2016 Volume 21 Issue 1

Abstract

Data protection laws in both Australia and Europe will be inadequate to adapt to growing big data practices in which personal data is constantly collected, processed and stored indefinitely. Further, the user-centred nature of Web 2.0 undermines the control individuals have over their personal data. This increased lack of control over how and when data is collected and used is antithetical to a well-functioning democratic system, which relies on the protection of personal autonomy. Europe has proposed a ‘right to erasure (“the right to be forgotten”)’ in an attempt to restore control to users over their personal data. Much of the extant literature paints the right to erasure in broad strokes as a bold, even reckless, legal innovation. This paper challenges that characterisation by applying a pragmatic approach to conceptualising the right. Through an analysis of its origins and underlying rationale, this paper provides a clearer picture of how the right operates in the present socio-technological context. It will argue that a legal rights-based solution is the best option for a strong but adaptable data protection framework. From a pragmatic perspective, all legal reform should strive to balance being bold with being cautious. The right to erasure correctly strikes this balance.

Abstract

In 2014, WikiLeaks published a ‘leaked’ court suppression order made by Hollingworth J of the Supreme Court of Victoria. The order prohibited the naming of 17 high profile foreign public officials in relation to allegations of corruption. The widespread publication by WikiLeaks had the effect of rendering the order futile and, as a result, was subsequently revoked by Hollingworth J in DPP (Cth) v Brady [2015] VSC 246 (16 June 2015). This is the first decision in Australia where a court has revoked an order where it has become futile following a breach online. This article considers three issues that arise from the order at issue and Hollingworth J’s decision to revoke it. First, the article considers the scope of the order and responds to false allegations by WikiLeaks and the mainstream media that the order was extremely broad — a ‘super-injunction’ or ‘blanket ban’. Second, the article considers the purpose of the order. Controversially, the purpose of the order was to protect Australia’s international relations and was made under the recently introduced Open Courts Act 2013 (Vic) on the legal grounds of preventing prejudice to national security and the administration of justice. The article examines whether an order can be made for such an unusual purpose and on such grounds. Third, the article examines Hollingworth J’s decision to revoke the order following its breach and considers whether her Honour could have maintained the order to prevent the possible encouragement of future breaches and to reinforce the authority of the judiciary in granting effective suppression orders.

Abstract

This paper considers the secrecy and disclosure provisions of the Australian Border Force Act 2015 (Cth) (‘ABF Act’) for the purpose of determining the impacts that the provisions have on the free speech of detention centre workers. The provisions prima facie impact considerably on the ability of detention centre workers to speak about the conditions in Nauru and Manus Island. However, Government officials defend the provisions by stating that the Public Interest Disclosure Act 2013 (Cth) (‘PID Act’) applies. This paper will therefore consider the relationship between the ABF Act and the PID Act to determine whether the latter indeed alleviates concerns regarding the restriction of free speech caused by the former Act. This paper will then consider the right of free speech in Australia and the underlying rationales for free speech. Using the ABF Act as a case study, this paper will argue that the implied freedom of political communication does not support the underlying rationales for free speech. Nevertheless, this paper will suggest an amendment to the ABF Act that appreciates these rationales whilst also respecting the Government’s concerns about protecting sensitive information.