Exemption for registered political parties, political acts and practices

41.7 A ‘registered political party’—defined as a political party registered under Part XI of the Commonwealth Electoral Act[8]—is specifically excluded from the definition of ‘organisation’ and, therefore, is exempt from the operation of the Privacy Act.[9] In addition, political acts and practices of certain organisations are exempt.[10] These organisations include:

  • political representatives—namely, MPs and local government councillors;

  • contractors and subcontractors of registered political parties and political representatives; and

  • volunteers for registered political parties.[11]

41.8 Acts and practices covered by the exemption include those in connection with: elections held under an electoral law;[12] referendums held under a law of the Commonwealth, a state or a territory; and participation by registered political parties and political representatives in other aspects of the political process.[13] Some other Commonwealth laws also provide for the collection and use of personal information by registered political parties and political representatives.[14]

41.9 In his second reading speech on the Privacy Amendment (Private Sector) Bill 2000 (Cth), the then Attorney-General, the Hon Daryl Williams AM QC MP, justified the exemption for political parties and political acts and practices on the basis of the importance of freedom of political communication to Australia’s democratic process. He advised that the exemption was ‘designed to encourage that freedom and enhance the operation of the electoral and political process in Australia’.[15]

41.10 On the other hand, at the time of the introduction of the Bill, Malcolm Crompton, the then Privacy Commissioner, stated that the exemption for political organisations was inappropriate. Rather, he stated that political institutions ‘should follow the same practices and principles that are required in the wider community’.[16] These sentiments were echoed by Senator Natasha Stott Despoja, when she introduced a Private Member’s Bill in June 2006 to remove the exemption for political acts and practices:[17]

Politicians should be included in the rules that we expect the public and private sectors to abide by. We cannot lead and represent Australians when we do not adhere to the rules that we have made for them, as this merely plays into the notion that politicians cannot be trusted.[18]

Personal information handling in the political process

41.11 Personal information is handled in a number of facets of Australia’s political process. Often, the use of this personal information will be associated closely with the system of representative democracy. For example, a constituent may write to his or her MP raising a problem or concern and, as a part of this correspondence, disclose personal information. In accordance with the MP’s role as the constituent’s representative, he or she may use or disclose the information by forwarding the correspondence on to the relevant minister or agency for response or by raising the matter in Parliament.

41.12 Where the individual to whom the information relates initiates this process, these information-handling practices generally will not be contentious. Concerns may arise, however, where a political representative uses or discloses personal information about a third party. This was illustrated in the case of A v The United Kingdom, in which the applicant’s MP, during a debate in the House of Commons, referred to the applicant and her children as ‘neighbours from hell’, as well as providing her name and address. The MP’s remarks were widely publicised and ultimately engendered such hostility that it was necessary for the family to relocate.[19]

41.13 Further concerns relate to the use of electoral databases. As noted above, these are databases maintained by political parties that contain information on voters, which may include voters’ policy preferences and party identification as well as such matters as the individual’s occupation, membership of community organisations, and so on.[20] Privacy concerns arising from the existence and content of these databases include: political parties withholding from voters information they have stored; inaccurate information being stored on databases without giving voters the right to correct the record; political parties failing to inform voters that information is being compiled about them; and representatives of political parties failing to identify themselves appropriately when collecting information.[21]

41.14 The potential privacy implications of electoral databases recently were illustrated in Canada, when the Prime Minister’s Office sent some households a greeting for Jewish New Year. Some recipients made complaints to the news media and their local MP, questioning both how their names came to be on such a mailing list and why a list of Jewish voters had been compiled.[22] The investigation by the Privacy Commissioner of Canada later was dropped because political parties are not governed by Canada’s privacy laws.[23]

Relevant constitutional provisions

41.15 Any application of Australian privacy laws to political parties and agencies and organisations engaging in political acts and practices must take into account constitutional protections for some aspects of the political process. Of particular relevance are the constitutional doctrines of implied freedom of political communication and parliamentary privilege.

Implied freedom of political communication

41.16 The High Court of Australia has established that an essential element of representative democracy is the freedom of public discussion of political and economic matters.[24] This freedom is not confined to election periods.[25] It does not confer, however, a personal right on individuals, but rather operates as a restriction on legislative and executive powers.[26] The freedom is not absolute,[27] and must be balanced against other public interests. In determining whether a law infringes the implied freedom of political communication, two questions must be answered:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end …[28]

Parliamentary privilege

41.17 Parliamentary privilege refers to

the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.[29]

