University of New South Wales Faculty of Law Research Series
Last Updated: 5 September 2008
Promoting and enforcing privacy principles: an analysis of the ALRC proposals
for the role of the Privacy Commissioner
Graham Greenleaf, Nigel Waters and Lee Bygrave
This paper will shortly be available for download.
This paper is the second of six submissions that will appear in the UNSW Law Research Series as part of a series made to the Australian Law Reform Commission on the Review of Australian Privacy Law Discussion Paper 72 by researchers on the ‘Interpreting Privacy Principles’ project based at the Cyberspace Law and Policy Centre, University of New South Wales.
This submission responds to Part F of the ALRC’s Discussion Paper 72 Review of Australian Privacy Law, September 2007 which deals with the Office of the Privacy Commissioner and the promotion and enforcement of the Privacy Act 1988.
This submission argues that proposed improvements to Australian privacy principles will not be effective without major changes to Australia’s chronic under-enforcement of its current laws.
The reforms proposed by the ALRC will amount to a fundamental change in the complexion of the Australian legislation, from a system where dissatisfied complainants could never get past the ‘black hole’ of the Privacy Commissioner’s office, to one of a more normal legal regime of appeals, reported cases, and some real understanding of what the Act actually means emerging over time.
This submission supports the ALRC’s proposals but also identifies areas in which further improvements could be made. These include more discretion for the Privacy Commissioner to report publicy; express requirements for consultation with stakeholders on Codes, guidance and own-motion investigations; a complainant’s right to a Determination in more circumstances; and more prescriptive requirements for complaints reporting.