To What Extent has Privacy become a Prized Ideal in Contemporary Australian Society - Literature review Example

To What Extent has Privacy become a Prized Ideal in Contemporary Australian Society? Introduction Over the past two decades, Doyle and Bagaric (2005,1-41) indicate that recognition of privacy in a legal manner has been the subject of the Australian Law Reform Commission. Australia has a number of provisions or statutory schemes that usually confer varying degrees of privacy interest protection across the jurisdictions. The 1998 Privacy Act gave Australia the right to implement privacy guidelines under the (OECD) Organization for Economic Cooperation and Development for Trans-border Flow of Personal Data and Privacy Protection. The Privacy Act therefore regulates disclosure, collection and usage of personal information. Originally, the Act had eleven (IPPs) Information Privacy Principle that were applied to personal information handling and collection by the Common Wealth agencies. In 1994, the Act was applied to the Australian Capital Territory government agencies. The Privacy Act was later on reformed to include the (NPP’s) the ten National Privacy Principles that were applicable to the private sector and health services providers. All the principles were meant to govern the use, collection, quality, disclosure security in conferring rights that allow access personal information. However, as Doyle & Bagaric (2005, 44-90) further notes, socio- historical analysis has made us question to what extent has privacy become a prized ideal in the Australian society. For instance, the Telecommunication Act enacted in 1979 was meant to protect privacy rights in regard to communications that takes place over the communication system through prohibition of intercepting such communications. However, most people note that the Act lacked and lacks to protect communications between two parties over telecommunications system. The parties are allowed to record communication either by taping or writing the information. This implies that the Act’s aim was prohibiting the third parties from recording or listening communication taking place on the telecommunication system, a clear indication that people still want privacy law to be perfected. The socio historical analysis below provides an answer to what extent the privacy has become a prized ideal, a fundamental analysis that will pave way for privacy law to be structured to what the Australians as a people of the Nation want. Extent to which privacy is a prized ideal in the modern Australian society Enacting of bodies and laws that would aid in maintaining privacy According to Kinley & Kinley (1998, 123-145), there are several ways that one can tell to what extent is privacy a prized ideal or a highly esteemed model in the contemporary Australia. One of them is by looking at how the society has valued privacy and what it has tried to do over year in order to attain what it has attained today. As a public issue, privacy can be traced back in 1969 when Professor Cower made a publication, ‘The Private Man’, a publication that informed the Australians the need for privacy and how it could be achieved through policies and law. Through 1970s-1980s, a lot of bills that were aimed to protect privacy were introduced by the parliament. However, except for New South Wales, they all failed. The NSW revived privacy laws in Australia when they established PCNSW (Privacy Committee of New South Wales) 1975, the third privacy protection body that was present in the entire world. The Privacy Committee act of 1975 empowered the Committee to become ‘privacy ombudsman’, a body which investigated the alleged privacy invasion in private and public sectors. Over 25 years, the committee has managed to conciliate numerous complaints. It has also managed to influence legislation regarding workplace surveillance and managed to convince the government to be less invasive when it comes to privacy. Particularly in the 1970’s the committee enlightened the Australians on privacy issues. In 1976, the committee managed to give statutory rights to individuals so that they could access credit bureau files. Besides the Committee, under the Common wealth legislation Privacy Protection and the Transborder Data Flows of Personal Data was adopted in 1984. It dealt with the way government handled information such as taxation, social security and health insurance in attempt to protect individual privacy. It has complemented privacy legislation such as the 2000 Privacy amendment Bill that sets standards on how businesses should secure, collect, use, and store and also disclose personal information. As Kinley& Kinley (1998, 167-178) indicate, ‘the act expanded the incorporation of right to privacy to the non-government bodies’. As noted, most development of privacy legislation has been steered by courts responses and also community concerns regarding the invasion of privacy, business and government in order to create the current state of privacy laws present, a clear indication that privacy has become a valued model. As Rule and Greenleaf (2008, 120-134) puts across, the surveillance of the Australians in the private sector is distinguished by personal data that is primarily held within the industry sectors. The data is efficiently aggregated quite effectively within the particular sectors. However, to safeguard an individual’s privacy, there is a limited crossover tat can take place between the private sectors or to and from any public sector. For instance, Veda Advantages services hold personal data of over 14 million consumers out of the 21 million adults’ population present. Since the late 1970’s up to date, Veda Advantage’s Consumer Credit Enquiries has had beyond 90% of the entire Consumer Credit Reporting Business that has been in existence. Rule & Greenleaf (2008, 182-198) also indicates that