41.18 The freedom of speech and debate has been described as the single most important parliamentary privilege.[30] This privilege provides legal immunity to MPs for anything they may say or do in the course of parliamentary proceedings, or anything that is incidental to those proceedings.[31] In Australia, the Parliamentary Privileges Act 1987 (Cth) provides a non-exhaustive definition of ‘proceedings in parliament’ for the purpose of freedom of speech and debate, being:

all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.[32]

41.19 A further parliamentary privilege that potentially is relevant to the application of privacy law to the political process is the ‘internal affairs privilege’—that is, the right for houses of parliament to administer their own internal affairs within parliamentary precincts. In the United Kingdom, this privilege has been interpreted to preclude the application of a number of statutes to the houses of parliament, including, among others, privacy laws.[33] The breadth of this interpretation, however, has been the subject of criticism. A Joint Committee of the House of Lords and House of Commons in the United Kingdom, for example, recommended that the internal affairs privilege should extend only to activities directly and closely related to proceedings in Parliament.[34] In the Australian context, Professor Enid Campbell has suggested that, in determining whether legislation can apply within parliamentary precincts, courts are likely to ask ‘whether application of the statute to what occurs within parliamentary precincts impairs the capacity of a house to carry out its constitutional functions’.[35]

41.20 Parliament has powers to impose punishments for abuse of parliamentary privilege. Houses of parliament which judge their members to have abused the privilege of freedom of speech may suspend them from the service of the house for a period of time.[36] Under the Parliamentary Privileges Act, federal houses of parliament may impose penalties of imprisonment of up to six months for offences, and fines of up to $5,000 in the case of a natural person or $25,000 in the case of a corporation.[37]

41.21 The Senate and the House of Representatives also have passed resolutions implementing a ‘right of reply’ for citizens. These resolutions allow a person who has been referred to by name, or in such a way as to be identified readily, to make a submission claiming that he or she has been adversely affected by reason of that reference (including where the person’s privacy has been unreasonably invaded) and request that an appropriate response is incorporated in the parliamentary record.[38] Most inquiries undertaken by the privileges committees in the House of Representatives and the Senate concern applications from persons seeking a right of reply.[39]

Government inquiries

41.22 In 2000, the Privacy Amendment (Private Sector) Bill was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs for inquiry and report (2000 House of Representatives Committee inquiry). The inquiry accepted that the exemption for political acts and practices seemed to be targeted at promoting the vitality and proper functioning of representative democracy. It suggested, however, that the exemption should be restricted to the participation of political representatives in parliamentary or electoral processes, rather than in other aspects of the political process.[40] The Australian Government rejected the recommendation on the basis that this would narrow significantly the scope of the exemption.[41]

41.23 The 2000 House of Representatives Committee inquiry also recommended that the Privacy Act should be amended to provide that the exemption does not permit political parties or political representatives to sell or disclose personal information collected in the course of their duties to anyone not covered by the exemption.[42] The Australian Government rejected this recommendation on the basis that the exemption would not apply unless the personal information was being sold or disclosed for the purpose of an election, a referendum or participation in another aspect of the political process.[43] A note was inserted in the Bill, however, to make it clear that the exemption does not extend to the use or disclosure (by way of sale or otherwise) of personal information collected by virtue of the exemption in a way that is not covered by the exemption.[44]

41.24 In 2005, the Senate Legal and Constitutional References Committee reviewed the private sector provisions of the Privacy Act (Senate Committee privacy inquiry).[45] A number of submissions to the Senate Committee privacy inquiry objected strongly to the exemption for political acts and practices.[46] The Senate Committee privacy inquiry concluded that the exemption in relation to political acts and practices was problematic and recommended that it should be examined by the ALRC as part of its wider review of the Privacy Act.[47]

International instruments and laws

41.25 The European Union (EU) Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (EU Directive) contains a specific exemption allowing the compilation of data by political parties on people’s political opinions in the course of electoral activities, provided that appropriate safeguards are established.[48] Under the EU Directive, the processing of data by political organisations for marketing purposes also is permitted, subject to certain conditions.[49]

41.26 The Asia-Pacific Economic Cooperation (APEC) Privacy Framework does not contain a specific exemption or exception concerning political or electoral activities. The Explanatory Memorandum to the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data issued by the Organisation for Economic Co-operation and Development (OECD) states that exceptions to the privacy principles are to be limited to those that are ‘necessary in a democratic society’.[50]

41.27 A number of comparable overseas jurisdictions, including the United Kingdom, New Zealand and Hong Kong, do not exempt political parties or political acts and practices from the operation of their information privacy legislation. As noted above, political parties are not caught by federal privacy legislation in Canada, but some parties—namely the Liberal Party and the New Democratic Party—say that they voluntarily comply with the privacy principles, only collect and retain personal information with the consent of the individual concerned, and allow an individual to see his or her file upon request.[51]

