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

<p dir="ltr">This article explores the fair collection of personal information under the <i>Privacy Act</i><i> </i><i>1988</i> (Cth) (‘<i>Privacy Act</i>’). 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 <i>Privacy Act</i> 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 <i>Privacy Act</i> 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.</p>