Discussion Paper proposal

40.31 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC considered whether the employee records exemption should be removed. The ALRC noted that employee records may contain a significant amount of personal information about employees, including sensitive information. There is a real potential for individuals to be harmed if employees’ personal information is used or disclosed inappropriately. The ALRC stated that the lack of adequate privacy protection for employee records in the private sector is of particular concern because employees may be under economic pressure to provide personal information to their employers.

40.32 The ALRC’s preliminary view was that there is no sound policy reason why privacy protection for employee records is available to public sector employees but not private sector employees. In addition, treating employees’ personal information differently from other personal information also cannot be justified. The ALRC proposed, therefore, that the employee records exemption should be removed.[48]

40.33 Stakeholders were divided on the ALRC’s proposal to remove the employee records exemption. Most employers and employer groups were in favour of retaining the exemption,[49] while privacy authorities, privacy advocates, an employee group and others supported removing the exemption.[50] A range of reasons for removing and retaining the exemption were advanced, which are discussed in detail below.

[48]Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 36–1.

[49] See, eg, GE Money Australia, Submission PR 537, 21 December 2007; Optus, Submission PR 532, 21 December 2007; Australian Industry Group and Australian Electrical and Electronic Manufacturers’ Association, Submission PR 494, 19 December 2007; Motor Trades Association of Australia, Submission PR 470, 14 December 2007; ANZ, Submission PR 467, 13 December 2007; Telstra Corporation Limited, Submission PR 459, 11 December 2007; Australian Chamber of Commerce and Industry, Submission PR 452, 7 December 2007; Australian Business Industrial, Submission PR 444, 10 December 2007; Australian Information Industry Association, Submission PR 410, 7 December 2007; Retail Motor Industry, Submission PR 407, 7 December 2007 (supported by Motor Traders Association of NSW, Submission PR 429, 10 December 2007); IBM Australia, Submission PR 405, 7 December 2007; Australian Bankers’ Association Inc, Submission PR 259, 19 March 2007 (endorsed by the National Australia Bank, Submission PR 408, 7 December 2007). Three Australian Government departments also opposed the proposal: New South Wales Government Department of Health, Submission PR 458, 11 December 2007; Australian Government Department of Employment and Workplace Relations, Submission PR 211, 27 February 2007; Australian Government Department of Human Services, Submission PR 136, 19 January 2007.

[50] See, eg, Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Australian Lawyers Alliance, Submission PR 528, 21 December 2007; Federation of Community Legal Centres (Vic), Submission PR 509, 21 December 2007; Office of the Privacy Commissioner, Submission PR 499, 20 December 2007; Centre for Law and Genetics, Submission PR 497, 20 December 2007; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007; National Catholic Education Commission and Independent Schools Council of Australia, Submission PR 462, 12 December 2007; Australia Post, Submission PR 445, 10 December 2007; Australasian Compliance Institute, Submission PR 419, 7 December 2007; National Health and Medical Research Council, Submission PR 397, 7 December 2007; P Youngman, Submission PR 394, 7 December 2007; ACTU, Submission PR 155, 31 January 2007.