Djokovic rallied to secure release before the ministerial discretions proved a winner

Endnotes 1 Monique Mann* And Marcus Smith, ‘Automated

Facial Recognition Technology: Recent

Developments And Approaches To Oversight’ (2017) 40(1) UNSW Law Journal 121, 122. 2 This involves a computer checking whether a single facial image matches a different facial image of the same person: Australian Human

Rights Commission, Human Rights and Technology (Final Report, March 2021) 113. 3 Eifeh Strom, ‘Facing challenges in face recognition: one-to-one vs. one-to-many’, Asmag (Web page, 19 September 2016) <https://www. asmag.com/showpost/21158.aspx> 4 Philip Brey, ‘Ethical Aspects of Facial Recognition

Systems in Public Places’ (2004) 2 Journal of

Information, Communication and Ethics in Society 97, 98 5 Seth Lazar, Clair Benn and Mario Gunther,

‘Large-scale facial recognition is incompatible with a free society’, The Conversation (Web page, 10

July 2020)< https://theconversation.com/largescale-facial-recognition-is-incompatible-with-afree-society-126282 6 Australian Human Rights Commission,

Human Rights and Technology (Final Report,

March 2021) 113. 7 Liz Campbell, ‘Why regulating facial recognition technology is so problematic - and necessary,

The Conversation (Web Page, 26 November 2018) <’https://theconversation.com/why-regulatingfacial-recognition-technology-is-so-problematicand-necessary-107284> 8 ‘South Australia Police tap NEC for facial recognition edge over criminals’, NEC Organisation (Web page, 1 August 2016) <https://www.nec.com/en/ press/201608/global_20160801_03.html>. 9 Malcolm Sutton, ‘Facial recognition technology put on hold in Adelaide amidst privacy concerns’,

ABC News (Web page, 10 November 2021) <https://www.abc.net.au/news/2021-11-10/ facial-recognition-tech-on-hold-amidst-privacyconcern/100608514> 10 Note that the Commonwealth Government has committed to reforming Australia’s laws governing electronic surveillance, and recently released a Discussion Paper “Reform of

Australia’s electronic surveillance framework” which seeks input in respect of its proposal to repeal the Telecommunications (Interception and

Access) Act 1979 (TIA Act), Surveillance Devices

Act 2004 and relevant parts of the Australian

Security Intelligence Organisation Act 1979 (ASIO Act), and replace the current patchwork of laws with a single, streamlined and technology neutral Act. 11 An “optical surveillance device” means a device capable of being used to observe or record visually (whether for still or moving pictures) a person, place or activity: SDA, s 3. This definition is arguably wide enough to capture any devices that integrate FRT for the purpose of capturing facial images (such as CCTV). 12 “premises” includes land, a building, a part of a building, and any place (whether built or not). 13 SDA, s 5(1). 14 SDA, s 12(1) 15 SDA, s 3. 16 SDA, s 3. The definition of “private activity” also excludes activities that can be readily observed

from a public place, and/or an activities carried on in circumstances where the person ought to reasonably expect that they may be observed by another person. 17 Nanosecond, [103] to [105] 18 Queensland Law Reform Commission,

Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies (Report No. 77, February 2020) <http://classic.austlii.edu.au/cgi-bin/sinodisp/ au/other/lawreform/QLRC/2020/77. html?stem=0&synonyms=0&query=sa%20 consol_act%20sda2016210%20s3; 19 Office of the Australian Information

Commissioner, Submission No. D2018/009462 to Australian Human Rights Commission, Human

Rights and Technology Issues Paper (19 October 2018) <https://www.oaic.gov.au/engage-with-us/ submissions/human-rights-and-technologyissues-paper-submission-to-the-australian-humanrights-commission> 20 APP Guidelines, Chapter B: Key Concepts, [B.27]. 21 APP Guidelines, Chapter B: Key Concepts [B.138]; Privacy Act, s 6(1) 22 Office of the Victorian Information

Commissioner, Biometrics and Privacy, (Web page) < https://ovic.vic.gov.au/resource/biometricsand-privacy/>. 23 Types of Biometrics, Biometrics Institute (Web page) <https://www.biometricsinstitute.org/what-isbiometrics/types-of-biometrics/> 24 Above n 25. 25 Commissioner initiated investigation into

