PRIVACY ISSUES FORUM
WELLINGTON, NEW ZEALAND, 28 MARCH 2003
25 YEARS OF EVOLVING INFORMATION PRIVACY LAW -
WHERE HAVE WE COME FROM AND WHERE ARE WE GOING
The Hon Justice Michael Kirby AC CMG*
IN THE BEGINNING
��������� There are three reasons
that have inveigled me out of the citadel in Canberra where I perform my duties
as a Justice of the High Court of Australia, involved only rarely now in issues
of privacy[1].�
��������� The first is that I never
miss an opportunity to cross the Tasman to lay claim to Australasia's lost two
States.� It is difficult for an
Australian to understand why New Zealanders have so far proved obdurately
impervious to the blandishments of federation.�
Membership by New Zealand of the Australian Commonwealth is envisaged by
the preamble to the Australian Constitution Act[2].� Yet so far, New Zealand has stubbornly declined our invitations.� It has done so despite my own generous (if
unauthorised) offer of two States, special protections for the Maori and huge
subsidies for a joint enterprise to win the America's Cup back for
Australasia.�
��������� In the context of privacy
I would just mention one of the advantages of federation so that it can hang in
the air during this forum.� A federal
system of government offers a form of planned inefficiency.� It divides great power.� At a time in history when technology is
vastly increasing the efficiency of privacy invasions, a system of government
that superimposes divisions of lawmaking and governmental power may have found
new and previously unnoticed advantages.
��������� Secondly, I come across
the waters to pay tribute to Bruce Slane, foundation Privacy Commissioner of
New Zealand.� He completes his eleven
years as Commissioner on 12 April 2003.�
His retirement from the office is a watershed in the development of privacy
law and practice in New Zealand, indeed in this part of the world.� The forum also marks the tenth anniversary
of the Privacy Act 1993 (NZ).� Some of the more interesting recent features
of privacy law and practice in New Zealand have attracted vigorous comment[3].� Over
all of the developments that have ushered in the implementation of the national
privacy laws of New Zealand, Bruce Slane has presided.
��������� From the outset, he had
to address many urgent and sensitive problems.�
No sooner than he arrived in office, but he was caught up in the Pugmire case concerning disclosures made
by a Wanganui Hospital psychiatric nurse, acting as a
"whistle-blower"[4].� The
problems have not become easier for Commissioner Slane and� his colleagues since then.� On the contrary, they have become more
numerous, more urgent, more technical and more difficult.
��������� I first knew Bruce Slane
when I was a young judge inaugurating the Australian Law Reform
Commission.� I came to New Zealand for a
law conference in Auckland in the emid-1970s.�
Mr Slane was already a leading member of the New Zealand Law
Society.� We hit up a friendship that
has endured nearly three decades.� I
discovered in him a kindred interest in the communication of legal issues
through the media to the legal profession and to the general community that it
serves.� We were both fascinated by the
way the media operates.� We saw in its
operation both potential for enhancing public policy debates and risks,
including risks of unreasonable invasion of individual privacy.� The potential and the risks have each grown
during the period of our friendship.�
But we both know how important modern media is to human freedom.�
��������� I pay tribute to Bruce
Slane for his devoted work for privacy in New Zealand and in the world.� I praise his outreach to ordinary citizens
that has been a hallmark of his activity and a reason for his success.� I hope that his techniques will be continued
by his successor[5].�
��������� The third reason for my
presence is that it affords me the opportunity to reflect on twenty-five years
of the Guidelines on Privacy of the
Organisation for Economic Cooperation and Development (OECD).� The work of the Expert Group of the OECD
that drafted the Guidelines began in
Paris in 1978.� At the first meeting I
was elected to chair that Group.� That
event proved a pivotal point in my own career.�
Not only did it involve me closely with a group of brilliant antagonists
in the development of the basic principles of information privacy that have
gone on to influence the law in Australia[6], New Zealand[7] and beyond.�
It also exposed my mind to a rude awakening to an aspect of law which,
up to that time, had largely been neglected in my legal eduction.� At first hand I saw the way in which
international law was made.� True, the
"law" on this occasion was the "soft law" of the OECD Guidelines on Privacy Protection[8].� But
the lesson was not lost on me.� In a
very short time, I discovered how:
�
Global technology
was forcing the pace of international legal and policy developments[9];
�
Such developments
had very large economic, cultural and legal implications;
�
Despite the
divergences caused by these factors, the necessity of finding common ground (or
more accurately of avoiding radically different approaches to a common
technology) provided an enormous stimulus to the development of international
norms; and
�
The work of
international bodies could actually be of practical help to domestic
law-makers.� Confronted by new,
controversial, technological and potentially divisive problems, local rule-makers
naturally looked to trusted international agencies and their expert bodies to
give a lead that would provide a foundation for uniform, or at least
compatible, national laws on topics of international concern.
