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|Title:||A Primer in the Politics of Privacy and Research|
Open access movement
Privacy and e-Research
|Publisher:||Sydney University Press|
|Citation:||Fitzgerald, Brian, ed. Legal Framework for E-Research: Realising the Potential. Sydney: Sydney University Press, 2008.|
|Abstract:||Privacy legislation in Australia is experiencing interesting times. The Australian Law Reform Commission (ALRC) has published its Discussion Paper on its Review of Australian Privacy Law dealing with the potential amendment of the Commonwealth Privacy Act.2 The ALRC review is the third review of the Act in the past three years, with additional reviews being performed by the Australian Office of the Privacy Commissioner (OPC).3 In short, this is an area where considerable developments are being proposed and considered. The Discussion Paper recommends significant changes both to the structure of Australian privacy legislation4 and to the substantive obligations. Recommended changes to substantive obligations will impact research by imposing obligations regarding the privacy of deceased persons5 and third parties whose information was not solicited,6 and by imposing an obligation to ensure that the personal information they collect is relevant to the purpose for which it is collected.7 These developments should be taken seriously. Some researchers consider that the Privacy Act presents a significant obstacle in the conduct of research.8 There is no doubt that, compared to untrammelled rights of access, the Privacy Act has resulted in higher research costs, lost opportunities, less effective research and sub-optimal quality of data. However, privacy legislation has the potential to be even more burdensome than it is, or even to prevent research from occurring. It is in researchers’ bests interests to understand how that might occur. These developments are important not just because they might have a chilling effect on research, but because they show that community acceptance of research – and researcher’s need to use personal information to obtain significant results - cannot be taken for granted. The purpose of this chapter is to consider the political and legal landscape that surrounds privacy legislation and to argue that without a commitment by researchers to engage with the Australian society, privacy legislation will remain subject to change in this way. The chapter will commence by conducting a brief tour of the politics of rights. Privacy legislation was enacted to meet a perceived need, and that perception is more important than the reality. The chapter will then examine how research takes place in accordance with privacy legislation. It is argued that, although research may occur without obtaining the consent of subjects, the exceptions are both less available than they are perceived to be, and do not advance the cause of research generally. Ultimately, however, the framework of privacy law itself provides researchers with significant opportunities to influence the regulatory environment within which they must operate. This can be done in a simple way: by adopting the rule-of-thumb that wherever consent can be obtained, it should be obtained.|
|Rights and Permissions:||Copyright Sydney University Press|
|Type of Work:||Book chapter|
|Appears in Collections:||Legal Framework for E-Research: Realising the Potential|
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