Introduction to the ALRC’s Privacy Inquiry

For Your Information: Australian Privacy Law and Practice represents the culmination of a 28 month inquiry into the extent to which the Privacy Act 1988 (Cth) and related laws continue to provide an effective framework for the protection of privacy in Australia. This Inquiry was a mammoth undertaking, resulting in the three volumes of this Report, containing 74 chapters and 295recommendations for reform.

The Privacy Act is itself substantially the product of an earlier ALRC inquiry—a seven year research and policy development exercise ending in 1983 with the publication of the three volume report entitled Privacy.[1] As discussed in Chapter 1, the enactment of privacy legislation in Australia represented partial fulfilment of Australia’s international obligations under the International Covenant on Civil and Political Rights, which recognises a basic human right to privacy premised on the autonomy and dignity of the individual.[2] The ALRC’s work not only led to domestic legislation but also strongly influenced the international development of this field. The ALRC’s Chair at that time, Justice Michael Kirby, was asked to chair two key Organisation for Economic Co-operation and Development working groups in the 1980s, on privacy principles and data security.

As a recognised human right, privacy protection generally should take precedence over a range of other countervailing interests, such as cost and convenience. It is often the case, however, that privacy rights will clash with a range of other individual rights and collective interests, such as freedom of expression and national security. Although the ALRC often heard emphatic arguments couched in the language of rights, international instruments on human rights, and the growing international and domestic jurisprudence in this field, all recognise that privacy protection is not an absolute. Where circumstances require, the vindication of individual rights must be balanced carefully against other competing rights—and the ALRC’s final recommendations in this Report endeavour to do so.

The privacy implications of developing technology were not lost on the Commission in 1983—and the ALRC was surprisingly prescient in its understanding of emerging computer power and the associated privacy concerns. However, the now ubiquitous use of personal computers, mobile phones and cameras, the internet, radio frequency identification devices, global positioning systems, surveillance cameras, smart cards, biometrics and a myriad of other technological developments—while perhaps not quite in the realm of science fiction in the 1980s—was yet to impact so comprehensively and powerfully on the daily lives of Australians.

In the new Information Age, high-powered computers and other sophisticated electronic devices are no longer the preserve of specialist technicians employed by governments and major corporations, but a basic tool utilised by virtually all Australians in almost all aspects of their lives, including for: communication with family, friends and colleagues; research and writing; entertainment and news gathering; shopping, banking and share trading; storage of important records, documents and images; and dating and social networking.

It became clear during the course of the current Inquiry that these rapid advances in information, communication and surveillance technologies have created a range of previously unforeseen privacy issues. At the same time, the emergence of regional political and economic blocs, such as the European Union and the Asia-Pacific Economic Cooperation group (APEC), has created pressure for the alignment of Australia’s privacy protection regime with those of its key trading partners.

Further, information privacy legislation has proliferated at the state and territory level, but with no concerted effort to maintain a nationally consistent regime. Finally, the Privacy Act has undergone significant amendment since its enactment in 1988, resulting in an unwieldy and overly complex piece of legislation.

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

[2]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 17.