��������� An appreciation of the
importance of globalisation and regionalisation for the law is an eye-opening
idea.� So far, it has proved elusive to
most lawyers.� Most are content to live
in the calm backwaters of their own jurisdiction.� Yet in the age of jumbo jets, of cyberspace, of the human genome,
of space travel and global problems like AIDS and terrorism, municipal
jurisdiction is increasingly coming under the challenge of global and regional
developments.� Amongst the emerging
norms are the statements of universal fundamental human rights.� Amongst the fundamental human rights is that
established by Article 17 of the International
Covenant on Civil and Political Rights,guaranteeing the right to privacy.�
Universal fundamental human rights is one of the most powerful ideas at
work in the law today throughout the world.�
It is not yet dominant; but the dangers of the alternatives will surely
make it so.
��������� Many lawyers, whose minds
are still locked in the pages of their law school written down taken before
1978 when the OECD Group first gathered, may be dubious about these
propositions.� But, having seen the way
international law is changing and impacting domestic jurisdiction, I am an
evangelist for the truth.� It beckons us
to a new and different legal era, suitable to a new millennium where lawyers
must find common ground and shared principles with colleagues in other
countries.� Privacy protection is such a
topic.
��������� The Privacy Commissioners
of Australia, New Zealand and the region know this to be true.� Indeed, the Privacy Commissioners of the world
meet regularly to track the developments of technology, law, business and
practice and to share experience and ideas.�
It is good that they do for nowadays, truly, privacy and data security
are global topics.� The technology
laughs at paltry efforts to make them purely local.�
PRIVACY IN THE COURTS
��������� After I rejoined the
mainstream of the law in appellate courts after my decade in the Australian Law
Reform Commission, I was struck by the utility of the OECD Guidelines when issues of general principle concerning the flow of
information came up for consideration.�
But I have also been struck by the fact (noted in the Australian Law
Reform Commission Report on Privacy [10]) that the common law sometimes has difficulty
in formulating general principles or effective remedies for privacy
protection.� This was especially
surprising given the importance that the English, from whom the common law
derived, normally paid to individual privacy as a value to be respected in society.�
��������� Last year a case came
before the High Court of Australia in which submissions were made to the Court
to repair the omissions of the law and to invent a common law right to privacy
which would be upheld in Australia to protect a corporation that claimed that
its privacy had been invaded. �The case
involved many interesting legal questions.�
It arose out of the action of an unidentified party planting a hidden
camera in private premises from which was procured film, later partly telecast,
showing the circumstances in which native animals were slaughtered for export
as food.�
��������� I will not detail all the
legal complications that arose.� Some of
them concerned the federal Constitution and the implied right to free
expression in Australia that has been discovered as an implication from the system
of representative democracy established by the constitutional text.� Interestingly enough, the latest word on
that implication was written in a case brought to the High Court by David
Lange, one-time Prime Minister of New Zealand[11].� His
affection for Australia was so strong that he was determined to leave a lasting
mark on Australia's constitutional law; and he did.� But if I go into that aspect of the case I may only discourage
such enthusiasts as still exist in New Zealand for the federal idea; so I will
desist.
