The Australian Coalition Government (Liberal Party) and National --- "Coalition Government's privacy policies" [1996] PrivLawPRpr 15; (1996) 3(1) Privacy Law & Policy Reporter 4

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Coalition Government's privacy policies

The Coalition Government's privacy-related policies are set out in two main documents, the Law and Justice Policy and the Online Services Policy (`Australia Online'). Extracts from both those policies relating directly to privacy issues follow.

LAW AND JUSTICE POLICY

Extracts from Liberal and National Parties' Law and Justice Policy, February 1996 (available at http://www.liberal.org.au/POLICY/LAW/lawjstce.htm)

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Human rights

It is our fundamental belief that Government must safeguard and advance the freedom of the individual. Those fundamental rights include individual liberty and the right of freedom of speech, religion, association, assembly, and non-violent dissent.

We support the fundamental freedoms contained in the world's premier human rights conventions such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

We support the UN as a vehicle for the advancement of human rights. The recourse to committees in human rights matters has exposed deficiencies in UN committee procedures. In Government we will work through the UN as a matter of priority to remedy those deficiencies.

Australian laws, whether relating to human rights or other areas, should first and foremost be made by Australians, for Australians. International bodies and international commitments are an important part of Australia's relationship with the rest of the world. However, when Australia's laws are to be changed, Australians and the Australian political process should be at the beginning of the process, not at the end.

We must be prepared to act on our international commitments. Our initiatives to reform the treaty-making process will help ensure proper domestic procedures are in place before international obligations are agreed to.

The states and territories will be integrally involved in Commonwealth consideration of human rights commitments and obligations. Through a truly co-operative approach to federalism, the states and territories will be consulted and their views recognised.

All these measures will ensure that Australians play the pivotal role in determining Australia's human rights commitments. Equally importantly, these measures will mean that the commitments that Australia makes in human rights matters are truly reflected in both our laws and practices.

Human Rights And Equal Opportunity Commission

The maintenance of basic freedom calls for positive measures by government and private organisations to encourage equal opportunity and to prevent discrimination against individuals and minority groups.

We support the operation of the Human Rights and Equal Opportunity Commission in the promotion of human rights and the conciliation and mediation of disputes between parties.

Human Rights Division -- Federal Court

However, the Human Rights and Equal Opportunity Commission, as a non-judicial body, is not an appropriate body to make final determinations between parties in dispute. Labor's attempt to vest the Commission with judicial powers was held invalid by the High Court.

A Liberal and National Party Government will legislate to:

• establish a Human Rights Division of the Federal Court;
• provide that where the Human Rights and Equal Opportunity Commission is unable to mediate or conciliate a solution, that the matter be referred to the Human Rights Division of the Federal Court for determination; and
• allow for simplified procedures to operate in this Human Rights Division but ensure that standard rules of evidence apply.

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Administrative law

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The Liberal and National Parties are determined to review and improve the administrative law system, to improve administrative justice and government accountability. A Liberal and National Government will:

• not increase in real terms charges payable for access to information under the Freedom of Information Act;
  
  
• carefully review and respond to the recent Report on the Freedom of Information Act by the Australian Law Reform Commission and the Administrative Review Council, and implement appropriate and workable recommendations; and
  
  
• review the recommendations of the Administrative Review Council report `Better Decisions: Review of Commonwealth Merits Review Tribunals'.

  A Legislative Instruments Bill -- which we proposed at the last election -- has at last been introduced into the Parliament by Labor. The Bill lays down procedures for the making, publication and supervision of regulations. This is a vital piece of machinery that gives citizens input into the regulation-making process and the chance to have their comments heard. The Government's Bill, however, falls significantly short of the recommendations of the Administrative Review Council. A Liberal and National Party Government will:

• strengthen the Legislative Instruments Bill by limiting unnecessary exemptions and maximising judicial and parliamentary scrutiny of the Bill's requirements; and
  
  
• ensure that all new regulations are subject to a five-year sunset clause.

Privacy

Maintenance of the freedom of the individual requires a vigilant protection of privacy, particularly against government intervention. Under Labor, the amount of information stored on individual citizens has dramatically increased.

The risks of centralised information storage and distribution have long been apparent. Citizens are rightly concerned to ensure that information held about them by government and the public and private sectors is not misused.

Labor has, in far too many instances, failed to protect that privacy information. Public servants have been caught selling confidential information. Government records containing personal information have been found littering city streets. Highly confidential departmental files on computer have been hacked into with the potential for misuse.

