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Introduction

The biggest protection that the modern world seeks is the protection of its privacy. Privacy is the barrier which a person can use to ensure the protection of the information of his private life and activities. Privacy empowers a person with a choice of sharing the feelings and thoughts emerging in his mind with others. There are various details of our private life that we do not want to share with others publically but with a limited set of people. The existing privacy laws in Australia are a mixture of the Commonwealth legislation, State, and Territory Acts. The ‘Privacy Acts’ have been enacted to protect the collection, use, and disclosure of personal information about the individuals of the country. These enactments fail to protect the privacy of the people in a wider sense. The telecommunications privacy of the Australian’s is managed by the Telecommunications Privacy Laws followed by the Surveillance Laws and Powers which are relevant to the online privacy of the individuals (Robertson 2019). Not just common privacy but the privacy of the working individuals are monitored by the workplace surveillance laws.

The Existing Legislations and Policies

There are several privacy and surveillance-based acts that are effective in Australia either centrally or territorially. The privacy laws in Australia can be primarily classified into the data protection laws (privacy acts), the telecommunications privacy laws, the spam laws, the surveillance devices laws, and the workplace surveillance laws (ALRC 2010).

The privacy laws comprise the Commonwealth Privacy Act 1988 which was later amended to the Privacy Amendment (Private Sector) Act 2000 (C’th). Ten National Privacy Principles (NPPs) are included in the Act for regulating the use, collection, and the disclosure of the private sector’s information. The Federal Privacy Commissioner is empowered to make guidelines that interpret the NPPs and to investigate and resolve complaints made by individuals against organizations that have not complied with the NPPs (EFA 2020).

The State/ Territory government agencies do not follow the Commonwealth Privacy Act (except for the A.C.T.). The State and Territory Parliaments use their versions of the privacy legislation applicable in their agencies and departments. However, a campaign for fair privacy laws was commenced in 1997 by a commerce, privacy rights’, and academic group’s coalition in Australia, and as a result of this, the operation of the Commonwealth legislation for the private sector started in December 2001 (EFA 2008a).

The Telecommunications Privacy Laws were enacted with a purpose to protect the privacy of the online communications of the individuals. The primary enactments are the Telecommunications (Interception and Access) Act 1979 (C’th), the Telecommunications Act 1997 (C’th), and the Surveillance Devices Act 2004 (C’th). The prohibition of the interception of the passing over communications over a telecommunications system (such as email, SMS, and voice mail messages stored on a carrier’s utility) and prohibits the access to such stored data and communications except the authorized in specified circumstances is done by the Telecommunications (Interception and Access) Act 1979 (C’th). However, after the Amendment dated 13 June 2006, the Internet Service Providers (ISPs) were also included in the context of the telecommunication carrier, and a new warrant was also added in the Act namely “stored communications warrant” which can be used by the law enforcement agencies to obtain lawful access from a network carrier, to the email, voicemail, and SMS that are stored on a carrier’s utility. Under the Part 13, “Protection of Communications”,[1] the telecommunication carriers, carriage service providers, and the ISPs are under an obligation to protect the personal data of the users and the privacy of their communications, except in specified circumstances. The use of surveillance devices, data surveillance and logging devices is regulated by the law enforcement agencies, and the same is governed by the Surveillance Devices Act 2004 (C’th) and its State and Territory’s counterparts (EFA 2008b).

The Surveillance Devices Act 2004 (C’th) is a Commonwealth Legislation and its State/ Territory legislations counterparts regulate the use of listening devices used by the individuals and the law enforcement agencies but not all legislation had the dealing with the data, optical, and tracking devices. However, the legislations of the WA, Vic, and NT have such enacted legislations that deal with the data, optical, and tracking surveillance devices (EFA 2008c).

Apart from these the Australian laws regarding the monitoring of the employee internet use at the workplace are governed in New South Wales (NSW) by the Workplace Surveillance Act 2005. The regulation of computer surveillance, video surveillance, and tracking, including email recording and monitoring and access to the websites available on the internet is done by the Act. Both overt and covert surveillance could be done by employers in compliance with these rules (EFA 2008d).

The Victorian Commissioner for Privacy and Data Protection issued some guidelines in 2017, stating the surveillance policy in the Victorian Public Sector. This included all kinds of surveillance for investigation of crime, crime prevention, and deterrence, national security, search and rescue operations, and enhancing the personal safety of the members of the public and public servants. The technology used for the purpose includes Closed-Circuit Television (CCTV) cameras, Unmanned Aerial Vehicles (UAVs), Body-worn cameras, and communications surveillance. The privacy challenges that exist due to such surveillance includes the use of information collected for one purpose to serve another purpose (function creep), lack of transparency as the users are not made aware that they are under surveillance, the intrusiveness of the captured data depending on the location of the surveillance activity, and finally the over-collection of the data than the required amount (CPDP 2017).

