Review of the Private Sector Provisions of the Privacy Act 1988 (Cth), in particular the Issues Paper of October 2004

Roger Clarke **

Version of 26 November 2004

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I have been active in privacy research, consultancy and advocacy since 1972. I was the primary drafter of the original N.S.W. Guidelines for the Operation of Personal Data Systems in 1977. I provided input to Justice Kirby in his role as Chair of the Expert Group that produced the 1980 OECD Guidelines. I have been a Board member of the Australian Privacy Foundation since its formation in 1987. I have provided submissions to many governmental and parliamentary enquiries. I was a member of the Data Protection Advisory Council that drafted the Victorian Information Privacy Act 2000. I have published many papers on privacy policy and privacy laws.

I draw attention to the critiques that I have written over the last 15 years in relation to:

The Terms of Reference for this review ask the Privacy Commissioner to "consider the degree to which the private sector provisions meet their objects".

There is a very wide range of ways in which the provisions are deficient in comparison with the expectations of an OECD-compliant statute. The exemptions and exceptions in relation to use and disclosure are particularly strong evidence of the provisions' anti-privacy nature. In addition, there is are considerable uncertainties about the law's scope, its interpretation, and what has to be done in order to comply with its provisions.

I have addressed the many specific problems on a number of occasions, in particular in 1996b, 1997b, 1998d, 1998g, 1998h, 2000a, 2000b, 2000c, 2000e, 2001h, 2003a and 2003b. I draw attention to the submissions of the Australian Privacy Foundation, the Australian Consumers Association, the Financial Services Consumer Policy Centre, the Consumer Credit Legal Service and Electronic Frontiers Australia, which will address these problems in detail.

I am not, however, addressing those aspects of the matter. This submission focusses on Term (b)(ii) which requires that consideration be given to the provisions "in a way that ... recognises individuals' interests in protecting their privacy". I note that Term (b)(ii) uses the expression 'privacy', and does not restrict the review to 'information privacy'. The list below summarises my concerns, and provides access to additional detail in support of each point.

The private sector provisions are so seriously inadequate that amendments to them would not retrieve the situation. There is no solution other than to introduce new legislation, and rescind the present provisions. It is untenable to revert to mere self-regulatory measures such as a standard or code. The first requirement of a replacement law is that it implement a modern interpretation of the OECD Guidelines, such as those of New Zealand and Victoria. The second requirement is that the regime be extended so that it is genuinely attuned to the needs of the Australian public in an era of enormously powerful information technologies.

I stress that my proposal does not imply great impositions on the private sector. (I draw to attention that I run a small business, am on the Boards of both companies and incorporated associations, and have earnt my living for the last decade as an eBusiness consultant). The legislation that I am arguing for would indeed proscribe some current activities in which business enterprises engage, and it would place limitations on others. But this is necessary in order to recover trust by consumers in the businesses that they deal with (2001f, 2001h s.8). In addition, the legislation can be structured as a genuinely co-regulatory scheme (1998g, 1999a, 2000b s.1), so as to involve much less uncertainty, and lower compliance costs, than arise under the present legislation.


  1. Introduction
  2. Fundamental Inadequacies of FIP/OECD
    1. Protection for All Dimensions of Privacy
    2. Justification for Systems Through PIAs
    3. Justification for Adverse Decisions
    4. The Public Accountability of Business Enterprises
    5. Retention Limitation
    6. No Disadvantage for Exercising Rights
  3. Privacy Act Shortfalls Against FIP/OECD
    1. The Universality of Privacy Protection Principles
    2. The Scope of 'Information'
    3. The Scope of 'Identified'
    4. Purpose as a Control
    5. Consent as a Control
    6. Uncontrolled Secondary Purposes
    7. Justification for the Relevance of Data
    8. Opt-Out Direct Marketing
    9. Generally Available Publications
    10. Outsourced Services
    11. Data Sensitivity
    12. Consultation by the Privacy Commissioner
    13. Resourcing of the Privacy Commissioner
    14. Anonymity and Pseudonymity
    15. Multiple Use of Identifiers
    16. Multiple Identifiers for Each Individual
  4. Inadequacies Arising From Post-1980 Technological Developments
    1. Identification and Authentication Tokens
    2. Biometrics
    3. Freedom From Surveillance
    4. Automated Decision-Making

1. Introduction

This document lists the most important defects of the private sector provisions of the Act from the viewpoint of the public interest in privacy. There are about 30 areas of serious shortfall that need to be addressed if Australians are to be provided with the privacy protections needed in the face of massively privay-invasive technologies, and applications of those technologies by business enterprises. In each case, a reference is provided to a fuller explanation.

