The objects of the Act

5.90 An objects clause is a provision—often located at the beginning of a piece of legislation—that outlines the underlying purposes of the legislation and can be used to resolve uncertainty and ambiguity. Objects clauses have been described as a ‘modern day variant on the use of a preamble to indicate the intended purpose of legislation’.[146] The Office of Parliamentary Counsel, which is responsible for drafting Australian Government legislation, has noted that:

Some objects provisions give a general understanding of the purpose of the legislation … Other objects provisions set out general aims or principles that help the reader to interpret the detailed provisions of the legislation.[147]

5.91 Objects clauses may assist the courts and others in the interpretation of legislation.[148] Section 15AA of the Acts Interpretation Act 1901 (Cth) states that:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

5.92 The interpretation statutes of the states and territories contain similar or identical provisions.[149] Cole JA of the New South Wales Court of Appeal has made clear that

whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power.[150]

5.93 The Privacy Act does not include a section setting out the objects of the legislation. The Act does include a Preamble, however, that indicates that the legislation is intended to give effect to Australia’s obligations in relation to privacy under the ICCPR and to implement the OECD Guidelines.

5.94 A number of other federal Acts in the field of human rights—including the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth)—include an objects clause. Recent federal statutes containing an objects clause include the Airspace Act 2007 (Cth), the National Greenhouse and Energy Reporting Act 2007 (Cth) and the Northern Territory National Emergency Response Act 2007 (Cth).

International instruments

5.95 A number of international instruments dealing with privacy set out their aims and objects. The Preface to the OECD Guidelines states in part that

although national laws and policies may differ, Member countries have a common interest in protecting privacy and individual liberties, and in reconciling fundamental but competing values such as privacy and the free flow of information.[151]

5.96 Article 1 of the European Parliament’s Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (EU Directive), states that:

1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.

2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.[152]

5.97 The Preamble to the APEC Privacy Framework states that:

Finally, this Framework on information privacy protection was developed in recognition of the importance of:

  • Developing appropriate privacy protections for personal information, particularly from the harmful consequences of unwanted intrusions and the misuse of personal information;

  • Recognizing the free flow of information as being essential for both developed and developing market economies to sustain economic and social growth;

  • Enabling global organizations that collect, access, use or process data in APEC member economies to develop and implement uniform approaches within their organizations for global access to and use of personal information;

  • Enabling enforcement agencies to fulfill their mandate to protect information privacy; and

  • Advancing international mechanisms to promote and enforce information privacy and to maintain the continuity of information flows among APEC economies and with their trading partners.[153]

Federal privacy legislation

5.98 Although the Privacy Act does not include an objects clause, s 29 of the Act requires the Privacy Commissioner to have regard to a number of matters in performing his or her functions. These include the protection of important human rights and social interests that compete with privacy such as the general desirability of a free flow of information, through the media and otherwise, and the right of government and business to achieve their objectives in an efficient way.[154] The Commissioner is also required to take into account Australia’s international obligations, including those concerning communications technology, and international guidelines relevant to the better protection of individual privacy.[155] The Commissioner must also ensure that his or her recommendations and guidelines are, within the limitations of the powers of the Commonwealth, capable of acceptance, adaptation and extension throughout Australia.[156]

5.99 Section 3 of the Privacy Amendment (Private Sector) Act states that the main objects of that Act are:

(a) to establish a single comprehensive national scheme providing, through codes adopted by private sector organisations and National Privacy Principles, for the appropriate collection, holding, use, correction, disclosure and transfer of personal information by those organisations; and

(b) to do so in a way that:

(i) meets international concerns and Australia’s international obligations relating to privacy; and

(ii) recognises individuals’ interests in protecting their privacy; and

(iii) recognises important human rights and social interests that compete with privacy, including the general desirability of a free flow of information (through the media and otherwise) and the right of business to achieve its objectives efficiently.

State and territory privacy legislation

5.100 The Information Privacy Act 2000 (Vic),[157] the Information Act 2002 (NT)[158] and the Information Privacy Bill (WA)[159] expressly set out their objects. The Privacy and Personal Information Protection Act 1998 (NSW) and the Personal Information Protection Act 2004 (Tas), however, do not include an objects clause.