��������� For present purposes, the
interest of the Lenah Game Meats[12]case is two-fold.� First, it signalled a growing interest of some of the High Court
judges (including myself) to reopen consideration of the general development of
civil remedies for privacy invasion which, in Australia, was largely stillborn
after a possibly erroneous misreading of the decision of the High Court in Victoria Park Racing and Recreation Grounds
Co Ltd v Taylor[13], decided in 1937.�
��������� The Game Meats case was not a particularly good vehicle to allow a
definitive re-exploration of the general idea of privacy protection.� In so far as this would, in turn, be
stimulated by the contents of Art 17 of the ICCPR, that provision appears to relate
only to privacy of the human individual.�
It does not seem apt to apply to a corporation or agency of
government.� Nevertheless, noticing a
number of recent developments in United States law[14], where the Supreme Court has discerned a "strong tide running
in favour of the so-called right of privacy" and developments in New
Zealand law[15], Canadian law[16] and English law[17], it now seems far from certain that an Australian protection of
privacy under the common law might not be developed in a suitable case
involving an established invasion of the privacy of a human person.�
��������� The other importance of the recent
decision of the High Court of Australia, as noted by David Lindsay in an
article that heroically endeavoured to chart the various streams of opinion in
the decision, was the disparity over fundamentals disclosed in the reasons of
the participating judges.� Mr Lindsay
remarked somewhat sharply[18]:
"Taking
these considerations into account, it is suggested that the relatively ad hoc,
somewhat chaotic reasoning of the High Court in the Lenah decision is an example of what can happen in a legal system
that refuses to take individual rights seriously and that, as a result, has an
inadequate legal framework for recognising and protecting individual
rights.� While judicial recognition of
an Australian tort of privacy would improve the position of individuals under
the general law, an adequate legal regime must await the extra-judicial
development of a Bill of Rights.� As
this seems unlikely, it would seem that protection of rights and freedoms under
Australian law is destined to be influenced indirectly by developments
elsewhere.� By this, I am referring
mainly to European human rights jurisprudence, via its effect on substantive
principles of English law, including confidentiality law.� In this sense, the relatively unsatisfactory
reasoning evident in the judgments in Lenah
is symptomatic of fundamental weaknesses in the structure of Australian
law, just as much as it is a reflection of fundamental differences of opinion
among the members of the current High Court".
��������� The United Kingdom
courts, which in the past have been such an important source for the common law
in courts in Australia, New Zealand, Hong Kong and elsewhere in the region, are
now (as Mr Lindsay's comment notes) directly under the influence of the
European Convention.� Perhaps this is so
by way of the Human Rights Act 1998
(UK).� This is why, in several recent
cases[19], the English courts have lately proved much
more receptive to arguments seeking judicial protection for the privacy of
individuals than was formerly the case[20].�
��������� Those who look to the
courts as a new and revived source of privacy law in common law countries,
after a long sleep lasting most of the last century, can therefore probably
take heart from the recent trend of judicial authority.� It would not be the first time that the
courts had developed the common law in a kind of symbiosis with developments of
statute law.� In my view, a similar
process has occurred in respect of the common law principle governing the right
to reasons for administrative decisions at a time when so many statutes have
been enacted, by legislatures everywhere, to spell out that right in
recognition of contemporary social values that demand its fulfilment[21].� So
the only advice that I can offer on this interesting development on privacy
protection in the courts is:� watch this
space.
INSTITUTIONAL DEVELOPMENTS
��������� In the twenty-five years
since the OECD Expert Group on Privacy met under the chandeliers of the Ch�teau
de la Muette in Paris, there have been enormous changes in the world, and in
the technology of information distribution and processing.� So great have been these changes that, in
May 1999, The Economist[22] proclaimed on its cover:�
"The End of Privacy".�
It described, in vivid detail, the features of "the surveillance
society" that had led it to this gloomy diagnosis.�
��������� Nothing that has happened in the four
years since that declaration has reduced the problem which that distinguished
journal called to notice.� On the
contrary, the Internet has continued to expand rapidly, the use of the
World-Wide-Web doubling every twelve months[23].� William Gibson's vision of
cyberspace comes ever closer[24].�
��������� The particular difficulties of
reconciling this new zone of human knowledge and activity was well illustrated
by yet another recent decision of the High Court of Australia involving a
defamation claim brought in Victoria for a news story uploaded on the Web in
New York or New Jersey in the United States[25].� The case vividly
illustrated once again the difficulty, glimpsed as through a glass darkly by
the OECD Group twenty-five years ago, of stamping national legal regimes upon
transborder flows of data.
