issues paper final

7/30/2019 Issues Paper Final

1/144

Workplace PrivacyIssues Paper

Victorian Law Reform Comm ission

GPO Box 4 637Melbourne Victoria 3001

Australia

DX 144 Melbourne, VicLevel 1010-16 Queen Street,

Melbourne Victoria 3000Australia

Telephone + 61 3 8619 8619Facsimi le + 61 3 8619 8600

TTY 1300 666 5 571300 666 555 (w ithin Victoria)law .reform@ law reform.vic.gov.au

www.lawreform.vic.gov.au


2/144

CALL FOR SUBMISSIONS

The Victo rian Law Reform Commission invi tes your comments on this Issues Paperand seeks your responses to t he quest ions that are raised. If you w ish t o make a

submission to us on this reference, you can do so by mail, email, phone, fax or inperson. If your submission i s in w rit ing, t here is no particular f orm or f ormat you

need t o f ollow . If you prefer t o make a submission by phone or in person, cont act

the Commission and ask t o be put through t o one of the researchers working onthe Privacy reference. You can send your w rit ten submissions by post , or by email

to . If you need any assistance w it h

preparing a submission , please contact the Commission. If you need an

int erpreter, please cont act the Commission .

If you would like your submission to be confidential, please indicate this clearly

when making the submission. If you do not w ish your submission to be quoted, orsourced t o you in a Commission pub lication, please let us know . Unless you have

requested confidentiality, submissions are public documents, and may be accessed

by any member of t he public.

DEADLINE FOR SUBMISSIONS: 31 JANUARY 2003

Pub lished by the Victorian Law Reform C om mission.

T he Victorian Law Reform C om mission was established u nd er the V ictorian Law ReformCom m ission Act 20 00 as a cent ral agency for develop ing law reform in Victoria.

T his Issues Paper reflects the law as at 31 July 2002 .

200 2 Victorian Law Reform C om mission. T his work is prot ected by th e laws of copyright.Except for any uses permitted u nd er the Copyright A ct 19 68 (C th ) or equ ivalent overseas legislation ,no part of this work may be reproduced, in any manner or in any medium, without the writtenpermission of the publisher. All rights reserved.

T he pu blication s of the Victorian Law Reform C om mission follow the M elbou rne U niversity LawReview Association In cA ustral ia n G u id e t o L egal C it at ion s (2000).

D esigned b y And rew H ogg Design.

N ational Library of AustraliaCataloguing-in-Publication

W orkp lace privacy : issues paper.

ISBN 0 9581829 2 2.

1. Privacy, Right of Victoria. 2. Em ployee rights Victoria. 3. C onfident ial com mu nications Victoria. 4. Electronic mo nitorin g in t he workplace Victoria. I. Victorian Law ReformCommission.

344.9450101


3/144

iii

Contents

PREFACE vi

CONTRIBUTORS vii

TERMS OF REFERENCE ix

ABBREVIATIONS x

SUMMARY xi

QUESTIONS xvi

CHAPTER 1: INTRODUCTIONReasons for a Reference on W orkers Privacy 1

Our Approach to this Reference 2CHAPTER 2: WHAT ISPRIVACY?

Introduction 7Defining Privacy 8

Invasion of Privacy 20

Conclusion 25

CHAPTER 3:CURRENT WORKPLACE PRACTICESIntroduction 27

What Practices are we Concerned W ith ? 27

Surveillance and Monitoring of Workers 29

Testing 35

Search 38

Information 41

Balancing Competing Interests 44

Conclusion 45


4/144


5/144

v

Preface

This Issues Paper is intended to promote discussion on the first stage of theVictorian Law Reform Commissions reference on privacy, which deals withprivacy in the workplace. The Issues Paper discusses the meaning of privacy,provides examples of privacy issues which may arise in workplaces and discussesthe existing laws relevant to these issues. Case studies are used to identify areas

where law reform may be needed and the Issues Paper proposes some principleswhich m ight un derpin such reforms. T he Issues Paper asks a series of question s onwhich the Commission seeks comment from employers, workers, and members ofthe public. T he C ommission will also be publishing an O ccasional Paper, writtenby Research and Policy O fficer, Kate Foord, en titled D efin in g Priv acy , which

contains more detailed discussion of the meaning of privacy.

The Issues Paper was prepared by a team of authors. In preparing the Paper, theauthors were greatly assisted by members of the Advisory Committee, which wasestablished for th e pu rposes of this reference. I am p articularly grateful for theassistance provided by Mr Nigel Waters, who provided comments on theapplication of privacy legislation to the case studies in the Issues Paper, and by DrBreen Creighton, who gave the Commission the benefit of his expertise onworkplace relations legislation. Ms Suzie Jones from the Victorian Bar prepared apaper on workplace issues which the authors drew on in drafting the Issues Paper. Ialso wish to acknowledge the helpful comments made by Mr Scott Beattie and DrPeter Grabosky on earlier drafts of the Paper. David Lindsay from the Centre forLaw and Media, University of Melbourne, also provided useful comments onChapter 2. The Commission is, of course, responsible for the accuracy of the Paper

and any views which it expresses.


6/144


7/144

vii

Contributors

Authors Chris D ent

Kate Foord

Professor Marcia N eave AO

Professor Sam Ricketson

Editor Trish Luker

Victorian Law Reform Commission

Chairperson Professor Marcia N eave AO

Part-time Commissioners T he H onou rable Justice D avid H arper

H er H onour Judge Jenn ifer C oate

Professor Felicity H amp el SC

Professor Sam Ricketson

Paris Aristotle AMChief Execut ive O fficer Padma Raman

O perations M anager Kathy Karlevski

Policy an d Research O fficers Sangeetha Chandrashekeran

Chris D ent

Kate Foord

N icky Friedm an

M elanie Heenan

Siobhan M cCann

Jamie Walvisch

Legal Research an d In form at ion O fficer Trish Luker

Librarian Julie Bransden

Adm in istrat iv e O fficers Naida Jackomos

Simone Marrocco

Lorraine Pitman


8/144

viii

Terms of Reference

In light of the widespread use of surveillance and other privacy-invasive technologiesin workplaces and p laces of public resort, and the potential benefits and risks posed bythese technologies, the Victorian Law Reform Commission will inquire into andreport progressively upon :

(a) whether legislative or oth er reform s shou ld be m ade to ensure that workersprivacy, including that of employees, independent contractors, outworkers andvolun teers, is appropriately prot ected in Victoria. In the course of th is inqu iry, th e

Com mission should consider activities such as:

surveillance and monitoring of workers comm un ications;

surveillance of workers by current and em erging technologies, includ ing theuse of video and audio devices on the employers premises or in other places;

physical and psychological testing of workers, includ ing d rug an d alcoholtesting, medical testing and honesty testing;

searching of workers and their possessions;

collecting, using or disclosing personal information in workers records.

(b) whether legislative or other measures are necessary to ensure that there isappropriate control of surveillance, including current and emerging methods of

surveillance, and t he publication of photographs without the sub jects consent. Aspart of th is examin ation, the C om mission shou ld consider wheth er any regulatorymodels prop osed by the Com mission in relation to surveillance of workers could beapplied in other surveillance contexts, such as surveillance in places of pu blic resort,to provide for a un iform approach to the regulation of surveillance.

In undertaking this reference, the Commission should have regard to:

th e int erests of employers and oth er users of surveillance, including their

interest in prot ecting property and assets, com plying with laws and regulations,ensuring p rodu ctivity and providing safe and secure workplaces;

the protection of the privacy, autonomy and dignity of workers and otherindividuals;

the in teraction between State and C ommonwealth laws, and the jurisdictionallimits imposed on the Victorian Parliament;

the desirability of building on the work of other law reform bod ies.


