Australia

Australian society generally has been defensive about the protection of privacy, particularly in relation to communications. Apart from some limited common law and statutory protections, there is no right to privacy but rather an amorphous interest in privacy. In recent years, however, technological changes have led to increasing incursions into citizens’ privacy. This entry looks at Australia’s evolving stance on surveillance, examines the failed attempts at creating national identification cards, and reviews legislation relating to privacy and surveillance in the workplace.

Australia’s history and geography have been significant in relation to this institutional monitoring and surveillance. During World War II, Australia’s alliances shifted from reliance on the United Kingdom to the United States. In the subsequent Cold War period, Australia became a major surveillance and intelligence-gathering post for the United States, with the remote Pine Gap facility in central Australia playing a key role. This role is continuing, with recent revelations that the facility may also play a role in the surveillance of civilian Internet communications.

Despite its penal origins, state intrusions into the lives of citizens have always been contested. Toward the end of the 20th century, successive governments attempted with limited success to centralize information on the Australian population through the introduction of national identification cards. In the 1980s, the “Australia Card” identification was proposed, although not implemented. Shortly after, the national government required that all Australians have a tax file number and a Medicare card, which together provide for greater surveillance of the population. In 2006, the government, led by John Howard (who in the 1980s opposed the Australia Card), attempted unsuccessfully to introduce the “Access Card.” A key feature of the debate surrounding the implementation of this card was privacy and the concern that technology provided the opportunity to integrate databases. Otherwise known as functional creep, governments could create a virtual network database that would compromise individual privacy regarding personal information flows. Paradoxically, there was comparatively little controversy when Australian governments initiated campaigns of proactive monitoring and surveillance that saw Australia lead the world in implementing mandatory drunk-driving tests and then drug-driving tests to improve road safety.

At the workplace, the unique nature of the Australian protectionist industry policies for most of the 20th century meant that labor unions were provided a legitimate role in the workplace, and this was allied with the high levels of trade union membership until the 1980s. The position of unions was a key factor in mitigating the worst excesses of scientific management or time-and-motion surveillance studies through the postwar period. Metal trades workers, for example, refused to work at the appearance of a stopwatch and downed tools until the time-and-motion expert had left. In the contemporary context of work, social networking and drug testing have also been at the forefront of workplace disputes. Mandatory alcohol and drug testing at work has been the subject of ongoing debates and industrial disputes between trade unions and management, and social media has also been the subject of court cases over people’s right to voice their opinion’s about work in their own time on social media.

While there is great interest in workplace privacy, the regulatory framework remains fragmented and lacking a coherent strategy. There are very few statutory or common law constraints on employers with respect to employee privacy. An examination of privacy protection in Australia suggests that successive Australian governments have favored the United States’ laissez-faire market-oriented tradition rather than the protective European human rights approach. In the workplace context, the market-based approach places a greater emphasis on the proprietary rights of capital than on labor’s right to privacy. Governments at the state and national levels have avoided confronting the larger philosophical and legal issues by adopting a reactive approach to privacy protection, responding only to specific concerns when public or external pressure has forced the issue.

Only two states (Victoria and New South Wales) and the Australian Capital Territory have enacted legislation specifically governing workplace surveillance. However, only New South Wales’ legislation refers to email and Internet monitoring. Essentially, the legislation addresses the privacy concerns of employees using email and the Internet in a limited set of circumstances. It starts from the premise that employers are entitled to engage in email and Internet monitoring but requires notice to be given to the employees if monitoring or surveillance is to be undertaken. The legislation acknowledges that there may be some personal space for the employee, particularly in relation to the receipt of information from industrial organizations. Covert surveillance is strictly regulated, requiring an employer to demonstrate to the Magistrates Court that there is reasonable suspicion that an employee is engaging in unlawful activity, what actions the employer has taken to detect the unlawful activity, a description of the proposed surveillance device, and when the covert surveillance may be conducted.

Peter Holland and Julian Teicher

See also Big Data ; Identity Theft ; Privacy, Right to ; Work Surveillance