5.101 Section 5 of the Victorian Information Privacy Act provides that the objects of that Act are:

(a) to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector;

(b) to promote awareness of responsible personal information handling practices in the public sector;

(c) to promote the responsible and transparent handling of personal information in the public sector.

Submissions and consultations

General comments

5.102 There was significant support for amending the Privacy Act to include an objects clause,[160] although a small number of stakeholders expressed the view that an objects clause was unnecessary.[161]

5.103 The Office of the Information Commissioner Northern Territory stated that:

I consider that the impact of the privacy principles could be significantly enhanced by a brief statement of the overarching objects to guide those who must interpret and implement them. This could either appear as an introductory statement to the principles or as an objects clause at the start of the Act.[162]

5.104 The National Health and Medical Research Council (NHMRC) suggested that an objects clause would assist health service providers, researchers and others to understand the overall purpose, structure and direction of the legislation and, on that basis, better interpret and apply the legislation.[163] The OVPC noted that the objects set out in s 5 of the Information Privacy Act had been extremely useful. The Office suggested that:

In the interests of national consistency, it would be desirable for the objects of state and territory privacy legislation to be amended or drafted to align, to the maximum extent possible, with the objects of the Privacy Act. This should of course occur by way of consultation between the Commonwealth and state and territory governments.[164]

5.105 Stakeholders suggested that the objects of the Privacy Act might include:

  • to balance the public interest in protecting individual privacy with other public interests;[165]
  • to secure the right of individuals to control the dissemination of information about their own lives;[166]
  • to promote the responsible and transparent handling of personal information;[167]
  • to protect the information privacy of individuals while authorising appropriate uses of their personal information;[168]
  • to achieve national consistency;[169] and
  • the matters set out in s 29 of the Privacy Act, discussed above.[170]

Comments on specific elements of the proposed objects clause

5.106 In DP 72, the ALRC proposed that the legislation should include an objects clause and that those objects should be to:

(a) implement Australia’s obligations at international law in relation to privacy;

(b) promote the protection of individual privacy;

(c) recognise that the right to privacy is not absolute and to provide a framework within which to balance the public interest in protecting the privacy of individuals with other public interests;

(d) establish a cause of action to protect the interests that individuals have in the personal sphere free from interference from others;

(e) promote the responsible and transparent handling of personal information by agencies and organisations;

(f) facilitate the growth and development of electronic commerce, nationally and internationally, while ensuring respect for the right to privacy; and

(g) provide the basis for nationally consistent regulation of privacy.[171]

5.107 While there was significant support for the ALRC’s proposed objects clause,[172] stakeholders made the following comments in relation to individual elements.

(a) Implement Australia’s obligations at international law in relation to privacy

5.108 Telstra did not support the inclusion of an objects clause and, in addition, was of the view that this paragraph was too wide and appeared to be intended to incorporate all international norms relating to privacy into Australian law.[173]

(b) Promote the protection of individual privacy

5.109 The Australian Privacy Foundation was of the view that paragraph (b) should come first in the list of objects.[174] The OPC suggested amending paragraph (b) to refer explicitly to the individual’s right to privacy.[175] The Arts Law Centre of Australia expressed the view that paragraph (b) should read ‘to promote the protection of personal information’ rather than ‘to promote the protection of individual privacy’ to more accurately reflect the scope of the legislation. This was on the basis that the Centre did not support the inclusion of a statutory cause of action for invasion of privacy in the Privacy Act.[176]

(c) Recognise that the right to privacy is not absolute and to provide a framework within which to balance the public interest in protecting the privacy of individuals with other public interests

5.110 The ABA expressed the view that this proposed paragraph was uncertain and should be clarified by way of example. The ABA suggested that the objects clause should include recognition of the desirability of the free flow of information and the right of government and business to achieve their objectives in an efficient way.[177] A number of other stakeholders also expressed the view that the objects clause should recognise the importance of freedom of expression and the general desirability of the free flow of information[178] or appropriate information sharing.[179] The Arts Law Centre of Australia was of the view that proposed paragraph (c) should make clear that privacy does not take precedence over other human rights.[180] Other arts organisations agreed.[181]

5.111 PIAC expressed concern about paragraph (c) on the basis that the paragraph appeared to reduce the right to privacy to a public interest ‘that can readily be traded off against other public interests’. In the Centre’s view, the provision should recognise that the right to privacy is not absolute, but that the appropriate balance is between the right to privacy and other human rights and freedoms.[182]