9/144

ix

Abbreviations

ABS Australian Bureau of StatisticsACA Accident Com pen sat ion Act 1985 (Vic)

AIRC Australian Industrial Relations C om missionALR Australian Law Report sALRC Australian Law Reform C om mission

AR Ind ustrial Arbitration Reports (New South W ales)Aust T orts Reps Australian Torts ReporterAWA Australian W orkplace AgreementCh C hancery Reports (Un ited Kingdom )CJ Chief JusticeCLR C omm onwealth Law ReportsCPIRA Comm onw ealth Powers (In du strial Relations) A ct 1 996 (Vic)Cth CommonwealthEO A Equ al O pportunity Act 19 95 (Vic)

EO C Equal Opportunity CommissionEur. Comm H R European C omm ission of H um an RightsEWCA Civ England and Wales Court of Appeal Civil JurisdictionEWHC England and W ales H igh C ourtEx D Law Reports, Exchequer Division (United Kingdom)FC A Federal Court of AustraliaFLR Federal Law Reports

FMCA Federal Magistrates C ourt of AustraliaH CA H igh C ourt of AustraliaH PP H ealth Privacy PrincipleH RA H ealth Records Act 2001 (Vic)

ICCPR International Covenant on Civil and Political Rights

IC R Industrial Cases Reports (United Kingdom)ILO International Labour O fficeIP P Information Privacy PrincipleIPR In tellectual Prop erty ReportsIR Ind ustrial ReportsJ Justice (JJ plural)

LJ Lord Justice


10/144

x

Mac & G Macnaghten and Gordons Reports, Chancery (UnitedKingdom)n footnote

NPP National Privacy PrincipleNSWLR New South Wales Law ReportsNSWLRC New South Wales Law Reform CommissionNSWR New South Wales ReportsOECD O rganisation for Economic Co-operation and

DevelopmentOFPC O ffice of the Federal Privacy CommissionerOHSA O ccupational H ealth and S afety Act 1 98 5 (Vic)

OVPC O ffice of the Victorian Privacy C om missionerpara paragraphQ B Q ueens Bench Reports (Un ited Kingdom)Q d R Queensland ReportsRPC Reports of Patent Cases (United Kingdom)s section (ss plural)SD A Su rveillance D evices Act 1 99 9 (Vic)T IA T elecomm un ications (In terception) A ct 1 97 9 (Cth)

VCAT Victorian Civil and Administrative TribunalVic VictoriaVLR Victorian Law ReportsVLRC Victorian Law Reform C om missionWAIRComm W estern Australian Ind ustrial Relations C ommissionWAR Western Australian ReportsW LR Weekly Law Reports (United Kingdom)WRA W orkplace Relations Act 1 99 6 (Cth)


11/144

xi

Summary

PURPOSE OF THIS ISSUES PAPER

T he Attorn ey-General, the H onourable Rob H ulls M P, has asked the VictorianLaw Reform Commission to inquire into two major issues of public concern inrelation to privacy: workers privacy, and privacy in pu blic places. This Issues Paperint roduces the first ph ase of our inquiry, in which we focus on work ers privacy.

1

T he purp ose of th is Issues Paper is: to inform people of the scope and natu re of our inquiry;

to invite public comment; and

to provide people with the necessary background to make informedsubmissions to the inquiry.

This Issues Paper raises a series of questions which the Commission has identifiedas being important to this inquiry. The questions are identified throughout thetext and are also listed at the end of this summary. The Commission seekssubmissions which specifically address these questions, in addition to welcomingfeedback on any matter relevant to workers privacy generally.

WHAT IS PRIVACY?

Privacy is a difficult term to define. In Chapter 2 we outline an approach todefining privacy and then apply this approach to a definition of invasion ofprivacy. O ur aim is to find a way of conceiving of privacy which:

is capable of covering th e range of practices the Com mission has been asked

to consider;

provides the framework for an appropriate balance between employers andworkers interests; and

provides the framework for a legal definition of privacy.

Privacy is invariably associated with the terms autonom y and dignity. Autonomycan be defined as self-government and dignity as that human quality which

1 See th e term s of reference, page viii.


12/144

xii

distinguishes people from property; that which makes people subjects notobjects. We have taken this association to provide a minimal set of features ofprivacy. This cluster of terms then provides the basis for defining the right toprivacy as:

the right not to be turn ed into an object or statistic; that is, the right ofpeople not to be treated as if they are things; and

the right to establish and develop relationships with other human beings, inshort, the right to relationships.

This approach to defining privacy goes beyond understanding privacy asnecessarily about the privacy threshold of the individual, and sees it rather as asocial value. Protecting the social value of privacy is about protecting the capacityof people in our society to be subjects, not objects, and to h ave relationships.

It is often pointed out that in the face of competing interests, privacy almostalways loses.

2Our approach attempts to redress this imbalance by proposing that

privacy can be expressed as a right, and that this rightto p rivacy can th en form thebasis for determin ing what are legitimate interests in privacy.

Of course, the right to privacy is not an absolute right, but must be subject to

limitations. In the context of workers privacy, these limitations are formed by theemployment relationship itself, and the rights and obligations of both employersand employees. Chapter 2 includes questions about our understanding of privacyand we invite submissions that address this question of a proposed test for invasionof privacy. It also asks whether these tests provide a framework for the balancebetween workers rights to p rivacy and employers interests and obligation s.

CURRENT WORKPLACE PRACTICES

Chapter 3 includes 16 case studies which highlight a number of practices thateither are or may be used in Victorian workplaces. The range of practices coveredin these examples fits broadly into four categories: surveillance and monitoring;testing; searching; and the collection, use and disclosure of worker information.

Surveillance and m onitorin g practices includ e:

2 D avid Anderson, T he Failure of American Privacy Law in Basil M arkesinis, Protectin g Privacy, (1999),quoted in Australian Broad castin g C orpora ti on v Lenah Gam e M eats Pt y L td (2001) 63 HC A 63 [119](Gum mow and H ayne JJ).


13/144

xiii

video and audio surveillance; electronic monitoring and surveillance;

communications monitoring; and

biometric monitoring and surveillance.

T esting of workers falls into two broad categories: physical and psychological. Bot hphysical and psychological examinations are used to test the suitability ofapplicants for positions or to test whether or not workers are capable ofundertaking the jobs in which they are employed (for example, alcohol testing ofworkers who operate heavy machinery).

Searching of workers usually involves a physical examination either of workersthemselves or of their property. The capacity of new information technologies alsomeans that searches can be conducted electron ically.

Employers have access to a great deal of information about workers. Collection ofthis information includes job applications, the results of any tests given toapplicants, references from past employers and other referees, bank account detailsfor payment of wages, emergency contact details and information about workerperformance. There are good reasons for employers to have such information,

however, there is also potential for abuse of the information.

Workers, and others, may object to practices which they see as affecting theirprivacy for a range of reasons. T he C om mission is interested to receive submissionsabout wh ether these practices are objectionable or acceptable in relation to issues ofprivacy. Employers may implement the practices we describe in this chapter for arange of reasons, including protecting property and assets, complying with lawsand regulations, ensuring productivity, and providing safe and secure workplaces.We are interested to hear whether these legitimate interests of employers justifysome of the practices that people regard as privacy-invasive.

CURRENT LEGAL REMEDIES

Chapter 4 provides an overview of the existing legal framework for the protectionof workers privacy. Firstly, we provide a description of the law as it currentlyapplies to workers. There are two areas of relevant law: privacy laws, including theCommonwealth Privacy Act 1988 and the Victorian In form at ion Privacy Act 2000 and Su rveillance D evices Act 1 99 9 ; and workplace laws.


14/144

xiv

Privacy law is described using the same categories as we use in Chapter 3:surveillance, testing, search and information. Protections available vary betweenthe categories and there are significant gaps in the coverage of the law.

The most important piece of workplace law is the Commonwealth W orkplaceRelat ion s Act 1996. O ther Acts, including the Victorian O ccupational H ealth andSafety Act 1985 and the Equal Opportunity Act 1995 , however, are also relevant.T hese laws are discussed in order to show t he framework upon which regulation inthe workplace is built.

Chapter 4 includes an application of these laws to the case studies provided in

Chapter 3. It shows that in some areas the protection available to workers currentlyis very limited. The gaps that exist, under both the privacy and workplace laws,are highlighted. The chapter concludes with a brief description of possible ways offilling these gaps.

POSSIBLE APPROACHES TO PRIVACYREFORM

In C hapter 2 we suggest that the purpose of workplace privacy reform shou ld be toprotect individual autonomy and dignity and take account of the impact of

practices affecting privacy on society as a whole. Chapter 4 shows that currentprovisions for workers privacy may not be sufficient. Chapter 5 proposes broadprinciples which may be important to consider in designing reforms which meetthe objectives of Chapter 2 and fill the gaps identified in Chapter 4.

T hese principles are: to provide an appropriate balance between the interests of employers,

employees and third parties who may be affected;

to provide a minimum standard of privacy protection to all employees;

to reflect t he requirement that any privacy infringement must beproportional to any benefits gained from the infringement;

to ensure th at m easures affecting privacy are transparent to workers;

to be sufficiently flexible to take account of the diversity of workplaces andof different types of employment relationships; and

to provide certainty to employers and employees about their rights andobligations.

We are seeking comment on the appropriateness of these particular principles asthe underpinning of law reform in the area of workers privacy.


15/144


16/144

xvi


17/144

xvii

Questions

The Victorian Law Reform Commission welcomes your responses to thesequestions. We hope that this publication has been useful in providing abackground to the formulation of your answers. The Commission recognises thatnot all people will have an interest in all parts of this Paper and we encourage youto answer as many, or as few, of the questions as you choose.

CHAPTER 2: WHAT IS PRIVACY?

Defining Privacy (see paras 2.2638)

1. W e have ident ified two key aspects of the meaning of privacy as a hu manright: the right not to be treated as an object, and the right to relationships.Autonomy and d ignity are fun damental features of this right. T hisapproach to privacy focuses on the effects on both the individual and

society of breaches of privacy. Is this an appropriate approach to definingprivacy?

