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Privacy in Australian law

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Privacy in Australian law

Privacy in Australian law is the right of natural persons to protect their personal life from invasion 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';
  • 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.

Australia 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). 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."

Australian privacy laws

Commonwealth

  • Privacy Act 1988 (Cth)
  • Telecommunications Act 1997 (Cth)
  • National Health Act 1953 (Cth)
  • Data-matching Program (Assistance and Tax) Act 1990 (Cth)
  • Crimes Act 1914 (Cth)
  • Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
  • The Healthcare Identifiers Act 2010 (Cth)
  • Personally Controlled Electronic Health Records Act 2012 (Cth)

New South Wales

  • Privacy and Personal Information Protection Act 1998 (NSW)
  • Health Records and Information Privacy Act 2002 (NSW)
  • Freedom of Information Act 1989 (NSW)
  • State Records Act 1998 (NSW)
  • Criminal Records Act 1991 (NSW)
  • Surveillance Devices Act 2007 (NSW)
  • Workplace Surveillance Act 2005 (NSW)
  • Telecommunications (Interception and Access) (New South Wales) Act 1987 (NSW)
  • Access to Neighbouring Land Act 2000 (NSW)
  • Crimes (Forensic Procedures) Act 2000 (NSW)

Victoria

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

Queensland

  • Information Privacy Act 2009 (Qld)
  • Right to Information Act 2009 (Qld)
  • Public Records Act 2002 (Qld)
  • Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld)
  • Invasion of Privacy Act 1971 (Qld)
  • Whistleblowers Protection Act 1994 (Qld)
  • Police Powers and Responsibilities Act 2000 (Qld)
  • Private Employment Agents (Code of Conduct) Regulation 2005 (Qld)

South Australia

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

Western Australia

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

Tasmania

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

Northern Territory

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

Australian Capital Territory

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

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. ^ "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. ^ a b c Discussion Paper 72 (2007), Review of Australian Privacy Law, Australian Law Reform Commission © Commonwealth of Australia, ISBN 978-0-9758213-9-8 DP 72.

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
    • 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 publications

  • Civil and Human Rights: Privacy, Australian Parliamentary Library
  • The Australian Law Reform Commission has had two references concerning privacy law in Australia:
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.
  • NSW Law Reform Commission landing page for the 2006 privacy reference (amended 2009).

WorldLII & AustLII

  • World Legal Information Institute & Australasian Legal Information Institute
    • WorldLII - Australia - Privacy
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