Baycorp Advantage runs some of the country’s largest database for insurance claims. To enhance privacy, it separates the claims from the credit files and limits the access to the database. As a result, it contains about 18 million companies and individual insurance claims that date more than ten years ago. Additionally, in comparison to other countries, the Australian domestic marketing industry (direct) operates quite carefully. Under the Privacy Act enacted in 1988, the direct marketers are required to present an opt-out marketing communications. This is also what has influenced the enacting of the Do-Not-Call legislation in mid 2007. This has resulted to significant spamming of the domestic mail. Besides, the 2003 SPAM Act inflicts severe penalties on activities that resemble spamming. This prevents any person that is using Australia as a foundation for the international spamming operations to do so. Under the Act, such actions result to about $ 1M for the principal and $4.5M for the company accountable as proven under Clarit1 Case in 2006. Overall, this ensure that the Australians can use their emails (a fundamental in today’s techno-savvy and fact paced world) without worrying that their private information might be hacked by the persons who send in spam messages. Fighting against issues that undermine privacy Historically till now as noted by Kenyon (2006, 143-166), the Australians have highly prized privacy that they have tried to fight laws and policies that would undermine privacy. In 1987 when the Australian government came with the idea of introducing an ID so as to combat welfare and tax fraud, the public opposed. The Australian Card would have been an exceptionally extensive information surveillance system that would have been used for multiple uses without any logic limits and de facto wing in the private sector as a principle identifier. This would have greatly interfered with individual rights. The public has safeguarded their privacy to an extent that even after 24 years, it has not been possible for the government to introduce the ID system. In 2007 when the government claimed to be introducing the Australian Card, the public opposed it. They did not want an identification system that would be at the government and other private sectors disposal, this would allow them to be tracked and their privacy would therefore be sabotaged. After the Australia Card efforts got diminished, Kenyon (2006, 178) notes that ‘the government introduced the Tax File Number system (TFN) but for it to work, they had to introduce the Privacy Act 1998 which became the first privacy legislation that was enforceable’. However, after two years the government tried to re-engineer it so that TFN could be used to cross-match the taxation information with students assistance, income support benefits, electoral roll and also Medicare identity. Though it went through, the public strongly tried to oppose it. The TFN would act as a surveillance system and this would also interfere with people’s rights. Additionally, Kenyon (2006, 1179-201) further indicates that several successful court cases in Australia regarding privacy have explicitly shown the high value that societies uphold privacy with. Following the famous hearing of Jane Does v ABC case that occurred in 2007, ABC radio broadcasted YZ rape in a suburb where rapes took place but put the name of the Actual rape victim, Jane Doe. Most listeners kept attempting to call her and also her family and this evidently gave long lasting and substantial psychological damage to her. The ABC journalists pleaded that they were guilty for breaching the legislation that prohibit rape victims’ identification (a privacy right) and hence, Ms Doe was awarded A $234,000 damages. Even though in the subsequent cases Lenah Games Meats in 2002 and Victoria Park case in 1937 had clearly outlined that privacy law never existed, it was upheld that it was still unresolved. This clearly shows that the court system had partially come into terms with the ideality of privacy in the society. According to Iacovino (2006, 253).Tasmanian gay rights activist, Nicholas Toonen was prosecuted under the Criminal Code that indicated that private sexual contact between males who have consented is a crime. Because he cherished his privacy, he never tried to protect his privacy via the Australian Courts but rather directed the case to Human Rights Committee present in the United Nations. This is because he knew that it was the only treaty that imposed regulations to Australia in protecting individual privacy under the (ICCPR) International Covenant on Civil and Political Rights enacted in 1966. While this barely has any effect on the Australian domestic privacy law, it was marked as an optional protocol that allowed UNHRC to listen to individual complaints. So, the first complaint was against Australia in reference to privacy issue (Toonen’s Case, 1994). UNHRC maintained that the adult consensual sex was under privacy and therefore, Australia was breaching the ICCPR. This gave the public more options for fighting their own privacy rights. Privacy versus security Turnbull (2009) explicitly indicates that even though there has been modern traces of how privacy has been valued in the society, paying a closer scrutiny at privacy issues clearly indicated that privacy is valued to a much less extent. There are several factors that make it clear that people coupled with the government are ready to give up their privacy for issues such as security. The CCTV are all over in Melbourne, Sydney and in other Australian train stations, buses, taxis, trains, crime hot spot, sporting avenues and city stress with an aim of preventing crime and providing public safety. However, with the 2007 APEC anti-terrorist meeting extra cameras that can easily recognize people’s faces has been introduced. Additionally, workplaces are full