The inadequacies are presented in three groups:

In the current context of government hostility to privacy protections, to propose the eradication of the many weaknesses, and the creation of significantly enhanced protections, may be seen by some people to be ambitious. On the other hand, many of the measures proposed in this document have already been implemented in laws in various jurisdictions, in some cases State laws and other Commonwealth laws. In addition, trust by Australian consumers is dependent on reasonable behaviour by business enterprises, which demonstrably will not happen without a regulatory framework.

The implementation of measures to address each of these problems must be undertaken carefully, however, so as to:

2. Fundamental Inadequacies of FIP/OECD

This section identifies problems that are inherent in the so-called 'fair information practices' (FIP) approach codified in the OECD Guidelines of 1980. Background to FIP is provided in 2000a.

2.1 Protection for All Dimensions of Privacy

FIP generally, and the private sector provisions in particular, fail to provide protection for all dimensions of privacy. These include not only privacy of personal information, but also:

These dimensions are discussed in 1997f and also in 1998d, 2000a, s. 6.10 and 2000b, and in the Australian Privacy Charter, Principles 7-9.

I am not suggesting a comprehensive privacy statute. What is necessary, however, is for the Privacy Commissioner to be empowered, required and resourced, in respect of all dimensions of privacy, to:

Law Reform Commissions occasionally undertake research into such matters, but their work is sporadic, and does not lead to a cumulative understanding of the issues. The delicate balancing of interests that is critical in these areas, and adaptation to changing circumstances, can only be achieved by vesting these responsibilities in a standing organisation. Morison (1973) made recommendations along these lines to the Standing Committee of Attorneys-General, and those recommendations need to be re-visited and acted upon.

2.2 Justification for Systems through PIAs

FIP generally, and the private sector provisions in particular, fail to require the provision of publicly-available justification for the following:

These issues are addressed most comprehensively in 2000a, s. 4.7(1)-(3), and also in 1989a, 1997a and 2003b.

It is critical to privacy protection that such an obligation exist in respect of business activities and proposals that have significant privacy implications.

The appropriate mechanism whereby this can be achieved is through the conduct of privacy impact assessments (PIAs). The technique is outlined in 1998a and 2003b, guidelines are provided in 1998b, and the historical development of the technique is presented in 2004b. I note that the Privacy Commissioner's Office has just issued draft PIA Guidelines, but I have not yet had the opportunity to review them.

The effectiveness of a PIA is heavily dependent on consultations with representatives of, and advocates for, the public interest. This is addressed most comprehensively in 1998b, and also in 2000a, s. 6.2, 2000b s. 2.

2.3 Justification for Adverse Decisions

FIP generally, and the private sector provisions in particular, fail to impose on businesses an obligation to communicate the justification for decisions adverse to the interests of a person.

This issue is addressed most comprehensively in 2000a, s. 4.7(3), and also in 1989a and 1989b.

2.4 The Public Accountability of Business Enterprises

FIP generally, and the private sector provisions in particular, fail to impose on business enterprises the requirement to establish and operate a suitable complaints mechanism. This is important to consumer trust generally; and quite critical in respect of activities with significant privacy implications. This issue is addressed in (2000b s.7).

Further, FIP generally, and the private sector provisions in particular, fail to impose on business enterprises the requirement to conduct privacy law and code compliance audits. This is important to consumer trust generally; and quite critical in respect of activities and proposals with significant privacy implications.

