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Greenleaf, Graham --- "Tabula Rasa': Ten Reasons why Australian Privacy Law does not Exist" [2001] UNSWLawJl 4; (2001) 24(1) UNSW Law Journal 262

[*] Professor of Law, University of New South Wales; Co-Director, Australasian Legal Information Institute; Co-Director, Baker & McKenzie Cyberspace Law and Policy Centre.

[1 ] There are other important reasons, many of which are well put by Simon Davies in another article in this issue, entitled ‘Unprincipled Privacy: Why the Foundations of Data Protection Law are Failing Us’.

[2] [1937] HCA 45; (1937) 58 CLR 479. See the discussion of this case by Kirby J in another article in this issue, entitled ‘Privacy – In the Courts’.

[3] For example, in New Zealand, although this is apparently now in retreat. See Tim McBride, ‘Recent New Zealand case law on privacy: The Privacy Act and the Bill of Rights Act’ Pt 1 (2000) 6 Privacy Law and Policy Reporter 106.

[4] Heard 2-3 April 2001, judgment reserved; the transcript of the proceedings is available in two parts at <http://www.austlii.edu.au/au/other/hca/transcripts/2000/H2/1.html> and <http://www.austlii.edu.au/au/other/hca/transcripts/2000/H2/2.html> at 7 June 2001.

[5] The case concerns the publication of information which is the ‘fruit of a trespass’.

[6] [1993] HCA 56; (1993) 178 CLR 408.

[7] See Graham Greenleaf, ‘High Court confirms privacy right against governments’ (1994) 1 Privacy Law and Policy Reporter 1.

[8] (1994) 1(3) IHRR 97.

[9] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[10] See Graham Greenleaf, ‘Casenote: Toonen v Australia(1994) 1 Privacy Law and Policy Reporter 50.

[11] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

[12] See Lee Bygrave, ‘Data Protection Pursuant to the Right to Privacy in Human Rights Treaties’ (1998) 6(3) International Journal of Law and Information Technology 247.

[13] Federal Privacy Commissioner, Annual Report 1998-99 (1999) 53.

[14] Graham Greenleaf, ‘A new era for public sector privacy in NSW’ (1999) 5 Privacy Law and Policy Reporter 130.

[15] See Graham Greenleaf, ‘Victoria’s privacy Bill still sets the standard’ (2000) 7 Privacy Law and Policy Reporter 21.

[16] This problem arises from the High Court’s decision in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 127 ALR 1, in which it was held that in complaints against respondents other than the Commonwealth, the previous system for lodging Human Rights and Equal Opportunity Commission (‘HREOC’) determinations in the Federal Court (including Privacy Act 1998 (Cth) s 52 determinations), whereupon they became binding, was an invalid exercise of judicial power. The ‘quick Brandy fix’ was to revert to the old system of a de novo hearing in the Federal Court whenever enforcement of a determination by a HREOC Commissioner or the Federal Privacy Commissioner is required.

[17] Privacy Act 1988 (Cth) s 55A(5).

[18] Note that a determination is now prima facie evidence of the facts upon which the determination is based: Privacy Act 1988 (Cth) s 55B(3). It will be possible, however, for those facts to be challenged. This amendment does not address the fundamental problem of unsuccessful complainants having no right of appeal but is an improvement, since the successful complainant will not (or at least will not often) be required to prove the facts again.

[19] Riediger v Privacy Commissioner [1998] FCA 1742 (Unreported, Sackville J, 23 September 1998), one of the few cases dealing with the Privacy Act, underlines this point. Justice Sackville, dismissing an application for judicial review under the Administrative Decisions Judicial Review Act 1977 (Cth) of a decision by the Federal Privacy Commissioner under s 41(1) of the Privacy Act to cease investigation of the applicant’s complaint, stressed that ‘the Federal Court’s jurisdiction in these matters is limited to the

review of any error of law made by the Commissioner in the course of his decision’ and ‘an application of this kind must reveal an error related to the making of the decision itself, for example, a denial of natural justice, manifest unreasonableness, the taking into account of irrelevant considerations, and so forth ... the Court simply cannot revisit the merits of the applicant’s complaints against either [of the respondents]’: [8].

[20] Administrative Decisions Judicial Review Act 1977 (Cth) ss 5(1)(f), (j), and 6(1)(f), (j).

[21] See Federal Privacy Commissioner, Federal Privacy Handbook: A Guide to Federal Privacy Law and Practice (1998) 13-020.

[22] Federal Privacy Commissioner, above n 13, 53.

[23] See, eg, Riediger v Privacy Commissioner [1998] FCA 1742 (Unreported, Sackville J, 23 September 1998).

[24] Federal Privacy Commissioner, above n 13, 53.

[25] Federal Privacy Commissioner, Plain English Guidelines to Information Privacy Principles 1-3 (1994); Plain English Guidelines to Information Privacy Principles 4-7 (1998); Plain English Guidelines to Information Privacy Principles 8-11 (1996); Draft Guidelines on the National Privacy Principles (2001).

[26] See, eg, Federal Privacy Commissioner, Plain English Guidelines to Information Privacy Principles 1-3 (1994) 1; Plain English Guidelines to Information Privacy Principles 8-11 (1996) 1.

[27] Federal Privacy Commissioner, Plain English Guidelines to Information Privacy Principles 8-11 (1996) Guideline 15.

[28] [1999] FCA 900 (Unreported, Finn J, 25 June 1999) [9].

[29] See Patrick Gunning, ‘Casenote: Ibarcena v Templar(2001) 7 Privacy Law and Policy Reporter 178.

[30] [2000] FCA 1873 (Unreported, French J, 22 December 2000).

[31] See Patrick Gunning, above n 29, 179.