of surveillance in form of computers, video and tracking devices as enacted in Workplace Surveillance Act in 2005. Additionally, a progressively more sophisticated system for dealing with financial transaction surveillance has been there for almost 20 years. Any person who is dealing with a cash of $10,000 or more is subjected to submit his or her financial transaction repot to a federal agency, AUSTRAC and this has resulted into more than 10 million reports each year. While the government is performing the parallel data matching using the TFN system, a substantial amount of data matching done by the government takes place outside the data matching legislation control that protects individual privacy. The compulsory data extractions are authorized under the Privacy Act enacted in 1988. However, it important to note that surveillance of mass tax payers and the benefit recipients is a complex and vast enterprise that the federal agencies cannot handle effectively. Considering that it feeds data into the five files present in the five agencies, there is a likelihood that a person can hack into the system and get personal information from the database. Courts role in privacy rights Determining historical factors of Australian privacy have been the media, conflict and effective usage of the legislation. Elsewhere, courts have played a very negligible role but can you blame the courts? The answer is No. Australia has a shaky constitutional and legal history regarding privacy protection and rights to privacy have only been catered for by patchwork of a specific legislation which has made it increasingly difficult for the Australian courts to develop any broad remedies. Unlike other countries such as United States that have a well laid out privacy law at Federal and State level, Australia as a federal of about eight territories and states have a common law tradition but lacks significant protection of privacy in the constitution at State and Federal level. As a result, the court cannot perform its role of shaping the public consciousness in privacy matters (Cady & McGregor 2002, 189-190) By 2007, the country had only seven major information privacy laws; laws that cover public sectors and private sectors of the commonwealth Northern Territory, Victoria, Tasmania, Australian Capital Territory. This left Queensland and South Australia without any law that would govern privacy. Their laws have exemptions and exemptions and hence vary in their enforcement and effectiveness. Considering that the Federal government deals with critical personal information such as education records, criminal records, death/marriages registers and prison records, it ought to have effective data protection laws at all governmental levels. Conclusion From the first discussion that entails the extent to which privacy is a prized ideal (perfect model or of standard) in the Australian society, it is clear that outside the context of law, people believe privacy is a perfect model or is of standard to an extent that they believe that the law should not inhibit the right to privacy. This is why historically up to date; the Australians have braved their fight against any factors that would have weakened the right to privacy. This explains why there has been major (though some were unsuccessful) legislation changes and landmark court cases that have completely turned privacy into a prized ideal into the modern society. The presence of Bodies such as Privacy Committee of New South Wales, Surveillance of the Australians, Veda Advantages and Baycorp Advantage that have successfully managed to deal with privacy issues clearly shows that privacy has managed to achieve some level of standardization (AG 2010, 7-11). However, the second bit of analysis; extent to which privacy has been diminished in the society clearly shows loopholes present within the standardization of privacy in Australia. The fact that the Australians can compromise their privacy at the expense of the societal security and leave their finances at the mercies of the federal government that lacks effective privacy law to protect their privacy neutralizes the value, respect esteem given to privacy in contemporary American. Australians have lacked to acknowledge that privacy equates security. At an era whereby technology advancement has cropped in and anyone can easily hack into the databases and access personal information including finance information and hence, a person could easily fall prey of the hackers (lack security). We can therefore say that the extent to which privacy has become a Prized Ideal in Contemporary Australian Society is to a much less extent as it has not catered for the current issues that could easily sabotage a person’s privacy and cause more harm than good (AG 2010, 1-7). References Rule, J.B. & Greenleaf, G.W. (2008). Global privacy protection: the first generation. Northampton: Edward Elgar Publishing Doyle, C. & Bagaric, M. (2005). Privacy law in Australia. Victoria: Federation Press. Kinley, D. & Kinley, D. (1998).Human rights in Australian law: principles, practice and potential. Sidney: Federation Press. Kenyon, A.T. (2006).New dimensions in privacy law: international and comparative perspectives. Cambridge: Cambridge University Press. 143 Iacovino, L. (2006).Recordkeeping, ethics and law: regulatory models, participant relationships and rights and responsibilities in the online world. London: Springer.243 Turnbull, I.J. (2009). Privacy in the workplace. London: CHH. 95 Cady, G.H. & McGregor, P. (2002). Protect your digital privacy: survival skills for the information age. London: Que Publishing Byrnes, A., Charles worth, H. & McKinnon, G. (2009). Bills of Rights in Australia: History, Politics and Law. Sidney: UNSW Australian government. (2010). what are the Changes to this office. Retrieved on 18th May, 2011 from: http://www.privacy.gov.au/ Read More