Telstra's first compliance audit was addressed in Haines 1996 and Greenleaf 1996. At that time, Telstra indicated its commitment to annual, independent audits. It is unclear whether Telstra has fulfilled that commitment. There is no mention of them at, none is located by means of a search on <privacy compliance auduit>, and there is no mention of 'privacy' in the company's Audit Committee Charter, at

It is also unclear whether other corporations whose systems have major privacy implication have made similar commitments, and if so whether they have fulfilled them.

2.5 Retention Limitation

The Explanatory Memorandum to the OECD Guidelines stated that " ... when data no longer serve a purpose, and if it is practicable, it may be necessary to have them destroyed (erased) or given an anonymous form". The Guidelines themselves, however, omit the requirement.

The private sector provisions also fail to ensure that data that has served its purpose is destroyed or de-identified. This is because NPP 4.2 permits retention while the data is needed "for any purpose for which the information may be used or disclosed under NPP 2". But, as discussed in sections 3.4, 3.5, 3.6, below, the use and disclosure provisions are so permissive that this is tantamount to approval for the data to be retained at the business enterprise's pleasure.

This issue is addressed in the retention limitation principle of the Australian Privacy Charter (APC 16).

2.6 No Disadvantage for Exercising Rights

FIP generally, and the private sector provisions in particular, fail to ensure that the exercise of privacy rights do not prejudice access to other rights or services.

This is addressed in the no disadvantage principle of the Australian Privacy Charter (APC 14), 2000a, s. 4.8, 2000b and 2003b.

3. Privacy Act Shortfalls Against FIP/OECD

This section identifies problems that derive from the privacy-unsympathetic manner in which the OECD Guidelines were interpreted into law in the National Privacy Principles and the amendments to the Privacy Act. Most of these problems reflect the fact that the negotiated conclusions of the 'Core Consultative Group' during 1999 were ignored, and a completely different Bill presented to the legislature.

3.1 The Universality of Privacy Protection Principles

As discussed in 1989a, the OECD considered the question of exceptions to the Principles, and concluded that they "should be as few as possible, and ... made known to the public".

Instead, as discussed in 1989b, the National Privacy Protection principles are subject to an extraordinarily wide array of exemptions and exceptions. It is vital that these exemptions and exceptions be removed, and the principles applied universally.

The widely varying circumstances of course need to be reflected, but the appropriate way to achieve this is through the manner in which th Principles are articulated, applied and interpreted, not by simply ignoring them because they're inconvenient to business.

This issue is addressed most comprehensively in 2000a, s.4.2, and in 1997a, 1997b and 2000b ss. 3-4.

One of the many problems arising from this is the exemption of small business, which forces the clumsy re-inclusion of some categories under s.6D(4). Yet even then the re-inclusion only extends to organisations that trade in personal information. Any handling of personal information needs to be subject to controls. The objective of avoiding undue compliance costs is best achieved by means of a principle of proportionality, such that small risks incur small responsibilities, but not no responsibilities.

3.2 The Scope of 'Information'

As discussed in 1989a, the OECD Guidelines focus on 'personal data', defined as "any information relating to an identified or identifiable individual (data subject)".

As discussed in 1989b, however, the Privacy Act greatly restricts the scope, by referring not to 'personal information', but rather to 'records of personal information'. This has the effect of excluding data that is not, or not yet, in a record. It also expressly excludes information in a 'generally available publication'. Together these have substantially reduced privacy protections by exempting important and sensitive personal data from all aspects of the Act.

3.3 The Scope of 'Identified'

As discussed in 1989b, protection only exists for data about "a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion" (my emphasis). The inclusion of the final phrase has the serious negative impact of denying protection for many categories of personal data where the individual can only be identified by associating that data with other data.

Pseudonymous data must be within-scope of privacy law, because it is capable of being re-associated with an individual. Only fully, permanently and reliably anonymous data should be out-of-scope.

There is also a deficiency in the definition of 'identifier', in that it is defined to not include name. This potentially enables a business enterprise to claim they have de-identified personal information even if the name is still associated with the data. This is addressed in 2000b.

3.4 Purpose as a Control

As discussed in 1989a, the OECD Guidelines envisage use of personal data only for the purposes specified, but including related purposes and subsequently specified purposes which are "not incompatible with" the original purposes.