41.28 In September 2005, an international conference of privacy and data protection commissioners adopted a Resolution on the Use of Personal Data for Political Communication. The Resolution states that any processing of personal data for the purposes of political communication must respect the fundamental rights and freedoms of interested persons and must comply with specific data protection principles. In particular, the Resolution provides that certain principles concerning the collection of personal data, data quality and security, rights of access and correction, and the right to opt out of unsolicited communication should be observed in political communication. In addition, the Resolution recommends that the processing of personal data should be based on the individual’s consent or another legitimate ground provided for by the law.[52]

Submissions and consultations

41.29 In the Issues Paper, Review of Privacy (IP 31), the ALRC asked whether the exemption in the Privacy Act should be removed for registered political parties[53] and political acts and practices.[54]There was considerable support for removing these exemptions.[55] Some stakeholders suggested, for example, that preferential treatment of registered political parties—by exempting them from compliance with the Privacy Act—undermines public trust in the political process.[56] Stakeholders also were concerned that: political parties can collect information about constituents from third parties that could be inaccurate;[57] and constituents do not know what information was collected by the parties and have no right of access to, or correction of, personal information in electoral databases.[58]

41.30 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC proposed that:

  • the exemption in the Privacy Act for registered political parties and political acts and practices should be removed;[59] and

  • the Privacy Act should be amended to provide that the Act does not apply to the extent, if any, that it would infringe any constitutional doctrine of implied freedom of political communication.[60]

Removing the political exemption

41.31 Many stakeholders supported removing the political exemption.[61] The Cyberspace Law and Policy Centre, for example, submitted that:

Most individuals, if they were aware of the increasingly sophisticated database operations of political parties, would see them as one of the clearest examples of information processing that needs the protection of the privacy principles.[62]

41.32 Liberty Victoria provided the example of a Victorian senator who had passed the medical records of a woman who had sought an abortion to the media. It submitted that, in light of this conduct, the Privacy Act should apply across all sectors, including elected representatives.[63]

41.33 Several stakeholders expressed the view that removing the political exemption would improve the operation of the democratic process.[64] The Office of the Victorian Privacy Commissioner (OVPC), for example, endorsed the views of the previous Victorian Privacy Commissioner, Paul Chadwick, that ‘one aspect of trust [in public institutions] is the willingness to submit to the same levels of accountability as everybody else’.[65] The Public Interest Advocacy Centre (PIAC) noted:

The unregulated operation of [electoral] databases can diminish public confidence in the democratic process, discourage constituents from contacting their local Member of Parliament about issues of concern, and distort the political process by skewing it in favour of swinging voters. The proposal to remove the exemption should result in greater transparency and accountability in the way that political parties and their representatives handle personal information.[66]

41.34 The Office of the Privacy Commissioner (OPC) advised that it receives very few complaints or inquiries about the political exemption, although this fact is ambiguous. It may mean that the Privacy Act provides an appropriate balance; the OPC noted, on the other hand, that the low frequency of complaints also may be a result of individuals not being aware of how political parties handle their personal information. The OPC submitted that, if the political parties exemption is to be retained,

political parties should be required to comply with a few key privacy principles that will provide individuals with transparency and protection regarding how political parties handle their information. These key principles include the openness principle, NPP 5, and the access and correction principle, NPP 6.[67]

41.35 Some stakeholders also commented on the importance of applying specific privacy principles to registered political parties and political acts and practices, including the: ‘Openness’ principle;[68] ‘Access and Correction’ principle;[69] and ‘Data Security’ principle.[70]

41.36 The Australian Labor Party (ALP) was the only registered political party that made a submission to this Inquiry.[71] The ALP commented that the current law operates effectively to promote political communication, while protecting the privacy of individuals from commercial and other intrusions. The ALP submitted that

the exemption for registered political parties under the Privacy Act is essential to the conduct of election campaigns and facilitates the effective communication of the policies, ideas and visions which underpin our democratic processes.[72]

41.37 The ALP suggested that the current law on registration of political parties under Part XI of the Commonwealth Electoral Act provides an effective and practical way to ensure that private information disclosed under the political exemption is treated appropriately.[73]

41.38 The Right to Know Coalition did not support the ALRC’s proposal that the political exemption be removed on the basis that this might adversely effect the media’s ability to report on matters affecting the political process. The Coalition argued that the ‘adversarial’ nature of Australian politics means that ‘journalists often receive information from one party about the other that would fall within the definition of personal information’. The Coalition submitted that—if any change were to occur to the exemption for political parties—the exemption should be modified only to the extent of imposing obligations of: notification; data quality and security; and access and correction. The Coalition also suggested that the disclosure of information by political parties should be protected by a defence of qualified privilege, similar to that which applies under defamation law.[74]

