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44 Monash U. L. Rev. 1 (2018)

handle is hein.journals/monash44 and id is 1 raw text is: 



   Big Data involves analysis based on artificial intelligence and machine
   learning to mine vast troves of personal data to find correlations which
   are used to inform decisions that affect individuals. This raises privacy
   issues, as well as broader issues of lack of due process, discrimination
   and consumer protection. This article analyses the Privacy Act 1988 (Cth)
   ('Privacy Act) and identifies a number of limitations in its capacity to
   address the issues posed by Big Personal Data. It then discusses three
   possible sources of solutions for these issues: the new General Data
   Protection Regulation, which commenced operation in the European
   Union in May 2018; relevant recommendations in the Productivity
   Commission 's report on Data Availability and Use; and the proposed new
   criminal offences for re-identfication of de-identified government data
   in the Privacy Amendment (Re-identification Offence) Bill 2016 (Cth). It
   also considers the extent to which other laws may have a role to play in
   addressing the gaps identified in the Privacy Act.

                           I INTRODUCTION

Big Data represents a new frontier in the way in which information is processed
and used to inform decision-making. At its core it involves the use of analytical
tools based on artificial intelligence and machine learning to mine the vast data
troves being gathered and accumulated at ever increasing rates. Its objective is to
find 'small patterns or correlations that reveal new insights or truths.
While the epistemological claims for Big Data (in particular, the notion that 'the
volume of data, accompanied by techniques that can reveal their inherent truth,
enables data to speak for themselves free of theory')2 remain open to dispute,3 it
is increasingly being used in relation to personal data to inform decisions that
impact on many facets of people's lives. This use raises important privacy issues
as well as broader issues of lack of due process, discrimination and consumer

*   Professor, Faculty of Law, Monash University.
** Professor, Law School, University College Cork, Cork, Ireland.
1   Luciano Floridi, 'Big Data and Their Epistemological Challenge' (2012) 25 Philosophy & Technology
2   Rob Kitchin, 'Big Data, New Epistemologies and Paradigm Shifts' (2014) 1(1) Big Data & Society 1,
3   See, eg, ibid 3 5; Lawrence Busch, 'A Dozen Ways to Get Lost in Translation: Inherent Challenges
    in Large-Scale Data Sets' (2014) 8 International Journal of Communication 1727; Kate Crawford,
    Kate Miltner and Mary L Gray, 'Critiquing Big Data: Politics, Ethics, Epistemology: Special Section
    Introduction' (2014) 8 International Journal of Communication 1663, 1668 70.

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