In the Privacy Act, on the other hand, as discussed in 1989b, a system's purposes are established by the record-keeper, and there is no control on them other than that they be lawful (i.e. not unlawful). There is nothing to prevent so broad a definition of purpose that virtually any data is 'relevant'. There is no oversight over the purposes of personal data systems, and no provision for the disallowance of purposes. Yet worse, the Act fails to constrain disclosures to even these uncontrolled purposes.

This aspect of the private sector provisions falls far, far short of the expectations of a FIP/OECD scheme.

3.5 Consent as a Control

OECD Guideline 4 permits use and disclosure only if it is for the purpose of collection, by consent or under authority of law. It envisaged that legal authority would be clear and explicit.

Consent is comprehensively addressed in 2002.

The private sector provisions, specifically NPP 2.1(a), gut this intended protection by providing business enterprises with over 600 words of vaguely-expressed legal authorisations to use and disclose data prettymuch whenever they feel like it. Consent becomes essentially irrelevant in such diverse cases as direct marketing, research and statistics relevant to public health and public safety, and otherwise unlawful disclosure to law enforcement agencies without a warrant.

The most comprehensive loophole of all is the ignoring of consent where the business enterprise considers that the data subject "would reasonably expect the organisation to use or disclose the information". Consumers know full well that, under the Corporations Law, the function of corporations is to maximise profit, and that they can therefore be expected to exploit consumers and their data; so every individual "would reasonably expect" every corporation to use and disclose anything that they can get their hands on. Hence NPP 2.1(a) is nothing short of a negation of the relevance of consent to the use and disclosure of personal data.

Further, a practice has been adopted by some business enterprises that is usefully referred to as 'bundled consent': the consumer is presented with a cluster of consents which must be agreed to, without the scope for some to be agreed and others denied. This completely undermines the requirement that consent be meaningful, informed and freely-given. The characteristics of meaningful consent are comprehensively addressed in 2002.

The provisions in relation to non-consensual use and disclosure are completely anti-privacy in their effect, and require re-drafting. These serious inadequacies in the private sector provisions are having very serious consequences in the areas of tenancy, financial services and health.

3.6 Uncontrolled Secondary Purposes

The OECD Guidelines permit use of personal information for "purposes other than those specified" only in the cases of consent and legal authority.

NPP 2.1(a) elevated the previously informal concept of 'secondary purposes' to a level whereby it subtly, but devastatingly, destroyed that critical protection. The narrow category of 'sensitive information' is subject to the protection that 'secondary purposes' must be "directly related to" the primary purpose. For all other personal information, on the other hand, it is good enough for the data to be merely "related to", and by implication "indirectly related to", the primary purpose (whatever 'indirectly related to' might mean).

The second requirement, that the individual would "reasonably expect the organisation to use or disclose the information for the secondary purpose", is similarly hugely open-ended. As a result, any business enterprise can make a claim that almost any use of personal data is legitimised by this law.

This is addressed in 2000b. It is crucial that such gross undermining of what are nominally privacy protections be got off the statute book. As with the previous problem, very serious consequences arise in the areas of tenancy, financial services and health.

3.7 Justification for the Relevance of Data

The OECD Guidelines at Principle 2 require that "Personal data should be relevant to the purposes for which they are to be used". This fails the public's need in an important respect, however, in that is does not require that business enterprises publicly justify the claim of relevance.

The private sector provisions fail on both counts. They impose on business enterprises no obligation either to ensure that data is only collected, stored and used if it is relevant, or to demonstrate that relevance.

This issue is addressed most comprehensivelyin 2000a, s. 4.7(2), and also in 1997a and 2000b.

3.8 Opt-Out Direct Marketing

It was, and still is, astonishing that a special sub-Principle, NPP 2.1(c), legitimises privacy-hostile practices of the direct marketing industry.

The separate process to address the particular direct marketing practice of spam concluded that marketing communications need to be based on consent, or 'opt-in' arrangements. The permissive 'opt-out' provisions of NPP 2.1(c) need to be replaced by the 'opt-in' standard in respect of direct marketing as a whole, including tele-marketing.

