1.3 In April 1976, the ALRC received a wide-ranging reference on privacy. Due to particular public concerns at the time, a separate Discussion Paper and Report were completed on access to census records.[9] Two discussion papers were produced—in 1977 and 1980[10]—and the final Report, Privacy (ALRC 22), was tabled in Parliament in December 1983. Volume 1 of that Report provides a discussion of the issues; the ALRC’s recommendations and draft legislation are found in Volume 2; and Volume 3 contains various appendices.[11]

1.4 ALRC 22 was not the first time the ALRC had to consider the concept of privacy. One earlier Report—Unfair Publication: Defamation and Privacy (ALRC 11)[12]—is worthy of particular note. In addition to making recommendations for reform in the law of defamation, ALRC 11 proposed some limited privacy protection. It was recommended that a person be allowed to sue for damages or an injunction

if ‘sensitive private facts’, relating to health, private behaviour, home life, and personal or family relationships, were published about him which were likely in all the circumstances to cause distress, annoyance or embarrassment to a person in the position of the individual. Wide defences were proposed allowing publication of personal information if the publication was relevant to the topic of public interest.[13]

1.5 In ALRC 22, the ALRC identified dangers to privacy, including growing official powers, new business practices (such as electronic surveillance, credit reporting and direct marketing), and concerns associated with new information technology. Instead of advocating a single approach to privacy, the ALRC’s recommendations targeted a number of different areas in which privacy concerns were identified.

1.6 In formulating its recommendations for legislative reform, the ALRC divided privacy questions into two broad categories—those relating to intrusions, and those relating to information handling. The ALRC subdivided the first category into two broad sub-categories: personal and property intrusions; and intrusions caused by spying and the interception of communications. The ALRC noted, however, that these sub-categories were ‘not necessarily mutually exclusive’.[14]

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

  • a ‘permanent statutory guardian for privacy’,[15] the Privacy Commissioner, was created;
  • statutory privacy principles ‘to aid the Privacy Commissioner in the evaluation of complaints about privacy invasion … in respect of … misuse of personal information’[16] 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.

1.8 In IP 31, the recommendations in ALRC 22 relating to intrusions, and significant developments in the regulation of intrusions in the intervening period, were outlined.[17] While the scope of the current Inquiry is not as broad as ALRC 22,[18] the extraordinary advances in information technology have greatly expanded the contexts and concerns about information privacy that are dealt with in this Report.

1.9 As a general matter, intrusions only will be discussed in this Report if they involve information collection, use and disclosure of personal information. Legislative initiatives authorising intrusions, or designed to control unsolicited communications,[19] will be considered if they are inconsistent with the provisions of the Privacy Act, and the ALRC’s recommendations for reform of that Act. Further, to the extent that the intrusion constitutes a serious invasion of privacy, the proposed statutory cause of action may apply. The cause of action is discussed in detail in Part K.

OECD Guidelines

1.10 On 23 September 1980, the Council of the OECD adopted guidelines governing the protection of privacy and transborder flows of information.[20] The OECD Guidelines were developed to facilitate the harmonisation of national privacy legislation of OECD member countries, and, while upholding human rights, to prevent interruption in the international flow of personal information.[21]

1.11 The OECD Expert Group on Privacy Principles (1978–1980) was headed by then ALRC Chair Justice Michael Kirby, so that the ALRC’s work in this field strongly influenced the development of the law internationally. Justice Kirby also chaired the OECD’s Expert Group on Data Security (1991–1992).

1.12 Eight basic principles of national application are set out in Part Two of the OECD Guidelines:[22]

Collection Limitation Principle—There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.

Data Quality Principle—Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date.

Purpose Specification Principle—The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.

Use Limitation Principle—Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with [the Purpose Specification Principle] except:

a) with the consent of the data subject; or

b) by the authority of law.

Security Safeguards Principle—Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.

Openness Principle—There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.

Individual Participation Principle—An individual should have the right:

a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him;

b) to have communicated to him, data relating to him

  • within a reasonable time;

  • at a charge, if any, that is not excessive;

  • in a reasonable manner; and

  • in a form that is readily intelligible to him;

c) to be given reasons if a request made under subparagraphs (a) and (b) is denied, and to be able to challenge such denial; and

d) to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended.

Accountability Principle—A data controller should be accountable for complying with measures which give effect to the principles stated above.

1.13 The OECD Guidelines, and subsequent models to facilitate cross-border data protection, are discussed in detail in Part D.

[9] Australian Law Reform Commission, Privacy and the Census, DP 8 (1978); Australian Law Reform Commission, Privacy and the Census, ALRC 12 (1979).

[10] Australian Law Reform Commission, Privacy and Publication—Proposals for Protection, DP 2 (1977); Australian Law Reform Commission, Privacy and Intrusions, DP 13 (1980).

[11] Australian Law Reform Commission, Privacy, ALRC 22 (1983), Appendix B, Bibliography on the Concept of Privacy; Appendix C, Tables of Commonwealth and ACT Legislation Conferring Powers of Arrest and Detention, Entry and Search, and Access to, and Production of, Information; Appendix D, Overseas Information Privacy Laws; Appendix E, Laws Regulating Interception of Oral and Written Communication; Appendix F, Course of the Inquiry.

[12] Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC 11 (1979).

[13] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [6]. See generally Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC 11 (1979), [250]. How far Australia has progressed in recognising a common law right to privacy since the publication of ALRC 11 is discussed in Part K.

[14] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [1093].

[15] Ibid, xliii.

[16] Ibid, xliii.

[17] Australian Law Reform Commission, Review of Privacy, IP 31 (2006), [1.12]–[1.40].

[18] See discussion of the scope of this Inquiry below.

[19] The Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) are examples of legislation designed to control unsolicited communications.

[20] Organisation for Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980).

[21] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [602]. Levin and Nicholson note that the OECD Guidelines were the product of the Council of Europe’s efforts, immediately after its inception in 1949, to address the issue of personal information in ‘the aftermath of World War II and its horrors’: A Levin and M Nicholson, ‘Privacy Law in the United States, the EU and Canada: The Allure of the Middle Ground’ (2005) 2 University of Ottawa Law and Technology Journal 357, 374.

[22] The full text of the OECD Guidelines can be found at <>.