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17 eLaw J. 1 (2010)

handle is hein.journals/elajrnl17 and id is 1 raw text is: Mark Burdon, Paul Telford The Conceptual Basis of Personal Information in Australian Privacy Law The Conceptual Basis of Personal Information in Australian Privacy Law Mark Burdon and Paul Telford* Australian privacy law regulates how government agencies and private sector organisations collect, store and use personal information. A coherent conceptual basis of personal information is an integral requirement of information privacy law as it determines what information is regulated. A 2004 report conducted on behalf of the UK's Information Commissioner (the 'Booth Report') concluded that there was no coherent definition of personal information currently in operation because different data protection authorities throughout the world conceived the concept of personal information in different ways. The authors adopt the models developed by the Booth Report to examine the conceptual basis of statutory definitions of personal information in Australian privacy laws. Research findings indicate that the definition of personal information is not construed uniformly in Australian privacy laws and that different definitions rely upon different classifications of personal information. A similar situation is evident in a review of relevant case law. Despite this, the authors conclude the article by asserting that a greater jurisprudential discourse is required based on a coherent conceptual framework to ensure the consistent development of Australian privacy law. 1. Introduction Defining privacy has been a source of perennial angst for both legal academics1 and legislators.2 Legislative efforts to identify and regulate privacy issues have generally focused on the more manageable concerns that arise from the collection, storage and use of personal information.3 Therefore it is common that information privacy laws concentrate on the governance of personal information such that definitions of personal information are central to the application of most privacy laws, including Australian privacy laws.4 Accordingly, what is and what is not personal information is of crucial importance, as it will determine whether statutory redress is available. Despite that, little attention has been focused on what information constitutes personal information. A review of Australian privacy laws reveals that different definitions of personal information are currently in operation. However, whilst different definitions exist, all Australian privacy * Sessional Academics, Faculty of Law, Queensland University of Technology, 2 George Street, Brisbane, m.burdon(qut.edu.au, telford(qldbar.asn.au. The authors gratefully acknowledge funding support from the Smart Services Cooperative Research Centre and the Queensland Government Department for State Development. 1 See R C Post, 'Three Concepts of Privacy' (2001) 89(6) Georgetown Law Journal 2087, 2087 where Post comments that the notion of privacy is so complex that it cannot be usefully conceptualised because it is so entangled with competing and contradictory dimensions; see also A L Allen, 'Coercing Privacy' (1999) 40(3) William and Mary Law Review 723, 745, Allen sees privacy as an inalienable right that should be considered as a pre-conditional foundation of a liberal egalitarian society; contra W M Beaney, 'The Right to Privacy and American Law' (1966) 3(2) Law and Contemporary Problems 253, 255, where Beaney doubts whether it is possible to define a 'right of privacy'. 2 To the extent that most privacy laws do not attempt to define privacy. For example, following the recommendations of the Australian Law Reform Commission, Privacy and Personal Information, Discussion Paper No 14 (1980) and the 'Younger Report': Committee on Privacy, Great Britain, Report of the Committee on Privacy (1972), the original drafters of the Privacy Act (Cth) concluded that a rigid definition of privacy was not possible and that 'it is a notion about whose precise boundaries there will always be a variety of opinions'. 3 See for example P M Schwartz, 'Internet Privacy and the State' (2000) 32(3) Conneticut Law Review 815, 820: 'the leading paradigm on the Internet and in the real, or, offline world, conceives of privacy as a personal right to control the use of one's data'. 4 See Australian Law Reform Commission, Privacy, Report No 22 (1983) Vol. 2, 78. 'In the context of personal information, the individual's claim to privacy is therefore a claim to control, to an appropriate extent, the way that others in the community perceive him. The way that personal information about individuals is collected, used and disclosed is a matter of privacy concern'. eLaw Journal: Murdoch University Electronic Journal of Law (2010) 17(1)

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