76089 Privacy and Surveillance Law
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): 70616 Australian Constitutional Law
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 78248 Privacy and Surveillance: Law and Policy AND 78249 Privacy and Surveillance: Law and Policy
Description
Issues concerning privacy and surveillance are attracting increasing attention in contemporary public debate, fuelled by the emergence of new technologies. These issues are multifaceted, controversial and challenging.
This subject explores key legal questions relating to the invasion of personal privacy, data protection and retention, and the surveillance of personal conversations, activities and location. It also tackles emerging issues and challenges prompted by new technologies, including online privacy protection and the right to be forgotten. This necessitates travelling through disrupted legal terrain, formed by a complex mix of common law and statute, federal as well as state/territory laws. Students also engage with a range of perspectives, ideas and interests, and deepen their understanding of key privacy and surveillance law issues by interrogating the wider theoretical, constitutional, policy and international contexts.
Students develop communication skills as they construct and communicate coherent and reasoned views and arguments to support their critical evaluation of privacy and surveillance law, and its operation, as well as articulate informed recommendations for reform.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Examine, evaluate and explain key privacy and surveillance laws, related principles and concepts and the broader theoretical, constitutional, policy and international contexts informing the regulation of privacy and surveillance. |
|---|---|
| 2. | Identify, analyse and apply relevant privacy and surveillance laws and generate solutions to contemporary privacy and surveillance legal problems. |
| 3. | Critically analyse and evaluate a range of perspectives and opinions relating to the issues and challenges of regulating privacy and surveillance prompted in particular by new technologies. |
| 4. | Construct clear, succinct, reasoned, justifiable and persuasive legal and scholarly analyses and arguments referencing where appropriate using the Faculty’s preferred style (AGLC3). |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Collaboration
Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
a. An ability to give and receive feedback;
b. Appropriate professional and interpersonal skills in working collaboratively;
c. A capacity to develop strategies to successfully negotiate group challenges; and
d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)
Teaching and learning strategies
Strategy 1: Student preparation and blended learning
Students engage in independent study to develop, deepen and consolidate knowledge and understanding of relevant issues (see Strategy 2 below). Students read and engage with media and other sources to enable active participation and learning in lectures. To assist preparation, students can ask questions on Canvas and receive guidance from their peers and/or the teacher. This blending of offline and online preparation and learning enhances students’ participation in class discussions and promotes further learning.
Students are provided with a Learning Guide, which contains:
- Preparation Activities, to be completed during Week 1;
- Seminar Papers, indicating what to read/view/listen to (including links to materials available in the Library’s Digital Resources Register (DRR) and information for locating other materials), discussion questions, suggested further readings and other materials;
- Lecture Preparation Materials, indicating what to read/view/listen to (including links to materials available in the Library’s DRR and information for locating other materials) discussion questions and other activities;
- Detailed information about Seminar Participation Activities, such as class debates, mini-moots, facilitating seminars, giving a 100-seconds alert;
- Seminar Participation Self-Evaluation and Feedback Sheets;
The Learning Guide is available from the Subject Documents folder on Canvas.
Strategy 2: Participation in lectures and seminars
Lectures introduce topics and assist students to navigate the complexities of privacy and surveillance law and policy. Students participate in lectures by seeking clarification on complex legal concepts and by discussing selected contemporary issues that place the law in context.
Seminar participation provides a key learning experience in this subject. Students engage in-depth critical analysis and evaluation of selected issues, test ideas and arguments, keep up-to-date with developments in privacy and surveillance law, and develop oral communication and collaborative skills. Each seminar consists of two components. The first is a brief discussion of ‘what’s happening in the media’, prompted by students giving ‘100-second alerts’ of recent developments in privacy and surveillance law. The second, component is an in-depth discussion of a set topic students have prepared before class. The discussion will be run in a variety of ways including small group discussions, whole class discussions, class debates and mini-moots.