Accommodating the relevant constitutional doctrines

41.39 Most stakeholders that commented on the proposal supported amending the Privacy Act to clarify that it does not apply to the extent, if any, that it would infringe any constitutional doctrine of implied freedom of political communication.[75] The OPC noted, for example, that including such a provision would be consistent with similar provisions in legislation such as the Spam Act 2003 (Cth) and the Telecommunications Act 1997 (Cth).[76]

41.40 The ALP expressed concerns, however, that including a definition based on the implied freedom of political communication could result in legal challenges to a range of activities by political parties, which would be detrimental to the political process.[77] The Right to Know Coalition submitted that applying the implied constitutional doctrine of freedom of political communication to the Privacy Act could be difficult because of the ‘developing and relatively unclear jurisprudence’ surrounding the doctrine.[78]

Options for reform

41.41 There are compelling policy reasons—as well as strong stakeholder support—for applying privacy obligations to registered political parties and political acts and practices. However, any lessening of the scope of the political exemption must take into account the strong public interest in promoting Australia’s system of representative democracy. The ALRC has identified three options for balancing these competing interests:

  • removing the political exemption, subject to the relevant constitutional limitations;

  • providing limited exceptions to—rather than exemptions from—the Privacy Act for registered political parties and political acts and practices; and

  • requiring registered political parties and other entities engaging in political acts and practices to develop information-handling guidelines, in consultation with the OPC.

Removal of political exemption, subject to relevant constitutional limitations

41.42 The most direct way of balancing the public interest in protecting individuals’ information privacy and the constitutional protections directed towards promoting representative democracy would be to remove the political exemption, subject to the extent (if any) that it conflicts with relevant constitutional protections. Most relevantly, these protections involve the doctrine of implied freedom of political communication and parliamentary privilege. This was the approach proposed by the ALRC in DP 72.

41.43 Arguably, even in the absence of specific legislative provisions, the Privacy Act would be interpreted in a way that is consistent with any relevant constitutional limitations. In particular, s 15A of the Acts Interpretation Act 1901 (Cth) provides that:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

41.44 The High Court, however, has upheld a number of limitations to the effectiveness of the above provision of the Acts Interpretation Act. These include: where a provision of general application can be read down in a number of possible ways and it is unclear upon which head of legislative power Parliament is relying;[79] and where it is unclear whether a provision of general application is intended to have a distributive operation. The latter limitation refers to whether a particular requirement is intended to apply to each and every person within a class independently of its application to others; or whether ‘all were intended to go free unless all were bound’.[80]

41.45 The Office of Parliamentary Counsel has issued a model provision for an Act to be read down so that it does not infringe the constitutional doctrine of implied freedom of political communication. The provision reads:

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.[81]

41.46 Equivalent provisions are contained in several pieces of Commonwealth legislation, including the Spam Act, the Do Not Call Register Act, the Criminal Code Act 1995 (Cth) and the Telecommunications Act.[82]

41.47 Some Commonwealth laws also include provisions expressly preserving parliamentary privileges.[83] Section 10 of the Evidence Act 1995 (Cth), for example, provides:

(1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

(2) In particular, subsection 15(2) [compellability to give evidence] does not affect, and is in addition to, the law relating to such privileges.

41.48 The question of whether the application of the Privacy Act to a specific act or practice would infringe a relevant constitutional doctrine would be determined on a case-by-case basis by the relevant court or tribunal.

Exceptions to specific privacy principles

41.49 An alternative approach would be to provide registered political parties and agencies and organisations engaging in political acts and practices with exceptions to specific privacy principles. This approach involves identifying the particular privacy principles that could conflict with Australia’s system of representative democracy.

41.50 The Resolution on the Use of Personal Data for Political Communication, discussed above, provides that political communication should observe privacy principles relating to the collection of personal data, data quality and security, rights of access and correction, and the right to opt out of unsolicited communication.[84]

41.51 As noted above, some stakeholders also made submissions to this Inquiry suggesting particular privacy principles that should apply to registered political parties and political acts and practices. These include the ‘Openness’ principle, the ‘Access and Correction’ principle, and the ‘Data Security’ principle.

Development of information-handling guidelines

41.52 Another option for reform is to retain the political exemption, on the condition that registered political parties, and other entities engaging in political acts and practices, are subject to information-handling guidelines.

