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Yielding and wielding personal information



Privacy is a complicated business. It lies at the heart of the individual's capacity for self-realisation and forms the boundary between state and citizen. Privacy is, in fact, only a recent phenomenon.

Man's silhouette in windowHistorically, our lives have been played out for all to see. Families slept together and there was little opportunity to escape for intimate moments alone. Similarly, public opinion, whether within a large household or a community, had the effect of keeping everyone in line — much as social media might do today.

Privacy though is likely to become — if it is not already — something for citizens who are rich and powerful. Something that we can purchase if we have sufficient wealth. Those without enough wealth will be left exposed through both state and corporate surveillance. Meanwhile, I wonder if there is an 'underclass' without the (theoretical) choice of privacy at all.


The case for yielding (some) privacy

I once knew of a boy whose birth was not registered. His parents believed this would free him from the strictures of the state. His life, they said, would be truly private and therefore free. This is an extreme example of an attempt to enforce a strict boundary between the individual and the state. But it would leave this boy without the trappings of citizenship that we take for granted.

In Proof of Birth, Melissa Castan and Paula Gerber have brought together a body of research on the effects of failing to have a birth certificate. The book focuses on Indigenous Australians, but its message is clear for all — birth registration is a human right and is a prerequisite for participatory citizenship.

We need to give up a bit of privacy in the interests of qualifying for a drivers licence, for a job (through a tax file number), for a bank account, to vote, and so on. To gain these benefits, it is a reality that once we are 'in the system' our details are available to the state and we lose a little privacy.


"Asylum seekers simultaneously need privacy from their home state as an incidence of their protection, and publicity in Australia as to their plight."


Without birth registration a person is not in a position to negotiate their privacy at all. They are beyond the reach of the benefits of citizenship, although not beyond bearing the cost of their exclusion. As I have written here before, Aboriginal people without birth certificates cannot get a driver's licence. Those who need transport to cover vast distances in remote areas and who drive unlicensed face incarceration if they cannot pay the fines that accrue. Birth registration takes on new resonance in these circumstances — and the ideas of privacy, and disclosure to government, seem in balance.


Where the state wields privacy as a sword

Asylum seekers are disadvantaged likewise because they cannot negotiate their privacy — albeit in a different way from those whose birth is not registered. Asylum seekers simultaneously need privacy from their home state as an incidence of their protection, and publicity in Australia as to their plight in the hands of the Australian government and its agents.

As with all who face questions of disclosure versus privacy, for asylum seekers this is a delicate balancing act. Personal, or intimate, information is rightfully to be within the authority of the individual to disclose or withhold. At the same time, as vulnerable people under the direct care of the Australian state and its agents it falls upon the state to protect their privacy.

The state has however wielded this responsibility as a means of concealing the experiences of asylum seekers — including as victims of alleged crimes. It has imposed constraints on those working in detention centres, making whistleblowing an offence unless disclosure is necessary to prevent or lessen a serious risk to an individual. Government refuses to confirm or deny many allegations of mistreatment or other adverse incidents involving asylum seekers — invoking the privacy of those under its care as the reason.

Airing the conditions in detention centres is an important aspect of justice for refugees — but personal and private information must be dealt with appropriately and certainly not without the informed consent of the relevant individual. In contrast to the general lack of disclosure by the Australian government, the government of Nauru last year issued a press release revealing one woman's allegations of rape. It detailed the victim's allegations including describing her genitals, cast doubt on the veracity of her claim, and ultimately put all women at risk.

Privacy is part of the relationship between the citizen — and even the non-citizen — and the State. Giving up some of our private information inducts us into the benefits of citizenship. This is a question of balance. However the balance will be called into question where government fails to bring people effectively into this 'bargain', such as occurs through omission for many Aboriginal and Torres Strait Islander Australians. The balance is also affected where government wields privacy like a sword, invoking its duty but only to serve its own self-interest.


Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Main image: David Melchor Diaz, Flickr CC

Topic tags: Kate Galloway, privacy, asylum seekers, Indigenous Australians



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Existing comments

There's private and then there's private. It is necessary for us to reveal our date of birth and other details to the State. It allows us certain privileges and challenges us to be law-abiding citizens. Then, there is information sitting in a grey zone. In friendships it is the death-knell of the friendship to intrude on personal privacy where that intrusion is not actively sought, or information is shared with others. It's called trust. And we need to wield it a bit more, it brings out the best in people.

Pam | 05 July 2016  

The vigorous and supposed "defenders of privacy" are, I've found, the ones with something to hide...when the veneer behind the message is removed??

Patrick | 06 July 2016  

Certain things such as being conscripted to go to war, obtaining a drivers licence, being allowed to vote and eligibility for some social service benefits are defined according to the age of 18 years. I was surprised to read that Aboriginal people who do not have a birth certificate attesting to their age can't get a drivers licence and presumably many other benefits dependent on age.. A simple plain X-ray of the bones of the arm or leg is very accurate in determining age above 18 years depending on the appearance and fusion of the growing plates of the long bones. Demanding a birth certificate would seem to be un-necessary in some circumstances. Perhaps the responsible government agencies should be encouraged to review the current laws.

john frawley | 06 July 2016  

Yes, a good thing to write about. There have been times when I've heard politicians, being interviewed, use that excuse of privacy to avoid discussing some unfortunate refugee who desperately wanted to be discussed in public. Another similar excuse, not a word but a phrase this time, is 'territorial integrity', to avoid saying anything about, for example, an oppressed minority in some country who want the world to hear of their plight. Such as the unfortunate West Papuans, neighbours of ours who have suffered under repressive military occupation ever since their representatives voted at gunpoint to be part of Indonesia.

Gavan Breen | 06 July 2016  

In the State of Western Australia over thirty years from 1986 there are roundly 4,500 children for whom there is no birth certificate. These are children in the Indigenous community. A simple solution is for the clinic nurse to assist with the paperwork for application for a birth certificate. Those people with literacy issues need someone to advocate for them. In all of these incidences cost of $47 for the certificate was prohibitive. Initially the fee could be waived by the Government, later to be repaid by a 50 cent weekly deduction from welfare payments. The rights of the child should have precedent. It is hard to believe that in 2016 children are not registered at birth. The typical parent is young, around 16 years of age. Hopefully the situation can be rectified in the interests of the individual's future life.

Ann Larson | 07 July 2016  

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