2. If th is approach is appropriate, how should it be developed to provide adefinition of privacy as the basis for law reform in this area? Are theredifficulties involved in making such a definition of privacy the basis of alegal definition?

3. If you do not agree with this approach, how do you th ink privacy shou ldbe defined? Is it necessary to have a definition of privacy?

4. H owever defined, should the right to privacy be an absolute right orsubject to limitations? W hat limitations do you th ink are the mostimportant?

5. H ow should the right to privacy be balanced against com peting rights orinterests?

Invasion of Privacy (see paras 2.3953)

6. T he proposed tests for invasion of privacy require those making theassessments to ask the following questions:


18/144


19/144

xix

15. Shou ld a distinction be made between surveillance and monitoring ofworkers who work within their employers facilities and those who areworking in their own hom es?

Testing (see paras 3.1214)

16. Are there any forms of testing that the Commission should investigateother than those described in the case studies in this section?

17. Does the administration of the kinds of tests described involve an invasionof workers privacy?

18. C an some of these tests nonetheless be justified?

19. If testing, or at least some forms of testing, can be justified, what safeguardsor limits should be placed on this? What issues do you believe to berelevant here?

20. Would your attitudes to testing differ depending on the employment statusof the worker (ie employee, independent cont ractor, volunteer etc)?

Search (see paras 3.1516)

21. Are there any search practices in the emp loyment context that th eCommission should investigate other than those described in the casestudies in this section?

22. D o th e case studies provide instances of invasions of workers privacy?

23. Can such invasions be justified?

24. W ould your attitudes to searches differ depending on the emp loymentstatus of the worker (ie employee, independent contractor, volunteer etc)?

Information (see paras 3.1719)

25. Are there instances of uses of workers personal inform ation that we shouldconsider in our investigation other than those described in the case studiesin this section?

26. Should the practices ident ified in the case studies be regarded asinfringements of workers privacy?

27. Are there justifications for such practices and how would you describethem?


20/144

xx

28. Would your attitudes to the practices affecting information privacy differdepending on the employment status of the worker (ie employee,independent con tractor, volu nteer etc)?

Balancing Competing Interests (see para 3.20)

29. H ave we adequately described and appreciated the competing interests thatare involved in the listed case studies?

30. D o any of the case studies describe practices to which workers should notbe able to con sent?

Concluding Questions (see para 3.21)

31. Are there practices that we have not described in this chapter, but whichyou have encoun tered in your d aily experience and which you think th eCommission should investigate?

32. D oes the general approach to privacy protection outlined in C hapter 2provide you with assistance in assessing the acceptability or otherwise of thepractices described in our case studies? (Remember here that we viewed

privacy as involving two fun dam ental aspects, nam ely dignity andautonomy, and that these aspects could be described more fully asinvolving the right n ot to be turned into an object and the right to pu rsuehuman relationships: see paras 2.1925. )

33. C ould these same practices be conducted in d ifferent ways to achieve anoutcom e less invasive of workers privacy?

CHAPTER 4: EXISTING PROTECTIONS FOR WORKPLACE PRIVACY

Gaps in Protection Offered by Privacy Laws (see paras 4.7983)

34. We have identified significant gaps in the protection offered by privacylaws. Existing surveillance legislation will rarely apply in the workplace, andoffers no protection for employees who consent to the practice. There areno statu tory provisions regarding testing itself, although p rivacy laws placesome limits on how the information derived from the tests can be used.Physical searching of workers without their consent is covered by commonlaw, but there are few restrictions on electronic searches. Workers'


21/144

xxi

information is protected to some extent, but significant exemptions andexclusions in the Act mean that this protection is limited. Do the gaps inthe privacy laws that we have identified need to be filled?

35. Are there any gaps that we have missed?

Certified Agreements (see para 4.89)

36. To our knowledge, there are relatively few certified agreements thatcontain clauses that protect worker privacy. W hy is this so?

Gaps in Protection Offered by Workplace Laws (see paras 4.10511)

37. We have identified significant gaps in the protection offered by workplacelaws. Awards cann ot con tain clauses protecting privacy. O ther indu strialinstruments (certified agreements and Australian workplace agreements)rarely include privacy-protective clauses and the provisions in the W RAitself generally only assist workers whose employment has been terminated.Do the gaps that we have identified in the workplace laws need to be filled?

38. Are there any gaps that we have missed?

39. If existing workp lace laws can be used to protect aspects of workers'privacy, such as through clauses in certified agreements and AWAs, why isit that this has not occurred?

Filling the Gaps (see paras 4.11215)

40. Are edu cation and regulation the main ways of filling th e gaps? Are thereany other ways that this could be done?

CHAPTER 5: PRINCIPLES AND POSSIBLE APPROACHES TO REFORM

Some Broad Principles (see paras 5.214)

41. W e have ident ified some broad principles that shou ld un derpin workplaceprivacy reform. These principles are: to provide an appropriate balance between the interests of employers,

employees and third parties who may be affected;

to provide a minimum standard of privacy protection to all employees;

to reflect t he requirement that any privacy infringement must be

proportional to any benefits gained from the infringement;


22/144

xxii

to ensure th at m easures affecting privacy are transparent to workers; to be sufficiently flexible to take account of the diversity of workplaces

and of different types of employment relationships; and

to provide certainty to employers and employees about their rights andobligations.

Do the proposed principles provide an appropriate basis for theprotection of workplace privacy? Are there any other principles whichshould be taken into account in considering workplace privacy reforms?

42. W hich, if any, aspects of workers privacy should be covered by min imu mstandards and shou ld not be subject to bargaining?

43. H ow should workplace privacy reforms take account of differingcircumstances existing in differing workplaces?

44. Should the same minimum privacy standards apply to all types ofemployment relationships or shou ld different standards apply to part-timeor casual emp loyees or outworkers?

Approaches to Reform ( see paras 5.1525)

45. If it is clear that new laws should be m ade to protect workers privacy, thereare two broad approaches to be considered: prohibition and regulation.Some practices should perhaps be prohibited, attracting penalties forbreach of this prohibition. Workplace privacy in general could be subjectto regulation, the th ree major approaches to which are minimu mstandards, co-regulation and best p ractice.Which of th ese approaches isappropriate for the protection of workers privacy?

46. Are there approaches more appropriate to the protection of workers

privacy that th e Commission should consider?

Enforcement Mechanisms (see paras 5.2631)

47. T here are a number of mechanisms that could be applied in enforcing aregulatory regime regarding workers privacy, including criminal penalties,civil remedies and a complaints procedure. Are there other enforcementmeasures which the Commission shou ld consider?

48. What is the most effective means of ensuring compliance with workplaceprivacy laws?


23/144

1

Chapt er 1Introduction

REASONS FOR AREFERENCE ON WORKERS PRIVACY

1.1 T he Commission has been asked by the Attorn ey-General to examine twomajor issues of public concern in relation to privacy: workers privacy and privacyin public places. In the initial phase of our inquiry, we focus on workers privacy,including examination of the surveillance of workers. During the second phase ofthe project we will investigate surveillance in public places.

3

1.2 T here is increasing evidence of public concern about privacy and itsinfringement.

4Both federal and state parliaments have introduced privacy-

protective legislation over the past two decades, and federal and state privacycommissions have been established. The introduction of such protections is, in

part, a response to the increasing capacity of new technologies to reach into areaspreviously unassailable.

1.3 T he centrality of work to peop les lives makes the issue of privacyprotection in the workplace an important one. Work provides people with morethan financial security: it is also a source of social and community life; a placewhere what one values and works for is shared with others; and a way ofcontribu ting to the comm un ity in wh ich on e lives.

1.4 T he rise of information techn ology has permitted, and perhaps impelled,radical changes to workplace organisation and workplace culture.

5These changes,

and their effects on workers, are of concern both to workers themselves and to thegeneral public. At the same time, workplace relations have changed with the

3 See th e term s of reference, page viii.

4 See O ffice of th e Federal Privacy Com missioner, Community Attitudes to Privacy, Information Paper 3(1995 ), available at (18 July 2002).

5 See Breen Creighton and Colin Fenwick, 'Australia' in R Blanp lain (ed), T he Evolving Em ploymentRelat ion ship an d the N ew Econ om y (2002).


24/144

2 Victorian Law Reform Commission Workplace Privacy: Issues Paper

introduction of the W orkplace Relations Act 1 99 6 (Cth).6

These factors all raise

questions about the best means of dealing with issues involving privacy protectionof workers. Identifying gaps in the existing statutory framework is of particularimportance.

1.5 T he purpose of the Commissions reference is to assess the impact onworkers privacy of newly emerging factors in the work context and, ultimately, toidentify the reforms required to adequately protect workers privacy in Victoria.We will not be considering issues of privacy and genetic information in thisinquiry, unless it touches directly on our reference. The Australian Law Reform

Commission (ALRC ) and the Australian H ealth Eth ics Com mittee are currentlyexamining regulatory reform in relation to human genetic information, withparticular regard to the protection of privacy, protection from discrimination andthe attainment of high ethical standards.

