Privacy in Australian law

Privacy in Australian law is the claimed right of natural persons to protection from intrusion into their personal lives and to control the flow of their personal information. Privacy is not an absolute right; it differs in different contexts and is balanced against other competing rights and duties. It is affected by the Australian common law and a range of Commonwealth, State and Territorial laws and administrative arrangements.[1]

Looking across the Tasman, the New Zealand Law Commission said in 2009:

"The current landscape in Australia includes Federal and state information privacy legislation, some sector-specific privacy legislation at state level, regulation of the media and some criminal sanctions. Regarding civil causes of action for invasion of privacy, however, the current position in Australia is unclear. There have been some indications by the courts that a tort of invasion of privacy may exist in Australia. The Australian Law Reform Commission has recommended the enactment of a statutory cause of action for invasion of privacy."[2]:para 4.87

What is privacy?

There is no statutory definition of privacy in Australia.[1] The Australian Law Reform Commission (ALRC) was given a reference to review Australian privacy law in 2006. During that review it considered the definition of privacy in 2007 in its Discussion paper 72. The ALRC found that there is no "precise definition of universal application" of privacy; instead it conducted the inquiry considering the contextual use of the term "privacy".[3]:para 1.37-1.45

The concept of privacy

In reaching that conclusion, the ALRC began by considering the concept of privacy:[3]:para 1.29

"It has been suggested that privacy can be divided into a number of separate, but related, concepts:
  • Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as 'data protection';[4]
  • Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches;
  • Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and
  • Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks.

Privacy at common law

It is unclear if a tort of invasion of privacy exists under Australian law. The ALRC summarised the position in 2007:[3]:para 5.12, 5.14

"In Australia, no jurisdiction has enshrined in legislation a cause of action for invasion of privacy; however, the door to the development of such a cause of action at common law has been left open by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats).[5] To date, two lower courts have held that such a cause of action is part of the common law of Australia. ..."

"At common law, the major obstacle to the recognition in Australia of a right to privacy was, before 2001, the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (Victoria Park).[6] In a subsequent decision, the High Court in Lenah Game Meats indicated clearly that the decision in Victoria Park 'does not stand in the path of the development of … a cause of action (for invasion of privacy)'. The elements of such a cause of action — and whether the cause of action is to be left to the common law tradition of incremental development or provided for in legislation — remain open questions."

In 2008, the Supreme Court of Victoria - Court of Appeal held "damages should be available for breach of confidence occasioning distress, either as equitable compensation, or under Lord Cairns’ Act."[7]

See also:

In 2013, Attorney-General of Australia, Mark Dreyfus QC MP, again referred the issue of privacy to the Australian Law Reform Commission. Its terms of reference included a detailed legal design of a statutory cause of action for serious invasions of privacy, and to consider the appropriateness of any other legal remedies to redress for serious invasions of privacy. The Final Report, Serious Invasions of Privacy in the Digital Era (ALRC Report 123), was tabled in September 2014 and awaits a response from the Australian government.

Postal confidentiality

Since at least the 19th century, it has been the practice to enclose mail in an envelope to prevent infringement of confidentiality. The unauthorised interception of mail of another is a criminal offence.

Telecommunications privacy

An Attorney-General discussion paper notes:

"The primary objective of the current legislation governing access to communications is to protect the privacy of users of telecommunications services in Australia by prohibiting covert access to communications except as authorised in the circumstances set out in the Telecommunications (Interception and Access) Act 1979."[8]

On 26 March 2015 both Houses of Parliament passed the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which received royal assent on 13 Apr 2015.[9]

The Act implements recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) report Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation by amending the Telecommunications (Interception and Access) Act 1979 to:

Despite being considered by some an absolute and whole violation of the right to privacy under the Privacy Act 1988 (Cth) the topic, whilst debated, was never brought to light by mainstream media. The consideration was postured due to the nature of the 'metadata' being retained under the Act and the concept that whilst not directly capturing the content of communications undertaken the bill gives considerable leeway in the kind of metadata being collected.

Australian privacy laws

Commonwealth

New South Wales

Victoria

Queensland

South Australia

Western Australia

Tasmania

Northern Territory

Australian Capital Territory

See also

References

  1. 1 2 "privacy" in Trischa Mann (ed.), Australian Law Dictionary, ISBN 9780199691449 via Oxford Reference Online, Oxford University Press, accessed 29 August 2011.
  2. ↑ "Invasion of privacy : Penalties and remedies : Review of the law of privacy : Stage 3" (2009) (Issues paper 14), New Zealand Law Commission, ISBN 978-1-877316-67-8, 2009 NZIP 14 accessed 27 August 2011; see also Hosking v Runting [2004] NZCA 34 NZLII accessed 8 August 2014.
  3. 1 2 3 Discussion Paper 72 (2007), Review of Australian Privacy Law, Australian Law Reform Commission © Commonwealth of Australia, ISBN 978-0-9758213-9-8 DP 72.
  4. ↑ Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] FCA 637
  5. ↑ Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199; 185 ALR 1; 76 ALJR 1 (15 November 2001) (Australia)
  6. ↑ Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 C.L.R. 479, [1937] HCA 45, High Court (Australia)
  7. ↑ "Giller v Procopets [2008] VSCA 236".
  8. ↑ Attorney-General’s Department, Equipping Australia against emerging and evolving threats, Discussion Paper, July 2012, p. 12.
  9. ↑ Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015


Government agencies administering privacy laws

Other Government websites and publications

2006 – 2008
  • ALRC Report 108 For Your Information: Australian Privacy Law and Practice (12 August 2008) Final Report into the extent to which the Privacy Act 1988 (Cth) and related laws continue to provide an effective framework for the protection of privacy in Australia;
  • ALRC DP 72 Review of Australian Privacy Law, Discussion Paper 72 (12 September 2007) seeking community feedback on 301 proposals for reform of privacy law and related practices;
  • Overview of ALRC Issues Papers 31 & 32, Review of Privacy, Reviewing Australia's Privacy Laws, Is Privacy passé? ... have your say;
  • ALRC Issues Paper 32, Review of Privacy, Credit Reporting Provisions (IP 32) (15 December 2006)
  • ALRC Issues Paper 31, Review of Privacy, (IP 31) (9 October 2006) seeking stakeholder feedback on 142 questions.
1976 – 1983
  • ALRC 22 (1983) Final report from 1976 reference.

WorldLII & AustLII


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