Direct marketing in general is most comprehensively addressed in 1998c, and the problems with the private sector provisions in 1998d and 2000b.

3.9 Generally Available Publications

An especially serious example of the negative impact of exemptions discussed section 3.1 is the complete absence of any protection in relation to personal information in 'generally available publications'.

One matter of extreme concern is telephone subscribers' data and the Integrated Public Number Directory (IPND). This contains locator data that is very sensitive for a proportion of the population, and reverse-sorting of the data discloses people's home addresses.

A further very serious concern is the authorisation that this anti-privacy measure provides for access by business enterprises to Electoral Roll data. That data is required, and provided, for purposes related to the conduct of elections. Its use needs to be constrained in accordance with its purpose, by removing the exemption from privacy protections.

This issue is addressed most comprehensively in 1997d, including a proposed framework, and in 1989b.

3.10 Outsourced Services

There has been a substantial loss of privacy protections as a result of the outsourcing of government data processing to private sector providers. The legislation fails to sustain the protections applicable to government data holdings when they pass to a private sector contractor.

This is addressed in 1997e and 2000b s. 9. It is completely inadequate for the very limited protections of the private sector provisions to be applied to public sector data that was collected under authority of law; and for the myths to be perpetrated that agencies actually impose terms equivalent to the IPPs on outsourcing providers through contract, and that the data subject has rights under a contract between the government and that company.

3.11 Data Sensitivity

As discussed in 1989a, the OECD Guidelines concluded that "it is probably not possible to identify a set of data which are universally regarded as being sensitive".

The private sector provisions fail to reflect the complexity of the concept of data sensitivity, and hence there are many circumstances in which sensitive data is not subject to the necessary protections. This issue is addressed most comprehensively in 2000a, s. 4.9, and in 1997a and 2000b.

Moreover, as discussed in 2000b, the authorisations for the handling of sensitive data are highly permissive, and it is unclear in what way the public is better off as a result of the provisions. They need to be replaced by obligations that actually protect the data that people actually regard as being sensitive.

3.12 Consultation by the Privacy Commissioner

The Act fails to impose on the Privacy Commissioner an obligation to conduct ongoing consultations with representatives of, and advocates for, the public interest.

Although the last five years have seen an improvement in accessibility:

This is all the more critical in view of the quite apparent satisfaction among industry associations that the Privacy Commissioner is attuned to their needs, and acts as a shield for industry against privacy-protective measures.

This is comprehensively addressed in 2000b, and in 1997a, 1998d, s.3 and 2000a, s. 6.1.

3.13 Resourcing of the Privacy Commissioner

The private sector provisions fail to ensure adequate resourcing of the Privacy Commissioner. Moreover, the Office has suffered large reductions in resourcing at the same time as it has been required to perform greatly increased functions; and additional tasks have been dictated by the government, without commensurate resources being provided.

As a result of the resource-shortfalls:

Of especial concern is that the Privacy Commissioner has conducted very little in the way of own-volition investigation of particular technologies and practices, and has not forced the hand of industry associations in areas that are in dire need of detailed Codes in order to establish where appropriate balance-points lie, and to provide a framework within which privacy-abusive behaviours can be reined in.

This is addressed in 2000a, s. 4.6.

3.14 Anonymity and Pseudonymity

Although anonymity is mentioned in NPP 8, the private sector provisions have failed to create an effective obligation to provide the necessary anonymous and pseudonymous services.

This has been particularly apparent in the case of consumer transportation, where toll-road operators in Melbourne and now Sydney are effectively imposing identification as a condition of use of major thoroughfares. Yet these corporations seem not to be subject to direct statements from the Privacy Commissioner to the effect that they must change their procedures in order to comply with the Privacy Act, and ensure that an anonymous alternative is readily available.

This is addressed most comprehensively in 1999b and 2000d, and in 1994f, 1997a, 2000a, ss. 6.8-6.9, 2000b and 2003b.

3.15 Multiple Use of Identifiers

The private sector provisions offer insufficient protections in relation to the multiple usage of identifiers. For example, they do not prevent business enterprises from collecting government-issued identifiers, nor do they regulate the collection, use and disclosure of identifiers issued by State Governments, especially driver's licence numbers.