5.112 The OPC did not support proposed paragraph (c) and expressed the view that it was not consistent with art 17 of the ICCPR.[183] The OPC suggested, as an alternative, that one of the objects of the legislation should be to

recognise that the right to privacy is not absolute and to provide a framework within which agencies and organisations may conduct their legitimate functions and activities in a manner that respects individuals’ right to privacy.[184]

5.113 In the OPC’s view, the notion of balancing interests overlooks the situations in which good privacy practice supports the objectives of agencies and organisations. The OPC noted that privacy is not always in competition with other public interests but may advance those interests.[185]

(d) Establish a cause of action to protect the interests that individuals have in the personal sphere free from interference from others

5.114 The Arts Law Centre of Australia and a number of other stakeholders did not support a statutory cause of action and, as a consequence, did not support including this element in the objects clause.[186] In addition, Telstra expressed the view that the clause was expressed too broadly and was likely to lead to an interpretation of the proposed cause of action that went beyond privacy to include such issues as personality rights.[187]

(f) Facilitate the growth and development of electronic commerce, nationally and internationally, while ensuring respect for the right to privacy

5.115 PIAC did not support including this element in the objects clause stating that ‘it is inappropriate to import into what is essentially human rights legislation an objective to facilitate the growth and development of electronic commerce’.[188]

5.116 The Australian Government Attorney-General’s Department noted that the Electronic Transactions Act 1999 (Cth) includes an objects clause that makes clear that the Act is intended is to provide a regulatory framework that: recognises the importance of the information economy to the future economic and social prosperity of Australia; facilitates the use of electronic transactions; promotes business and community confidence in the use of electronic transactions; and enables business and community to use electronic communications in their dealings with government.[189]

New objects

5.117 The OPC suggested the addition of several new elements to the objects clause. These were the establishment of the position of the Privacy Commissioner and the OPC, and the provision of ‘a means for addressing complaints about an alleged interference with an individuals’ information privacy’.[190]

ALRC’s view

5.118 The Privacy Act would benefit from the inclusion of an objects clause setting out the purpose and aims of the legislation. This is particularly important in principles-based legislation, because principles require constant interpretation and application to particular contexts and an objects clause provides a reference framework to assist with this.

5.119 Some of the matters set out in s 29 of the Privacy Act for consideration by the Privacy Commissioner in carrying out his or her functions would sit more appropriately in an objects clause. These matters are relevant to the interpretation and application of the Act by all stakeholders, not only the Privacy Commissioner.

5.120 The ALRC recommends that the objects clause include the following elements. The clause should state that one of the objects of the Act is to implement, in part, Australia’s obligations at international law in relation to privacy. This provides a pointer to relevant international instruments and jurisprudence that may assist in interpreting and applying the legislation. The ALRC acknowledges Telstra’s concern that, if the statutory cause of action is not included in the Privacy Act, the legislation will only partially implement Australia’s international obligations in relation to privacy and has amended the recommended wording accordingly.

5.121 The clause should also state that the Act is intended to recognise that individuals have a right to privacy and to promote the protection of that right. The ALRC agrees with the OPC that the objects clause should make express reference to the right to privacy. The right to privacy is one of a number of fundamental human rights set out in the ICCPR and other international instruments and, while the right is not absolute, one of the objects of the Privacy Act should be to promote protection of that right.

5.122 Chapter 1 discusses how the right to privacy competes, collides and coexists with other rights and interests, such as freedom of expression. The objects clause should acknowledge these tensions. It should make clear that the Act is intended to recognise that the right to privacy is not absolute and provide a framework within which to balance that right with other human rights. It should also reflect the need to balance the public interest in protecting the privacy of individuals with other public interests.

5.123 This formulation recognises that rights should be balanced with rights and public interests with public interests. Although the right to privacy is an individual right, there is a strong public interest in protecting that right. For example, it is essential that health consumers are confident that their health information will be handled appropriately or they may resist sharing that information with health service providers. This has the potential to have a negative impact on the health of the individual and is also an undesirable public policy outcome, with the potential to impact on the health of the community as a whole.

5.124 The ALRC does not agree with the OPC’s assertion that this element is inconsistent with art 17 of the ICCPR. The United Nations Human Rights Committee has stated in relation to art 17 that:

As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant.

