Greenleaf, Graham --- "Privacy and Australia's new Federal Government" [1996] PrivLawPRpr 14; (1996) 3(1) Privacy Law & Policy Reporter 1

---

Privacy and Australia's new Federal Government

Graham Greenleaf

Australia's Liberal and National Parties' Coalition Government comes to power with the most extensive range of privacy policies yet seen in a federal election. These privacy policies are principally contained in the Coalition's Law and Justice Policy, and in its Online Services Policy, and are set out in full in this issue. This article summarises these commitments.

Private sector privacy laws?

Coalition policy requires reform of our privacy laws as `a matter of the utmost priority' and requires `a consistent Australia-wide approach'. However, it is as vague as the previous Labor policy (see 2 PLPR 161 on the `Innovations' statement) on the previous Labor policy (see 2 PLPR 161 on the `Innovations' statement) on how this is to be achieved, simply stating that the Coalition will `in consultation with the states and territories, ensure the implementation of a privacy law regime in Australia comparable with best international practice', and that the Federal Government will `work with industry and the states to provide a co-regulatory approach to privacy within the private sector' (Justice Policy). The Online Services Policy says that the Online Government Council will consider `the merits of a national Privacy Code of Practice, binding both public and private sectors'.

However, the Online Services Policy is particularly forthright in noting that `widespread trading of information and the power of new technology to collate previously unrelated pieces of information will enable the construction of highly revealing profiles on individuals', and that `the Coalition is opposed to such information being used for purposes for which it was not intended, unless the consent of the individual is obtained'.

While both policies refer to the European Union's Privacy Directive and the danger that `Australian business and industry will be locked out of international data flows' as reasons for extending privacy laws, the Online Services Policy is more explicit in that the Coalition sees this in the context of `a framework of advanced telecommunications infrastructure, low telecommunications prices and world-class copyright, privacy, payment systems and content regulation which the industry will need to thrive'.

One mechanism which is less likely to be used than it was under Labor is the external affairs power, given Coalition opposition to the use of treaties `to override state laws against state wishes'. However, the telecommunications, corporations, and other Commonwealth powers make this of little importance.

Goodbye NISC, hello IPTF and OGC

An Information Policy Task Force (IPTF) is to replace the National Information Services Council (NISC) which only ever met once. IPTF is to be `a standing advisory committee, supported by a secretariat in the Department of Communications and the Arts and tasked with the examination of specific issues'. IPTF's brief will include `privacy, in both the private and public sectors', as well as such related issues as content control and encryption standards.

A Commonwealth/state Online Government Council under the Council of Australian Governments (COAG) is also proposed, with privacy one of the issues on its agenda, and IPTF options papers one of its inputs.

`A comprehensive Parliamentary inquiry into the state of Australia's privacy laws' is also promised, to review among other things existing laws and administration, exemptions, extent of data matching, compliance with international standards -- and the need for legislation to protect privacy in relation to the media!

A-G's or DOCA?

This proliferation of committees and consultation, however justifiable, could easily add up to a recipe for inaction -- inconsistent with privacy being labelled as a matter of `utmost priority'. If any priority is given to privacy, it may well be because of `creative tensions' between the Attorney-General's (traditionally associated with privacy policy -- or, sometimes, lack of it) and the Department of Communications and the Art's attempt to take a leading role in `online services' policy.

It may also turn out that the states now take the leading role. The NSW Attorney-General has now promised a `revolutionary' state privacy law covering both public and private sectors (see story this issue), and Victoria is known to be fast-tracking its electronic commerce initiatives, including a privacy law.

Powers of the Privacy Commissioner

Coalition policy is that the Human Rights and Equal Opportunity Commission (HREOC) is `not an appropriate body to make final determinations between parties in disputes', and proposes legislation to establish a Human Rights Division of the Federal Court to which matters will be referred when conciliation fails (in accordance with Brandy v HREOC [1995] HCA 10; (1995) 127 ALR 1, see 2 PLPR 32). The Privacy Commissioner's powers to make binding determinations is not mentioned, but could easily be subject to the same reasoning.

Elsewhere, the Coalition proposes to strengthen the Commissioner's independence by `giving him or her an expanded power to provide advice to Parliament directly'. On the other hand, there is only a proposal to `implement appropriate and workable recommendations' from the review of the Freedom of Information Act by the Australian Law Reform Commission/ Administrative Law Council, some of which weaken the Commissioner's powers.

Encryption

Coalition policies take a particularly strong pro-privacy stand in relation to encryption and telecommunications surveillance. In stressing that `encryption technology is essential to electronic commerce', the Online Services Policy concludes that:

Heavy-handed attempts to ban strong encryption techniques will compromise commercial security, discouraging online service industries (particularly in the financial sector) from adopting Australia as a domicile. This would result in a substantial economic loss to the country.

It also states that:

The onus is on security agencies to demonstrate that the benefits of mandating `crackable' codes (as has been attempted in the US with
the `Clipper' chip technology) outweigh the social and economic consequences of the loss of personal privacy and commercial security
that this would entail.

The importance of the IPTF's role in the privacy area is clear from the fact that it will be `required to present options for the implementation of open encryption standards which address commercial needs'.

Censorship

The Coalition seems to be aware of the privacy dangers of attempts to censor cyberspace (see 2 PLPR 148, 194). The Online Services Policy says that it `is mindful of the dangers of heavy-handed regulation discouraging innovative content providers' and that, generally, `persons should not be made accountable for content produced or controlled by others'. If observed, these cautions may help to stop a proliferation of requirements that users provide online `proof' of age (and therefore identity) before using online services, which could destroy a desirable degree of anonymity in cyberspace.

More directly, on the subject of e-mail and similar communications, it says that:

Private one-to-one communications should remain private, apart from those exceptional circumstances already covered by existing legal constraints, and will not be subject to more onerous regulation than are private communications in other media such as the letter post or telephony.

The Justice Policy sets out much the same censorship policy as the Online Services Policy, but the latter is much more specific in its identification of the mechanisms to be used. The Australian Broadcasting Authority is to `supervise the development of online industry codes of practice' which `will clarify the respective roles of content, service and network providers, creating certainty for the industry'. An `independent complaints body' is also to be created, to deal with complainants dissatisfied with the complaints mechanisms in the industry codes. The Online Government Council is to be the forum where the states will be `encouraged' to adopt a uniform approach `if necessary creating offences in Commonwealth legislation'. Tensions between DOCA and the Attorneys-General may become apparent here.

Other policies

A scattering of other policies are relevant to privacy issues. The proposals to increase popular participation and parliamentary scrutiny of regulation-making, and to subject all new regulations to a five year sunset clause, are of importance when the state is increasingly moving toward data surveillance as a means of administration.

Coalition dissatisfaction with the role of the UN Human Rights Committee in the Toonen case (see 1 PLPR 50), and subsequent Coalition dissaray over the Human Rights (Sexual Conduct) Bill 1994 (see 1 PLPR 160), is reflected in the Coalition re-affirming its commitment to international human rights agreements and the role of the UN, but proposing that the Government will pursue reform of `deficiencies' in the UN committee system as a matter of priority.

There is even a policy to `discourage' the televising of criminal proceedings.

Graham Greenleaf, General Editor.