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Privacy catching up to the information age

By Natasha Stott Despoja - posted Wednesday, 9 January 2008


The change in government may have sparked optimism among privacy advocates of a new era of privacy law reform. Indeed, such optimism might not be misplaced: in a potential sign of Kevin Rudd’s interest in the laws that govern privacy, data protection and the use of government and personal information, the Government in its first week in office excised the Office of the Privacy Commissioner from the Attorney-General’s portfolio and placed it in the “safe hands” of Senator John Faulkner, Rudd’s man in charge of his own Department of Prime Minister and Cabinet.

The Rudd Government also plans to establish an Information Commissioner, with statutory powers to oversee both the Privacy Act and the Freedom of Information Act. The Information Commissioner will be independent from government, providing a welcome degree of impartiality for FOI matters in particular.

However, Labor’s track record on privacy suggests that we should approach its term in government with a good deal of vigilance and scepticism.

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Each of the anti-terror laws mentioned above were passed with the support of the ALP based on a tactic of small target politics, and commonsense amendments put forward by the minor parties in the Senate were rejected. Calls for the Government to demonstrate the gap in existing laws were denounced as “soft on terror”.

Meanwhile, newly anointed Finance Minister, Lindsay Tanner, confirmed within a week of the election that the Access Card will be scrapped, based on projected costs savings of more than $1 billion. The project stood to create the largest mass centralisation of personal data in Australia’s history. While its dumping is warmly welcomed, the cost justification that belies the Labor Government’s decision reflects a reluctance to commit to its abolition on principled grounds. Indeed, it was the ALP that attempted to introduce the Australia Card in the 1980s and one wonders whether a cheaper alternative will not rear itself at some stage during the Government’s term.

The Privacy Act is presently the subject of an ALRC inquiry which is due to report in March 2008. The Act as it stands contains confusing differences between State and Commonwealth laws, making compliance a nightmare, while different rules apply to government and business. Moreover, exemptions for political parties, the media and small businesses mean that the Privacy Act is more like a block of Swiss cheese than a bulwark against undue incursions into personal privacy.

To cap it off, under-funding of the Privacy Commissioner and a lack of penalties or remedies for privacy breaches result in little incentive for people to take any notice of the existing law.

Any meaningful reform of privacy laws, therefore, will be contingent upon Labor mustering the political will to implement the ALRC’s recommendations. Already, the ALRC’s preliminary suggestions for privacy law reform have been met with a degree of hostility in many quarters - most notably the media, which of course has the most to lose from a tightening of laws that regulate access to sensitive personal information. It follows that Kevin Rudd will have a tough time maintaining a balance between the media’s self-interest in FOI reform and the necessary reforms to privacy law that must occur if the legislature is to catch up with the information age.

The Democrats have long campaigned for Privacy Act reform. As after July we have no Democrat Senators, I am concerned that there will be no independent voice to carry the privacy mantle.

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I initiated a Senate inquiry into the Privacy Act in 2004 which lead to the ALRC’s present review. We also opposed the exemptions for small businesses and political parties when they were introduced to the Act. It is hard to see any of the major parties committing to the removal of this exemption, which allows them to maintain their valuable voter databases and run targeted election campaigns.

In August, I introduced a Private Senator’s Bill to deal with another gaping hole in the Privacy Act ­ data security breach notification. The Bill would amend the Act to place an onus on Government organisations and businesses to notify an individual when there has been a confirmed or reasonably suspected breach of data security involving that person's personal information. The Bill was not supported by Labor or the Coalition.

It may be early days for the Rudd Government, but it should learn from the mistakes of its predecessor and take an early and authoritative approach to privacy law reform. If it does not, Kevin 07 may just become more than an on-line annoyance and represent another missed opportunity for our policy makers to step into the on-line era.

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About the Author

Senator Natasha Stott Despoja was the Australian Democrats spokesperson on Foreign Affairs, Attorney-Generals, Science & Biotechnology, Higher Education and the Status of Women (including Work & Family). She is a former Senator for South Australia.

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