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Abstract: Almost twenty years ago, Australia rejected the attempts of the Hawke Labor Government to introduce a national ID card system, the 'Australia Card'. Australia in 2006 is debating the proposed introduction of what the conservative Howard government calls a 'health and social services Access Card'. It is therefore informative to compare the current proposal with that of 20 years ago. No matter what the government prefers to call it, if it has a sufficient 'family resemblance' to the one 'ID card' and ID system that we knew - and most people loathed - then it is one. The purpose of this paper is principally to explore that issue: if the 'Australia Card' was a national ID card scheme, then is the 2006 'Access Card' proposal also one according to the same criteria? Such a comparison is also a useful way to explain what is proposed in the 'Access Card' proposals, by providing a comparison with what was technically feasible 20 years ago, compared with the significant changes in the new smart-card based proposal.
national ID card, privacy, personal information, Australia Card
Abstract: The twenty-one APEC economies (Asia-Pacific Economic Cooperation) commenced development in 2003 of an Asia-Pacific privacy standard, and in 2004 may develop a procedure for handling data export limitation issues. This may become the most significant international privacy initiative since the European Union's privacy Directive of the mid-1990s. It is a Janus-faced initiative. It has the potential to encourage the development of stronger privacy laws in the those APEC economies that at present provide little privacy protection (the majority), and to help find a regional balance between protection of privacy and the economic benefits of trade involving personal data. It also presents considerable potential dangers to long-term regional privacy protection if it becomes a means by which the APEC economies accept a second-rate standard. Globally, a high APEC standard could be a means of resolving international data export issues, but low APEC standards could entrench a privacy confrontation between Europe and the Asia-Pacific. The history to date of the APEC initiative shows that the dangers are as great as the potential benefits, but a valuable outcome for privacy protection is still possible. This paper analyses the version of the APEC draft guidelines current in early February 2004 (the penultimate draft of Version 8), prior to the Santiago meeting of the APEC privacy subcommittee. Four types of weaknesses in the APEC draft guidelines are detailed and criticised: (1) Weaknesses inherent in the OECD Principles (2) Further weakening of the OECD Principles in the APEC version (3) A retrograde new 'Preventing Harm' Principle (4) Regional experience in developing privacy laws has been ignored as yet The APEC proposals under consideration for self-assessment of compliance, and data export limits, are outlined. The paper concludes that the APEC draft is not yet a satisfactory standard for privacy protection in the Asia-Pacific.
privacy, APEC, data exports, personal information, Asia-Pacific
Abstract: The exposure draft for the Copyright Amendment (Technological Protection Measures) Bill 2006 was released with the aim of replacing Australia's existing technological protection measure scheme. The Bill also sought to implement Australia's obligations under the Australia-United States Free Trade Agreement as well as create additional exceptions to particular dealings with technological protection measures. This paper, a submission to the Australian Attorney-General's Department, examines areas where the Bill can be improved. The paper criticises the broad definitions of 'technological protection measure' and 'circumvention' contained in the Bill. It suggests there is a need to strengthen the new exceptions proposed. The paper also recommends additional exceptions for breaches of Australian law and orphan works.
Copyright, technological protection measures, orphan works, circumvention
Abstract: It is easy to be preoccupied with our domestic information privacy laws to the exclusion of the international context in which they operate and the international forces on their formation and implementation. In this paper I provide a brief survey of the main international agreements and institutions currently influencing the development and operation of information privacy laws in Asia-Pacific countries. I suggest that Asia-Pacific Privacy Commissioners are yet to achieve a significant enough collective role; that the UN is largely irrelevant to the future of privacy protection; that the APEC Privacy Framework is a missed opportunity for a meaningful regional privacy agreement; and that it is now potentially useful for less developed countries provided a careful eye is kept on the role of the US and its privacy allies; that we need to better understand the interpretation of privacy principles by Courts, Tribunals and Commissioners so as to develop an Asia-Pacific privacy jurisprudence, and that our best hope for some type of meaningful international standard may be (strange as it seems) for Asia-Pacific countries to join the Council of Europe privacy Convention.