Developments in technology and international communication networks are rendering our privacy laws hopelessly out of date. Labor's inaction is not just a threat to the right of Australians to privacy in their personal affairs. Unless our privacy laws are improved as a matter of priority, Australian business and industry will be locked out of international data flows. A recent European Community directive will have the effect of excluding Australian entities from European Community data flows unless our privacy laws are substantially improved by mid-1998.

Reform is required as a matter of the utmost priority. A consistent Australia-wide approach is required.

A Liberal and National Government will as a priority, and in consultation and development with the states and territories, ensure the implementation of a privacy law regime in Australia comparable with best international practice.

As part of achieving this goal we will:

• work with industry and the states to provide a co-regulatory approach to privacy within the private sector;
• conduct a comprehensive Parliamentary inquiry into the state of Australia's privacy laws. Amongst other things, the inquiry will examine and review legislative and administrative regimes for the protection of privacy, examine public interest and statutory exemptions, the extent of data-matching practices, compliance with international transfer standards, and the need for legislative protection of the right to privacy for individuals in respect of the media;
• review and, where appropriate, implement the recommendations of the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, `In Confidence';
• significantly increase penalties for unauthorised disclosure of information by public officers for profit -- where the disclosed material contains personal information pertaining to Australian citizens, we will ensure that harsher penalties are applicable; and
• increase the independence of the Privacy Commissioner giving him or her an expanded ability to provide advice to Parliament directly.

Treaty-making

International treaties are a necessary and important part in the development of Australia's relationship with other countries. Once a treaty enters into force, Australia has an international legal obligation to implement the terms of the treaty. As a result of the external affairs power, the international obligation will often give to the Commonwealth Parliament the power to legislate in areas that would otherwise solely be within the province of the states.

Treaties cannot, and must not, be used to upset the delicate federal-state balance. Australians must be given a say in the treaty negotiation and implementation process.

The existing processes are inadequate and Labor has taken advantage of those deficiencies. It has entered into treaties without proper regard for domestic consequences. It has used treaties to override state laws against state wishes.

An overhaul of the process is required that takes account of Australia as a federal system and gives all Australians a say in the commitments that Australia makes to the rest of the world.

A Liberal and National Party Government will:

• ensure that the Australian Parliament, the states and the wider community are given proper and timely involvement in international law-making by the Federal Government, including, where appropriate, national-interest analyses in terms of Australia's national interests prior to any ratification;
  
  
• legislate to require that treaties be tabled, with provision for debate, in the Federal Parliament prior to ratification;
  
  
• establish a Treaties Council as part of the Council of Australian Governments, and this initiative will be associated with a general strengthening of the consultative procedures;
  
  
• work with the states to ensure that domestic legislation is in place prior to ratification of treaties;
  
  
• establish a Joint House Treaties Committee to provide a detailed analysis of the implications of any prospective signing or ratification of an international treaty by Australia; and
  
  
• refer the question of the width of the external affairs power to the People's Convention for consideration.

We will restore the proper processes of consultation with the states and restore to the Australian people proper accountability.

Televising court proceedings

While it is for judges to determine the procedures and operations in their courts, a Liberal and National Government would strongly discourage the televising of criminal proceedings. We cannot, and must not, go down the path of the US in this regard.

ONLINE SERVICES POLICY

Extracts from Liberal and National Parties' Online Services Policy (`Australia Online'), February 1996 (available at http://www.liberal.org.au/POLICY/ONLINE/online.htm)

The Coalition online industry policy has two basic elements:

• 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.
• An Electronic Commons strategy for nation-wide public and community access to new services and media. The Coalition will never tolerate the emergence of an information aristocracy and an information underclass, as is threatening to happen under Labor.

An information policy task force

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Advice related to the implementation of the Coalition's online policy will be provided by a new body called the Information Policy Task Force (IPTF), which will replace Labor's National Information Services Council (NISC).

Labor's Broadband Services Expert Group (BSEG) has lapsed without any substantial action being taken by the Government on its recommendations, while NISC has met only once in its entire history. The IPTF will differ from BSEG and NISC in that it will 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.

The IPTF will be made up of professionals with established expertise in the application of new technology to service delivery and the impact of technology on regulation, society and commerce. Groups with special relevance include the: education profession; health profession; library profession; cultural community; legal profession; information technology industry; commercial information service providers; representatives of users and consumers; and communications carriers and service providers.

The brief of the IPTF will be to examine and report to the Federal Government on issues related to basic information policy issues such as:

• consumer access to delivery systems;
• the legal and commercial implications of new communications technologies;
• the implications for education, health, science and social services of the introduction of new communications technologies;
• privacy, both in the private and public sectors;
• requirements for standards setting;
• developments in copyright and intellectual property regulation; and
• regulation of online content.