5.125 This clearly envisages a balancing of interests and, in particular, a balancing of public interests. The other human rights that must be balanced with the right to privacy, and the public interests that must be balanced with the public interest in protecting privacy, are many and varied. It is not only the right to freedom of expression[191] that must be considered but numerous other rights including the right to liberty and security of the person,[192] and the right of every child ‘to such measures of protection as are required by his status as a minor, on the part of his family, society and the State’.[193] These other rights and public interests should not be expressly set out in the objects clause. A general statement, such as that recommended below, alerts the community to the need to consider the right to privacy in context without placing undue weight on any other particular right or public interest.

5.126 The objects clause should make clear that the Act is intended to provide the basis for nationally consistent regulation of privacy and the handling of personal information across Australia. Chapter 3 sets out the ALRC’s recommendations to achieve greater national consistency.

5.127 The objects clause should also make clear that the Act is intended to promote the responsible and transparent handling of personal information by agencies and organisations.

5.128 The ALRC also recommends that the objects include facilitating the growth and development of electronic transactions, nationally and internationally, while ensuring respect for the right to privacy. This clause draws on a number of international instruments that have been developed in this area including the OECD Guidelines, the EU Directive and the APEC Privacy Framework. It recognises that one of the primary issues in this area is the growth and development of electronic transactions and the need to ensure that these transactions are conducted, across Australia and between Australia and other countries, in ways that protect the privacy of individuals’ personal information.

5.129 The ALRC agrees with the OPC that the objects clause should also refer to the establishment of the position of the Privacy Commissioner and, in the language of this Report, the Australian Privacy Commission. The ALRC also recommends that the objects clause make reference to the fact that the legislation provides an avenue for individuals to seek redress when there has been an alleged interference with their privacy.

5.130 In DP 72, the ALRC proposed that the cause of action for a serious invasion of privacy be included in the Privacy Act.[194] This proposal was reflected in a number of elements of the proposed objects clause. The ALRC’s final view, however, is that it is not necessary for the cause of action be included in the Act.[195] On the other hand, if the cause of action were so included, the objects clause would need to be amended to reflect this fact.

Recommendation 5-4 The Privacy Act should be amended to include an objects clause. The objects of the Act should be specified to:

(a) implement, in part, Australia’s obligations at international law in relation to privacy;

(b) recognise that individuals have a right to privacy and to promote the protection of that right;

(c) recognise that the right to privacy is not absolute and to provide a framework within which to balance that right with other human rights and to balance the public interest in protecting the privacy of individuals with other public interests;

(d) provide the basis for nationally consistent regulation of privacy and the handling of personal information;

(e) promote the responsible and transparent handling of personal information by agencies and organisations;

(f) facilitate the growth and development of electronic transactions, nationally and internationally, while ensuring respect for the right to privacy;

(g) establish the Australian Privacy Commission and the position of the Privacy Commissioner; and

(h) provide an avenue for individuals to seek redress when there has been an alleged interference with their privacy.

 

[146] D Pearce and R Geddes, Statutory Interpretation in Australia (6th ed, 2006), 154.

[147] Office of Parliamentary Counsel, Working with the Office of Parliamentary Counsel: A Guide for Clients (3rd ed, 2008), [125].

[148] See, eg, Tickner v Bropho (1993) 114 ALR 409.

[149]Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1954 (Qld) s 14A; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation Act 1978 (NT) s 62A.

[150]Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78.

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

[152] 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), art 1 Objects of the Directive.

[153] Asia-Pacific Economic Cooperation, APEC Privacy Framework (2005), Preamble.

[154]Privacy Act 1988 (Cth) s 29(a).

[155] Ibid s 29(b).

[156] Ibid s 29(c).

[157]Information Privacy Act 2000 (Vic) s 5.

[158]Information Act 2002 (NT) s 3.

[159] Information Privacy Bill 2007 (WA) cl 3.