7

1.6 T his Issues Paper focuses on workers privacy, autonomy and dignity. O urterms of reference specifically refer to workers, and throughout the Issues Paperwe use this term. The main reason for this is that worker is a wider term thanemp loyee. O ur term s of reference requ ire us to examine not only th e privacy ofthose defined as employees, but also the privacy of volunteers, independent

contractors and outworkers, the former two not usually being considered asemployees in the law of this area. Throughout the Paper we use the term workerto describe employees as well as those others whose privacy may be infringed intheir capacity as workers.

OUR APPROACH TO THIS REFERENCE

1.7 T he reference requires us to consider both the interests of employers andthe protection of the privacy of workers. To balance these two factors, we must askwhy employers might implement some practices, and why employees might object

6 T here is now, for example, increasing emp hasis on enterp rise bargainin g, and th ere has also been areduction in the matters that can be included in awards.

7 Australian Law Reform Com mission and N ational H ealth and M edical Research Cou ncil AustralianH ealth Ethics Com mittee, Protection of H um an G enetic In formati on: Discussion Paper, D iscussion P aper 66(August 20 02). See also th e ALRC s web site for mor e information about this project: .


25/144

Introduction 3

to them. We must also ask what kinds of practices we are talking about. Thefollowing examples will help to highlight these issues.8

* EXAMPLE 1

Jason is an independent cont ractor, operating cranes for a large bu ilding

construction company. Management negotiated with all workers to institute

a new policy of drug and alcohol test ing for all employees operating heavy

vehicles and machinery. The t est ing was to be random, to be conducted solely

to detect t he presence of those substances specif ied in t he agreement , and

carried out by an independent pathology service. One morning Jason is

selected for drug and alcohol testing. His test returns positive for alcohol and

cannabis, and hi s cont ract is terminated.

* EXAMPLE 2

The board of management in a parent -run childcare centre want s to install

video cameras in each of the rooms of the cent re. The response to this

proposal by t he childcare workers in t he cent re varies. Fiona believes that the

surveillance will be used for more than just detecting illegal behaviour; she

believes her methods of care w ill be scrut inised. Conn ie is not so concerned,

and George support s the move, believing that the parents simply w ant t o

prot ect t heir children from risk.

8 T hese four examples form th e basis of four of the 16 case stud ies examined in m ore detail in C hapters 3and 4. The majority of the case studies included in this Issues Paper are not based on real cases.


26/144


* EXAMPLE 3 Boris is applying for an apprent iceship w ith a small manuf acturing

company. He is successful in the int erview, and is of fered t he job

conditional upon taking a pre-employment medical test. His results return

positive for hepatitis C. The company decides that it cannot risk employing

someone who has a drug prob lem or who may have added health ri sks

because of his hepat it is C status. The apprent iceship of fer is w it hdrawn.

* EXAMPLE 4

Marcella works f rom home f or a sof tware developing company. The company

has begun random monitoring of content of emails of all workers, including

out workers like M arcella. In the course of this moni toring, Marcellas

supervisor discovers that she is receiving and sending emails containing

explicit sexual material. All t his email t raf f ic occurs very late at night . The

supervisor w arns Marcella that any repet it ion o f this conduct w ill result in herdismissal f rom t he company.

1.8 T he purpose of th is inquiry is to examine the kind s of issues concerningworkers privacy raised in these examples, in the context of the rights andobligations of employers and employees. At one level, this inquiry is concernedwith a detailed investigation of the specific laws th at regulate the workplace inVictoria and the way in which the law deals with issues relating to workers

privacy. At a more general level, it is also necessary to have regard to the laws thatpresent ly regulate p articular aspects of privacy, such as inform ation and healthprivacy, and to consider how these laws affect the particular issues of privacyarising in the workplace. What gaps in protection are there, and how should theybe filled? Above and beyond these matters, however, it is important for theCommission to articulate what we mean by the terms privacy and invasion ofprivacy, as discussed in Chapter 2.

1.9 T here is a considerable body of literature in a nu mber of disciplines law,philosophy, sociology, psychology and othersthat deals with these questions, and


27/144

Introduction 5

the Commission h as drawn freely on t his material in formulating its own approachin Chapter 2. Our primary purpose, therefore, is to seek public comment on thisapproach, as this will then underpin the detailed investigations that we undertakeat the succeeding stages of our inquiry. H ave we got it right? In th is inqu iry themodel of privacy that we develop must be applicable in the employment context.This means that it must be capable of application alongside the statutory andcom mon law obligations and rights of employers and employees. H ave wedeveloped such a model?

1.10 In addition , we have som e detailed questions on which we seek public

submissions and information. In Chapter 3, we highlight a number of practicesaffecting privacy that we believe are happening, or may happen, within Victorianworkp laces. W e do th is th rough th e use of case stud ies. O nce again, we seek publiccomment on these matters: are there practical issues of concern which we havemissed, and have we properly appreciated the significance and impact of thosewhich we have identified? In Chapter 4, we identify the principal laws that affectboth workplace relations and the present protection of privacy in Victoria. Wethen apply the law to the case studies introduced in Chapter 3 to illustrate theeffectiveness of the law in the protection of worker privacy. We are particularly

concerned here to learn whether we have identified all that is relevant, or whetherthere are other matters to which we should have regard.

1.11 Finally, in C hapter 5 we consider the way in which reform may occur in th isarea. H aving a clearly articulated approach is one thing (see Chapter 2); put ting itinto practice is quite another, and there is a wide range of legislative and regulatoryoptions which may be used. At this point of our inquiry, we have made nodecisions on these matters. H owever, in Chapter 5 we set out the issues which webelieve to be relevant here. Your answers to the questions we raise will bepart icularly valuable as we com mence our m ore detailed research.


28/144



29/144

7

Chapt er 2What is Privacy?

INTRODUCTION

2.1 In Ch apter 1 we provided several short examp les of the kind s of privacyissues which are affecting workers. 9 Before we are able to assess whether thepractices we have described m ight constitu te privacy invasions, or wheth er th ey canbe justified in the light of employers obligations and interests, it is necessary toconsider the m eaning of privacy itself.

10

2.2 M any discussions of privacy begin with a declaration that privacy isnotoriously difficult to define.

11The term has different meanings, which also vary

in different contexts. One thing is clear, however: most people use the term in away that suggests that privacy is meaningful and valuable.

2.3 D espite the difficulties of definition , privacy does enjoy some legalprotection: it is recognised as a human right und er int ernational treaties and un derseveral constitutional bills of rights in other countries.

12In Australia, there is no

9 M ore detailed versions of these and oth er examp les appear in C hapter 3, and in Ch apter 4 the availablelegal remed ies for p ractices described in th ese scenarios are discussed.

10 For furth er discussion of approaches to definin g privacy, see th e C om missions O ccasional Paper: D efin in gPrivacy, by Kate Foord, P olicy and R esearch O fficer. C opies can be ob tained by cont acting theCo mm ission, or from our web site. You can obt ain copies of the relevant Federal legislation from the

Australian G overnm ent In fo Shop, or and the relevant Victorian legislationfrom I nform ation Victoria or from . Relevant pub lic auth orities for additionalinformation on privacy include the O ffice of the Victorian Privacy Com missioner and t he O ffice of the Federal Privacy Com missioner .

11 See, for examp le, th e discussions in Australian Law Reform C om mission, Privacy, Report N o 22 (1983),especially Part I, Elusive Privacy; Raymond Wacks, 'The Poverty of Privacy', (1980) 96 Law Q uarterly

Review 73, and Rut h G avison, 'P rivacy and th e Limits of the Law', (1980) 89 Yale Law Journal 421.

12 See later in this chap ter for a discussion of relevant int ernat ional treaties. C oun tries whose citizens haveexpress constitutional rights to privacy or bills of rights containing rights to privacy include Argentina,Belgium , Brazil, Bulgaria, C hile, Peoples Repu blic of Chin a, Czech Republic, D enm ark, Estonia, Finland,Federal Repub lic of Germ any, Greece, Repu blic of H un gary, Iceland, Israel, Italy, Japan, Latvia,

Lithuania, Luxembourg, Mexico, the Netherlands, New Zealand, Peru, the Philippines, Poland, Portugal,


30/144


legal recognition of a right to privacy. Legislatures and courts have been wary ofenshrining such a right because of the difficulty of defining privacy in general, andin particular of giving it a satisfactory legal definition. In Australia, there is nocomprehensive statutory definition of privacy. Existing legislation does not defineprivacy as a whole, but focuses on the protection of only one aspectprivacy ofpersonal information.

2.4 M any people argue that such an approach the identification anddefinition of particular interests in privacyis the best one, due to the difficultiesinvolved in defining privacy itself. We argue in this chapter that it will not be

possible for the Commission to adequately address the issues involved in workersprivacy or surveillance in public places without formulating a working definition ofprivacy itself. The task of this chapter is therefore to navigate a way through thesedifficulties to arrive at a concept of privacy that is potentially applicable in a legalor regulatory framework.