��������� Three and a half years ago, at the
twenty-first international conference on privacy and personal data protection
in Hong Kong, I examined the extent to which the 1980 OECD Guidelines remained relevant and useful in these new technological
circumstances and the extent to which they were showing signs of their age[26].
��������� One of the greatest challenges to the
effectiveness of the Guidelines has
been the provision of extensive indexes on Internet sites such as Yahoo and the Altavista search engine.�
The Guidelines of 1980 were
prepared on the context of the technology then known.� That was before webcrawlers, spiders, robots and trawlers were
introduced that could subject personal data to fresh surveillance against
criteria different from those for which the data had originally been collected
and possibly unknown or even non-existent at the time of such collection.
��������� It was these changes that led me to a
number of suggestions for new privacy principles relevant to contemporary
technology.� I listed them in late
1999.� All of them remain relevant today[27]:
�
A right in some circumstances not to
be indexed;
�
A right in some cases to encrypt
personal information effectively[28];
�
A right to fair treatment in key
public infrastructures so that no person is unfairly excluded in a way that
would prejudice that person's ability to protect their privacy;
�
A right, where claimed, to human checking
of adverse automated decisions and a right to understand such decisions
affecting oneself[29]; and
�
A right, going beyond the aspirational
language of the "openness principle" in the OECD Guidelines, of disclosure of the collections to which others will
have access and which might affect the projection of the profile of the
individual concerned[30].
��������� The growth of e-commerce
has led to concern amongst computer users and Net users both about privacy and
security of personal data, a point noted by Stephen Lau of Hong Kong[31].� The
right of users to be informed in advance of the provider's policy on data
privacy and to have a choice of anonymity for browsing and transacting
business, encryption and collection and use of sensitive data is also a subject
of expressed concern.� The provider may
have current strategies and policies that are communicated to the user.� Yet these are always subject to supervening
obligations imposed on the provider by law for the purpose of enforcement of
new criminal offences (eg access to prohibited pornographic Websites),
intellectual property protection and revenue protection.
��������� In addition to these
considerations, the advance of the Human Genome Project to its effective
completion, ahead of schedule, in 2003 coincides with yet another important
anniversary - the fiftieth commemoration of the discovery by Watson and Crick
on 28 February 1953 of the elements of DNA.
��������� The potential use of DNA
and modern systems of genetic data to provide a vast range of sensitive health
data about the individual, as well as a secure and virtually unique means of
identifying the individual, presents large and puzzling questions for privacy
protection in the future.� Such
questions will occupy privacy commissioners, law reform agencies, policy makers
and legislators in the years ahead.�
��������� Amongst the questions
that are raised by the use of DNA in this connection are those concerning:
�
Non-consensual
DNA testing;
�
Consensual DNA
testing for research;
�
Use of discarded
DNA for purposes of health, employment, insurance and criminal record checks;
�
Collection of
data based on DNA material that profoundly affects the life choices of the
individuals concerned; and
�
Invasion of
genetic data banks and unauthorised dissemination or publication of genetic
data about the individual[32].
��������� Little wonder that actual
and potential misuse of genetic information has already occurred. The
Australian Law Reform Commission has signalled its continuing involvement at
the cutting edge of these issues.� In
August 2002 it published a Discussion Paper of nearly a thousand pages dealing
with a vast range of questions concerned with access to genetic testing; the
use of information and health data; the need for anti-discrimination law; the
requirement for enforcing the Australian
National Statement on Ethical Conduct in Research Involving Humans; the
encouragement of best practice in human genetic research; special rules for
human tissue collection, the ownership of human genetic samples, the
establishment of genetic registers; the provision of genetic counselling and
medical education; the conduct of genetic screening; the use of genetic data
for discrimination in insurance and employment; the availability of DNA
parentage testing; the use of DNA in immigration decisions, forensic procedures,
criminal investigation, post-conviction activity and civil proceedings.� This is an indication of the enormous
variety of questions that will need to be tackled[33].� The
ALRC report on these topics has now been provided to the Federal
Attorney-General.� It must be tabled in
the Australian Parliament by mid-June 2003.