41.53 In Victoria, for example, MPs are exempt from the Information Privacy Act 2000 (Vic).[85] During the passage of the Act, however, there was bipartisan agreement that MPs should be covered by self-imposed standards.[86] The Victorian Scrutiny of Acts and Regulations Committee, in consultation with information privacy consultants, has developed a Privacy Code of Conduct for Members of the Victorian Parliament. The Code sets out seven privacy principles for MPs, including: collection; use and disclosure; data quality; data security; openness; access and correction; and accountability.[87] However, the Code has not yet been implemented by either of the Victorian Houses of Parliament.

ALRC’s view

Removing the political exemption

41.54 In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community. Unless there is a sound policy reason to the contrary, political parties and agencies and organisations engaging in political acts and practices should be required to handle personal information in accordance with the requirements of the Privacy Act.

41.55 The most compelling reason for exempting registered political parties and agencies and organisations engaging in political acts and practices from the Privacy Act is the need to recognise the special status of political acts and practices under the Australian Constitution. In Chapter 42, for example, the ALRC justifies retention of the journalism exemption on the basis that there is a compelling public interest in freedom of expression and in allowing the free flow of information required to sustain the vitality of democratic institutions.

41.56 The ALRC is not convinced, however, that all (or even the majority) of information-handling activities undertaken by registered political parties and those engaged in political acts and practices warrant legislative immunity. In particular, registered political parties and those engaging in political acts and practices should:

  • collect information by lawful and fair means; ensure the quality and security of the information;

  • set out their policies on the management of personal information;

  • let individuals know what personal information is held about them; and

  • allow individuals the right to access and correct such information.

41.57 Compliance with these information-handling practices by those agencies and organisations engaging in the political process will promote—rather than impede—public confidence in the democratic process. Similarly, there is an argument that exempting political parties entrenches the advantages of incumbency, contrary to the best interests of representative democracy.[88]

41.58 A further justification put forward for retaining the political exemption was that the application of the Privacy Act to registered political parties is unnecessary because adequate protection already is in place. In particular, the ALP suggested that protection is afforded by the requirements for registration under the Commonwealth Electoral Act.

41.59 Registration requirements do not provide directly for privacy protections. All that is required for a party to be eligible for registration under the Commonwealth Electoral Act is that it has: at least one member who is a member of the Parliament of the Commonwealth or, otherwise, at least 500 members; and a written constitution in place setting out the aims of the party. The legislation does not specify any provisions that should be included in a party’s constitution, including any requirement for the party to protect privacy when handling personal information.[89]

41.60 As noted above, houses of parliament have significant powers to impose punishments on their members for abuse of parliamentary processes. These powers do not extend, however, to the broader information-handling practices of registered political parties and those engaging in political acts and practices.

41.61 In the ALRC’s view, political parties and those engaging in political acts and practices should be subject to the Privacy Act—provided that the legislation can accommodate adequately the constitutional doctrines of implied freedom of political communication and parliamentary privilege. Removing the political exemption also accords with a number of comparable overseas jurisdictions, which do not exempt political parties or those engaging in political acts and practices from complying with privacy legislation, including the United Kingdom, New Zealand and Hong Kong.

41.62 The recommended removal from the Privacy Act of the political exemption is not intended to displace more specific legislation that permits the collection and use of personal information by registered political parties and political representatives, including the Commonwealth Electoral Act, the Do Not Call Register Act and the Spam Act.

Accommodating the relevant constitutional doctrines

41.63 Any narrowing of the political exemption must take into account the constitutional doctrines of parliamentary privilege and the implied freedom of political communication. Precluding the application of the Privacy Act to acts and practices falling within parliamentary privilege or the freedom of political communication is the preferable approach. This allows a targeted and nuanced approach to balancing the potential conflicts between the requirements for handling personal information in a way that respects personal privacy and the exchange of personal information necessary for a representative democracy.

41.64 For example, assume that an individual discloses personal information to his or her MP in order to seek assistance with a problem. The MP could disclose the information in a number of ways, including to a relevant minister or agency, or in the course of parliamentary proceedings. These disclosures generally would fall within the relevant constitutional protections and, therefore, the requirements under the Privacy Act would not apply. Where the MP enters the personal information into an electoral database for the purpose of party fundraising, however, this use or disclosure may not fall within the doctrines of parliamentary privilege and the implied freedom of political communication. Consequently, if the ALRC’s recommendation is implemented, the MP would be required to comply with the requirements under the Privacy Act.

41.65 In order to promote certainty about the application of the Privacy Act to registered political parties and political acts and practices, the ALRC recommends that the OPC should provide guidance to registered political parties and others to assist them in understanding and fulfilling their obligations under the Privacy Act.[90]

Alternative options for reform

41.66 Other options are available to balance the public interest in protecting individuals’ information privacy with the personal information-handling practices incidental to a representative democracy.

