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Privacy and Data Retention – Australian Sex Party Victorian Policy |
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Written by ASP Staff
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Wednesday, 17 November 2010 11:25 |
Key Policies:
- Protect the private lives of all Australians through the creation of a statutory right to privacy, and stronger protections against breach of privacy.
- Institute stricter privacy requirements for transport organisations such as Myki and CityLink as regards sharing customer data with third parties and government agencies, and ensure that any law enforcement access to personal data is subject to strict judicial oversight
- Oppose the mandatory retention of personal internet usage data, including browsing history and emails, by internet service providers for use by law enforcement.
- Institute a moratorium on additional speed cameras and CCTV surveillance in public pending further study on the effectiveness of these measures in reducing road deaths and street crime, respectively.
- Call for an immediate end to random police searches in public without cause.
Legislating the Right to Privacy:
Australians do not enjoy a general right to privacy.
In light of the legislative silence on the matter and judicial hesitance to recognise such a right, the Australian Sex Party calls on Parliament to clarify the law and specify the nature and extent of the right of Australians to protection against invasion of privacy.
While some legislation protects certain aspects of private life, there is no general statutory protection. It remains contentious whether a protection exists at common law. The High Court has not ruled out such a tort, but has fallen short of recognising it. In the absence of binding precedent, State jurisdictions have been inconsistent in the extent to which they recognise such an action. It is likely to be some time before an authoritative judicial decision in favour of the right to privacy is handed down.
The Australian Sex Party calls on Parliaments in Australia to recognise the public’s desire for such protection by creating, through legislation, a right to privacy.
The law must recognise four distinct kinds of invasion of privacy:
- Intrusion upon an individual’s seclusion or solitude, or into private affairs
- Public disclosure of embarrassing private facts
- Publicity which places an individual in a false light in the public eye
- Appropriation of an individual’s name or likeness
Given the increasingly complex interplay between private and public life, the Australian Sex Party proposes that protection be subject to a two-part reasonable expectation of privacy test:
- An individual must demonstrate that they held a subjective expectation of privacy, and
- An individual must also establish that their subjective expectation is one that society would recognise as reasonable.
In our modern age, normal and commonplace activities regularly diminish the reasonableness of our expectations of privacy. It is desirable that the law maintains protection against invasion privacy in circumstances where the reasonableness of an expectation to privacy is somewhat diminished:
- Where a subjective expectation of privacy exists, but the reasonableness of that expectation is somewhat diminished, that expectation should still be protected against invasion unless the invasion is motivated by a ‘reasonable interest’ in the individual’s private affairs, or protected by a similar ‘reasonableness of invasion’ test.
Data Retention:
Due to the incomplete and imperfect nature of privacy legislation, organizations that collect sensitive personal data as part of their normal operations – companies such as Myki and CityLink, for example – are allowed, and in many cases compelled, to share individuals’ private data with third party organizations, including law enforcement and other government departments. In general, this information is supplied upon request – there is no requirement for a warrant or any other form of judicial oversight, nor is there a significant burden of proof placed upon organizations demanding access to personal data.
On a Federal level, earlier this year the Attorney General began an (initially secret) campaign to strong-arm Internet Service Providers into retaining all user data, including internet browsing history and all email correspondence, for at-will inspection by law enforcement. The fact that the Attorney General can legitimately demand these measures under existing legislation is a worrying illustration of the inadequacy of current privacy legislation.
The Australian Sex Party also has serious concerns regarding the security of personal data that is retained by private companies, and the potential for misuse of such data.
CCTV and Speed Cameras:
The Australian Sex Party would like to see a comprehensive study of the efficacy of public surveillance measures in reducing crime before supporting any expansion of current initiatives. We believe that government surveillance of the public at large has huge implications in terms of Australians’ reasonable expectation of privacy, even in public places. As with data retention, we are also wary of the potential for misuse of private data retained by CCTV and Speed Camera operators.
Police Search Powers:
Under the Control of Weapons Amendment Bill passed in the Victorian Parliament earlier this year, police have unprecedented powers to search anyone without cause – indeed, the bills provisions are exclusively geared towards the expansion of ‘random’ search powers. Even more worrying, the police now have the ability to search children and people with intellectual impairments without a guardian or independent supervisor being present. The Australian Sex Party believes that this legislation is deplorable, and directly contravenes protections afforded the public under the Victorian Charter of Rights.
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