TERRORISM AND PRIVACY
��������� At the time of this
Forum, the thoughts of most informed people go out to the military and civilian
personnel engaged by the conflict in Iraq.�
That conflict has grown out of the extraordinary events of 11 September
2001 when many features of our world changed[34].� In
consequence of such changes, laws have been enacted or proposed in many
countries, including Australia.� Such
laws and the practices that have gathered around them, have been designed to
enhance the capacity of society to respond to the perceived dangers of
terrorism and breaches of national security and the criminal law.� Enhancement of the power of police and
national security agencies in many lands has obvious implications for the legal
protection of individual privacy.� In a
time of war or of terrorism, there is a tendency if not for the law to fall
silent at least for its defence of basic civic freedoms to become somewhat
muted.
��������� From the point of view of
privacy regulators, the issues arising from anti-terrorism laws are highly
relevant to the purposes for which they have been established.� However, they tend to remain on the fringes
of the jurisdiction of privacy agencies given the wide exemptions commonly
found in their powers so far as they touch national security and intelligence
activities.� Such exemptions have not,
however, prevented privacy guardians from raising concerns about perceived
over-reach of security laws.�
��������� Some have done this in
private, knowing that, in the current sensitive climate, their views on such
subjects, if expressed in public, are likely to be marginalised or
ignored.� On the other hand, some
Privacy Commissioners, whom Lord Denning would doubtless have described as
"bold spirits", have felt entitled or even obliged to make public
comments on this topic.� Thus the
Canadian Privacy Commissioner, Mr George Radwanski, recently challenged the
Canadian Government on several issues arising out of this concern.� By doing so, he raised the profile of the
debate on the inter-relationship of privacy protection and security protection
in Canada.�
��������� In the Canadian
Commissioner's overview to the Privacy Commissioner of Canada's Annual Report to Parliament, released in
January 2003, Mr Radwanski remarked[35]:
"It is my duty � to report a solemn and urgent warning to every
Member of Parliament and Senator and indeed to every Canadian.� The fundamental human right to privacy in
Canada is under assault as never before.�
Unless the Government of Canada is quickly persuaded from its present
course of parliamentary action and public insistence, we are on a path that may
well need to the permanent loss not only of privacy rights that we take for
granted but also of important elements of freedom as we now know it.� We face this risk because of the
implications, both individual and cumulative, of a series of initiatives that
the Government has mounted or is effectively moving forward.� These initiatives are set against the
backdrop of September 11, and anti-terrorism is their purported
rationale".
��������� Specifically, the
Canadian Commissioner questioned the creation of new "Big Brother"
passenger data bases for international transport; the dramatic enhancement of
state power to monitor communications; a suggested introduction of a national
ID card with biometric identifiers; and the support for video-surveillance of
public streets by the RCMP[36].
��������� The Commissioner's report
is blunt speaking and critical of proposed legislation for a Public Safety Act, changes to the Criminal Code and the introduction of
practices to step up the surveillance of persons in and out of Canada.� He acknowledges the dangers that terrorists
present to freedom and civic values, including privacy.� But he urges that Canadian society remain
faithful to the tolerant values that terrorism seeks to attack.� Otherwise, he points out, the terrorists
will have succeeded in their basic attack on our freedoms.
��������� I make no comments on
these remarks.� They are certainly
deserving of close attention[37].� In
most countries, including my own, legislation is under active consideration to
enhance official powers having unmistakable implications for individual human
privacy.
��������� In the same spirit as the
Canadian Commissioner, the American Civil Liberties Union in January 2003
issued a report warning of the growth of the surveillance society in the United
States.� The report Bigger Monster Weaker Chains[38] is relatively brief.� It provides a useful synthesis of developments in video
surveillance, data surveillance, genetic privacy, biometrics, communications
technology, government data bases and the extension of the power of government
agencies.� The thesis of the ACLU report
is that "we are being confronted with fundamental choices about the sort
of society we want to live in"[39].�
��������� Interestingly, the ACLU
report draws to notice a recent decision of the Supreme Court of the United
States in Kyllo v The United States,
decided after 11 September 2001. There the Court held that a reasonable
expectation of privacy could not be determined by the power of new
technologies.� In a decision written for
the Court by Justice Antonin Scalia, the Supreme Court held that without a
warrant, the police could not use a new thermal imaging device that searches
for heat sources to conduct what was the functional equivalent of a warrentless
search for marijuana cultivation in Mr Kyllo's home.� Specifically, the Court declined to leave the privacy of that
home "at the mercy of advances in technology"[40].
