www.privacy.org.au

Senate Legal and Constitutional Committee

Inquiry into the Privacy Act 1988

Hearings: 19 May 2005, Sydney

Opening statement of the Australian Privacy Foundation

Good morning Senators.

The Australian Privacy Foundation is the leading non-government organisation dedicated to protecting the privacy rights of Australians.

Like the Privacy Act itself, we were born out of the extraordinary public outcry over the ‘Australia Card’ proposal, almost 20 years ago.

We therefore welcome this review, and indeed any opportunity in which Australians can debate in a comprehensive and informed way, about the appropriate balance between the protection of privacy and that of competing interests.

Our written submission on this review of the Privacy Act is extensive.  I should both acknowledge the work done by our Policy Co-ordinator Nigel Waters in preparing that submission, and to proffer his apologies to you for not being here today.  My colleague David I will nonetheless endeavour to answer any questions you might have, as best we can.

However first I would like to use this brief opening statement to raise some key issues for your consideration, in relation to the primary aspect of your terms of reference:

“the overall effectiveness and appropriateness of the Privacy Act … as a means by which to protect the privacy of Australians”.

Our submission is that the Privacy Act alone, and in its current state, is not enough to protect the privacy of Australians.

17 years old

The Privacy Act is almost 20 years old, and deserving of review to ensure its robustness and appropriateness for new challenges.

Speaking in very broad terms, we see three main developments which the Act alone cannot affect:
·	the extent to which the ‘war on terror’ is used to justify an abandonment of any rationality in our policy processes, such that new proposals are not calmly weighed in terms of necessity, proportionality or ‘reasonableness’, effectiveness, and alternative options
·	the rapid pace of technological change
·	the use of the Privacy Act as a shield - and as a sword

I’d like to just very briefly address the first an dlast of these three developments.

This ‘age of terror’

We reject the notion that we are somehow living in a ‘new’ age of ‘terror’, justifying the abandonment of long-cherished values and hard-won liberties.  Commentators better versed in history than I have drawn sensible parallels with the fear of communism in the 1950s, and the ‘Cold War’ nuclear threats up to the 1990s.

Even more so, we utterly reject any suggestion that privacy, or indeed other human rights, somehow stand in the way of security or good government.  Privacy ensures the freedom of speech and freedom of association necessary for stable and democratic government.

Furthermore privacy, like freedom of information, is about ensuring the accountability of government (and business).  In doing so, respect for privacy, and robust enforcement of privacy principles and privacy rights, can only strengthen the fair, and expose the corrupt.

The use of the Privacy Act as a shield – and as a sword

Our written submission in particular seeks to refute a number of examples in which the phrase “because of the Privacy Act” has been used inaccurately by organisations – both government and business – as an excuse.  That practice is frustrating enough, as it brings privacy protection into disrepute.

However an even more disturbing development has been the extent to which privacy-invasive proposals are justified, or ‘softened’, in the public’s eye, through the mere existence of a Privacy Act.

That is, the Privacy Act has been used as a shield, behind which all sorts of intrusive practices are conveniently sheltered, with a bland reassurance along the lines of “you can trust us, because we are obligated to comply with the Privacy Act”.

In this sense, a Privacy Act which is weak, either in its framework or its enforcement, can actually do harm, as its mere existence can be used to shut down or sideline public debate or criticism.

A current example is the proposal to radically alter both the nature of the Census, and the role of the ABS in handling personal data about every Australian.  The proposal is for the ABS to replace the anonymous ‘snapshot’ of the 5-yearly Census with instead a permanent ‘movie’ of every Australian’s life.

The result will be a centralised, national population database, holding the most extensive collection of data on every person, in an identifiable form.  Everything from date of birth, sex, religion and occupation to people’s history of disease, their immigration movements and familial relationships will, for the first time, be held, in the one place, by the Australian Government.

The Australian Privacy Foundation, and no doubt other civil liberties groups, will be campaigning vigorously against that proposal.  However we note that the ABS, in its Discussion Paper on this proposal, has sought to reassure the public by sheltering behind the mere existence of a Privacy Act.

This new Census proposal is the closest thing we have seen yet to the old ‘Australia Card’ scheme.  Although not featuring a piece of plastic for your wallet, the centralised population database that underpins such a scheme is there – with proposals to collate richer and deeper data on every Australian than Neil Blewett could have dreamt of in 1987.

We know that the Privacy Act alone, in its current state, can do nothing to prevent this proposal.  Nor can the Act alone stand in the way of the inevitable ‘bears’ being attracted to the ‘honeypot’ that a national population database represents.

Legislation alone cannot protect Australians’ privacy.  We need informed public debate, and absolute political commitment, if we are to avoid becoming a ‘surveillance society’.

Thank you.