ABSTRACT
The Cambridge Analytica/Facebook data scandal has brought to light not only the data-driven nature of much modern political campaigning but also the lack of an international consensus on the appropriate regulation and enforcement regarding the use of personal information in the political arena. In Australia, the Privacy Act 1988 (Cth) (Privacy Act) does not apply to registered political parties and also contains an exemption for the political acts and practices of certain organisations. These exemptions were justified on the basis of the implied constitutional freedom of political communication in the Australian Constitution. This chapter argues that the political exemptions in the Australian Privacy Act have become anachronistic in an era of big data analytics and political micro-targeting of electors. In the pursuit of this argument, the chapter provides an overview of the political exemptions in the Privacy Act and discusses the data protection issues raised by the current trend towards micro-targeting of Australian electors. It then explores the case law on the implied freedom of political communication, including developments that have taken place since the introduction of the political exemption, and submits that there are no constitutional impediments to rolling back the political exemptions in the Privacy Act. The removal of the political exemptions would enhance the privacy of voters and improve transparency in political campaigning by requiring political parties and other political actors to adopt fair data-handling practices and subjecting their practices to regulatory scrutiny.