The mission of the IPTF would be to advance public debate on information-related issues and to report options to a Coalition Government. The reports of the IPTF will be made public.

An Online Government Council

Current Commonwealth-state consultative mechanisms are confined to a few narrow areas such as content regulation and educational services. The complexity of issues which arise from online communications are such that a much more integrated approach is necessary.

The Coalition will therefore establish a Commonwealth-state Online Government Council under the Council of Australian Governments (COAG), which will have the role of co-ordinating government efforts, encouraging collaboration where appropriate, and avoiding costly duplication.

This body will provide a focus for Commonwealth and state government agencies involved in areas such as online education and content regulation, ensuring a consistent approach to the development of the regulatory framework and for the delivery of online services. The ambit of the Council's discussion will include government service delivery and contracting, content regulation, and privacy.

Personal privacy and commercial security

New information technology has the capacity to generate a torrent of information on the preferences, lifestyles and financial details of all Australians.

Labor's consistent neglect of the issue of personal privacy is shown in its attempted introduction of the Australia Card, its consistent advocacy of large-scale `dataveillance' of citizens, and its creeping expansion of the use of the tax file number in stark contrast to Mr Keating's own solemn assurances to the Parliament. To quote a recent senior Labor Minister, `privacy is a bourgeois right, related to the concept of private property'.

Such an ethos makes a mockery of Labor's `commitment' to genuine information privacy safeguards. In contrast, the Coalition regards personal privacy as a cherished right in a free society.

While the implementation of the principle of informed consent provides citizens with some defence, 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. Often this can be done without individuals knowing that these profiles even exist.

The Coalition accepts that organisations have the right to certain information about their clients, provided this information is used for the purpose for which it is originally offered. However, 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.

With the development of extensive electronic commerce networks, this issue has a commercial security dimension as well. Encryption technology is essential to electronic commerce. Transactions will not be initiated unless people are confident that personal and financial information is protected from unauthorised interception. 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.

An inquiry into the extent of information gathering in the public and private sectors, current administrative and regulatory regimes for protection of privacy, and the need for reform will be launched by the Coalition.

This inquiry will present arguments and options to a Coalition Government on privacy policies which will strike a balance between the legitimate interests of public and commercial organisations on the one hand, and the legitimate rights of individuals on the other.

The IPTF will also be required to present options for the implementation of open encryption standards which address commercial needs. The recently released European Union Privacy Directive, which regulates transnational data flows, has made it imperative that Australia's privacy legislation is updated before our access to overseas information resources is curtailed.

The results of these inquiries will provide input to the deliberations of the Online Government Council on the issue of privacy. In particular, the merits of a national Privacy Code of Practice, binding both public and private sectors will be considered by the Council.

The requirements of security agencies to monitor network traffic are a particularly difficult problem. The rights of private individuals to encrypt messages and commercial transactions have been the subject of heated debate in the US. The Coalition, with its strong pro-privacy bias, takes the view 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.

Content regulation

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The Coalition will adopt a multifaceted approach to the content regulation of the online industry in consultation with the community, the online industry, and the states and territories.

The principal elements will include:

• pursuing the development of international agreements and codes of practice in international fora;
• facilitating the establishment of online industry codes of practice, incorporating effective complaints procedures;
• encouraging the states to adopt a uniform approach through the Online Government Council, and if necessary creating offences in Commonwealth legislation; and
• encouraging greater community awareness and fostering education programs.

The Australian Broadcasting Authority will supervise the development of online industry codes of practice, similar to the regime developed for the broadcasting industry.

These codes will contain complaints mechanisms and procedures to ensure that complaints are properly investigated, and where reasonable, acted upon. Dissatisfied complainants will be able to take the matter to an independent complaints body.

The codes will clarify the respective roles of content, service and network providers, creating certainty for the industry. Final details will be determined after the Australian Broadcasting Authority's current review of online content regulation, which will be completed by the Coalition.

The Coalition is mindful of the dangers of heavy-handed regulation discouraging innovative content providers. The Coalition's general approach to content regulation is that persons should not automatically be made accountable for content produced or controlled by others. However, when it is reasonable they should be held accountable for their own responsibilities under the content regulation regime.

While there is a responsibility for Government to take action in the area of content regulation, there is also an important role for the community, educational institutions and parents.

In conjunction with the states and territories and the online industry, the Australian Broadcasting Authority will be required to co-ordinate the development of effective consumer education programs which will provide information about practical steps which can be taken to protect children from potentially deleterious material available through various information technologies. As a matter of urgency, we will also pursue the introduction of conditional access technology which can block children's access to unsuitable material.

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.