Privacy in Australian law
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There is no absolute right to privacy in Australian law and there is no clearly recognised
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
of
invasion of privacy The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 194 ...
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 law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
in Australia and a range of
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
, state and territorial laws, as well as administrative arrangements.


What is privacy?

There is no
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
definition of privacy in Australia."privacy" in Trischa Mann (ed.), ''Australian Law Dictionary'', vi
Oxford Reference Online
Oxford University Press, accessed 29 August 2011.
The
Australian Law Reform Commission The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...
(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. 007Australian Law Reform Commission 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". In reaching that conclusion, the ALRC began by considering the ''concept'' of privacy: ::"It has been suggested that privacy can be divided into some separate, but related concepts: :::*
Information privacy Information privacy is the relationship between the collection and dissemination of data, technology, the public expectation of privacy, contextual information norms, and the legal and political issues surrounding them. It is also known as data pr ...
, 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"; :::* 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 A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
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 & 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 The Supreme Court of Victoria is the highest court in the Australian state of Victoria. Founded in 1852, it is a superior court of common law and equity, with unlimited and inherent jurisdiction within the state. The Supreme Court comprises ...
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 Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
of
breach of confidence The tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are ...
, 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 The Attorney-GeneralThe title is officially "Attorney-General". For the purposes of distinguishing the office from other attorneys-general, and in accordance with usual practice in the United Kingdom and other common law jurisdictions, the Aust ...
Mark Dreyfus Mark Alfred Dreyfus (born 3 October 1956) is an Australian politician and lawyer who has been attorney-general of Australia and cabinet secretary since June 2022, having held both roles previously in 2013 and from 2010 to 2013 respectively. ...
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 The Telecommunications (Interception and Access) Act 1979 (formerly Telecommunications (Interception) Act 1979, commonly referred as the TIA Act) is an Act of the Parliament of Australia which prohibits the unauthorised interception of communic ...
.''"


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 The ''Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015'' (Cth) is an Act of the Parliament of Australia that amends the '' Telecommunications (Interception and Access) Act 1979'' (original Act) and the '' Tele ...
'', which received royal assent on 13 April 2015.
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
'
The Act implements recommendations of the
Parliamentary Joint Committee on Intelligence and Security The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is a joint committee of the Parliament of Australia which oversees Australia's primary agencies of the Australian Intelligence Community: Australian Security Intelligence Organi ...
(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 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 Metadata is "data that provides information about other data", but not the content of the data, such as the text of a message or the image itself. There are many distinct types of metadata, including: * Descriptive metadata – the descriptive ...
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

*
Privacy Act 1988 The Privacy Act 1988 is an Australian law dealing with privacy. Section 14 of the Act stipulates a number of Privacy in Australian law, privacy rights known as the Australian Privacy Principles (APPs). These principles apply to Australian Gover ...
*
Telecommunications Act 1997 The Telecommunications Act 1997 is an act of law in the Commonwealth of Australia. See also * Australian law * Australian Law Reform Commission * '' Surveillance Devices Act 2004'' * '' Telecommunications (Interception and Access) Act 1979'' * ...
*
National Health Act 1953 The ''National Health Act 1953'' (Cth) is an Act of the Parliament of Australia, which administers pharmaceutical, sickness and hospital benefits, alongside medical and dental services. The Act was passed in 1953 in the Fifth Menzies Ministry, ...
* Data-matching Program (Assistance and Tax) Act 1990 *
Crimes Act 1914 The ''Crimes Act 1914'' (Cth) is an Act of the Parliament of Australia which addresses the most serious federal offences — that is, crimes against the Commonwealth. It was the first major federal criminal law since the Federation of Australi ...
* Anti-Money Laundering and Counter-Terrorism Financing Act 2006 * The Healthcare Identifiers Act 2010 * Personally Controlled Electronic Health Records Act 2012 *
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 The ''Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015'' (Cth) is an Act of the Parliament of Australia that amends the '' Telecommunications (Interception and Access) Act 1979'' (original Act) and the '' Tele ...


New South Wales

* Privacy and Personal Information Protection Act 1998 * Health Records and Information Privacy Act 2002 * Freedom of Information Act 1989 (Repealed)http://www.austlii.edu.au/au/legis/nsw/repealed_act/foia1989222/ * State Records Act 1998 * Criminal Records Act 1991 * Surveillance Devices Act 2007 * Workplace Surveillance Act 2005 * Telecommunications (Interception and Access) (New South Wales) Act 1987 * Access to Neighbouring Land Act 2000 * Crimes (Forensic Procedures) Act 2000


Victoria

* Privacy and Data Protection Act 2014 * Health Records Act 2001 * The Charter of Human Rights and Responsibilities Act 2006 * Freedom of Information Act 1982 * Public Records Act 1973 * Surveillance Devices Act 1999 * Telecommunications (Interception) (State Provisions) Act 1988


Queensland

* Human Rights Act 2019 * Public Interest Disclosure Act 2010 * Information Privacy Act 2009 * Right to Information Act 2009 * Public Records Act 2002 * Police Powers and Responsibilities Act 2000 * Criminal Law (Rehabilitation of Offenders) Act 1986 * Invasion of Privacy Act 1971 * Private Employment Agents (Code of Conduct) Regulation 2005


South Australia

* Freedom of Information Act 1991 * State Records Act 1997
Surveillance Devices Act 2016
* Listening and Surveillance Devices Act 1972 * Telecommunications (Interception) Act 1988


Western Australia

* Freedom of Information Act 1992 * Health Services (Conciliation and Review) Act 1995 * State Records Act 2000 * Spent Convictions Act 1988 * Surveillance Devices Act 1998 * Telecommunications (Interception) Western Australia Act 1996


Tasmania

* Personal Information Protection Act 2004 * Right to Information Act 2009 * Archives Act 1983 * Annulled Convictions Act 2003 * Listening Devices Act 1991 * Telecommunications (Interception) Tasmania Act 1999


Northern Territory

* Information Act 2002 * Criminal Records (Spent Convictions) Act 1992 * Surveillance Devices Act 2007 * Telecommunications (Interception) Northern Territory Act 2001


Australian Capital Territory

* Privacy Act 1988 (Cth) * Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (Cth) * Health Records (Privacy and Access) Act 1997 * Human Rights Act 2004 * Freedom of Information Act 1989 * Territory Records Act 2002 * Spent Convictions Act 2000 * Listening Devices Act 1992


See also

*
Expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privacy ...
*
Privacy law Privacy law is the body of law that deals with the regulating, storing, and using of personally identifiable information, personal healthcare information, and financial information of individuals, which can be Personally identifiable information ...
*
Information privacy Information privacy is the relationship between the collection and dissemination of data, technology, the public expectation of privacy, contextual information norms, and the legal and political issues surrounding them. It is also known as data pr ...


References


External links


Government agencies administering privacy laws

* 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: *

*
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 publications


Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
Australian Parliamentary Library

Australian Parliamentary Library
The Australian Law Reform Commission
has had two references concerning privacy law in Australia: : 20062008 ::*
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Australian Law Reform Commission Report 108 (12 August 2008); :::* 006Australian Law Reform Commission Issues Paper 31. :::* 006Australian Law Reform Commission Issues Paper 32. : 19761983 ::*
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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 Institute



{{DEFAULTSORT:Privacy law, Australia Privacy law Privacy in Australia Australian case law Law of Australia Australian criminal law