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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
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
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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