An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of Australian Privacy Law

[Recent years have seen significant developments in the protection of privacy at general law in common law jurisdictions, including the United Kingdom and New Zealand. Although the general law protection of privacy in Australia is uncertain, there has been a proliferation of information privacy laws at both federal and state levels. This article contends that the future development of privacy law in Australia should be based upon a rigorous analysis of the complex concept of privacy. As a first step in this analysis, the article reviews the main approaches that have been taken to the concept of privacy, distinguishing deontological from consequentialist approaches. The article claims that these two approaches are related, in general terms, to the two main Western legal approaches to privacy protection: the European ‘rights-based’ and the American ‘market-based’ approaches. Drawing upon Foucauldian analysis, the article claims that privacy law can be understood within the context of ongoing social processes of normalisation and rationalisation. As such, our understanding of privacy law can be assisted by relating it to an important Western political tradition — including thinkers such as Weber, Heidegger, Foucault and Habermas — that is ambivalent about market-based and bureaucratic rationalisation. Assuming this to be the case, both ‘rights-based’ and ‘market-based’ approaches can be seen as reinforcing social rationalisation. Within an overwhelmingly consequentialist society such as Australia, however, a ‘rights-based’ approach to privacy law may be preferred as a way of resisting global pressures for social rationalisation, and as a form of protection for pluralistic social identities.]