It’s Privacy Awareness Week, if you didn’t know. Home Affairs Minister Brendan O’Connor put out a media release about it today, warning in particular of the dangers of social media, making the good point that something that seems innocuous when put online now might not look so innocuous to an employer or a future partner.

O’Connor is also Minister for Privacy, and indeed the first Minister for Privacy. And yesterday he used Sony’s abominable handling of the massive Playstation crack to threaten mandatory disclosure laws relating to privacy breaches.

Good, sensible advice from O’Connor. But for the federal government, it’s a case of do as we say, not as we do, when it comes to privacy.

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On the credit side, it has indeed taken privacy more seriously than previous governments. It set up the Office of the Australian Information Commissioner to beef up the role of the Privacy Commissioner and improved access to personal information at the federal level.

But its record in other areas is troubling, particularly around copyright.

The Anti-Counterfeiting Trade Agreement to which the government signed up, even in its watered-down version, retains a number of privacy-breaching clauses. The treaty allows for countries to establish processes to search laptops, phones and iPods at border points such as airports. It also requires states to enable courts to order ISPs to reveal personal information about customers to assist copyright holders pursuing anyone they suspect of downloading copyright material.

Worse, the Trans-Pacific Partnership Agreement currently being negotiated by Australia, along with several other regional and South American countries and the US, may see many of the more draconian provisions defeated in the ACTA established in treaty form, including an extension of the power to compel ISPs to disclose personal information for an even wider range of online activities — for example, if you visited a site associated with copyright violations (which may even include YouTube).

A spokesman for Attorney-General Robert McClelland told Crikey “neither the ACTA nor the currently negotiated TPP focus on private, non-commercial activities of individuals. There is no provision in the ACTA which provides for border authorities to search travellers’ baggage for IPR infringing goods or their personal electronic devices for IPR infringing downloads. There is no final text for the TPP as negotiations are still underway. However, the Government would not support text which goes further than the ACTA in this regard.”

The government has also ignored the most important elements of the Australian Law Reform Commission’s privacy report from August 2008, which recommended a major overhaul of our approach to privacy. In particular, its recommendation for the establishment of a statutory right to privacy — which would be vehemently opposed by the mainstream media — is remains in limbo. A spokeswoman for O’Connor told Crikey “the ALRC’s recommendation for a statutory right to privacy is yet to be responded to by the Government. The ALRC made 295 recommendations covering a very broad range of privacy and information matters. The Government’s response is in two parts. The first stage response to 197 recommendations is well progressed and the Government is preparing draft legislation to implement the proposed changes. The second stage of the Government’s response will consider the remaining 98 recommendations, including the proposed statutory right to privacy.”

As I’ve previously noted, a continued and studied refusal by our parliaments to entertain a right to privacy may well see our courts follow British judges down the path of creating a court-driven right to privacy via superinjunctions, and that is in no one’s interests except those of powerful corporations. British PM David Cameron recently joined the chorus about Parliament-made privacy laws over judge-made laws.

There’s another ALRC recommendation that’s also in the second tranche of ALRC recommendations yet to be respond to. You can bet the Government will not accept it, and will have 100% bipartisan support in doing so. The report recommended that the current exemption of political parties from the Privacy Act be removed.

This would have real implications for the major parties’ database on every voter — Labor’s Electrac and the Liberals’ Feedback are massive resources with information on every registered voter. The removal of the exemption would allow you and I to see what the parties have on us, and how they use it. And you can bet, despite Brendan O’Connor’s warning, that they scour social media for information voters to add to it.

This government gets points for being more serious about privacy than its predecessors, but it’s hardly in a position to lecture the likes of Sony about their casual disregard of privacy and transparency.

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Peter Fray
Peter Fray
Editor-in-chief
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