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Privacy Law Resources |
The Australian Privacy Charter is a recent initiative of the Australian Privacy Charter Council, which sets out a benchmark against which the practices of business and government, and the adequacy of legislation and codes, may be measured in relation to privacy protection.
The Council is an incorporated association, presided over by Justice Michael Kirby, President of the New South Wales Court of Appeal. The Council represents a wide cross section of the community. As well as lawyers, academics and privacy advocates, the Council also includes individuals from the finance, health, telecommunications, media, entertainment and information technology industries.
The preamble of the Charter states that Australians value their privacy, and that they expect their rights to privacy to be recognised and protected. The preamble continues, "People have a right to privacy of their own body, private space, privacy of communications, information privacy (rights concerning information about a person), and freedom from surveillance."
The Charter is an attempt to shift the onus for justifying privacy protection from affected individuals, back to those who wish to interfere with privacy. Any individual or organisation who wishes to breach the privacy principles contained in the Charter must justify that breach.
The Charter also sets out the privacy rights which consumers can legitimately expect in their dealings with organisations. Many of the principles contained in the Charter contain elements similar to the Data Protection Principles. However, there is a greater emphasis on rights and freedoms. The Charter attempts to address a range of privacy and consumer issues raised by new technology including smart cards. Smart card systems may be effected by several specific principles, including:
Principle 6 - Freedom from Surveillance
People have the right to conduct their affairs free from surveillance. "Surveillance" means the systematic observation or recording of one or more people's behaviour, communications, or personal information.
Principle 10 - Anonymous Transactions
People should have the option of not identifying themselves when entering transactions.
Principle 18 - No Disadvantage
People should not have to pay in order to exercise their rights of privacy described in this Charter (subject to any justifiable exceptions), nor be denied goods or services or offered them on a less than preferential basis. The provision of reasonable facilities for the exercise of privacy rights should be a normal operating cost.
The Charter is an interesting attempt to standardise the plethora of privacy guidelines and protocols available, and has been achieved by involving industry and community representatives from the outset.
In practice, any industry can test its own privacy guidelines against this new benchmark. A smart card promoter, for example, might test its compliance with principle 10 - anonymous transactions. If it was in breach of this principle, it would have to justify that breach. While a breach of principle 10 might be justifiable in many large transactions, it will be difficult to justify for typical smart card transactions, such as buying a newspaper or bus ticket.
Similarly, Principle 18 might call into question loyalty marketing schemes, which require consumers to identify themselves in order to receive certain benefits - effectively penalising other consumers who choose to remain anonymous.
The Charter was published in December 1994, and if it receives wide acceptance, it may influence other privacy guidelines, standards and legislation in Australia. In the meantime, the Charter gives clear guidance on consumer expectations in relation to protection of their privacy rights when dealing with organisations. 47