Privacy law, Asia-Pacific, Privacy Principles, APEC, data protection
Abstract: Those who value free access to law need to respond to the increasingly global nature of legal research, and the fact that most countries still do not have effective facilities for free access to law. The free access to law movement, centred around University-based Legal Information Institutes (LIIs), is assisting and encouraging the development of free access law facilities in many countries in the developing world. While doing so, it is also creating a global network of interconnected free-access legal research facilities on the Internet. This network is becoming comparable to the global legal research facilities provided by the multinational legal publishers. The free access to law movement is explained: its history, methods of cooperation, and Declaration on Free Access to Law. Public policies to maximise free access to law are advanced to explain why it is not good enough for governments to provide access to law through their own websites. Instead, a 'competitive model' is advanced, stressing the right of others to republish legal information. The task of developing global legal research is explained through categorisation of the elements of the visible and 'hidden' webs of legal information, and the implications this has for tools that LIIs must develop. This helps explain the modestly decentralised global free access to law network which is emerging, based on independent national and regional LIIs, with a smaller number of 'hubs'. The World Legal Information Institute (WorldLII), one of the hubs of this network, is explained in detail, particularly as a locus of five strategies to advance global free access to law. It is a Legal Information Institute in its own right with a focus on international content such as the decisions of International Courts and Tribunals. It is an 'incubator' of LIIs, hosting collections of national databases which may and have matured into separate LIIs. Third, WorldLII is an integrator of LIIs, providing not only a combined search of 439 legal databases from 55 countries (and growing by 25% per year), but also far more targeted searches such as those limited to one type of document (eg legislation) drawn from all its collaborating LIIs. More sophisticated forms of integrations are becoming possible as LIIs cooperate more closely, such as cross-LII hyperlinks, and global 'Noteups' of legislation and cases. WorldLII is primarily an English language interface to all LII content, but aims to go beyond that in a number of ways. Interfaces in other languages to the shared data set will better emerge elsewhere, but WorldLII may have an interim role. Finally, WorldLII is a platform for more systematic global legal research beyond the content held by its collaborating LIIs. Its tools are the WorldLII Catalog and WorldLII Websearch providing access to over 17,000 law websites worldwide, and 'Law on Google' (translating WordLII's searches into Google's search language and limiting their scope to law).
free access law, legal research
Abstract: Privacy Commissioners in Asia-Pacific jurisdictions that have information privacy laws have widely differing practices in how (or whether) they report the results of the complaints they investigate. This study compares these practices in the jurisdictions of Hong Kong, New Zealand, Australia (Federal and New South Wales), and Canada (Federal, British Columbia, Ontario and Quebec). Other Australian and Canadian jurisdictions receive brief mention. A critical description of the existing practices in each jurisdiction is followed by proposals for more systematic reporting which, if adopted, would result in improvements to various practices. Following from this analysis, Privacy Commissioners are urged to consider changes to their practices, particularly in the following areas: - Public criteria of seriousness for complaints reported - Naming complainants on request - Naming public sector respondents as the default position - Naming private sector respondents in specified circumstances - Level of detail required for adequate reporting - Regularity of reporting desirable - 'One stop' reporting - Website self-publication - Facilitation of third party publishing - Consistent and informative method of citation More substantial benefits would flow from the Asia-Pacific Privacy Commissioners implementing a consistent set of reforms, preferably along the lines suggested.
privacy, law reporting, accountability
Abstract: The Asian Legal Information Institute (AsianLII) is a free access legal research facility, developed by the Australasian Legal Information Institute (AustLII), in conjunction with partners in various Asian countries. Launched in December 2006, AsianLII now includes 120 databases from all 27 Asian countries, from Mongolia in the north to Timor Leste in the south, Japan in the east to Pakistan in the west. It includes about 150,000 full text cases, and over 15,000 items of legislation, plus law reform reports, a few law journals, and other materials. All of this content may be searched simultaneously, and individual country collections, or individual databases, may be searched separately. Some of the larger collections are from the Philippines, India, Singapore, and (for legislation) Timor-Leste and Vietnam. AsianLII also includes Hong Kong databases from HKLII, and Papua-New Guinea databases from PacLII, and Korean and Taiwanese databases from GLIN at the Law Library of the US Congress, exemplifying cooperation between members of the Free Access to Law Movement. AsianLII already receives over 50,000 'hits' per working day. This paper discusses the challenges involved in building AsianLII, particularly in a region of such linguistic diversity: its rationale, technical features, approaches to partnerships, migration of technology and content control, and sustainability.
