16.08.2010
Current application of the Privacy Act to groups
7.2 The Privacy Act explicitly protects ‘individuals’.[1] Section 6(1) defines ‘individual’ as ‘a natural person’.[2] The omission of groups from the ambit of the Act is consistent with the ALRC’s 1983 report on privacy law (ALRC 22). In ALRC 22, the ALRC decided not to consider the notion of group privacy on the basis that it was outside the scope of the Inquiry. The ALRC noted, however, that corporate and group claims to privacy were ‘of such complexity as to merit a separate and major study’.[3]
7.3 The decision to limit the Act’s protection to individuals is reflected in the Preamble to the Privacy Act, which makes reference to human rights, and specifically to those guaranteed in the International Covenant on Civil and Political Rights (ICCPR).[4] The Preamble also refers to Australia’s obligations at international law ‘to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence’ and to protect ‘privacy and individual liberties’.
7.4 Currently, the Privacy Act applies if an individual suffers a breach of his or her privacy as a consequence of the individual’s membership of a group. In some situations, however, it can be difficult to determine whether a privacy interest relates to a natural person or to a group. Hypothetical examples of these types of situations were given in ALRC 22:
Should John Brown, who is entitled to access to his credit record, also be entitled to access to that of John Brown Pty Ltd? Should John Brown Pty Ltd be allowed access to records about John Brown, and about itself? Should Dr Fred Smith, whom everyone in the neighbourhood knows is the real person behind the corporate veil of Local Medical Services Pty Ltd, be entitled to access to information about both his corporation and himself?[5]
Protection of group rights in international law
7.5 The majority of the foundational international instruments that form the basis of international and domestic Australian human rights law do not provide for the direct protection of group rights.[6] To date, the Organisation for Economic Co-operation and Development (OECD) has not gone so far as to state that it is necessary to provide specific privacy protections for certain groups of people. The Explanatory Memorandum to the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (OECD Guidelines) states that ‘it is debatable to what extent people belonging to a particular group (ie mentally disabled persons, immigrants, ethnic minorities) need additional protection against the dissemination of information relating to that group’.[7] The vast majority of overseas jurisdictions do not attempt to protect the privacy rights of groups.[8]
7.6 On the other hand, group rights are recognised in some other international instruments—particularly more recent instruments such as the African Charter of Human and Peoples’ Rights.[9] Additionally, the Declaration on the Rights of Indigenous Peoples states that ‘Indigenous peoples have … the right to maintain, protect, and have access in privacy to their religious and cultural sites’.[10] While the Declaration was adopted by 143 members of the United Nations General Assembly, Australia was one of four states that voted against its adoption.[11]
7.7 Finally, international human rights law recognises that certain ethnic and cultural groups within a community may have particular needs that require protection. For example, the ICCPR recognises the need to protect the cultural, religious and language rights of certain ethnic and cultural groups. Article 27 states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
[1]Privacy Act 1988 (Cth) pt III div 1.
[2] This is consistent with the definition in the Organisation for Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980), Guideline 1(b).
[3] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [27].
[4]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976).
[5] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [29].
[6] Arguably, an exception is International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 27.
[7] Organisation for Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980), Explanatory Memorandum, [32].
[8] L Bygrave, Data Protection Law: Approaching its Rationale, Logic and Limits (2002), 179, 192–198.
[9]African Charter on Human and Peoples’ Rights, 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, (entered into force generally on 21 October 1986), eg, arts 19–24.
[10]United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 61stsess, UN Doc A/RES/61/295, (2007), art 12(1).
[11] Before the 2007 federal election, the Australian Labor Party indicated its support for the Declaration: J Macklin (Shadow Minister for Indigenous Affairs and Reconciliation), ‘International Declaration On The Rights Of Indigenous Peoples’ (Press Release, 14 September 2007).