Greenleaf, Graham --- "Private Parts" [1994] PrivLawPRpr 96; (1994) 1(6) Privacy Law & Policy Reporter 120

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Private Parts

Compiled by Graham Greenleaf

Sexual privacy law bound for High Court

The Australian Government decided on 22 August to introduce a Human Rights (Sexual Conduct) Bill in the Spring sitting of Parliament, to address the findings of the United Nations Human Rights Committee in Toonen v Australia (1994) 1 PLPR 50 that s122(a) and (c) and s123 of the Tasmanian Criminal Code breached 1 PLPR 50 that s122(a) and (c) and s123 of the Tasmanian Criminal Code breached Australia's obligation to protect privacy under art 17 of the International Covenant on Civil and Political Rights (ICCPR).

Attorney-General Michael Lavarch said ''the Bill will ensure that no-one will be charged with a criminal offence for sexual activity in private which involves only consenting adults'. The Commonwealth Bill will apparently provide a defence based on art 17 of the ICCPR to any inconsistent State or Territory legislation dealing with sexual conduct. Tasmanian gay organisations do not consider the Bill to be strong enough, arguing that it will still allow Tasmanian police to investigate and prosecute homosexuals.

The proposed Bill will affect laws other than the Tasmanian law, including WA laws dealing with the age of consent for homosexual sex. Tasmania, WA and Victoria have all announced that they will challenge the Bill in the High Court. The resulting case should indicate the extent to which the Commonwealth has power to legislate for privacy generally, based on the ICCPR.

Australian Rights Congress

The Australian Rights Congress, to be held at the Sydney Convention and Exhibition Centre, Darling Harbour on 6-8 September, is intended to promote examination of the need for a Bill of Rights in Australia, and identify rights which could need protection. The Congress is sponsored by the Law Council of Australia, the Human Rights and Equal Opportunity Commission, the Australian National University, the Australian Youth Foundation and the Australian Law Reform Commission. The first day will feature plenary sessions on the history and present position of protection of rights in Australia, Canada and New Zealand. The second day will be based around concurrent sessions concentrating on particular clusters of rights (for example, group 2 includes the rights to freedom of thought, conscience, religion, privacy, name and reputation, and freedom from censorship), and on concurrent sessions of groups with common interests. The third day will concentrate on implementation mechanisms, and on reports of Group conclusions, and on the content of any statement to be adopted by the Congress.

PANZA division

The six-monthly meeting of the Privacy Agencies of New Zealand and Australia (PANZA) was hosted by NZ Commissioner Slane in Auckland on 13 May 1994, with representation from the Australian Privacy Commissioner, the ACT Attorney- General's Privacy Unit, the NSW Privacy Committee and the SA Privacy Committee, and apologies from the WA Information Commissioner.

The NZ Chief Ombudsman discussed proposed whistleblower protection legislation, versions of which are now being considered in a number of Australian jurisdictions. In agency reports, Australian Commissioner O'Connor foreshadowed guidelines for privacy in out-sourcing contracts. The recently introduced NSW Privacy and Data Protection Bill, and the operation of NZ's Privacy Act 1993 were discussed. Other topics discussed included the various approaches to handling privacy complaints, privacy rights of people with mental incapacity, the overlap with freedom of information and archival legislation, secrecy provisions on public registers, and proposed legislation on forensic testing and sports drug testing.

As more governments in the region adopt enforceable privacy regulation , PANZA is evolving from being simply a forum to discuss issues into one where practical challenges can be compared and worked on. PANZA next meets in Adelaide in November 1994. (Information provided by John Gaudin, NSW Privacy Committee)

Offenders to lose privacy in NSW and US

NSW Attorney-General John Hannaford announced to the National Victims of Crime Conference in Sydney on August 19 that victims of crime and their families would be able to register with the Department of Corrective Services' Victims Register, to be advised if offenders had become eligible for parole or had escaped. The US House of Representatives is taking an apparently tougher approach including, in the Crime Bill passed on August 22, provisions for registration of offenders' addresses after they are released from prison.

Draft EU telecommunications privacy Directive

In June the European Commission released an amended proposal for a Directive on the protection of privacy in the context of digital telecommunications networks, in particular ISDN and digital mobile networks (Com 94, 128 (Final) COD 288, 13 June 1994). The draft contains provisions dealing with such matters as informing callers about the use of speaker-phones, restrictions on itemised billing listing numbers or callers, and unsolicited marketing/research calls.

Kerr warns of need for surveillance camera laws

Following the revelation of security cameras at Perth's Burswood casino being used to zoom in on women's cleavages and underpants, Acting Commonwealth Attorney-General Duncan Kerr has warned that, unless users of surveillance systems developed effective codes of conduct, 'public reaction will be such that pressure on government - State and Federal - to legislate will be inevitable'.

Clipper sourcebook

Anyone needing all the legislative and political background to the ''Clipper chip' proposals need go no further than David Banisar (Ed) 1994 Cryptography and Privacy Sourcebook, available from The Electronic Privacy Information Centre (EPIC), 666 Pennsylvania Avenue, SE, Suite 301 Washington DC 20003, for US$65. It includes all the relevant legislation, Congressional testimony, and documents obtained under FOI.