Free access law, legal research
Abstract: The importance of free access to essential legal information to the rule of law is outlined, and the role of Legal Information Institutes (LIIs) in providing such access. The main features of the new Hong Kong Legal Information Institute (HKLII) are described, and its differences from pre-existing systems. HKLII is the first LII in Asia: a free, independent, and non-profit Internet facility providing relatively comprehensive coverage of the essential legal information of a jurisdiction (Hong Kong). This paper describes HKLII's first year (July 2001 - July 2002), from the first discussions on its possible creation to the installation of its own server in Hong Kong. It explains that the development of HKLII has been made possible by the policies of the HKSAR government and judiciary supporting access to legal information. Future development of HKLII is discussed, and its potential impact on free access to legal information elsewhere in China and in Asia. HKLII is a partner in the development of the World Legal Information Institute (WorldLII). The scope and facilities of WorldLII are described briefly, and its relationship with HKLII is used to demonstrate how legal resources from one jurisdiction can be incorporated into a global and comprehensive approach to free access legal research.
Internet, computerised legal research, Hong Kong, legal information institute, access to law
Abstract: This is a response to the Australian Law Reform Commission (ALRC)'s Issues Paper 31, Review of Privacy, which is the first stage in the ALRC review of the extent to which the Privacy Act and related laws provide an effective framework for the protection of privacy in Australia. The submission addresses not only the privacy principles themselves but also some definitional and threshold issues, exemptions and questions of enforcement. A single set of core principles is favoured, but consistency should not come at the expense of higher standards. Some principles need to be revised to remove uncertainty in their application and to overcome the unexpected effect of narrow interpretations by Commissioner's tribunals and courts. The definitions and principles combined should aim to ensure maximum coverage, and exemptions should be strictly limited to where competing public interests can clearly be demonstrated. The submission also makes a case for strengthening principles in relation to purpose justification, anonymity, security breach notification and automated decision making. The problems of forced and bundled consent need to be addressed. There should be a greater emphasis in enforcement on achieving systemic changes with more proactive monitoring and enforcement and encouragement of representative complaints.
privacy, privacy principles, law reform
Abstract: Australia's Federal Government introduced into Parliament the Human Services (Enhanced Service Delivery) Bill 2007 on 7 February 2007 to establish its 'health and welfare access card' ID system. The Bill is only half of the blueprint for the ID system: the other half is yet to come in a Bill or Bills not yet seen. In this article I argue that the current Bill, and the government's 'access card' proposals as we currently understand them, should be rejected by the Parliament. The principal reason for this is that, despite the government's often-stated intention that they will not create a national identification system, there is an overwhelming likelihood that they will they will, and they should therefore be rejected. The existence (or likely development) of a national ID system does not depend simply upon whether a person is required to carry an ID card at all times, but depends upon an objective assessment of a number of factors, including whether one ID card and/or its associated ID number is likely to become predominant in use for identification purposes, effectively supplanting most other identification documents for daily purposes. This article argues that the Bill will facilitate continuous 'function creep' in the use of the 'access card' and its associated ID number and other information. The ways it does so include (i) discretions in the Secretary and the Minister to make decisions expanding the system which are not disallowable by Parliament; (ii) objectives encouraging uncontrolled use; (iii) inclusion on the chip of capacity beyond what is needed for legitimate government purposes, with very little proposed control over how it can be used; (iv) lack of precision in when use of the card may be required; (v) inadequate offences controlling requirements to produce the card; (vi) inadequate offences controlling copying of information on the card and in the chip; (vii) inadequate control over changes in business and government identification practices that make it inevitable that the card and number will be routinely offered for identification ('pseudo-voluntary production'); (viii) absence of controls over who will be able to access information in the Register; and (ix) no provision for payment of damages to cardholders for breaches of the Act. These inadequacies make it close to inevitable that the 'access card' system (including the Register) will develop into a national identification system, contrary to the government's promise to the Australian people, and contrary to their interests.