The Threats to Modern Privacy

The modern privacy of the individuals is under a serious threat and the same has been discussed even by the judiciary. Various instances where the courts have stated that the privacy of the users and individuals shall be maintained. In the case of Punchard v Commissioner of Police,[2]and DQF v Information and Privacy Commission,[3] it was decided by the court that the privacy of the individuals cannot be kept at stake for the exercise of administrative powers without proper reasons. In another concluded matter,[4] it was held by the court that the protection of privacy of the students established in the Student Identifiers Act 2014, Student Identifiers Regulation 2014, and the Privacy Act 1988 does not discuss the engagement of the guaranteed right to privacy under the article 17 of the convention.[5] In the case of the Psychology Board of Australia v Wilkinson (Review and Regulation),[6] it was decided by the court that the defendant has committed the breach in the right to privacy and was held liable for providing the other individuals’ details with his clients.

Recommendations

The existing laws and the precedents in the country focus on the data privacy of the individuals but the main concern in the modern world is the securing of the extremely personal data of the individuals such as their locations and personal messages. The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, allowed the Australian government agencies to access the encrypted messages just as those sent over WhatsApp. The access of the government to the users’ telecommunications data (including location, call logs, messages, emails, MMS, etc.) known as the ‘metadata’ is so easy that the information on the metadata of the person can be accessed and shared by the government at any instance of time for national security and even for road safety (The Conversation 2019). Therefore, such deep access to the individuals’ metadata shall be restricted even for the government. In case the government is accessing the personal and private information of any individual, prior intimation shall be provided to the individual before accessing the information. Along with this, there shall be amendments in the existing privacy laws providing the individuals with a right to deny access to private information if in case they find it as the infringement of their right to privacy, except the circumstances requires the same. The surveillance of the individual in the public sector is understood but the surveillance of the individuals, while they are in their private space (i.e. homes), shall not be permitted.

Conclusion

The protection of the individuals and their privacy from the surveillance authorities is not possible under the existing legislation. The amendment of the legislation from the individuals’ point of view is required to provide balanced and user-friendly legislation which will serve as the power sanction to both the government and the individuals. The recommendations provided shall be taken into consideration while the process of amendment of the existing legislation is being conducted. Additionally, the intervention of the judiciary is required to restrict the government from drafting and enacting arbitrary legislation to empower themselves.

Bibliography

A Articles/Books/Reports

ALRC (2010). Protecting a Right to Personal Privacy. https://www.alrc.gov.au/publication/for-your-information-australian-privacy-law-and-practice-alrc-report-108/74-protecting-a-right-to-personal-privacy/right-to-personal-privacy-developments-in-australia-and-elsewhere/

CPDP (2017). Guidelines to surveillance and privacy in the Victorian Public Sector. Commissioner for Privacy and Data Protection, Victoria State Government. https://ovic.vic.gov.au/wp-content/uploads/2018/07/Guidelines-to-surveillance-and-privacy-in-the-Victorian-public-sector.pdf

B Cases

DQF v Information and Privacy Commission [2020] NSWCATAD 209.

Education Legislation Amendment (2020 Measures No. 1) Bill 2020, [2020] AUPJCHR 128.

Psychology Board of Australia v Wilkinson (Review and Regulation) [2020] VCAT 961
Punchard v Commissioner of Police [2020] QDC 211.

C Legislations

Privacy Act 1988 (C’th)

Privacy Amendment (Private Sector) Act 2000 (C’th).

Student Identifiers Act 2014

Student Identifiers Regulation 2014

Surveillance Devices Act 2004 (C’th).

Telecommunications (Interception and Access) Act 1979 (C’th)

Telecommunications Act 1997 (C’th)

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

Workplace Surveillance Act 2005 (NSW)

D Treaties and Conventions

International Covenant on Civil and Political Rights 1966

E Others

EFA (2008a). Data Protection Law/ Privacy Laws. Electronic Frontiers Australia. https://www.efa.org.au/Issues/Privacy/privacy.html

EFA (2008b). Telecommunications Privacy Laws. Electronic Frontiers Australia. https://www.efa.org.au/Issues/Privacy/privacy-telec.html

EFA (2008c). Surveillance Laws and Powers. Electronic Frontiers Australia. https://www.efa.org.au/Issues/Privacy/surveill.html

EFA (2008d). Workplace Privacy and Surveillance. Electronic Frontiers Australia. https://www.efa.org.au/Issues/Privacy/workplace.html

EFA (2020). Privacy and Surveillance. Electronic Frontiers Australia. https://www.efa.org.au/privacy/

OECD (2013). OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. https://www.oecd.org/internet/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm

Robertson M. (2019). Data Protection and Privacy in Australia. Lexology. https://www.lexology.com/library/detail.aspx?g=7598b614-4431-4429-9897-c83e40682865

The Conversation (2019). Australians accept government surveillance, for now. https://theconversation.com/australians-accept-government-surveillance-for-now-110789

[1] Part 13, Telecommunications Act 1997 (C’th).

[2] Punchard v Commissioner of Police [2020] QDC 211.

[3] DQF v Information and Privacy Commission [2020] NSWCATAD 209.

[4] Education Legislation Amendment (2020 Measures No. 1) Bill 2020, [2020] AUPJCHR 128.

[5] International Covenant on Civil and Political Rights 1966.

[6] Psychology Board of Australia v Wilkinson (Review and Regulation) [2020] VCAT 961.