Privacy in Australia

The defining events in the history of privacy protection in Australia have had a great deal to do with politics, little to do with an orderly process of law reform, and nothing to do with the Courts. This paper supports this argument from a history of the development of Australian law protecting privacy (and its many omissions from the early 1970s) through to 2008. Although state laws emerged in the 1970s, the defining event was the defeat of the proposed ‘Australia Card’ national ID system in 1987, and the Privacy Act 1988 (Cth), covering the federal public sector only, and tax file number system that followed in its wake. The 1990s saw attempts to regulate Australia’s increasing state data surveillance, and credit reporting. It took until 2001 for the Privacy Act to be extended to the private sector. The paper surveys key personal data systems and their regulation in Australia, the patchwork and incomplete privacy laws across the States and Territories. The determining factors in Australia’s privacy history have been political conflict, the media and their effective use, and legislation (both its passage and its defeat). Unlike elsewhere Courts have played a minor role. The paper explains why this is so, by reference to the Australian constitutional structure and its limitation, and similarly the common law. As a result of these limits. Australian law’s protection of privacy has principally involved legislation, or attempts to legislate, and the political conflict around such attempts. The common privacy principles in this legislation, and the complaint-driven approach of Privacy Commissioners is set out. The roles of public opinion, elite opinion, national culture and international influences are all set out. The paper concludes with another surveillance extension ‘near miss’, the defeated ‘Health and Welfare Access Card’ proposals of 2007-8. The paper finishes with the observation that, after that, it is more likely that Australia will be back to the usual situation of governments frustrated in pursuing their ambitions of surveillance (in order to achieve their other goals) because of oppositions opportunistically advocating privacy in order to create political damage to their opponents. In Australia, privacy’s only friend in politics is opportunism.