privacy, ID card, access card, law reform, function creep
Abstract: This is a submission to the Review of the National Innovation System undertaken by an expert panel chaired by Dr Terry Cutler, for the purpose of preparing reports to Australia's Minister for Innovation, Industry, Science and Research. A Green Paper responding to the submissions is to be presented to the Minister by 31 July 2008. 'Public rights' in intellectual goods (the broad usage of 'the public domain'), are increasingly important as a driver of innovation in information economies. This submission examines ten areas where changes to strengthen or protect Australia's copyright public domain may be desirable to encourage innovation. They are intended to be areas where change is possible within the constraints of our Constitution and international obligations, rather than impractical areas such as changes to the copyright term. The ten areas are: The scope for further exceptions to copyright; Legal deposit's role in the public domain; Finding missing rights-holder (orphan works); Enabling open content licensing to thrive; Maximising the value of free and open source software (FOSS); Moving toward open standards; Coexistence of open content and compulsory licences; Re-usable government works; Public rights in publicly-funded research; and Indigenous culture's relationship to the public domain. Some of the main issues and problems identified from consideration of these ten areas (from over 100 questions raised) are: Whether we should a adopt a more flexible 'fair use' copyright exception, very similar to that in the USA?; Whether steps should be taken to stop contractual provisions over-riding copyright exceptions?; Whether legal deposit schemes should be re-considered to maximise the contribution they can make to the public domain?; How can we stop technological protection measures (TPMs) subverting legal deposit schemes?; How can we best combine 'active' and 'passive' modes to ensure the best legal deposit scheme for audio-visual and digital materials?; What can we do to more effectively find missing rights-holders?; What rights to use 'orphan works' should be created, and should authors be compensated when found?; Whether amendments to the Copyright Act could be valuable to strengthen the enforceability open content licences?; Whether the Act should contain provisions enabling public domain dedications?; Whether the Act could also give more support to the enforceability of FOSS licences?; Whether Australian government practices are giving sufficient support to FOSS licensing or open standards?; Whether members of collecting societies need stronger rights to exempt their works from collecting society operations?; Are collecting societies charging for the public's use of works in the public domain (including open content works)?; In what types of works should Crown copyright be abolished?; What licences, seals or other practices should Australian governments adopt to ensure greater re-use of government-created works?; Does the Copyright Act need to give greater protection to University republication of government-funded research?; Do current policies of Australian research funding bodies have strong enough requirements for public accessibility to publicly-funded research?; How can we best ensure that the special problems of the relationship between indigenous culture and the public domain receive an appropriate response in Australia? Through the discussion of these areas, interlocking themes emerge, including the need to make ownership of works easier to ascertain, and to make use of works easier when owners cannot be found; how changes to copyright law might assist voluntary actions by authors to expand the public domain; how some Australian institutions may need more protection in their uses of works; and how governments could lead by example in relation to government-produced works, government-funded academic research, and government engagement with open source software and open standards. The submission argues that these issues are so central to the question of innovation in Australia that the Innovation Review should recommend that the Australian Law Reform Commission should be given a reference to review the role of public rights in Australia's copyright law (or preferably in all intellectual property laws). Such a review with the public domain as the focus of enquiry has never taken place in Australia, or perhaps anywhere in the world. Australia would benefit from a considered review that focuses on public rights, and on what balance between public rights and proprietary rights would maximise the national interest. This submission is in the form of an 'Issues Paper': it presents over 100 questions which it would be valuable for such a law reform review to answer, and suggests why they are important to Australia's innovative capacity. It does not propose particular reforms. Researchers from the Unlocking IP Project intend to publish a further Discussion Paper in late 2008 which will discuss options for reform on all of these issues, followed by a Report in 2009 which will state our views on what reforms are desirable.