[160] Public Interest Advocacy Centre, Submission PR 548, 26 December 2007; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007; Queensland Government, Submission PR 490, 19 December 2007; Australian Government Department of Health and Ageing, Submission PR 273, 30 March 2007; Australian Bankers’ Association Inc, Submission PR 259, 19 March 2007; Law Institute of Victoria, Submission PR 200, 21 February 2007; Government of South Australia, Submission PR 187, 12 February 2007; Australian Federal Police, Submission PR 186, 9 February 2007; Australian Privacy Foundation, Submission PR 167, 2 February 2007; Veda Advantage, Submission PR 163, 31 January 2007; Queensland Council for Civil Liberties, Submission PR 150, 29 January 2007; National Australia Bank and MLC Ltd, Submission PR 148, 29 January 2007; AAMI, Submission PR 147, 29 January 2007; National Association for Information Destruction, Submission PR 133, 19 January 2007; Centre for Law and Genetics, Submission PR 127, 16 January 2007; National Health and Medical Research Council, Submission PR 114, 15 January 2007; Office of the Information Commissioner (Northern Territory), Submission PR 103, 15 January 2007; Institute of Mercantile Agents, Submission PR 101, 15 January 2007; W Caelli, Submission PR 99, 15 January 2007.

[161] Australian Direct Marketing Association, Submission PR 543, 21 December 2007; Telstra Corporation Limited, Submission PR 459, 11 December 2007.

[162] Office of the Information Commissioner (Northern Territory), Submission PR 103, 15 January 2007.

[163] National Health and Medical Research Council, Submission PR 114, 15 January 2007.

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

[165] Australian Government Department of Health and Ageing, Submission PR 273, 30 March 2007; Government of South Australia, Submission PR 187, 12 February 2007; Veda Advantage, Submission PR 163, 31 January 2007; AAMI, Submission PR 147, 29 January 2007.

[166] NSW Disability Discrimination Legal Centre (Inc), Submission PR 105, 16 January 2007.

[167] Australian Privacy Foundation, Submission PR 167, 2 February 2007.

[168] Australian Federal Police, Submission PR 186, 9 February 2007.

[169] Australian Bankers’ Association Inc, Submission PR 259, 19 March 2007.

[170] Australian Government Department of Health and Ageing, Submission PR 273, 30 March 2007.

[171] Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 3–4.

[172] Government of South Australia, Submission PR 565, 29 January 2008; Australian Government Department of Agriculture‚ Fisheries and Forestry, Submission PR 556, 7 January 2008; Australian Government Centrelink, Submission PR 555, 21 December 2007; GE Money Australia, Submission PR 537, 21 December 2007; Medicare Australia, Submission PR 534, 21 December 2007; Optus, Submission PR 532, 21 December 2007; Federation of Community Legal Centres (Vic), Submission PR 509, 21 December 2007; Centre for Law and Genetics, Submission PR 497, 20 December 2007; Legal Aid Queensland, Submission PR 489, 19 December 2007; Privacy NSW, Submission PR 468, 14 December 2007; National Transport Commission, Submission PR 416, 7 December 2007; National Health and Medical Research Council, Submission PR 397, 7 December 2007; D Hall, Submission PR 372, 4 December 2007.

[173] Telstra Corporation Limited, Submission PR 459, 11 December 2007.

[174] Australian Privacy Foundation, Submission PR 553, 2 January 2008.

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

[176] Arts Law Centre of Australia, Submission PR 450, 7 December 2007.

[177] Australian Bankers’ Association Inc, Submission PR 567, 11 February 2008.

[178] Special Broadcasting Service, Submission PR 530, 21 December 2007; Australian Finance Conference, Submission PR 398, 7 December 2007.

[179] Australian Government Department of Human Services, Submission PR 541, 21 December 2007.

[180] Arts Law Centre of Australia, Submission PR 450, 7 December 2007.

[181] Contemporary Arts Organisations Australia, Submission PR 384, 6 December 2007; Artsource, Submission PR 350, 28 November 2007.

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

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

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

[185] Ibid.

[186] Australian Bankers’ Association Inc, Submission PR 567, 11 February 2008; Microsoft Asia Pacific, Submission PR 463, 12 December 2007; Telstra Corporation Limited, Submission PR 459, 11 December 2007; Law Society of New South Wales, Submission PR 443, 10 December 2007.

[187] Telstra Corporation Limited, Submission PR 459, 11 December 2007.

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

[189] Australian Government Attorney-General’s Department, Submission PR 546, 24 December 2007.

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

[191]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 19.

[192] Ibid, art 9.

[193] Ibid, art 24.

[194] Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 5–1.

[195] Rec 74–1.