There is no absolute right to privacy in Australian law and there is no clearly recognised tort of invasion of privacy or similar remedy available to people who feel their privacy has been violated. Privacy is, however, affected and protected in limited ways by common law in Australia and a range of federal, state and territorial laws, as well as administrative arrangements.[1]
What is privacy?edit
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.[2] In it, the ALRC found there is no "precise definition of universal application" of privacy; instead it conducted the inquiry considering the contextual use of the term "privacy".[2]: para 1.37–1.45
In reaching that conclusion, the ALRC began by considering the concept of privacy:[2]: para 1.29
"It has been suggested that privacy can be divided into some 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";[3]
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 lawedit
It is unclear if a tort of invasion of privacy exists under Australian law.[4] The ALRC summarised the position in 2007:[2]: 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 & 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."
However, in 2008, the Court of Appeal of the Supreme Court of Victoria held "damages should be available for breach of confidence occasioning distress, either as equitable compensation, or under Lord Cairns' Act."[7] This is a reference to the equitabledoctrine of breach of confidence, which is different from a tort of invasion of privacy, although it has some applications to situations where one's privacy has been invaded.[8][9]
In 2013, Attorney-General of AustraliaMark Dreyfus QC MP again referred the issue of privacy to the ALRC. 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, after there had been a change of government. There has not been a formal response from the Australian government.
Postal confidentialityedit
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.[10]
Telecommunications privacyedit
Telecommunications (Interception and Access) Act 1979edit
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."[11]
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015edit
The Act implements recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation by amending the Telecommunications (Interception and Access) Act 1979 to:
require telecommunications service providers to retain for two years telecommunications data (not content) prescribed by regulations;
provide for a review by the PJCIS of the mandatory data retention scheme no more than three years after the end of its implementation phase;
limit the range of agencies that are able to access telecommunications data and stored communications;
provide for record-keeping and reporting the use of, and access to, telecommunications data; and
require the Commonwealth Ombudsman to inspect and oversight these records for compliance, and Telecommunications Act 1997 to make consequential amendments.
Controversy over 2015 Actedit
Despite being considered by some [who?] an absolute and whole violation of the right to privacy under the Privacy Act 1988, the topic, whilst debated,[when?] was never brought to light by mainstream media.[clarification needed on the role of media and definition of "mainstream"] The consideration was postured [clarification needed on the meaning of this phrase] due to the nature of the metadata being retained under the Act and the concept that [clarification needed on how this concept relates to the law that was passed] while not directly capturing the content of communications undertaken, the bill gives considerable leeway in the kind of metadata being collected.
^ ab"privacy" in Trischa Mann (ed.), Australian Law Dictionary, ISBN 9780199691449 via Oxford Reference Online, Oxford University Press, accessed 29 August 2011.
^ abcd"Review of Australian Privacy Law". [2007] Australian Law Reform Commission Discussion paper 72. ISBN 978-0-9758213-9-8
^Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] FCA 637, Federal Court (Australia).
^Hosking v Runting [2004] NZCA 34, Court of Appeal (New Zealand).
^Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199 (15 November 2001) (Australia)
^Giller v Procopets [2008] VSCA 236, Court of Appeal (Vic, Australia).
^Grosse v Purvis [2003] QDC 151, District Court (Qld, Australia).
^Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 (3 April 2007) County Court of Victoria.
^Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (Cth) s 5.
^Attorney-General’s Department, Equipping Australia against emerging and evolving threats, Discussion Paper, July 2012, p. 12.
^Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
^"FREEDOM of INFORMATION ACT 1989 - as at 1 July 2010 - Act 5 of 1989".
External linksedit
Government agencies administering privacy lawsedit
Australian Government:
Office of the Australian Information Commissioner
New South Wales:
Office of the Privacy Commissioner
Victoria:
Privacy Victoria
Office of the Health Services Commissioner
Victorian Equal Opportunity & Human Rights Commission
Queensland:
Office of the Information Commissioner
Health Quality and Complaints Commission
South Australia:
Privacy Committee of South Australia
Department of Health
Western Australia:
Office of the Information Commissioner
Ombudsman Western Australia
Tasmania:
Ombudsman Tasmania
Office of egovernment
Australian Capital Territory:
Human Rights Commissioner
Northern Territory:
Office of the Northern Territory Information Commissioner
Other Government websites and publicationsedit
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 Australian Parliamentary Library
Civil and Human Rights: Privacy, Australian Parliamentary Library
The Australian Law Reform Commission has had two references concerning privacy law in Australia:
2006 – 2008
"For Your Information: Australian Privacy Law and Practice". [2008] Australian Law Reform Commission Report 108 (12 August 2008);
"Review of Privacy Reviewing Australia's Privacy Laws, Is Privacy passé? ... have your say" (PDF). [2006] Australian Law Reform Commission Issues Paper 31.
"Review of Privacy-Credit Reporting Provisions" (PDF). [2006] Australian Law Reform Commission Issues Paper 32.
1976 – 1983
"Privacy" (PDF). [1983] Australian Law Reform Commission Report 22
NSW Law Reform Commission landing page for the 2006 privacy reference (amended 2009).
World Legal Information Institute & Australasian Legal Information Instituteedit