Consumer Protection Law, Law and Technology
Abstract: The Asian Legal Information Institute is a non-profit and free access website for legal information from 28 countries and territories in Asia, from Mongolia in the north to Timor-Leste in the South, and from Japan in the east to Afghanistan in the west. After about six months development, AsianLII's Australian launch was in December 2006 and was thereafter launched in the Philippines in Manilla in January 2007.
This paper gives a brief outline of the challenges involved in developing AsianLII and the facilities it provides, and then outlines a demonstration of how it can be used for both comparative law research across all Asian countries and for research concerning the law of one country (Japan is used as the example). The proposed future development of AsianLII is outlined, particularly in relation to multi-lingual resources and its role in assisting the development of new free access Legal Information Institutes in Asia.
The Asian Legal Information Institute, comparative law
Abstract: The development of new technologies has the potential both to create new privacy intrusions and obstacles to preserving privacy never previously envisaged as well as address privacy concerns, by enabling control, monitoring and permission revocation by individuals. Technology often seems to lead to the erosion of our ability to perform everyday activities anonymously. The development of biometrics, RFID and the pervasiveness of data matching are all examples of technologies that cause this concern. Privacy law should be both robust enough to address the technological concerns we face today, and adaptive enough to tackle new and unforeseen hurdles. This submission responds to Part B, titled ‘Developing Technology’, of the Australian Law Reform Commission’s Discussion Paper 72 Review of Australian Privacy Law, September 2007, which examines the adequacy of the Privacy Act 1988 in addressing the privacy impact of developing technologies and. The submission restates the need for a revised definition of personal information and draws attention to differing issues arising from ‘privacy invasive technologies’ (PITs) and privacy-enhancing technologies (PETs). The submission does not address all the technologies discussed by the ALRC, but does expressly comment on the privacy implications of radio frequency identification (RFID) and biometrics. Enhanced powers and functions for the Privacy Commissioner in relation to new technologies are also proposed.
Abstract: One requirement for the effective operation of the public domain at the expiry of copyright in a work is that at least one copy of the work be available to the public for subsequent reproduction by anyone. In Australia, this requirement is satisfied for print works by 'legal deposit' provisions in federal law and that of various States. These provisions, however, do not apply to audio-visual works (now very often digital), nor to texts published in digital form. There is therefore no guarantee that a copy of a published digital work will be in a publicly accessible repository when its copyright expires.
In addition, if such digital works are increasingly only accessible through access control systems, or distributed with technological protection measures, it is possible that copyright in these materials may expire with no copy that can be accessed technically being available.
This Submission is a response to the '2007 Discussion Paper on the Extension of Legal Deposit' published by the Australian Attorney-General's Department, exploring the extension of the legal deposit scheme to include audio-visual and electronic material. The Discussion Paper does not specifically mention the importance of legal deposit schemes to the maintenance of a healthy public domain in Australia.
In the submission we suggest a number of ways in which a potential expansion of the legal deposit scheme may be drafted and implemented, in order to ensure that public rights in audio-visual and digital materials are protected, both during and upon the expiration of their copyright terms. The extension of the legal deposit scheme to audiovisual and electronic materials, is now a matter of urgency because of the extension of the copyright term by an extra 20 years. Following are some of the main recommendations we make.
There should be two criteria for inclusion of audio-visual and electronic materials in legal deposit: (i) For any materials (except free access materials on the Internet), if they are sold, or distributed for free, deposit by the publisher should be required under the same conditions as would make a person a ‘publisher’ in relation to print materials. This would apply to all materials sold on CD, DVD or other medium, or delivered via the Internet by any means other than the World-wide-web). (ii) All materials available for free access on the Internet should be included, and provision by that means should be considered to be publication. Depository institutions should be entitled to make copies of such materials for the purposes of legal deposit, without the publisher being required to provide a copy. They should be authorised by law to ignore robot exclusion protocols for this purpose. However, if the publisher uses any technical means to prevent the depository institution collecting a copy of the materials, a depository institution may require deposit of copies as with (i).
Publishers of any materials (except free access materials on the Internet) should be required to required to submit material in the best quality format in which it is provided to those to whom it is published. However, if the depository is unable to display the materials in the same way that these recipients can display or use the materials, it may require the publisher to either (i) provide software to allow such display or use; or (ii) provide the material in another format in which it can be read by the depository institution with no significant loss of functionality.
