The public’s concept of privacy is “clunky, old fashioned … and needs to be renovated and brought into the 21st century”, according to the nation’s former chief law bureaucrat.
Roger Wilkins, whose tenure as secretary of the Attorney-General’s Department ended on Sunday, told The Mandarin that “the idea that none of your private information will get out to anyone else is madness. Of course it does.”
He says there is already so much private information about individuals available that it would be impossible to “keep trying to hold back that tide of information, it’s just unrealistic.”
Wilkins instead suggests legislative conceptions of privacy should focus on damage.
“What we need to focus on is a different paradigm … not so much whether you’ve consented to your private information being made available to someone else, but rather whether … they’ve done something to damage you.
“In other words, we should use not a contractual concept, or consent concept of privacy, but rather a damage, or tort, concept of privacy.
“If somebody gets information about you, and does something horrible to you, or interferes with your bank accounts, that causes you egregious damage … you should be able to do something about it. But if they happen to have information and they’re not doing any harm, I think we’ve just got to get a little bit more resilient and robust and get used to the idea that people in all sorts of areas have this information.”“I think we’ve just got to get a little bit more resilient and robust and get used to the idea that people in all sorts of areas have this information.”
Wilkins says he’s not only talking about intelligence agencies, but organisations like the RSPCA, banks, local councils, or even staff at the local book shop.
Without public acceptance that private details will not necessarily remain completely hidden, governments will struggle to provide “decent” services, particularly over the internet, he adds.
The Australian Law Reform Commission released a report on Wednesday recommending the government introduce the ability to sue over physically intruding on an individuals’s space “by watching, listening to or recording the plaintiff’s private activities or private affairs” or “misuse of private information”.
The report suggests there be a public interest test included, such as for freedom of political expression, freedom of the press, open justice or public health and safety. The invasion must also be serious and committed “intentionally or recklessly”.
Wilkins says that while he thought the report was useful, he’s not convinced of the need to create a new cause of action, and would argue for allowing the current tort law to operate and develop.
The Mandarin‘s full interview with Roger Wilkins will be published next week.