Transparency and Proportionality: A Two-Step Approach to Assessing Fairness in the Privacy Act

This article explores the fair collection of personal information under the Privacy Act 1988 (Cth) (‘Privacy Act’). It outlines how fairness is typically assessed under the legislation in terms of transparency and argues that in a big data and digitally driven world, there is a need to consider fairness in greater detail. The limits of the traditional focus on transparency are explored through case examples. The challenges of the digital landscape are summarised. As the Privacy Act is about a balancing of interests, the article proposes that proportionality could be a helpful additional test for considering the individual’s privacy related interests in the assessment of fairness — a concept which may become more pervasive in the Privacy Act in line with proposals in the Attorney-General’s current Privacy Act Review. Drawing upon European approaches, the article proposes a two-step method for Australia; the first step being transparency and the second step being proportionality. The proportionality test is developed based on structured proportionality in constitutional law and human rights legislation.