The Australian Law Reform Commission has thrown down the gauntlet to two of Australia’s most powerful entities in its report on privacy, launched by John Faulkner and Robert McClelland in Sydney this morning.

Not merely has the ALRC recommended a federally-enacted right to privacy, which will send the media into apoplexy, but it has proposed to remove the exemption from the Privacy Act currently enjoyed by political parties.

The ALRC has proposed a statutory right to privacy based on a non-exhaustive list of breaches, but including where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.

The recommendation sets a rigorous test for complainants, who must show that there is a reasonable expectation of privacy; and that the breach or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. The ALRC also recommends a public interest test — whether maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

The basis for the ALRC’s conclusion is that, based on Australian and overseas experience, common law will continue to evolve toward something like a right to privacy anyway, so a uniform statutory approach is better than an uncertain and fragmented judicial approach.

Nevertheless, big media will hit the roof, chiefly over their right to continue invading the privacy of celebrities, although the ALRC explicitly omits photographs from the right to privacy.

Political parties will be no less angered by the proposal to subject them to the operation of the Privacy Act. Currently they are exempt, and exploit the exemption to the hilt in maintaining and using complex and information-rich databases on voters. The ALP’s database, Electrac, and the Liberals’, Feedback, are massive and highly valuable resources, especially in marginal electorates. Most voters are unaware of the amount of information parties have accumulated on them and who has access to that information — there have been complaints about parties refusing to tell voters what information they have about them, or allowing them to correct inaccurate information. Removing the current exemption for political parties will require parties to accumulate and use information in the same manner as private companies and other parties subject to basic privacy requirements.

Interestingly, the ALRC reveals that the Big Media-run openness campaign, Right To Know, also opposed the removal of the political exemption (as did the ALP). Expect a strong campaign against the ALRC report from the major broadcasters, Fairfax and News and the magazine owners ACP and Pacific Magazines.

Faulkner today said that the report will be considered in stages (it’s impossible to do otherwise — it runs to thousands of pages and well and truly passes the traditional Public Service “thump” test), and the proposals for the political exemption and the right to privacy won’t be dealt with until after the Government deals with issues in the report like unified privacy principles (UPPs), health and credit reporting regulations and the impact on privacy of new technologies.

Removal of the political exemption would be another significant step forward for a Government that, via John Faulkner, has demonstrated a real commitment to greater transparency in the political process. But don’t count on it.

Peter Fray

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