2.5 T his chapter is divided into two parts. T he first section shows why privacyis so difficult to define, and proposes a possible approach to the question ofdefinition. The second part considers how this proposed definition might be usedas the basis for a t est for determining when invasions of privacy have occurred.

DEFINING PRIVACY

2.6 W hat, then, are the difficulties involved in definin g privacy? W e can saythat privacy is always about a boundary, the crossing of which leads to a breach ofprivacy. Common sense tells us that the boundary always relates to a person andthat each individual is the judge of his or her own privacy threshold.

2.7 But a definit ion of th is kind does not take us very far, because:

the boundary is subjective, and may vary widely even within the one

culture: what is private to one person may carry no such meaning foranother;

Russian Federation, Slovak Republic, Republic of Slovenia, South Africa, Spain, Sweden, Switzerland,Taiwan, Thailand, Turkey, Ukraine, United Kingdom. The United States has the so-called penumbraright of privacy: while there is no express privacy provision in the C onstitut ion, t he Suprem e Co urt hasruled th at th ere is a limited con stitutional right of privacy based on a nu m ber of provisions in th e Bill ofRights: see Privacy Intern ational, Privacy and H um an Rights 20 00 : An Int ernational Survey of Privacy Lawsand D evelopm ent, (2000), available at .


31/144

What is Privacy? 9

the boundary varies across cultures: what is private in one culture is notnecessarily private in another;

the bound ary is fluid and contextual: what is private in a workplace, at leastfor some people, might be freely shared outside that context;

the boundary varies historically: what may be commonly regarded as privatein one era may not be in another; and

the aspect of a person to which privacy is attached is indeterminate: is therean inviolable centre of the self that could be equated with the privatedomain? Is it my feelings that are private, my mind, my relationships, a

certain physical zone around my body, or some mixture of all of these?

2.8 Some legal comm entators have respon ded to the definitional problem byarguing that privacy does not need to be defined; indeed, that it should not bedefined precisely because it is impossible to arrive at a coherent and usefuldefinition.

13

Approaches to the Problem of Privacy

DETERMINING PRIVACY RIGHTS AND PRIVACY INTERESTS

2.9 An interest can be broadly defined as a claim which receives som e form oflegal recognition.

14Some interests are underpinned by legal rights. Rights claims

15

are sometimes based on the argum ent that p rotecting certain qu alities or attributesis essential for meaningful human life. In addition, the idea of a right may be usedto justify a claim for a new form of legal protection. In this sense rights have a

13 T he most prominent exponent of this argument is Raymond W acks, who, since his imp ortan t 1980 articleT he Po verty of Privacy, above n 11, has been add ressing t he con sequences of the con ceptual problem that

privacy poses. H is later work th at deals with t his question includes Raymon d W acks,Law , M oralit y andthe Private Domain (2000).

14 Litigation works by a plaint iff bringing an action against a defend ant. In order for this action to b e heardby the cou rt, t here mu st be a category within which th at cause of action is recognised. For a plaintiff to askthe court t o recognise a complaint as a new cause of action is, accord ing to D ixon J in his remarks inV ictoria Park, to reverse the proper o rder of th ought in t he present stage of the laws developm ent:V ictoria Park Racing and Recreation G roun ds Com pany Lim ited v T aylor(1937) 58 CLR 479, 505.

15 T he distinction th e law makes between subjects, who are individual ent ities holding rights and d uties, andobjects, which are external to th e person, incapable of having rights, and defined by th e fact t hat t hey areowned, controlled or dominated by legal subjects is a distinction that is not always rigorously maintainedby the law itself: Margaret Davies and Ngaire Naffine, Are P ersons Property? Legal D ebates about Propert yand Personality (2001), 24.


32/144


symbolic value.

16

Law protects some rights, for example peoples right not to havetheir bodily integrity invaded without their consent.

2.10 Both interests and rights are formu lated in order to enu nciate and enforcesocial values. H owever, in terests are usually not seen as fundam ental to existence asa human being, so that it is not seen as wrong to allow them to be exchanged ortraded. By contrast, some rights are seen as fundamental to human existence, sothat giving them up or selling them is inconsistent with being human. Forexample, a person cannot agree to sell herself into slavery. Rights of this kind aremore powerful than interests, because they cannot be traded.

2.11 T hose who argue that privacy shou ld not be defined often argue thataspects of privacy are already recognised and protected by law, and these aspects ofprivacy then tell us what the law means by privacy itself. Raymond Wacks, forexample, argues that:

as a result of the elusiveness of a coherent legal conception of privacy, theconcept itself cannot form the basis of any right.

17

consequently, there should not be a rights-based approach to privacy, butrather an ident ification and protection ofinterests in privacy. The term

privacy cann ot simply be abandoned; it functions as the un derpinn ing ofthese interests. H owever, it is these interests which shou ld be protected,rather than privacy or the right to privacy.

2.12 A similar view has recently been expressed by G leeson C J of the H ighCourt of Australia in Australian Broadcasting Corporation v Lenah G am e M eats PtyL td. In n oting that the int erests in p rivacy have not been well defined, h is H onour

notes: The law should be more astute than in the past to identify and protectinterests of a kind which fall within the concept of privacy.

18He then argues

against creating rights in privacy itself because of the lack of theoretical or

conceptual coherence with regard to the term and its legal use: the lack ofprecision of the concept of privacy is a reason for caution in declaring a new tort

16 T his discussion of the meaning of rights and interests is necessarily limited . Th ere is a vast literatu re onth ese top ics.

17 O n th is, W acks agrees with Un ited States comm entator H ixson, who argues that a natu ral right toprivacy is simply inconceivable as a legal rightsanctioned perhaps by society but clearly not enforceableby governm ent P rivacy itself is beyond t he scope of the law. R F H ixson , Privacy in a Public Society:

H um an Rights in Con fli ct, (1987) 98, qu oted in W acks, above n 13 , 237.

18 Australian Broad casting C orporat ion v Lenah G am e M eats Pt y L td [2001] HCA 63[ 40].


33/144

What is Privacy? 11

of privacy.

19

Gleeson CJs comments raise the question: if the notion of a right ofprivacy cannot be readily defined, what does it mean to speak of interests inprivacy? H ow can th e law define and prot ect those interests without definin g theright itself?

2.13 T he question of whether there is a tort of privacy has been the subject ofdiscussion by Anglo-Australian courts for some time.

20Clearly, there are still

several unresolved questions under Australian law about privacy: should it be aright? O r shou ld it be conceived as a set of interests? In th is chapt er we explore theargum ents for bot h a rights-based and an interests-based approach. T he con clusion

we reach is that a rights-model and an interests-model are not mutually exclusive,and we argue for a concept of privacy as a set of interests underpinned by a humanright.

2.14 W e take up these questions by beginn ing with a discussion of the argum entfor privacy as a set of interests.

Privacy Interests: Information and Beyond

2.15 Raymond Wacks argues that the interest which is always at the core of anydiscussion of the right to privacy is protection against the misuse of personal,sensitive information.

21For Wacks, information remains personal regardless of

context. O ne advantage his approach offers over th ose which describe informationas private rather than personal is this: while what is private in one context maynot be in another, what is personal information will not be subject to suchvariation.

22This fits in neatly with the approach that is to be found in current

Australian privacy legislation, which deals mainly with the protection ofinform ation and does not contain any statutory right of privacy.

23

19 Austral ian Broad casting C orporat ion v Lenah G am e M eats Pty L td [2001] HC A 63 [ 41].

20 At its simplest, a tort can be defined as a breach of a du ty owed generally to on es fellow sub jects, th e dut ybeing imposed by law and not as a consequence of duties fixed by the parties themselves: M acPherson vKevin Prun ty & Associates[1983] 1 VR 573, 587 (Mu rphy J). On a tort of privacy, seeAustralian

Broad casting C orporat ion v Lenah G am e M eats Pty L td [2001] H CA 63 [185-19 1] (Kirby J).

21 W acks, above n 13, 237.

22 W acks then raises the qu estions: what is personal, and u nd er what circum stances is a matt er to be regardedas personal: ibid, 24 2.

23 See discussion in Chap ter 4 of the Privacy Act1988 (Cth), theIn form at ion Priv acy A ct2000 (Vic) and t heH ealth Records A ct2001 (Vic) .


34/144


2.16 For the pu rposes of the present inqu iry, however, the C om mission sees theinformation model of privacy as inadequate. Firstly, the terms of reference of ourinquiry ask us to consider a range of practices that extend well beyond thecollection, use, storage and disclosure of information. Secondly, and moresignificantly, defining privacy as an interest in the privacy of personal informationmakes the concept of privacy too narrow. The interests-in-privacy model, becauseit does not define privacy itself, leaves the values attached to privacy vulnerable tothe phenomenon identified in so much of the literature on privacy: that, in theface of competing interests, privacy almost always loses.

