We have Federal Privacy laws which protect us all.
Privacy is paramount to respecting people's dignity, worth and value as autonomous human beings.
Privacy is a dynamic part of any constitutional free democracy and is enshrined in international law.
Australia is a party to seven core international human rights treaties. The prohibition on interference with privacy and attacks on reputation is contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR)- external site.
See also article 16 of the Convention on the Rights of the Child (CRC)- external site and article 22 of the Convention on the Rights of Persons with Disabilities (CRPD)- external site.
Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.
The UN Human Rights Committee has not defined 'privacy'. It should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.
Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited. However, limitations contained in other articles, for example, those which are necessary in a democratic society in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others might be legitimate objectives in appropriate circumstances in respect of the prohibition on interference with privacy and attacks on reputation.
The use of the term arbitrary in the ICCPR means that any interferences with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. An interference that is authorised under domestic law may still be arbitrary, and consequently prohibited under article 17.
Under article 4 of the ICCPR, countries may take measures derogating from their obligations under the Covenant, including the prohibitionon interference with privacy and attacks on reputation 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.'
In fact the Commonwealth Attorney-General's Department is clear on the matter:
"The prohibition on interference with privacy and attacks on reputation prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks."
Under the Privacy Act 1988, personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable
whether the information or opinion is true or not; and
whether the information or opinion is recorded in a material form or not.
The Privacy Act 1988 (Privacy Act) provides for the protection of personal information collected and held by Australian Government agencies and certain private sector organisations. The Privacy Act sets out Australian Privacy Principles (APPs) which deal with all stages of the information lifecycle setting out standards for the collection, storage, security, use, disclosure and quality of personal information. They also create obligations on agencies and organisations regarding access to, and correction of, an individual's own personal information.
The Australian Information Commissioner, through the Office of the Australian Information Commissioner (OAIC), is responsible for monitoring and enforcing compliance with the Privacy Act and can investigate complaints.
Other Commonwealth legislation may also affect privacy, for instance in the fields of telecommunications, medical and pharmaceutical benefits, government data-matching, criminal records, anti-money laundering and healthcare identifiers. There are also secrecy and confidentiality provisions that protect various types of personal information held by Commonwealth agencies.
The Australian Information Commissioner is also the independent regulator of freedom of information. The Commissioner conducts reviews, investigates FOI complaints and promotes the objects of the Freedom of Information Act 1982 (FOI Act) by issuing guidance for agencies and members of the public. The FOI Act provides for access to information held by the government and sets out a legally enforceable mechanism for ensuring this access.
The right to access is subject to certain limitations that ensure that sensitive information, including information unreasonably affecting personal privacy is properly protected. Protections also apply to other classes of documents, including those affecting national security, defence or international relations.
The FOI Act includes a web-based Information Publication Scheme that provides a framework for agencies to proactively disclose more information to the public.
Section 121 of the Family Law Act 1975 provides for an offence of publication of details of family law matters that identify the parties to a proceeding, balancing the need for openness of court proceedings with the need for privacy in family law matters.
Laws that affect privacy should be precise, and not give decision-makers too much discretion in authorising interferences with privacy. They should provide proper safeguards against arbitrary interference. To avoid being considered arbitrary, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.
In August last year the Corruption and Crime Commission released a bombshell report exposing unlawful access to the Government’s database holding “the most personal information about members of the WA public”.
That database, known as TRELIS, is managed by the Department of Transport. It contains the names, addresses, and car registrations for everyone with a license in WA.
The corruption watchdog found that you and every West Aussie are vulnerable to “predatory” and “intimidating” data misuse.
It warned there were at least 100 suspected unlawful breaches in 2019-20 alone.
The Department were “reluctant to treat unlawful access…as serious misconduct”.
The CCC consider unlawful access a criminal offence.
Here is an OVERVIEW of the FULL TRELIS REPORT 1. The Transport Executive and Licensing Information System, known as TRELIS, is a Western Australia (WA) government owned and shared database. The Department of Transport (DoT) uses TRELIS to facilitate licensing for the State, one of DoT's main functions.
2. Of the WA government databases, TRELIS holds the most personal information about members of the WA public.
3. Confidential and sensitive information on TRELIS could be exploited for personal or criminal reasons.
4. The WA community has an expectation that personal information held in TRELIS is protected, not only from external hackers, but from abuse and unlawful access by the more than 3,000 persons authorised to use TRELIS to perform official duties.
5. The Commission undertook a thematic review of unlawful accesses to TRELIS under Corruption, Crime and Misconduct Act 2003 (CCM Act) s 41. It considered more than 100 incidents of unlawful access to TRELIS.
6. The review identified incidents involving improper user access to TRELIS. Some of the reasons for access included viewing of the user's own driver licence details, renewing a family member's vehicle registration, or obtaining information to share with family or friends.
7. The review showed that DoT is reluctant to treat unlawful access to TRELIS by authorised users as serious misconduct. DoT's default position is that unlawful access is a mere conflict of interest.
8. The Commission is concerned by this approach. Unlawful access to TRELIS is a criminal offence and is serious misconduct as defined by the CCM Act s 4.
9. The Commission's review also identified broader concerns with DoT's management of serious misconduct risks, including a lack of basic enquiries to determine the reason for apparent improper access and inconsistency in the actions taken by DoT.
10. This report outlines the Commission's review findings and makes formal recommendations to DoT to improve its management of the serious misconduct risks associated with the access of information in TRELIS.
11. The Commission provided a draft of this report to DoT in accordance with s 86 of the CCM Act and received a response. The Commission has taken DoT's response into account in finalising this report.
12. The Commission will review the actions taken by DoT to address the recommendations in 12 months' time.
Transparency is a top issue - 91.7% of respondents to a survey agreed.
The Hon Nick Goiran cross-examined Minister Sue Ellery recently.
In a remarkable incident during parliament’s annual budget estimates hearings this week, she refused to allow any of the Department’s officers to answer any questions about the standoff.
West Aussies are entitled to expect that their private information is not accessed unlawfully by government officials.
It is astonishing that a senior minister would obstruct a parliamentary hearing when the Department in question has a history of being in the firing line from the CCC.
This is the same McGowan Government that promised “gold standard transparency”.
So, what can be done about this?
We need to continue exposing corruption, and tirelessly fighting corruption and expose those who are pushing a toxic agenda.
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