Seminars are discussion-focused, requiring full student participation and collaboration, and will not be run as passive lectures. Consequently, the more students contribute by way of informed participation and collaboration, the more they will benefit in terms of learning. In order to facilitate discussion and maximize participation and collaboration in seminars, the class will be divided into two groups for most seminars, and each group will be allocated specific materials and questions to prepare relating to the seminar topic. Students will be allocated to groups for this purpose in Week 1.
Strategy 3: Interactive Workshops
Two Assignment Readiness Workshops (each of 30 minutes duration) will be held during the session to engage students in a range of readiness activities specifically designed to promote successful completion of the assignments. The first will be held in Week 3 in which students will explore the graduate attributes targeted, analyse relevant legal writing genres, and refresh/develop legal referencing skills. The second will be held in Week 9 and will involve students reflecting on feedback received for Assignment 1 and developing strategies to improve for Assignment 2. Students will also be expected to prepare a work plan for assignment completion for both workshops.
Strategy 4: Feedback
Feedback is integral to enhancing learning because it not only indicates ‘what’ needs improving but ‘how’ improvement may be achieved. In addition, feedback can come in different forms from different sources. It is not limited to the mark students receive for an assessment task.
There are many opportunities for students to receive valuable feedback regarding the above learning strategies. Every time students participate in class discussions, they can receive feedback regarding their knowledge and understanding of the materials and issues from their peers and/or the teacher. This means that students can start receiving feedback in the first class and continue to do so on a weekly basis throughout the session. By asking a question on Canvas, students can also receive timely feedback from peers and/or the teacher throughout the session.
Students gain early feedback on their skills of referencing in accordance with the Faculty’s style (AGLC3) by completing the Legal Referencing Quiz on Canvas by the end of Week 1. Further feedback and assistance to improve these important skills will be provided at the first Assignment Readiness Workshop in Week 3.
In Week 4, students can request feedback regarding their seminar participation to date by completing and submitting an Interim Seminar Participation Self-Evaluation Sheet (in the form included in the Learning Guide).
When students receive feedback, they are strongly encouraged to take the time to reflect on and apply it so as to enhance their learning. If students are in doubt about the import of feedback and/or how to apply they should seek clarification from the source and/or the teacher.
Subject delivery: this subject is delivered by way of 5 days of 2 X 3-hour interactive lecture/seminars.
Content (topics)
- Overview of the Australian privacy and surveillance (legal) landscape including fundamental concepts and principles
- Theoretical, constitutional, policy and international contexts
- An action for invasion of privacy for Australia?
- Personal information privacy
- Online privacy – an oxymoron?
- Surveillance and private conversations, activities and location
- Selected Privacy and Surveillance Challenges
Assessment
Assessment task 1: Seminar Participation
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1 |
|---|---|
| Weight: | 20% |
| Length: | 1,000 words (notional) |
| Criteria: |
|
Assessment task 2: Initial Privacy/Surveillance Analysis
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1 |
|---|---|
| Weight: | 30% |
| Length: | 1,000 words (excluding footnotes and the bibliography). A deviation of 10% is permissible. |
| Criteria: |
|
Assessment task 3: Advanced Privacy/Surveillance Analysis
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1 |
|---|---|
| Weight: | 50% |
| Length: | 1,500 words (excluding footnotes and the bibliography). A deviation of 10% is permissible. |
| Criteria: |
|
Required texts
There is no prescribed text for this subject. Required reading/viewing/listening for the Seminars has been indicated in the Learning Guide. Most of the required reading materials are available as eReadings in the Library’s DRR. For the remaining required reading/viewing/listening, the Learning Guide provides sufficient information for students to locate these materials online.
Recommended texts
The following may be useful references:
Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) esp ch 8.
Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge University Press, 2006).
Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge University Press, 2016).
David Lindsay, 'Liability of Platforms Under Privacy Law' (2020) 94 Australian Law Journal 752
Sacha Molitorisz, Net Privacy: How We Can Be Free in Age of Surveillance (McGill-Queens University Press, 2020).