24

2.17 T he following sections of th is chapter will outline a wider conception ofprivacy, which has the potential to cover the range of practices the Commissionhas been asked to consider. There is little doubt that information privacy is anextremely important aspect of privacy. As this is the interest currently accepted asaperhaps theprivacy interest that can be protected, the focus of this chapter ison areas which information privacy does not cover.

25

2.18 O ne common way to deal with the difficulties in defining privacy is todivide the concept into a number of distinct privacy interests. At least four suchinterests are in use in much of the literature on privacy: these are bodily, territorial,

information, and communication interests.26

While these categories are clearly ofuse in providing a framework in which to discuss the types of practices that arepotentially privacy-invasive, they do not necessarily exhaust them. Moreover, the

24 D avid And erson, T he Failure of American Privacy Law, in Basil M arkesinis, above n 2, qu oted inAustral ian Broad casting C orporat ion v Lenah Gam e M eats Pty L td [2001] HC A 63 [119] (Gumm ow andH ayne JJ).

25 O n th e distinction between t wo types of privacy, see Anit a Allens discussion of restricted access privacyand decisional privacy: Anita L Allen, 'Taking Liberties: Privacy, Private Choice and Social Contract

T heory', (1987) 56 U niversity of Cincinnati L aw R eview 461.26 Victorian Law Reform C omm ission, Privacy Law: Options for Reform (2001). See also Australian Law

Refo rm Co mm ission, above n 11 , Vol 1, 2 12, where the int erests in p rivacy are sim ilarly defined. T heAustralian Law Reform C om mission (ALRC ) ident ifies the same in terests in p rivacy but also add s anumber of further possibilities. These include privacies of attention and associational privacy. The latteris ident ified by th e ALRC report as a category arising from U nited States law in th e context of th eprotection afforded by the First Amend men t, and not an approp riate category in th e Australian cont ext.T he report suggests that in ou r cont ext t his aspect of privacy comes und er the in formation category.Privacies of attention may be dealt with within the category of bodily privacy. The category of bodilyprivacy, as it is elaborated in the Victorian Law Reform Commissions publication, covers aspects of themind where the mind is invaded for specific purposes, for instance, psychological testing and honestytesting, where these are understood as possible invasions of privacy.


35/144

What is Privacy? 13

question remains: is the interests model an adequate one, or should privacy bedefined as a right? What is lost if privacy is not regarded as a right?

PRIVACYRIGHTS

Privacy, Autonomy, Dignity: Fundamental Aspects of Being Human

2.19 As we have seen, privacy is a problematic term to define in law. W heneverthere is an attempt to suggest what privacy might mean, the two terms invariablyinvoked are autonomy and dignity.

27Autonomy and dignity, in turn, are difficult

to define. They are philosophical concepts as much as legal ones, and their

meaning and use in a legal context has philosophical underpinnings.

28

2.20 Both terms were ment ioned in the recent H igh Court case, AustralianBroadcasting Corporation v Lenah G am e M eats Pty L td. In this case, the question

arose as to whether an artificial person such as a corporation like Lenah GameMeats Pty Ltd might have a right to privacy. In their decision, Gummow andH ayne JJ referred t o th e jud gment of Sedley LJ in D ou glas v H ello!

29(an English

case concerning claims by the actors Michael Douglas and Catherine Zeta-Jonesrelating to th e taking of un authorised ph otographs of their wedding), and said:

Lenah can invoke no fundamental value of personal autonomy in the sense in which

that expression was used by Sedley LJ. Lenah is endowed with legal personality only as

a consequence of the statute law providing for its incorporation. But, of necessity,

th is artificial legal person lacks the sensibilities, offence and injury to which provide a

staple value for any developing law of privacy.3 0

27 T he term s of reference of our in qu iry explicitly name auton om y and d ignity as factors to consider: see pageviii. In asking th e C om mission t o investigate this cluster of term s, the term s of reference reflect t heunderstanding of privacy that operates in legal discourse generally: that privacy always refers to andembraces these oth er two term s.

28 In Eu ropean ph ilosoph y, auto nom y and d ignity as features of hum an being have their origins in the workof Immanuel Kant. See Immanuel Kant, Groun din g for the M etaphysics of M orals, (James W . Ellingtontrans, 199 3 ed). See also C atriona M ackenzie and N atalie Stoljar (ed)Relat ion al Auton om y: Fem in istPerspectiv es on A ut onom y, A gency, and the Social Self (2000).

29 Lord Justice Sedley, in his decision in D ouglas v H ello!, recognised a right to privacy in English law on thebasis that the law can recognise privacy itself as a legal principle drawn from the fundamental value ofpersonal auton omy:D ouglas v H ello! (2000) EWC A Civ 353 [ 126].

30 Austral ian Broad casting C orporat ion v Lenah Gam e M eats Pt y L td [2001] HCA 63 [126].


36/144


2.21 In the H ello! judgment referred t o by G um mow and H ayne JJ, Sedley LJ

described autonomy as fundamentally personala quality that clearly onlyattaches to a natural person, rather than an artificial person created by statu te.

2.22 In th e same way, dignity can be conceived of as fundam entally personal orhuman.

31As Gleeson CJ remarks in L en ah G am e M eats: the foundation of much

of what is protected, where rights of privacy, as distinct from rights of property, areacknowledged, is human dignity. Dignity is the quality of human beings whichdistinguishes us from things: human beings are not things, but people; not objectsbut subjects.

32

2.23 A num ber of oth er terms are also associated with privacy, includin ganonymity, freedom, secrecy, control. Unlike autonomy and dignity, they are notnecessary terms in defining privacy, bu t arise when specific int erests in privacy are atissue.

33On the other hand, the notions of autonomy and dignity are necessary

terms in that they are fundamental to the description of the kind of human beingwe wish to protect when we seek to protect privacy. Anonymity, to take oneexample from the remaining terms, defines the interest one m ay have in not being

identifiable in certain transactions or situations, for example in expressing onespolitical views frankly.

What is Autonomy?

2.24 T he common aspect to various th eories of autonom y is th e idea of self-determination or self-government, which is taken to be the defining characteristicof free moral agents.

34T his is why autonom y is often said to mean peoples ability

to make their own choices and control th eir own destinies.35

31 See EJ Bloustein, 'Privacy as an Aspect of H um an D ignity: An Answer to Dean Pro sser', (1964) 39 N ew

York U niversity Law Review 962.

32 M an and generally any ration al being exists as an end in him self, no t m erely as a means to be arbitrarilyused by this or t hat will, but in all his actions wheth er they concern h imself or oth er rational beings, m ustbe always regarded at t he same time as an end.: Imm anuel Kant, Fun dam ental Prin ciples of the M etaphysicsof M orals (1785):full text available at: .

33 See Allen, above n 25.

34 Catr iona M ackenzie and N atalie Stoljar, 'Auton om y Refigured' , M ackenzie and Stoljar (ed), above n 28,5.

35 Alan W estin , whose work on p rivacy was enorm ously influen tial for some tim e, in fact defined privacy asthe right to control inform ation abou t on eself, a position which has since come un der sustained criticism:see, in particular, W acks, above n 13, 2 37.


37/144

What is Privacy? 15

W hat is Dignity?

2.25 T he concept of human dignity is often invoked to justify the idea thathuman beings should not be treated as if they are things, that is, that they shouldnot be commodified. The categories of person and property are, according tomodern legal orthodoxy, distinct: if one is a person, one is not property.

36Yet it is

clear that there are circumstances in which persons become property, the history ofslavery being the most notable example. Not only do we now prohibit the buyingand selling of people, but as a society we also consider that important aspects ofpeoples humanity should not be traded. For example, private sale of body partsand trade in human reproductive material is prohibited by law.

37T reating a person

or part of a person simply as an object or a thing to be traded would strip a personof his or her dignity.

Defining Privacy as a Human Right

2.26 Privacy is a hu man right under public international law. Article 17 of theInternational Covenant on Civil and Political Rights (ICC PR) ou tlines the right toprivacy in these terms:

No one shall be subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to unlawful attacks on hishonour and reputation.

Everyone has the right to the protection of the law against such interferenceor attacks.

38

2.27 Although, as mentioned earlier, Australias privacy legislation does notprovide a statutory right to privacy, our Commonwealth privacy legislationnevertheless recognises this international human rights context. The Privacy Act

1988 (Cth) gives effect to Australias obligations under Article 17 of the ICCPR,

an international covenant to which Australia is a signatory. The Act also takes

36 D avies and N affine, above n 15, 2.

37 In all jurisdictions in Australia, cont racts for the sale of or trading in h um an tissue or bo dy parts areproh ibited. In Victoria the prim ary relevant legislation is the H um an T issue A ct 1982 (Vic).