Where material is available for free access on the Internet, its provision by that means will normally satisfy the legal deposit requirements, except where the depository institution cannot download the material by automated means, in which case it will be entitled to require provision of the data in accordance with the previous paragraph. Both electronic and print versions of a work should be required to be deposited, if both are published.
Legal deposit should apply to broadcasts. The default position should be not that broadcasters have an obligation to deposit copies but rather that the repository has the right to collect copies from the broadcast itself. Depositories should also be given the right to require copies of broadcasts from broadcasters where they have not collected the broadcast when it was broadcast.
Depository institutions should have the right, within the legislative competence of the Australian Commonwealth Parliament, to require the deposit of materials hosted outside Australia which are published on the Australian (.au) county domain or created by Australians or otherwise considered to be of cultural significance to Australia.
Depository institutions should have the legal right to make copies of free access web sites (whether or not they are located in Australia) containing legal deposit materials for the purposes of the legal deposit scheme, and to make them searchable. The Copyright Act should confirm that depository institutions (and perhaps other search engine providers) are entitled to do this.
In relation to deposited materials in which copyright has expired, there should be no restriction on access and reproduction. No publisher should be able to impose any such restrictions as a condition of deposit. Steps should be taken to prevent TPMs imposing such restrictions.
In relation to materials in which copyright has not yet expired, on-site depository access should be permitted, for a single user. More liberal access should be provided to materials that are no longer commercially available. These forms of access should allow users to exercise rights of use of the materials allowed by the Copyright Act.
Depository institutions should be part of a national scheme to identify which materials they hold that are no longer protected by copyright, and should be entitled to require information to be provided to them at the time of deposit so as to assist them to determine this.
Consideration should be given to making searchable the full texts of all Australian legal deposit materials in which copyright has expired.
Consideration should be given as to whether the Copyright Act should allow depository institutions to make the full texts of deposited materials searchable, provided they only provide the minimum amount of contextual information in any search results (or confirm they may do so).
Abstract: This submission responds to Part D of the Australian Law Reform Commission's 'Discussion Paper 72 Review of Australian Privacy Law', September 2007 which deal with the information privacy principles lying at the heart of the Privacy Act 1988 and the definitions which are essential to their meaning. As part of its 'Review of Australian Privacy Law', the ALRC has proposed that the Privacy Act should be amended to consolidate the current Information Privacy Principles and National Privacy Principles into a single set of privacy principles - the Unified Privacy Principles (UPPs) - that would be generally applicable to agencies and organisations, subject to exceptions as required. The ALRC has also proposed that amendments be made to some key definitions. This submission supports a single set of principles, but makes numerous suggestions for improvements to the proposed UPPs to ensure they represent world best practice and address some of the weaknesses and ambiguities exposed by experience of the current principles Suggestions include more clearly defining 'personal information', 'consent' and 'authorised by law'; express application of collection principles to collection by observation or surveillance; stronger notification requirements; a condition of 'proportionality' in collection and use; a separate retention principle, and a re-worked transborder data flow principle that does not leave so much discretion to data exporters as the current NPP 9.
Abstract: As part of its ongoing Review of Australian Privacy Law, the Australian Law Reform Commission, in its Discussion Paper 72, proposed that a new statutory cause of action of for “invasion of privacy” be introduced into the Privacy Act 1988 (Cth). The New South Wales Law Reform Commission is also consulting on the introduction of a statutory action - often referred to as a ‘privacy tort’. This submission supports the proposal from the ALRC that there should be a privacy action stated in general terms and with a non-exhaustive list of examples, but suggests that all of these examples clearly relate to ‘private life’. The right should not apply to legal entities or to deceased persons, and should apply to negligent as well as intentional and reckless acts. If the right is to be limited by a requirement for ‘proof of damage’ it is essential that ‘damage’ include humiliation, emotional distress etc. The submission supports an exhaustive list of defences, but argues for a proportionality condition for all defences and for any ‘authorised by law’ defence to be restricted to specific authorisations.
