Federal Privacy Legislation in Australia

The Public Sector

Since the Privacy Act 1988, federal government agencies in Australia have generally been subject to privacy regulation. I say generally, because a great many exemptions and exceptions exist. I undertook a detailed analysis of the Act against the OECD Guidelines, using my OECD Template, and it showed up a vast number of deficiencies).

On the whole, however, the country is far better off with the Act than it would have been without it. The Privacy Commissioner has been seriously constrained by the Act, but there has been a change in climate over the last decade, and part of that is definitely due to the sustained efforts of Kevin O'Connor and Nigel Waters in getting the message through to the publkic service in ways that they can appreciate.

The Private Sector, 1988-95

The 1988 Act imposed a very limited form of privacy regulation on the private sector. The then Labor Government's primary purpose in passing the Act was to enable the passage of significant enhancements to the Tax File Number (TFN) scheme. TFNs are in the hands of every employer and financial institution, but they are bound to use them only for the narrowly defined purpose of reporting to the Taxation Office.

In 1989, an amendment to the Privacy Act extended its applicability to the credit reporting industry sector, and subjected its operation to the purview of the Privacy Commissioner.

The Private Sector, 1995

During the last decade, the scene has changed. Elements of the private sector have been calling for a privacy protection regime, because they could see the harm that the issue was shortly going to do to their businesses, and because some members of their industries were mavericks, operating outside the industry association and giving the industry a bad name. The Australian Direct Marketing Association was particularly forthright in this regard.

Among both private sector leaders and federal government regulatory executives, the New Zealand Act became a talking-point (if you need a userid, try 'guest' with password 'privacy'). Remarkably, people began talking about 'the New Zealand model'. ('Remarkably' because of the low-key and generally humorous tension between the two countries, summed up in a silly song a few years ago which said it didn't matter what other countries we lost to in sporting contests, 'As long as we beat New Zealand ...').

In 1995, the then Labor Government, within its Innovate Australia Program, committed to legislating privacy protections applying to the private sector generally. (Under the Australian federal system there are some constitutional limitations, and some sectors are likely to need complementary State legislation; and the States and the Commonwealth seldom collaborate). No details were ever forthcoming, but 'the New Zealand model' was clearly favoured.

The Private Sector, 1996

Labor's 13-year reign came to an abrupt end in March 1996 (even the Attorney-General lost his seat - 'that's what democracy's about', as they say). The Coalition Platform contained similar provisions to what Labor had been slowly developing, but the renegging on campaign promises has been particularly savage this time around, and the direction remained unclear.

On 12 September 1996, however, the Attorney-General, Darryl Williams, announced the direction of the Government's reform agenda for privacy in the private sector.

A Discussion Paper has been published, as a basis for consultation between September and the end of November 1996. Explicit reference is made to New Zealand's 1993 legislation.

Very briefly, it envisages a 'co-regulatory' approach, whereby a set of Principles (related to those in the present Act) will be enacted, and the Privacy Commissioner empowered to promulgate detailed Codes for particular industries. These Codes would be negotiated with industry associations, with public participation in the development process.

The Government is seeking a unified and national approach, to avoid imposing undue difficulties on business. The Privacy Commissioner would have a complaints investigation and resolution function, but as a conciliator only. The Federal Court would have an arbitrative function.


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Created: 13 September 1996

Last Amended: 14 September 1996

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