41.67 Political parties and those engaging in the political process could be required to comply only with specific privacy principles. In particular, these could include: the ‘Openness’ principle; the ‘Data Quality’ principle; the ‘Data Security’ principle; and the ‘Access and Correction’ principle. Arguably, this approach may provide more certainty to those engaging in the political process about how the Privacy Act will be applied to their acts and practices. In the ALRC’s view, however, setting out specific exceptions to the privacy principles is a blunt tool to classify the particular acts and practices that warrant immunity from the requirements of the Privacy Act. OPC guidance to registered political parties and others should provide sufficient certainty.

41.68 Another option for reform is for political parties and others engaging in political acts and practices to develop guidelines for their handling of personal information. There are few avenues, however, to implement and enforce such guidelines. Accordingly, this reform has limited capacity to address the privacy concerns arising out of personal information handling in the political process.

41.69 In the event that the current political exemption remains, however, guidelines for personal information handling in the political process would provide individuals with a minimum level of privacy protection. In particular, transparent information-handling practices allow an individual to make more informed decisions about his or her participation in the political process—for example, the amount of personal information that he or she chooses to disclose to his or her MP. These information-handling guidelines should be developed in consultation with the OPC. The guidelines also could be informed by the voluntary code of conduct for Victorian MPs developed by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee.[91]

[8]Privacy Act 1988 (Cth) s 6(1). A list of registered political parties is available on the Australian Electoral Commission’s website: Australian Electoral Commission, Current List of Political Parties (2007) <www.aec.gov.au/Parties_and_Representatives/Party_Registration/index.htm> at 6 May 2008.

[9]Privacy Act 1988 (Cth) s 6C(1).

[10]Ibid ss 7(1)(ee), 7C.

[11] Ibid s 7C.

[12] An ‘electoral law’ means a Commonwealth, state or territory law relating to elections to a Parliament or to a local government authority: Ibid s 7C(6).

[13] Ibid s 7C.

[14] Under the Do Not Call Register Act 2006 (Cth), registered political parties, independent MPs and electoral candidates are exempt from the prohibition against making unsolicited telemarketing calls to a number registered on the Do Not Call Register, provided the call is made for certain specified purposes. In addition, under the Spam Act 2003 (Cth), registered political parties may, without the prior consent of the recipient, send ‘designated commercial electronic messages’. Although these messages must include information about the authorising individual or organisation, they do not have to contain a functional unsubscribe facility.

[15] Commonwealth, Parliamentary Debates, House of Representatives, 12 April 2000, 15749 (D Williams—Attorney-General), 15753.

[16] M Crompton (Federal Privacy Commissioner), ‘Media Release: Federal Privacy Commissioner, Malcolm Crompton Comments on Private Sector’ (Press Release, 12 April 2000).

[17]Privacy (Extension to Political Acts and Practices) Amendment Bill 2006 (Cth). The Bill lapsed at the time the Australian Parliament was prorogued for the 2007 federal election. The Bill was reintroduced as Privacy (Extension to Political Acts and Practices) Amendment Bill 2006 [2008]. As at 9 May 2008, the Bill was before the Australian Senate.

[18] Commonwealth, Parliamentary Debates, Senate, 22 June 2006, 19 (N Stott Despoja). The Australian Democrats also attempted unsuccessfully to introduce amendments to the Do Not Call Register Bill 2006 (Cth) to prevent politicians from making telemarketing calls: Commonwealth, Parliamentary Debates, Senate, 21 June 2006, 25 (N Stott Despoja). The Do Not Call Register Act 2006 (Cth) is discussed in Ch 73.

[19]A v The United Kingdom [2002] ECHR 811.

[20]P van Onselen and W Errington, ‘Electoral Databases: Big Brother or Democracy Unbound?’ (2004) 29 Australian Journal of Political Science 349, 349.

[21]P van Onselen and W Errington, ‘Suiting Themselves: Major Parties, Electoral Databases and Privacy’ (2005) 20 Australasian Parliamentary Review 21, 28.

[22] See: ‘Privacy Commissioner Probes PM's List’, Toronto Star (online), 11 October 2007, <www.
thestar.com>
.

[23]‘Privacy Czar Drops Rosh Hashanah Inquiry but Plans to Examine Party Databanks’, The Canadian Press (online), 6 March 2008, <canadianpress.google.com>.

[24]R v Smithers; Ex parte Benson (1912) 16 CLR 99, 108, 109–110; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 73; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106, 232. The implied freedom of political communication is discussed in more detail in Ch 42.

[25]Cunliffe v Commonwealth (1994) 182 CLR 272, 327; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560–561.

[26]Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 168; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561.