GETTING & KEEPING THE BALANCE
��������� Obviously, getting the
balance between the protection of society and the protection of individual
privacy has never been easy.� In the age
of civic danger and terrorism, keeping our heads and preserving the proper equilibrium
will surely be one of the great challenges for privacy agencies in the years
ahead.� So much seems to conspire
against the defence of individual privacy.�
But this fact merely makes it all the more important that we defend and
uphold this cherished human right and precious feature of our society.
��������� For his sterling work in
pursuing and attaining these goals, I applaud Bruce Slane and I honour his
achievements and those of his colleagues in New Zealand.� They set a fine example to the region and
the world.� Now new participants must
pick up the responsibilities that others carried earlier.� In Isaac Newton's words, we stand on the
shoulders of those who went before.�
Here in New Zealand they were broad and strong shoulders.� The challenges that lie ahead will be new
and unpredictable.� Who would have
imagined forty years ago where we now stand.
The Hon Justice Michael Kirby AC
CMG
*���� Justice of the High Court
of Australia.� One-time Chairman of the
Australian Law Reform Commission; Chairman of the OECD Expert Group on
Transborder Data Flows and the Protection of Privacy and of the OECD Expert Group
on Data Security.
[1]��� An exception is Australian Broadcasting Corporation v
Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
[2]�� Commonwealth of Australia Constitution Act 1901 (UK) 63 & 64
Vict Ch 12, preamble.
[3]��� B Roth, "Recent
Developments in New Zealand Privacy Law" (2002) 9 Privacy Law and Policy Reporter 121; New Zealand, Law Commission
(Preliminary Paper 49), Protecting
Personal Information from Disclosure (2002).
[4]�� Consumer (June 1997), 360.
[5]��� A tribute to Bruce Slane
in implementing the New Zealand Act and conducting the first review of it after
three years of operation can be found in T McBride, "The Review Process -
Taking on the Critics" (1998) 5 Privacy
Law and Policy Reporter 101.
[6]�� Privacy Act 1988 (Cth).
[7]�� Privacy Act 1993 (NZ).� The
Act became fully operational in July 1996.
[8]��� OECD, Guidelines on the Protection of Privacy and Transborder Data Flows (Paris,
1981).
[9]��� M D Kirby, "Access to
Information and Privacy:� The Ten
Information Commandments" 55 Cincinatti
Law Review 745 at 750-751 (1987).
[10]�� Australian Law Reform
Commission, Privacy (ALRC 22) 1983.
[11]�� Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[12]�� cf Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001)
208 CLR 199.
[13]�� (1937) 58 CLR 479.
[14]�� eg Cox Broadcasting Corporation v Cohn 420 US 469 at 488-489 (1975).
[15]�� Tobin, "Invasion of
Privacy" [2000] NZLJ 216; P v D
[2000] 2 NZLR 590 at 599-601.� See also Lenah Game Meats (2001) 208 CLR 199
[325].
[16]�� A Linden, Canadian Torts Law (6th ed, 1997), 56; Aubry v Duclo (1996) 141 DLR (4th) 683.
[17]�� R v Broadcasting Standards Commission; Ex parte BBC [2001] 3 WLR
1327; cf Lenah Game Meats (2001) 208
CLR 199 [326].
[18]�� D Lindsay, "Protection
of Privacy Under the General Law Following ABC
v Lenah Game Meats Pty Ltd:� Where
to Now?" (2002) 9 Privacy Law and
Policy Reporter 102 at 107.
[19]�� eg Douglas v Hello! Ltd [2001] 2 WLR 992.
