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Australian
privacy laws have been described by the Australian Law Reform
Commission (ALRC)
as ‘multi-layered,
fragmented, and inconsistent’.
The principal
federal Act regulating privacy is the Privacy Act 1988.
It regulates the handling of personal information by the Australian
Government, the ACT Government and the private sector. Other
federal legislation also regulates the handling of personal
information. For example, the Freedom of Information Act
1982 and the Archives Act 1983 restrict access to
personal information held by the Australian Government in certain
circumstances. Each state and territory also regulates the management
of personal information, some by legislative schemes and others
by administrative regimes. It is often acknowledged that there
are inconsistencies between these various state and federal
privacy laws.
At the
initiative of the Howard Government, the ALRC
is currently conducting a comprehensive review of Australia’s
privacy framework and, in particular, the operation of the Privacy
Act 1988. The final report is due to government by 31 March 2008.
The ALRC
review was established primarily in response to:
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rapid advances in information, communication,
storage, and surveillance technologies
-
the possible changing perceptions of privacy
and the extent to which privacy should be protected by legislation
- the expansion of state and territory legislative activity
in areas relevant to privacy, and
- emerging areas that may require privacy protection generally.
The latest
ALRC discussion
paper includes discussion on issues as varied as the privacy
principles, technology, transborder data flows, exemptions to
the Privacy Act 1988, health and telecommunications.
It sets out over 300 proposals for reform including:
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implementation of nationally consistent privacy
legislation to reduce compliance difficulties for organisations
and empower individuals to exercise their privacy rights
-
the introduction of a statutory cause of action
for invasion of privacy, and
-
removal of some of the more controversial exemptions
from the Act, including the small business exemption, the
employee records exemption for private sector organisations,
and the political party and political representative exemptions.
The Australian
Labor Party policy document on Government, while not responding
to specific proposals in the ALRC
Discussion Paper, states that a federal Labor government would
complete the existing review of the operation of the Privacy
Act 1988. It would also bring together the functions of
privacy protection and freedom of information in an Office of
the Information Commissioner while preserving the existing role
of the Privacy Commissioner. The two independent streams of
policy—freedom of information and privacy—would be co-located
to improve transparency and data protection across government.
Major
changes to Australia’s
privacy laws can be expected after the ALRC
delivers its final report in 2008.
Documentation
Australian Law
Reform Commission, Review of Australian
Privacy Law, Discussion Paper 72, (DP 72), September
2007.
Office
of the Federal Privacy Commissioner web site: http://www.privacy.gov.au/.
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