Clearview AI, Inc. (Privacy) [2021] AICmr 54,[138] (Clearview). 26 International Organization for Standardisation,

Standard ISO/IEC 2382-37: 2017(en), Standard 3.3.22 (Web page, 12 March 2021) < https:// www.iso.org/obp/ui/#iso:std:iso-iec:2382:-37:ed2:v1:en>. 27 Clearview, [127] 28 APP Guidelines, Chapter B: Key Concepts [B.2] to [B.9]; Privacy Act, s 6(1). APP entities generally include include Australian Government agencies and any organisation with an annual turnover of more than $3 million: [ 29 APP Guidelines, Chapter B: Key Concepts, [B.141] 30 APP 3.1 and APP 3.2 31 APP 3.5. 32 APP 3.3. 33 Privacy Act, s 6(1). 34 APP Guidelines, Chapter B: Key Concepts, [B.41]. 35 APP Guidelines Chapter B: Key Concepts, [B.35] 36 The five exceptions are contained at APP 3.4 37 Privacy Act, s 16A(1), Item 1. This is one of the seven “permitted general situations” provided for by s 16A. 38 Privacy Act, s 16A(1), Item 2. This is one of the seven “permitted general situations” provided for by s 16A. 39 ‘Enforcement body’ is defined in s 6(1) of the

Privacy. It lists of series of specific bodies. The list includes Commonwealth, State and Territory bodies that are responsible for policing, criminal investigations, and administering laws to protect the public revenue or to impose penalties or sanctions. Examples of Commonwealth enforcement bodies are the Australian Federal

Police, Australian Crime Commission, the

Integrity Commissioner, the Immigration

Department, Australian Prudential Regulation

Authority, Australian Securities and Investments

Commission and AUSTRAC. 40 APP 3.4(d)(ii). 41 Australian Human Rights Commission, Human

Rights and Technology (Final Report, March 2021), 112. 42 APP 6.1(a) 43 The ‘reasonably expects’ test is an objective one that has regard to what a reasonable person, who is properly informed, would expect in the circumstances. This is a question of fact in each individual case. It is the responsibility of the APP entity to be able to justify its conduct. Examples of where an individual may reasonably expect their personal information to be used or disclosed for a secondary purpose include where the entity has notified the individual of the particular secondary purpose under APP 5.1 (see Chapter 5 (APP 5) or the secondary purpose is a normal internal business practice: APP Guidelines,

Chapter 6:APP6, [6.20]. 44 A directly related secondary purpose is one which is closely associated with the primary purpose, even if it is not strictly necessary to achieve that primary purpose: APP Guidelines, Chapter 6:APP6, [6.26]. 45 APP 6.2(c), APP 6.2(e) and APP 6.3 46 Australian Human Rights Commission, Human

Rights and Technology (Final Report, March 2021) 114. 47 APP Guidelines, Chapter B: Key Concepts, [B.8];

Privacy Act, s 6(1). 48 Government of South Australia, Department of the Premier and Cabinet Circular, Information

Privacy Principles Instruction PC012 (Webpage, 16 September 2013) <http://dpc.sa.gov.au/ premier-and-cabinet-circulars>. 49 Commissioner initiated investigation into

Clearview AI, Inc. (Privacy) [2021] AICmr 54 50 Commissioner initiated investigation into 7-Eleven Stores Pty Ltd (Privacy) (Corrigendum dated 12 October 2021) [2021] AICmr 50 (7Eleven) 51 7Eleven, [89] 52 Above n1, 132. 53 Ibid. 54 in South Australia, the draft Civil Liability (Serious

Invasions of Privacy) Bill 2021 (Privacy Bill) has been tabled for consideration in Parliament to establish a new statutory cause of action for serious invasions of privacy in South Australia, which is separate and distinct from the Privacy

Act and APPs. The Privacy Bill will enable an individual to bring civil proceedings against a person who has invaded their privacy where there was a reasonable expectation of privacy, the invasion of privacy was serious and the conduct was undertaken intentionally. Consultation in respect of the Privacy Bill is still underway, but that consultation process will hopefully assist in identifying how the proposed statutory tort can be best utilised to address the gaps in the safeguards provided for in the current privacy and surveillance laws.