[27]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 51, 76–77, 94–95; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106, 142–144, 159, 169, 217–218; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 126; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 235; Cunliffe v Commonwealth (1994) 182 CLR 272, 336–337, 387; Langer v Commonwealth (1996) 186 CLR 302, 333­–334; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561.

[28] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567.

[29] Erskine May’s Treatise on the law, privileges, proceedings, and usage of Parliament, cited in G Griffith, Parliamentary Privilege: Major Developments and Current Issues (2007) Parliament of New South Wales—Parliamentary Library, 2.

[30]Parliament of United Kingdom—Joint Committee of the House of Lords and House of Commons, Parliamentary Privilege—First Report (1999), 26.

[31]Ibid, 26.

[32]Parliamentary Privileges Act 1987 (Cth) ss 16(2).

[33] See Parliament of United Kingdom—Joint Committee of the House of Lords and House of Commons, Parliamentary Privilege—First Report (1999), 83.

[34]Ibid, 83.

[35]E Campbell, Parliamentary Privilege (2003), 184. A purposive approach also was recently adopted by the Supreme Court of Canada in Canada (House of Commons) v Vaid [2005] ACWSJ 8082.

[36]E Campbell, Parliamentary Privilege (2003), 55.

[37]Parliamentary Privileges Act 1987 (Cth) s 7.

[38] The Australian Senate agreed to a right of reply procedure on 25 February 2988: J Odgers (ed) Odgers' Australian Senate Practice (11th ed, 2004), Appendix 2, [5]. The House of Representatives agreed to a resolution introducing a right of reply on 27 August 1997: Australian Parliament—House of Representatives Standing Committee of Privileges and Members’ Interests, Right of Reply (2008) <www.aph.gov.au/house/committee> at 15 April 2008.

[39] Of the 13 Reports issued by the Senate Committee of Privileges between November 2004 and October 2007, seven were applications from individuals seeking a right of reply. Parliament of Australia—Senate, Senate Privileges Committee—Completed Inquiries (2008) <www.aph.gov.au/
Senate> at 30 April 2008. Of the six Reports issued by the House of Representatives Standing Committee of Privileges between November 2004 and October 2007, four were applications from individuals seeking a right of reply. Parliament of Australia—House of Representatives, Standing Committee of Privileges—Committee Activities (Inquiries and Reports) (2008) <www.aph.gov.au/house> at 29 April 2008.

[40]Parliament of Australia—House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000), recs 11, 12.

[41]Australian Government Attorney-General’s Department, Government Response to House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000) <www.ag.gov.au> at 1 August 2007.

[42]Parliament of Australia—House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000), rec 13.

[43]Australian Government Attorney-General’s Department, Government Response to House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Privacy Amendment (Private Sector) Bill 2000 (2000) <www.ag.gov.au> at 1 August 2007.

[44] Further Supplementary Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), [1]; Privacy Act 1988 (Cth), note to s 7C.

[45] Parliament of Australia—Senate Legal and Constitutional References Committee, The Real Big Brother: Inquiry into the Privacy Act 1988 (2005).

[46] Ibid, [4.87]–[4.94].

[47] Ibid, [7.29]–[7.30], rec 11.

[48] European Parliament, Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Directive 95/46/EC (1995), recital 36.

[49] Ibid, recital 30.

[50] Organisation for Economic Co-operation and Development, Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980), Explanatory Memorandum, [47].

[51] Canadian Press, ‘Tory Database Draws Ire of Privacy Experts for Including Constituency Files’, CTV (online), 18 October 2007, <www.ctv.ca>.

[52]Resolution on the Use of Personal Data for Political Communication (Adopted at the 27th International Conference on Privacy and Personal Data Protection, Montreux, 14–16 September 2005) (2005) <www.privacyconference2005.org> at 6 May 2008.

[53]Australian Law Reform Commission, Review of Privacy, IP 31 (2006), Question 5–7.

[54]Ibid, Question 5–8.

[55] For political parties, see G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007; New South Wales Council for Civil Liberties Inc, Submission PR 156, 31 January 2007; Confidential, Submission PR 134, 19 January 2007; Centre for Law and Genetics, Submission PR 127, 16 January 2007; K Pospisek, Submission PR 104, 15 January 2007; W Caelli, Submission PR 99, 15 January 2007; K Handscombe, Submission PR 89, 15 January 2007; Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007. For political acts and practices, see G Greenleaf, N Waters and L Bygrave—Cyberspace Law and Policy Centre UNSW, Submission PR 183, 9 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007; Office of the Health Services Commissioner (Victoria), Submission PR 153, 30 January 2007; Queensland Council for Civil Liberties, Submission PR 150, 29 January 2007; Royal Women’s Hospital Melbourne, Submission PR 108, 15 January 2007; Institute of Mercantile Agents, Submission PR 101, 15 January 2007; K Handscombe, Submission PR 89, 15 January 2007.