Moira Paterson, Freedom of Information and Privacy in Australia: Inform Access 2.0 (LexisNexis Butterworths, 2nd ed, 2015).
David Rolph, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Materials and Commentary (Oxford University Press, 2nd ed, 2015), esp pt 5.
Michael Rivette, 'Privacy Class Actions' (2020) 94 Australian Law Journal 791
Daniel J Solove, Understanding Privacy (Harvard University Press, 2008).
Mark J Taylor, '"Personal Information" and Group Data Under the Privacy Act 1988 (Cth)' (2020) 94 Australian Law Journal 730
Normann Witzleb, David Lindsay, Moira Paterson and Sharon Rodrick (eds), Emerging Challenges in Privacy Law: Comparative Perspectives (Cambridge University Press, 2014).
Normann Witzleb, 'Another Push for an Australian Privacy Tort: Context, Evaluation and Prospects' (2020) 94 Australian Law Journal 765
Normann Witzleb, Moira Paterson and Janice Richardson, Big Data, Political Campaigning and the Law: Democracy and Privacy in the Age of Micro-Targeting (Routledge, 2020)
Some UK Texts:
Eric Barendt, Jason Bosland, Rachael Crauford-Smith and Lesley Hitchens, Media Law: Text, Cases and Materials (Pearson, 2014).
Raymond Wacks, Privacy and Media Freedom (Oxford University Press, 2013).
References
For the Faculty's preferred style for referencing:
Australian Guide to Legal Citation (Melbourne University Law Review Association, 4 ed, 2018) (‘AGLC4’).
For general information about UTS Law subjects:
UTS:LAW Student Guidebook (latest edition).
UTS:LAW Guide to Written Communication (latest edition).
UTS: Assessment of Coursework Subjects Policy and Procedures <www.gsu.uts.edu.au/policies/assessment-coursework.html>.
Other resources
Reports:
Australian Government, Attorney General's Department, Privacy Act Review: Issues Paper (October 2020).
Australian Competition and Consumer Commission (ACCC), Digital Platforms Inquiry Final Report (July 2019), particularly Chapter 7.
Office of Australian Information Commissioner, Australian Community Attitudes to Privacy Survey 2020 (September 2020).
Deloitte Touche Tohmatsu, Deloitte Australian Privacy Index 2020 (2020).
Office of Australian Information Commissioner, Australian Privacy Principles Guidelines (July 2019).
Office of Victorian Information Commissioner, The Internet of Things and Privacy: Issues Paper (February 2020).
New South Wales Law Reform Commission, Invasion of Privacy, Report 120 (2009).
Victorian Law Reform Commission, Surveillance in Public, Final Report 18 (2010).
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) (3 volumes).
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report 123 (2014).
Senate Environment and Communications References Committee, Parliament of Australia, The Adequacy of the Protections for Australians Online (2011) <www.aph.gov.au/>.
Australian Government, Australian Government Response to the Senate Environment and Communications References Committee, The Adequacy of the Protections for Australians Online (2012) <www.aph.gov.au/Parliamentary_Business/Committees/>.
Australian Government, Department of Prime Minister and Cabinet, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, Issues Paper (2011) <www.ag.gov.au/Consultations/Pages/Righttosueforseriousinvasionofpersonalprivacyissuespaper.aspx>.
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Eyes in the Skies (2014) <www.aph.gov.au/>.
Some useful journals:
Communications Law Bulletin
Internet Law Bulletin
Media and Arts Law Review
Privacy Law Reporter
Some useful websites:
Australasian Legal Information Institute (AustLII): <www.austlii.edu.au>
Commonwealth Attorney-General: <www.ag.gov.au/>
Federal Register of Legislation: <www.legislation.gov.au>
NSW Information and Privacy Commission: <www.ipc.nsw.gov.au/privacy/ipc_index.html>
NSW Legislation: <www.legislation.nsw.gov.au>
Office of the Australian Information Commissioner: <www.oaic.gov.au/>