Health care is another area of serious public concern about the centralisation of personal data in association with a Unique Patient Identifier (UPI), quite possibly introduced surreptitiously by means of a smartcard-based scheme.

The importance of preventing the consolidation of personal data on a small number of identifiers is addressed most comprehensively in 2000a, s. 6.5, and also in 1994f and 2003b.

3.16 Multiple Identifiers for Each Individual

On the other side of the coin, there is a need for individuals to be able to continue to use multiple identifiers in different contexts. Clearly such uses need to be subject to sanction in the event that they are used for criminal purposes such as fraud; and they are.

The availability of multiple identities is especially important to various categories of persons at risk. This is most comprehensively addressed in 2001g, and also in 2000b.

4. Inadequacies Arising from Post-1980 Technological Developments

The OECD Guidelines were negotiated in the context set by the technologies of the 1970s. Enormous changes have occurred since then. The nature of the changes is addressed in 1997a, 1997d, 1998g s. 2.5, 1999a, 2000a 2001h s.3 and 2003a.

The private sector provisions fail to address the greatly heightened privacy-invasiveness, and the new technological threats, that has been a feature of the 25 years since the promulgation of the OECD Guidelines in 1980. This section outlines some of the key areas in which change is required.

4.1 Identification and Authentication Tokens

The private sector provisions fail to provide individuals with control over 'their' identification and authentication tokens (such as chip-cards and digital signature keys).

This is addressed generally in 2000a, s. 6.6, and more specifically in Greenleaf & Clarke (1997c), 1998e and 2000b.

4.2 Biometrics

The private sector provisions fail to provide the necessary tight regulatory regime over the use of biometrics. This is looming as an extremely serious threat to individuals, and to trust by individuals in social and economic institutions.

This is addressed most comprehensively in 2003c, and in 1994f, 1997g, 2000a, s. 6.7, 2000b and 2001e.

4.3 Freedom From Surveillance

The private sector provisions fail to address rampant surveillance technologies, and to force corporations to achieve balance between their desires and those of individuals.

This is comprehensively addressed in 1988, 1994a, 1994c, 1999c, 2001a and 2003a, and in the freedom from surveillance principle of the Australian Privacy Charter.

4.4 Automated Decision-Making

The private sector provisions fail to impose a responsibility to ensure that an automated decision that is adverse to the interests of a consumer is subject to review by a human being before being communicated or implemented.

This is addressed in 1997a, 2000a, s. 6.3, and 2000b.


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Clarke R. (2004a) 'Very Black 'Little Black Books'' 4 February 2004, at

Clarke R. (2004b) 'A History of Privacy Impact Assessments' 5 February 2004, at

Davison R.M., Clarke R., Smith H.J., Langford D. & Kuo B. (2003) 'Information Privacy in a Globally Networked Society: Implications For I.S. Research' Commun. Assoc. Infor. Syst. (12, 2003) 341-365, at

Greenleaf G. (1996) 'Telstra's First Privacy Audit: B-' Privacy Law & Policy Reporter 3, 5 (August 1996) 97, at

Greenleaf G.W. & Clarke R. (1997c) 'Privacy Implications of Digital Signatures', Proc. IBC Conf. Digital Signatures, Sydney, 12 March 1997, at

Haines J. (1996) 'Telstra's privacy audit' Privacy Law & Policy Reporter 3, 4 (July 1996) 40, at

Morison W.L. (1973) 'Report on the Law of Privacy' Govt. Printer, Sydney 1973

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is a Visiting Professor in the Baker & McKenzie Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Fellow in the Department of Computer Science at the Australian National University.


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Created: 21 November 2004

Last Amended: 26 November 2004

These community service pages are a joint offering of the Australian National University (which provides the infrastructure), and Roger Clarke (who provides the content).
The Australian National University
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Engineering and Information Technology,
Information Sciences Building Room 211
Xamax Consultancy Pty Ltd, ACN: 002 360 456
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Chapman ACT 2611 AUSTRALIA
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