[20]�� A point noted by Gummow and
Hayne JJ in Lenah Game Meats (2001)
208 CLR 199 [112]-[116].
[21]�� cf Osmond v Public Service Board [1984] 3 NSWLR 447 at 465.� But see Public
Service Board (NSW) v Osmond (1985) 159 CLR 656 at 669-670 and see now Baker v Minister of Citizenship and
Immigration [1999] 2 SCR 815; Mukherjee
v Union of India [1990] Supp 1 SCR 94.
[22]�� 1 May 1999, 11, 17-19.
[23]�� R Miller, "The
Internet in Twenty Years:� Cyberspace
the New Frontier" (OECD, Paris, 1997); cf M D Kirby, "Privacy in
Cyberspace" (1998) 21 UNSW Law
Journal 323; L A Bygrave, Data
Protection Law (Klewer, 2002) 29; E Longworth, "The Possibilities for
a Legal Framework for Cyberspace - Including a New Zealand Perspective" in
UNESCO, The International Dimensions of
Cyberspace Law, Vol 1, (Ashgate, 2000), 9.
[24]�� W Gibson, Neuromancer cited in E Frank, "Can
Data protection Survive in Cyberspace?" (1997) 8(2) Computes and Law, 20.
[25]�� Dow Jones and Co Inc v Gutnick (2002) 77 ALJR 255.
[26]�� M D Kirby, "Privacy
Protection - A new Beginning" (2000) 18Prometheus
125 and in papers of Hong Kong, Office of the Privacy Commissioner for
Personal Data, Privacy and Personal Data,
Information Technology and Global Business in the Next Millennium (1999),
2.
[27]�� cf Victorian Law Reform
Commission, Defining Privacy (2002).
[28]�� OECD, Guidelines for Cryptography Policy (Paris, 1997), 27 (OECD Doc C
(1997) 62/Final).� cf J Adams,
"Encryption:� The Next Best
Thing?" (1998) 2 Computers and Law 39
at 40.
[29]�� G Greenleaf, "Privacy
Principles - Irrelevant to Cyberspace?" (1996) 3 Privacy Law and Policy Reporter 6 at 114, 118.
[30]�� R Clarke, "Profiling
and Its Privacy Implications" (1994) 1 Privacy
Law and Policy Reporter 7 at 128-129; R Wacks, "Privacy in
Cyberspace:� Personal Information, Free
Speech and the Internet" in P Birks (ed) Privacy and Loyalty (Oxford, 1997) 93.
[31]�� S Lau, "E-Commerce,
Consumer Rights and Data Privacy" [3rd Quarter, 19098] I-Ways, 37 at 38; cf L Gamertsfelder
& Ors, E-Security (Lawbook Co,
2002).
[32]�� R Curley and L Caperna,
"The Brave New World is Here - Privacy Issues and the Human Genome
Project" (2003) 70 Defense Counsel
Journal 22-35.
[33]�� Australian Law Reform
Commission, Protection of Human Genetic
Information (2002) (DP 66).� The
International Bioethics Committee of UNESCO is preparing an International Declaration on Human Genetic
Data which is expected to be placed before the General Conference of UNESCO
in October 2003.� This elaborates the
UNESCO Universal Declaration on the Human
Genome and Human Rights (1997).
[34]�� G Williams, "One Year
On - Australia's Legal Response to September 11" (2002) 27 Alternative Law Journal 212 referring to
Security Legislation Amendment (Terrorism) Bill2002 (Cth).
[35]�� Canada, Privacy
Commissioner, Annual Report to
Parliament2001-2002, Commissioner's
Overview.
[36]�� Ibid, 2.
[37]�� M D Kirby, "Australian
Law - After 11 September 2001" (2001) 21 Australian Bar Review 253, contrasting the decisions of the High
Court of Australia in Australian
Communist Party v The Commonwealth (1951) 83 CLR 1 and the Supreme Court of
the United States in Korematsu v United
States 323 US 214 (1944) and Dennis v
United States 341 US 494 (1950).
[38]�� American Civil Liberties
Union, Bigger Monster, Weaker Chains:� The Growth of an American Surveillance
Society.
[39]�� Ibid, 15.
[40]�� Kyllo v United States 190 F 3d 1041 (2001).
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