38 T he full text of the ICC PR can be found at .Article 12 of the U niversal Declaration of H um an Rights refers to privacy in almost identical terms to t heIC C PR, and Article 16 of the Con vent ion on the Rights of the C hild applies these term s specifically to th erights of children. T hese can b e found at: and respectively.


38/144


account of th e Privacy Principles of the O rganisation for Econom ic Co-operationand D evelopment (O ECD ).39

2.28 If privacy is a right, what is it a right to? As long ago as 1983, the ALRC, inits pioneering report on privacy, asked: what are other basic human rights andwhat is common to these and the right to privacy? It lists the basic human rightsthat overlap with privacy as:

the right to freedom of thou ght, conscience and religion;

the right not to be enslaved;

the right to equal treatment with oth er persons; the inherent right to life; and

the right to freedom of association and peaceful assembly.

T he report concludes that the comm on element can be described thus:

Each of these rights can be seen as an expression of the claim that each individual has

to be treated as an auton omous human person, not just as an object or as a statistic.

Violation of these rights involves, in some sense, treating a person as a thing rather

than as a person.4 0

2.29 In Europ e, interpretation of the right to privacy has also been based on thenotion of a human being as having a right not to be reduced to the status of ath ing. Th e European Commission of H um an Rights, in its first decision onprivacy, found that this right to privacy also involved rights to have relations withothers:

For numerous Anglo-Saxon and French authors, the right to respect for private life is

the right to privacy, the right to live, as far as one wishes, protected from publicity. In

the opinion of the Commission, however, the right to respect for private life does not

end there. It comprises also, to a certain degree, the right to establish and develop

39 O rganisation for Economic Co -operation and D evelopment, 'O ECD Recomm endations Concerning andG uidelines G overning t he Prot ection of Privacy and T ransborder Flows of Personal Data', (1980 ) availablefrom.

40 Australian Law Reform C omm ission, above n 11 , 13.


39/144

What is Privacy? 17

relationships with other human beings, especially in the emotional field for thedevelopment and fulfillment of ones own personality.4 1

The right of privacy articulated here, then, is the right to be a subject, not anobject. To be a subject, to be fully human, is to have relationships with others.

2.30 Applying a rights-based approach, th erefore, two distinct aspects of privacyemerge that would remain hidden in an interests-based model. These are:

the right not to be turned into an object or statistic, that is, the right ofpeople not to be treated as if they are things; and

the right to establish and develop relationships with other human beings, inshort, the right to relationships.

Framed in this way, this right to privacy recognises and encompasses the twofundamental aspects of privacy described above, namely those of autonomy anddignity.

2.31 Alth ough privacy is a right, it cannot be seen as an absolute right, that is, asa right that must be upheld in all circumstances.

42It must be balanced against

competing intereststhose of the State and its agencies as much as those of fellowcitizens and the wider community. In the specific context of work, it is necessary totake into account the interests of employersfor example, their obligations inproviding a safe workplace and in protecting others from harm, and their interestin h aving employees perform the work they are engaged to do. H owever, therecognition of privacy as a right means that its social and political value isrecognised and makes it more likely that privacy will be adequately protected.

2.32 H ow then do we protect the hum an right of privacy? W e argue suchprotection can only be attained when the right itself is defined in clear andworkable terms. That is why we have attempted to define the right of privacy itselfin this chapter.

41 X v Icelan d, (1976) 5 Eur. Com m H R 86.87, quoted in Privacy International, 'Privacy and H um anRights: An International Survey of Privacy Laws and Practice', available from (M arch 200 2).

42 T here is mu ch written o n wh ether th ere are any absolute rights: see, for examp le, Alan G ewirth, ' AreT here Any Absolute Rights?' in Jeremy W aldron (ed), T heories of Rights (1984).


40/144


Privacy as a Social Value2.33 If privacy is un derstood as a right underpinned by autonomy and dignity,the questions remain: Why, as a society, should we value this particular right? Doesits recognition and protection embody an interest that is of as much value to thecomm un ity as a whole as it is to the individual? W hy is privacy a social value?

2.34 W e have seen that privacy is to be viewed as a fundam ental aspect of beinghuman. If as a society we value the capacity of all people to enjoy this fundamentalquality, then privacy is a social value. If human beings are allowed this quality ofprivacy, then a certain kind of society is maintained and protected.

2.35 W hile privacy may be regarded as a fundamental aspect of being hu man, itis evident that it can be taken from people. Privacy is a fundamental, but notinalienable, aspect of being human. People can be deprived of the enjoyment oftheir privacy in a myriad of ways, large and small. Accordingly, if as a society wehave decided that these are aspects of human existence that we value, then the roleof the law is to protect them, and to enable them to be maintained and expressed.Privacy protection, then, should focus its efforts on cases where peoples hold onthese fundamental features of privacy is diminishing. The task of privacyprotection where privacy is a social value is therefore to protect the capacity ofpeople to m aintain this fun damental aspect of being hum an.

2.36 A distinction is often drawn between what is in the public realm and whatis private.

43By contrast, our definition of privacy emphasises the interest that

society as a whole (the public) has in the protection of privacy. Although breachesof privacy affect individuals, privacy protection does not focus solely onsafeguarding individuals from invasive activity. Under this model, privacy is notthe property of the individual whose privacy may be at stake. As MargaretO tlowski poin ts out , defining privacy in terms of individual rights overlooks the

social importance of privacy. Consideration must be given to the cumulative effectof the invasion of an individuals personal sphere and the impact that this has onsociety as a whole.

44This way of defining privacy and its importance means that

issues of workers privacy are concerned with more than balancing the interests ofemployers and the privacy rights of employees.

43 See, for example, Morto n J H orwitz, 'T he H istory of the Public/Private D istinction ', (1982 ) 130U niv ersity of Pennsylvania Law Review 1423.

44 M argaret O tlowski,Im pli cation s of G eneti c T esti ng for Australian Em ploym ent Law an d Pract ice (2001) 45.


41/144

What is Privacy? 19

2.37 O n this view, privacy protection involves more than the individuals rightto privacy and the individuals choice in how that privacy is to be valued. It isconcerned with the pub lic realm because it is about the protection of a certain kindof human being, whose core features are autonomy and dignity. This is not anindividual divorced from all connection with others, who can cede rights accordingto h is or her own interests; it is rather the hu man subject, fundam entally produ cedby and connected to society, or the particular form of social organisation withinwhich he or she goes about pursuing particular interests. The right of anyindividual to give up his or her privacy in return for an interest more valuable tothat individual is brought into question by such a conception of privacy.

45This is

an argument for privacy as a social interest, and this social interest is as muchabout the protection of a private sphere as it as about protection of relations withothers.

PRIVACY: A WORKING DEFINITION?

2.38 In sum mary, then, privacy always includes and refers to autonom y anddignity. This means that the protection of privacy will always encompass thefollowing rights:

not to be turned into an object or thing, that is, not to be treated asanything other than an autonomous human being; and

not to be deprived of the capacity to form and develop relationships.

This right of privacy is aimed not just at the protection of the individuals privacy,but at protecting privacy as a social value.

45 T his idea, that p rivacy rights may not be cedable, is reflected in G eneral Principle 5.13 of the In ternationalLabour O ffice C ode of Practice, Protection of W orkers Personal D ata , th at workers may not waive theirprivacy rights: Int ernational Labour O ffice (1997) Protection of W orkers Personal D ata: An IL O C ode ofPractice.


42/144


? QUESTIONS

1. We have ident if ied tw o key aspects of t he meaning of p rivacy as a human

right : the right not to be treated as an object , and the right to relationships.

Aut onomy and dignit y are fundamental features of this right . This approach

to privacy focuses on the effects on both the individual and society of

breaches of privacy. Is this an appropriate approach to defining privacy?

2. If th is approach is appropr iate, how should it be developed to provide a

defin it ion of privacy as the basis for law reform in this area? Are t heredif f icult ies involved in making such a def init ion of privacy the basis of a legal

definition?

3. If you do not agree with this approach, how do you th ink privacy should be

def ined? Is it necessary to have a definit ion of pr ivacy?

4. However defined, should the right to privacy be an absolut e righ t or subject

to limitat ions? What limit ations do you t hink are the most important?

5. How should the right to pr ivacy be balanced against compet ing rights or

interests?

INVASION OF PRIVACY

2.39 G iven the working definition of privacy outlined above, how are we toassess what constitutes an invasion of privacy?

2.40 At the out set of th is chapter, we noted that the bound ary for privacyinvasion is subjective, cultural, contextual, historical and indeterminate. TheALRCs 1983 report on privacy makes the breadth of these differences betweenpeoples privacy thresholds clear:

Some people hate to receive junk mail. O thers delight in receiving it. Indeed, it is

for them a valued contact with the outside world. Some people wish their details to

remain strictly private and are stron gly against use of these details even by medical

researchers. O thers welcome such use. Some will even sell their abnormal medical


43/144

What is Privacy? 21

histories, or those of members of their family, to the mass media, for publication to thecomm unity at large.4 6

2.41 G iven these extreme differences amon gst people, what are the tests thatmight apply for invasion of privacy, and what assumptions should underpin anysuch test?

