Even the Australian sees the need for proper privacy protection in usage of data

October 2, 2017 |

The Australian newspaper has long had a set against increased privacy protections.  Its reaction, usually through its commentators, to any proposal that the Federal Government legislate a statutory right to privacy borders on paranoia.   To be fair, its opposition has been consistent, longstanding and been open.  See for example my post in 2012 about Ainslee Van Onselen’s criticism of the Rudd Government’s consideration of a statutory right to privacy in 2012.  It was very much a henny penny “sky – is – falling – sort – of -piece” that is a sub specialty of the Australian on its topics of hate.

It is then more than a little surprising that  Peter Van Onselen (definitely relation of Ainslee, as in spouse) writes a shock horror piece in today’s Australian about political parties being able to use our data without any oversight or regulation in We have no say over what political parties can do with information collected about us in today’s Australian.  The exclusion of political parties (and the media) from the Privacy Act 1988 has been there since it was enacted, that is almost 30 years ago.  And Van Onselen only now has a light bulb moment? He has been a staffer and knows the ins and outs of the dark arts of politics.  It has taken this incident to draw his attention to the quirk in the Privacy Act that gives political parties carte blanche when it comes to collecting, storing and using data?  That is extraordinary if true.

Of course the carve out of political parties from the operation of the Privacy Act is a ridiculous and illogical.  It only makes sense if you work on the basis that the political parties wanted it that way for self serving purposes. It should be changed.

All in all Australia is poorly served by its privacy and data protection legislation.

Van Onselen was, rightly, outraged that some political operatives were seeking to use data collected by political parties in the campaign for the Yes Vote in the same sex marriage campaign now underway.  It is nice to see someone have a Damascene moment but to only be concerned about this defect in the data protection regulation is a bit self serving in itself.  The political carve out of political parties is a failure of public policy.  It should be removed.  But that would be only the start of the job if there is to be any real reform.   The Privacy Act is far from an effective piece of legislation, with limited coverage, unnecessary exemptions (in addition to the political parties carve out) and a regulator chronically timid even when he does take some faltering action. Those matters  are bigger problems with the privacy protection and data security in Australia.  If Van Onselen is truly concerned about the protection of individual’s data from misuse he would pen an article or 20 on the overall weakness of the Privacy Act, the poor privacy and data protection culture within organisations and agencies, the worrying conservatism of Tribunals (mainly) in restricting the operation of the legislation, the under funding of the Office of the Privacy Commissioner, the lack of action by that office even in its straightened circumstances (chronic cultural timidity) and probably most importantly the need to legislate an actionable right to privacy.  At the moment individuals have little recourse when their privacy has been violated.  Existing causes of action are inadequate and there is ample evidence that the regulator will do more than the bare minimum.  Curiously if Peter Van was to embrace reform and call for a tort for the invasion of privacy, such as exists in most common law countries,  that  would put him on a collision course with his wife given her piece Push for a tort is misguided and wrong where she railed against even the thought of a  actionable right for breaches of privacy in the form of a statutory tort.  But that article was written in 2012 and both may have grown up some. One can only hope.

Peter Van Onselen’s article provides:

News that Liberals and Nationals campaigning for a YES vote in the SSM postal survey sought access to voter information via the party’s software tracking system “Feedback” is concerning. Fortunately it appears to have been the rogue actions of one campaigner, not a deliberate effort by the campaign to access voter details. There are privacy issues at stake, but those concerns still exist when we consider what political parties are allowed to do with information about all of us.

For context, Feedback (Labor’s system is known as Electrac) allows MPs and their staffers to compile information on voters and electronically store it as a campaigning tool. They get your basics from the electoral roll and the white pages: addresses, names, DOB, telephone numbers and so on. That is when the important work starts: building a profile of issues you are interested in, and voting intentions.

This is done when you write to constituent offices or telephone in your concerns (they have caller ID technology, so they can look you up even if you don’t give your name). When MPs go door knocking, what they learn about you informs the database. Diligent offices do “telephone canvassing”, using the numbers in the database to cold call constituents to find out more about them. Most of the time you have no idea that they are building a file on you, which will stick with you in their database for ever and a day.

The information is collected for better campaigning. The more they know about you the more they are able to pinpoint your interests, or indeed if you are a strongly identifying voter they don’t need to waste their time on you. They equally don’t pepper you with what they are doing in policy areas you’re not interested in or even hostile about.

Political parties can do this even though other private organisations cannot do so without your consent, because they have exempted themselves from privacy laws. Talk about the political class looking after themselves.

But here is the rub — because parties are private organisations, voters can’t make a freedom of information application to check out what is stored about them in these databases. Public bodies have similar powers to compile data on us, not that they do so for campaigning purposes, but at least we can access it via FOI to check its accuracy and fairness. Not so with databases owned and operated by political parties.

So yes, when anonymous MPs in the Coalition express concerns about sharing information on voters with Liberals and Nationals campaigning for a SSM YES vote, they are right to do so. But we should all be concerned about what those MPs are already doing. Collecting information on us without consent because they have exempted themselves from privacy laws that would otherwise prevent such actions. And we can’t even check what they have compiled about us because FOI laws don’t apply either.

One Response to “Even the Australian sees the need for proper privacy protection in usage of data”

  1. Even the Australian sees the need for proper privacy protection in usage of data | Australian Law Blogs

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