Privacy in Australian law

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.

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. 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".: para 1.37–1.45 

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

"It has been suggested that privacy can be divided into some separate, but related concepts:

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:: 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). 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). 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." This is a reference to the equitable doctrine 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.

In 2013, Attorney-General of Australia Mark 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 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

Telecommunications (Interception and Access) Act 1979

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."

Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015

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 April 2015.

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:

Controversy over 2015 Act

Despite being considered by some an absolute and whole violation of the right to privacy under the Privacy Act 1988, 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 while 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. ^ a b "privacy" in Trischa Mann (ed.), Australian Law Dictionary, ISBN 9780199691449 via Oxford Reference Online, Oxford University Press, accessed 29 August 2011.
  2. ^ a b c d "Review of Australian Privacy Law". Australian Law Reform Commission Discussion paper 72. ISBN 978-0-9758213-9-8
  3. ^ Seven Network (Operations) Limited v Media Entertainment and Arts Alliance FCA 637, Federal Court (Australia).
  4. ^ Hosking v Runting NZCA 34, Court of Appeal (New Zealand).
  5. ^ Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd HCA 63, 208 CLR 199 (15 November 2001) (Australia)
  6. ^ Victoria Park Racing & Recreation Grounds Co Ltd v Taylor HCA 45, (1937) 58 CLR 479 (26 August 1937), High Court (Australia).
  7. ^ Giller v Procopets VSCA 236, Court of Appeal (Vic, Australia).
  8. ^ Grosse v Purvis QDC 151, District Court (Qld, Australia).
  9. ^ Jane Doe v Australian Broadcasting Corporation VCC 281 (3 April 2007) County Court of Victoria.
  10. ^ Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (Cth) s 5.
  11. ^ Attorney-General’s Department, Equipping Australia against emerging and evolving threats, Discussion Paper, July 2012, p. 12.
  12. ^ Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
  13. ^ "FREEDOM of INFORMATION ACT 1989 - as at 1 July 2010 - Act 5 of 1989".


External links

Government agencies administering privacy laws

Other Government websites and publications

2006 – 2008 1976 – 1983

World Legal Information Institute & Australasian Legal Information Institute

Privacy
Principles
Privacy laws
Data protection authorities
Areas
Information privacy
Advocacy organizations
See also