Submission to the Inquiry into the Privacy Amendment (Private Sector) Bill 2000 by the Senate Legal and Constitutional Legislation Committee

Roger Clarke

Principal, Xamax Consultancy Pty Ltd, Canberra

Visiting Fellow, Department of Computer Science, Australian National University

Version of 7 September 2000

© Xamax Consultancy Pty Ltd, 2000

This document is at

7 September 2000

Dr Pauline Moore

The Secretary

Senate Legal and Constitutional Committee

Suite S1.108



Dear Dr Moore

Re: Submission to Inquiry into the Privacy Amendment (Private Sector) Bill 2000

I refer to your call for submissions. I regret that I was unable to meet the tight deadline set, and hope that you may be able to accept this late Submission.

I have been active in privacy research, consultancy and advocacy for close to 30 years, and have published many papers on the topic. I attach a summary of my lengthy involvement in the regulation of privacy-invasive behaviours. I believe that my record enables me to speak with authority on this matter.

I also attach an analysis of the key provisions of the Bill, as they were disclosed by the Government on 14 December. A comprehensively hotlinked version of that analysis is at: .

A perusal of the Bill itself shows that there has been virtually no change from the original intent explained in the December document, and hence the analysis applies to the Bill itself with minimal qualifications. The attached document also provides references to a substantial set of resources which provide deeper information on many aspects of what the public expects from the Parliament.

In summary:

The web version of this Submission, which provides all references in the form of hot-links, is at:

Your sincerely

Roger Clarke (MComm UNSW PhD ANU)


Experience in Relation to the Regulation of Privacy-Invasive Behaviour

In the mid-1970s, I was responsible for the drafting of Guidelines on Personal Data Systems promulgated by the N.S.W. government's Privacy Committee.

During 1978-79, I provided assistance to Justice Michael Kirby during his time as Chair of the Expert Group that produced the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

I subsequently produced a template to assist in the assessment of laws against the OECD Guidelines. I applied it on multiple occasions, including an analysis of the deficiencies of the Privacy Act 1988 (Cth).

During 1985-87, I analysed and drew to public attention the nature of the proposed Australia Card scheme. During the following 15 years, I have drawn attention to successive and ongoing attempts by the Commonwealth public service to implement that scheme, element by element.

In 1988, I published a groundbreaking and widely referenced paper on the manner in which surveillance of people through their data (dataveillance) would quickly supplant visual and electronic surveillance as the most common means of monitoring and repressing the behaviour of individuals and populations.

Through the 1980s and early 1990s, I analysed and made submissions concerning many of the law reform proposals that have been made, and many of the Bills tabled in Australian legislatures.

During the early 1990s, I performed several consultancy assignments for the Privacy Commissioner of Australia.

During the period 1992-1995, I research and developed a regulatory framework for computer matching, which significantly influenced Australian legislation and the Privacy Commissioner's guidelines.

A 1994 paper examined the alternative uses of I.T. as a weapon of authoritarianism or a tool of democracy.

In 1996, I distilled and published a summary of the insights I had developed in relation to privacy as a factor in corporate strategy.

In 1998, I documented at length the ways in which direct marketing can be performed in a privacy-sensitive but nonetheless effective and efficient manner.

During the late 1990s, I have been refining the technique of privacy impact assessment for large-scale information technology applications.

During the late 1990s, I also participated in what was dubbed by the Attorney-General's Department a 'core consultative group' on the emergent Bill. The Attorney-General warned the participants that he reserved the right to ignore the group's recommendations. He subsequently did so, instead producing the appalling document that is currently before the Parliament.

A 1999 paper which explained why the U.S. will shortly be forced to overcome its longstanding distaste for generic privacy legislation was published in a 100,000-circulation journal, and submitted by the American I.T. professional association to Congress as part of a background briefing.

In January this year, I published an in-depth critique of the 'fair information practices' model of privacy protection that is codified in the OECD Guidelines, and identified the needs of 21st century privacy protection.

I have conducted research on an ongoing basis for an extended period, and have published over one hundred papers on a vast array of sub-topics within the general area of dataveillance and privacy. An annotated bibliography is available. All of the papers I have published since 1994 are available on the World Wide Web. My site attracts between 1 and 2 million hits annually.

I have planned and managed the conduct of surveys of public attitudes to privacy, for both government and private sector organisations. I maintain a resource-page of surveys of public attitudes to privacy issues.

I also maintain a resource-page documenting the history of privacy in Australia.

I was awarded a doctorate by the Australian National University on the basis of a dozen papers which were published in internationally refereed journals.


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Created: 7 September 2000

Last Amended: 7 September 2000

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