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Privacy Law and Policy Reporter

Privacy Law and Policy Reporter (PLPR)
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Waters, Nigel --- "Was it worth the wait?" [2000] PrivLawPRpr 10; (2000) 6(9) Privacy Law and Policy Reporter 141

Was it worth the wait?

Nigel Waters

At last! The long anticipated private sector privacy legislation was introduced into Parliament by the Attorney General on 12 April 2000. Initial reaction was interesting. While mainstream business groups welcomed the Government’s proposed regime, most privacy and consumer advocates expressed significant reservations about the exemptions, lack of retrospectivity and weak enforcement mechanisms.

The Federal Privacy Commissioner, Malcolm Crompton, was perhaps surprised to find his media release headlined in the Sydney Morning Herald as ‘Watchdog savages new privacy laws’ (13 April). The Government’s late inclusion of an exemption for political parties prompted direct criticism from the Commissioner, although he was much more guarded about the other exemptions, simply calling for a community debate and welcoming the proposal for a review after two years. It remains to be seen how vigorously he will play the privacy advocacy role that the existing law gives him during the forthcoming debate.

The introduction of the Bill is of course a major landmark in the Australian privacy landscape, and PLPR will be giving it appropriate coverage. In this issue, we reprint the Attorney General’s Department’s information paper on the Bill, and their useful fact sheets which explain the Government’s position on some of the key contentious issues. We are also reprinting the Bill in its entirety in a special edition accompanying this one, and will follow this up by starting Volume 7 with detailed commentary on the Bill from domestic and overseas commentators.

With both Labor and the Democrats on the record as critical of key provisions and exemptions, the expected Senate Committee Inquiry(ies) should to be lively, and will hopefully be productive in salvaging this important and long awaited legislation.

Meanwhile ...

Before we all become focused exclusively on the Bill, a brief comment on two initiatives from the federal Privacy Commissioner, launched on 30 March in Sydney in the presence of the biggest assembly of the Australian privacy community for many a year.

Malcolm Crompton firstly launched his Strategic Plan 2000, setting out his approach to his job for the immediate future. It is, in his words, to ‘promote an Australian culture that respects privacy’. In a slick multimedia presentation, the Commissioner identified some of the current threats to privacy, with a distinct emphasis on the private sector. His approach will be to build networks — of partners and of information — to build confidence, focusing on education and encouragement rather than punitive enforcement. Neither legislation nor self-regulation on their own are enough — a combination of tools is needed, including informed and pro-active consumers, although the Commissioner acknowledged the lack of information, bargaining power and true competition that limit the effectiveness of market solutions.

In a somewhat mixed message, Crompton suggested that the Government’s light touch legislation was ‘probably — almost certainly — the right approach’, but also acknowledged that adverse publicity was probably more effective than enforcement, and invoked the Trade Practices Act 1974 (Cth) as a possible means of enforcing privacy principles — arguably an admission of the weakness of the proposed privacy law.

While privacy experts may fret about the nuances of the Commissioner’s approach to his task, it is probably well designed for the major undertaking of creating awareness and understanding in the wider community — particularly in reaching the many thousands of businesses to which privacy compliance will initially be a strange and alien concept. The professionalism of the launch and the clean attractive publication style are a welcome and necessary advance on the somewhat dull public face of the Commissioner’s office in the past.

Unfortunately, the positive note struck by the Strategic Plan was immediately undermined by the second launch of the day — of the Commissioner’s Guidelines on Workplace E-mail, Web Browsing and Privacy. As most reports over the next few days clearly noted, these guidelines are no more than a set of safeguards as to how employers can monitor their employees’ activities — they completely fail to even suggest constraints on the extent of such monitoring. This capitulation to hard-line business interests ironically came only a week before the Federal Court rejected Ansett’s attempt to sack a union repres-entative for circulating union material by office email. The Commissioner’s guidelines implicitly accept an employer’s ‘rights’ over electronic communications to from and within the workplace, without even canvassing the significant uncertainties over the application of telecommunications interception and listening devices laws. However valuable the procedural safeguards recommended in the guidelines, the failure of the Commissioner to come out as an advocate for employees’ rights to private space in the workplace is a major disappointment. It was also arguably an error of judgment to ask the Attorney General to launch the guidelines in the knowledge that he was about to introduce a Bill which expressly exempts employment records from the protection of privacy law. While it is as yet unclear whether this exemption would cover email and browsing logs, the Government’s intention is clear, and the launch gave the Attorney the opportunity to appear to be contributing to privacy protection for employees when the Government’s policy is the exact opposite.

And in contrast ...

New South Wales Privacy Commissioner Chris Puplick has condemned in the strongest terms the cynical and manipulative DNA testing trial in the NSW country town of Wee Waa. Deliberately pre-empting debate on forthcoming legislation, the police invited all male residents of the town to give a ‘voluntary’ mouth swab for DNA testing, stating this would assist in the investigation of a rape and assault. They did so outside the control of any privacy laws. Articles in coming issues of PLPR will explain why this is a particularly dangerous intrusion into privacy and civil liberties. It is good to see the State’s Privacy Commissioner taking a robust position on this critical issue, giving some comfort to the few courageous Wee Waa men who stood up for the wider principles at stake in a situation of considerable community pressure.

Nigel Waters, Associate Editor.

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