Abstract: This submission responds to Part F of the ALRC’s 'Discussion Paper 72 - Review of Australian Privacy Law', September 2007 which deals with the Office of the Privacy Commissioner and the promotion and enforcement of the Privacy Act 1988. This submission argues that proposed improvements to Australian privacy principles will not be effective without major changes to Australia’s chronic under-enforcement of its current laws. The reforms proposed by the ALRC will amount to a fundamental change in the complexion of the Australian legislation, from a system where dissatisfied complainants could never get past the ‘black hole’ of the Privacy Commissioner’s office, to one of a more normal legal regime of appeals, reported cases, and some real understanding of what the Act actually means emerging over time. This submission supports the ALRC’s proposals but also identifies areas in which further improvements could be made. These include more discretion for the Privacy Commissioner to report publicy; express requirements for consultation with stakeholders on Codes, guidance and own-motion investigations; a complainant’s right to a Determination in more circumstances; and more prescriptive requirements for complaints reporting.
Abstract: This submission responds to Part E of the Australian Law Reform Commission’s Discussion Paper 72 Review of Australian Privacy Law, September 2007, which deals with exemptions from the Privacy Act 1988 (Cth). The ALRC has proposed a separate part in the Act which would contain all the separate exemptions from the law. The submission restates the view that many of the current exemptions from the Privacy Act unnecessarily create ‘privacy-free zones’ where an organisation, or a class of organisations, are given a complete exemption from all Information Privacy Principles and National Privacy Principles, when all that is justifiable is an exemption from, or more likely a modification of, some IPPs/NPPs. The submission welcomes the ALRC’s comprehensive review of the justification, or lack of justification, for all the current exemptions. The submission supports the proposed removal of the small business, employee records and political exemptions. The intended tightening up of the media exemption is also welcomed, although the means by which this is proposed are questioned. The proposals for application of the Act to more government agencies, and for a requirement for privacy guidelines for those agencies which need to remain exempt, are also supported, with suggestions for additional refinements.
Abstract: The Australian federal government's attempts to introduce an 'access card' for health and welfare benefits have been attacked by many critics, particularly on the ground that this is really the introduction of a poorly-disguised national identification system, similar to the failed 'Australia Card' proposals of 1987. The government's first Bill introduced to Australia's federal Parliament was rejected by a Senate Committee as incomplete and withdrawn by the government, following criticisms by numerous critics. In response the government released only an 'Exposure Draft' of the Human Services (Enhanced Service Delivery) Bill 2007 and called for public comment.
No new Bill was introduced before Parliament rose for an election called for November 24 2007. The fate of the 'access card' proposal therefore depends on the election outcome. For the moment, the Bill's opponents have succeeded in their goal of preventing the government from passing the Bill while it still has a Parliamentary majority.
This article concentrates on those aspects of the Exposure Draft Bill which (directly or indirectly) determine the scope and purposes of the identity system which it will create, and in particular what opportunities they provide for expansion of those functions and purposes beyond those the government claims the Bill is about. In other words, this is an article principally about the opportunities for function creep. Although it contains some detailed recommendations for how the Bill could be improved, that is not an endorsement of any Bill containing such improvements. This Bill should be abandoned in favour of a more limited and less dangerous approach.
Law and Technology
Abstract: The development of content-protection technologies (CPT) and digital rights management systems (DRMS), despite their benefits to rights-holders, pose many dangers to the protection of privacy, which some have said could mean an end to the privacy of reading. Hong Kong and Australia are two of the earliest jurisdictions in the world with laws implementing the anti-circumvention and rights management information (RMI) protection provisions arising from the WIPO Copyright Treaty 1996 (WCT). They are also two of the few jurisdictions outside Europe with privacy (data protection) laws applying to the private sector. These two jurisdictions, therefore, give two of the best illustrations of the tensions now arising between copyright and privacy: property versus privacy. In this article, the author explores how CPT and DRMS affect privacy, how existing data protection and privacy laws affect the operation of CPT and DRMS, and whether laws against copyright circumvention devices and interference with RMI prevent privacy protection. The author concludes that privacy could now be unduly prejudiced in favour of property, and suggests reforms which may help restore the balance.
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