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.
Contents
- What is privacy
- The concept of privacy
- Privacy at common law
- Postal confidentiality
- Telecommunications privacy
- Commonwealth
- New South Wales
- Victoria
- Queensland
- South Australia
- Western Australia
- Tasmania
- Northern Territory
- Australian Capital Territory
- References
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."
What is privacy?
There is no statutory definition of privacy in Australia. 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".
The concept of privacy
In reaching that conclusion, the ALRC began by considering the concept of privacy:
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:
"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). 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). 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."
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."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.
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.