[56] See, eg: Centre for Law and Genetics, Submission PR 127, 16 January 2007; Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007; B Such, Submission PR 71, 2 January 2007.

[57]Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007.

[58] Office of the Privacy Commissioner, Submission PR 215, 28 February 2007; Confidential, Submission PR 134, 19 January 2007; Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007.

[59]Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 37–1.

[60]Ibid, Proposal 37–2.

[61]Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Australian Direct Marketing Association, Submission PR 543, 21 December 2007; Liberty Victoria—Victorian Council for Civil Liberties, Submission PR 540, 21 December 2007; Confidential, Submission PR 535, 21 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; Australasian Compliance Institute, Submission PR 419, 7 December 2007; S Hawkins, Submission PR 382, 6 December 2007; Rev B Harris, Submission PR 321, 14 September 2007.

[62]Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.

[63]Liberty Victoria—Victorian Council for Civil Liberties, Submission PR 540, 21 December 2007.

[64] See, eg, Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007.

[65]Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007.

[66]Public Interest Advocacy Centre, Submission PR 548, 26 December 2007.

[67]Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[68]Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007.

[69] Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007.

[70]Liberty Victoria—Victorian Council for Civil Liberties, Submission PR 540, 21 December 2007.

[71] In October 2006, the ALRC wrote to the Liberal Party of Australia, the ALP, the National Party of Australia, the Country Liberal Party, the Australian Democrats, the Australian Greens, and the Family First Party. In October 2007, the ALRC corresponded with the Liberal Party of Australia and the ALP to request consultation meetings. The ALRC also consulted with Senator Natasha Stott Despoja, who advised that the Australian Democrats supported the removal of the political exemption: N Stott Despoja, Consultation, Canberra, 21 March 2007.

[72]Australian Labor Party, Submission PR 486, 18 December 2007.

[73]Ibid. Requirements for registration of a political party under the Commonwealth Electoral Act include having: at least one member who is a member of the Parliament of the Commonwealth or, otherwise, at least 500 members; and a written constitution in place setting out the aims of the party.

[74]Right to Know Coalition, Submission PR 542, 21 December 2007.

[75]Australian Privacy Foundation, Submission PR 553, 2 January 2008; Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Privacy Commissioner, Submission PR 499, 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. The Australian Direct Marketing Association did not disagree with the proposal: Australian Direct Marketing Association, Submission PR 543, 21 December 2007.

[76]Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[77]Australian Labor Party, Submission PR 486, 18 December 2007.

[78]Right to Know Coalition, Submission PR 542, 21 December 2007.

[79] See, eg, Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.

[80] See R v Poole; Ex Parte Henry (No 20) (1939) 61 CLR 364, 652. Limitations to severability are discussed in Australian Government Office of Parliamentary Counsel, Drafting Direction No 3.1—Constitutional Law Issues (2006).

[81]Australian Government Office of Parliamentary Counsel, Drafting Direction No 3.1—Constitutional Law Issues (2006), [8].

[82]Spam Act 2003 (Cth) s 44; Do Not Call Register Act 2006 (Cth) s 43; Criminal Code Act 1995 (Cth) s 102.8(6); Telecommunications Act 1997 (Cth) s 138. See also Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS(13); Broadcasting Services Act 1992 (Cth) s 61BG; Olympic Insignia Protection Act 1987 (Cth) s 73; Interactive Gambling Act 2001 (Cth) s 61BB(4).

[83]Evidence Act 1995 (Cth) s 10; Public Interest Disclosures Bill 2007 (Cth) s 6.

[84]Resolution on the Use of Personal Data for Political Communication (Adopted at the 27th International Conference on Privacy and Personal Data Protection, Montreux, 14–16 September 2005) (2005) <www.privacyconference2005.org> at 6 May 2008.

[85]Information Privacy Act 2000 (Vic) s 9(1). MPs are subject, however, to the Health Records Act 2001 (Vic).

[86]Parliament of Victoria—Scrutiny of Acts and Regulations Committee, Final Report on a Privacy Code of Conduct for Members of the Victorian Parliament (2002), 1.

[87]Ibid.

[88] P van Onselen, ‘Political Databases and Democracy: Incumbency Advantage and Privacy Concerns’ (2004) Democratic Audit of Australia <democratic.audit.anu.edu.au>.

[89]Commonwealth Electoral Act 1918 (Cth) s 123(1).

[90] Rec 41–3.

[91]Parliament of Victoria—Scrutiny of Acts and Regulations Committee, Final Report on a Privacy Code of Conduct for Members of the Victorian Parliament (2002).