unforeseen privacy issues. Our privacy protection was not in line with key trading partners (EU and APEC) and information privacy legislation had proliferated at the state and territory level—which was a positive development in terms of privacy protection—but with no concerted effort to maintain a nationally consisted regime. Finally, the Privacy Act had undergone significant amendment since its enactment in 1988, resulting in an unwieldy and overly complex piece of legislation.

The report, For Your Information—Australian Privacy Law and Practice, Report 108, was presented on 30 May 2008. This report was presented in three volumes, comprising some 2,694 pages and containing 74 chapters and 295 recommendations for reform. It was preceded by two Issues Papers and a Discussion Paper. (I know it sounds long. It is long. Mammoth in fact. But with this time frame there was hardly editing time …)

Measured simply in terms of volume alone, the ALRC’s contributions in this area have been massive.

In terms of impact the contribution has also been hugely important.

Many of the recommendations relating to information privacy contained in ALRC 22 subsequently found their way into the Privacy Act 1988. In particular:

  • a ‘permanent statutory guardian for privacy’, the Privacy Commissioner, was created;
  • statutory privacy principles to assist the Privacy Commissioner in the evaluation of complaints about privacy invasion  in respect of  misuse of personal information were given legislative force;
  • access to, and an ability to correct, credit information was provided for; and
  • rules governing the use, disclosure and security of some forms of personal information were implemented.

Twenty years later, during the ALRC’s extensive consultations around the country for the second privacy inquiry, the overwhelming—and continuing—message was that Australians do care about privacy, and they want a simple, workable system that provides effective solutions and protections for their personal information—including medical records and health status, finances and creditworthiness, the personal details collected and stored on a multiplicity of public and corporate databases, and even the ability to control the display and distribution of our own images.

The central theme in For Your Information (ALRC Report 108) was that, as a recognised human right (under art 12, Universal Declaration of Human Rights), privacy protection generally should take precedence over a range of other countervailing interests, such as cost and convenience. But, where circumstances require, the vindication of individual rights must be balanced carefully against other competing rights.

The ALRC found that the Privacy Act has worked well to date, but that it now needed a number of refinements to bring it up to date with the information age.

Key recommendations included:

  • uniform privacy principles (there now being two sets of principles in the two major pieces of privacy legislation);
  • the rationalisation of exemptions and exceptions;
  • health privacy; and
  • a statutory cause of action for a serious invasion of privacy.

On 11 August 2008, Senator John Faulkner, the then Special Minister for State and Cabinet Secretary, announced that the Australian Government would respond to For Your Information: Australian Privacy Law and Practice (ALRC 108) in two stages.

The first stage was released on 14 October 2009 and responds to 197 of the 295 recommendations in the ALRC report. Some progress has been made in relation to uniform privacy principles—the ‘Australian Privacy Principles’—and health identifiers.

We look to further implementation over time. As our first Chairman would agree, law reform, while being practical, must have a long horizon, based on clear principles, cognisant of our international obligations.

Introducing Mr Kirby

And now to introduce a man who needs no introduction, the Hon Michael Kirby, Companion of the Order of Australia, Companion of the Order of St Michael and St George, the holder of at least 20 Honorary Doctorates, according to his website, and Honorary Visiting Professor of 12 universities, but most importantly of all, Chairman Emeritus of the Australian Law Reform Commission.

Mr Kirby …..