Privacy Law and Policy Reporter
Graham GreenleafAustralia'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.
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.
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!
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.
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.
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 withThe 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'.
the `Clipper' chip technology) outweigh the social and economic consequences of the loss of personal privacy and commercial security
that this would entail.
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.
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.