Test for Invasion of Privacy on the Individual Model

2.42 In his decision in L enah G am e M eat s, Gleeson CJ outlines a possible test ofinvasion of privacy based on reasonableness:

Certain kinds of information about a person, such as information relating to health,

personal relationships, or finances, may be easy to ident ify as private; as may certain

kinds of activity, which a reasonable person, applying contemporary standards of

morals and behaviour, would understand to be m eant to be unobserved. Th e

requirement that d isclosure or observation of information or conduct would be highly

offensive to a reasonable person of ordinary sensibilities is in many circumstances a

useful practical test of what is private.4 7

2.43 T he test of reasonableness requires a value judgment. This value

judgement is u sually based on what the average person would regard as reason able.Who might this average person be? The concept of the ordinary person hascaused much difficulty in areas such as the criminal law.

48The reason is clear:

despite its apparent neutrality, the ordinary person test is always infused withideas about gender, race, sexuality and class. This severely limits its capacity as abenchmark for assessing invasions of privacy.

Marginal categories of people are unlikely to have their views and interestsconsidered. This model tends to represent the values and views of thedominant group, and therefore better serves the interests of white males

than it does white females, or Indigenous males or females, or members of

46 Australian Law Reform Com mission, above n 11, 11.

47 Australian Broad casting C orporat ion v Lenah G am e M eats Pt y L td [2001] HCA 63 [42].

48 In part ial excuses to homicide, for examp le, what constitut es reasonable groun ds for killing may bedifferent for men and women. See Adrian H owe, 'Reforming Provocation (M ore or Less)', (19 99) 12 T he

Australian Fem in ist Law Journal 127; and Jenn y Morgan, 'C ritique and Com ment: Provocation Law andFacts: Dead W omen T ell N o T ales, T ales Are Told About T hem', (1997) 2 1 M elbou rne U n iv ersit y L aw

Review 237.


44/144


other minority religious, ethnic or cultural groups.

49

This poses a significantproblem in privacy protection, because it is clear in some areas that it isprecisely the people who least fit th e ordinary person category who aremost at risk from privacy invasion. For example, in many situations beingasked to reveal ones sexual orientation where that orientation ishomosexual is potent ially more invasive of a persons privacy than beingasked to reveal sexual orientation where th at orientation is heterosexual.

The test of reasonableness is difficult to maintain in a multicultural society,for instance, as privacy is valued differently across cultures, and what is

reasonably private to the ordinary person in one culture may not be inanother.

2.44 T his suggests that a test of invasion of privacy based on the reasonablenessof the invasion t o th e ordinary person is, on its own, inadequate.

2.45 An additional difficulty with the reasonableness test as outlined by G leesonCJ is that it relies on the particular practice causing offence to the individualconcerned. The problem with using such a criterion is that there are privacyinvasions in which there may be no offence caused at all to the individualconcerned: such may be the case, for example, in surveillance.

In overt surveillance, if the individual has been inform ed of the surveillanceand is not offended by this technique, then the qu estion of whether overtsurveillance is a legitimate practice is foreclosed using Gleeson CJs test.

Similarly, where there is covert surveillance of an individual or group , th eremay be no offence caused to the people concerned: consent may not havebeen obtained and people may never discover that surveillance had been inplace and therefore may also never know how the information obtainedthrough that surveillance was used. T he exclusive focus on the individual in

these situations creates the danger that the social effect of the practice willbe overlooked.

2.46 In summ ary, it seems to be impossible to reach a coherent definition ofinvasion of privacy that is based on the privacy needs and thresholds of

49 In 1 998 t he O ffice of the Federal Privacy C omm issioner collaborated with Social Justice C omm issionerMick Dodson to produce a protocol for application of the Federal Privacy Act 1988 to N orthern T erritoryAboriginal comm un ities: see O ffice of th e Federal Privacy Com missioner,M in din g Y our O w n Business:Privacy Protocol for C omm onw ealth Agencies in t he N orthern T erritory H and ling Personal In formati on of

Aboriginal an d T orres Strai t Islan der People (1998).


45/144

What is Privacy? 23

hypothetical individuals. Such matters may be taken into account, but should notbe the principal focus of any test of invasion of privacy if the definitions outlinedin the first section of this chapter are used.

Test for Invasion of Privacy on the Social Model

2.47 W e have seen that we cannot equate privacy with the private sphere:privacy concerns are not limited to what happens in areas of life deemed to beprivate, such as the home. This is nowhere clearer than when considering workersprivacy. The working definition of privacy that we have outlined is based on the

recognition that privacy protection is also concerned with the public sphere and isaimed in p art at p rotecting the capacity of society to sustain and prom ote a certainkind of human being and therefore a certain kind of society. Considerations ofwhat constitutes an invasion of privacy must therefore be concerned with ensuringthat this public sphere is protected.

2.48 W e have argued in this chapter that reliance on an int erests-based mod el ofdefining privacy is an insufficient basis for effective privacy protection. Theseinterests must be underpinn ed by a right to privacy in order:

to ensure that the interests themselves can be adequately protected; and

to identify aspects of privacy that do not emerge in an interests-onlydefinition.

2.49 If we accept these argum ents, and accept therefore that the right to privacyencompasses the right n ot to be reduced to an object and the right to relationships,then a test of invasion of privacy would be an assessment of the extent to whichany particular law or practice has the effect of depriving people generally of thesecapacities.

50

2.50 Such a test would not mean that the individual's right to privacy isabsolutely preserved, but rather that this human right, the right to privacy, isregarded as central in formulating principles and methods of privacy protection. Inprotecting this right to privacy, we would need to ask the following questions.

50 In h is discussion of th e major privacy cases in the U nited States, Rubenfeld argues that T he distinguishingfeature of th e laws struck d own b y the p rivacy cases has been th eir profound capacity to d irect an d t ooccupy individuals lives through their affirmative consequences. This affirmative power in the law, lying

just belo w it s in ter dictive surface, must be privacy' s focal po in t. : Jeb R ub enfeld, 'T he Right of Pr ivacy',(1989) 102 H arv ard Law Revi ew 737, 8012.


46/144


Does this practice reduce that subject to an object? D oes th is practice impede th e formation and maintenance of relationships?

If so, how does it do so?

W hat is the context in which the practice occurs, and what are thejustifications for the pract ice in that con text?

2.51 C onsideration of these questions may lead to the acceptance of a test ofreasonableness. This would be based on a set of criteria developed from theseaspects of the right to privacy, taking account of the need to balance that rightagainst competing in terests.

The Importance of Considering Context

2.52 T he same practice occurring in two different contexts may be regarded asprivacy-invasive in one context, and not so in the other. For example, thecompulsory administration of drug testing may be regarded as legitimate if theperson subject to that test is a bus driver on country roads; drug testing may beviewed m uch less favourably if com pulsorily adm inistered to office workers inorder to t est the use of recreational drugs outside office hours.

2.53 T here are many factors that make up any one context. In the employment

relationship, the context is formed by the interests of employers and the rights ofworkers, and the necessity of balancing th ese factors.


47/144

What is Privacy? 25

? QUESTIONS

6. The proposed tests for invasion of pr ivacy require those making the

assessments to ask the following questions:

Does this practice reduce anyone subject to it to an ob ject?

Does the practice impede the fo rmat ion or maint enance of relationships?

What is the cont ext in w hich t he pract ice occurs, and what are thejust if icat ions for it in that context?

Are these usefu l t ests for assessing whether a part icular w orkplace

practice is an invasion of pr ivacy?

7. Do the proposed tests provide an appropr iate f ramework for balancing the

interests of employers and employees? If so, why? If not, why not?

8. Does our working defini t ion of privacy and of the test of invasion of privacyprovide the basis for protecting the privacy of all people, especially marginal

groups such as those we have discussed in this chapter? If so, how does it?

If it does not , why not?

9. Should people be able to waive or t rade their right to privacy? If so, how

would this abilit y to waive or t rade privacy aff ect the privacy right s of

marginal groups?

CONCLUSION

2.54 In th is chapter, we have outlined a definit ion of privacy that involvesinterests and rights. We argue that the right to privacy can be defined with asmuch precision as the other human rights that we recognise as a result ofAustralias international obligations. This right to privacy forms the basis of a testof invasion of privacy, a test based on the extent to which the laws and practices weidentify as potentially privacy-invasive do indeed strip people of the right toprivacy as we have defined it.


48/144


2.55 C learly, in making recommendations, the C ommission will need to takeaccount of the effect of the recognition of a right to privacy on the balancing ofemployers and employees rights and interests in the employment context. We askyou to consider, while reading th e following chapters, how this approach m ight beapplied in the context of Victorian workplaces.

7/30/201

issues paper final

Documents