There is no absolute right to privacy in Australian law and there is no clearly recognised tortofinvasion 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]
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.
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 equitabledoctrineofbreach 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.
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]
"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 2015[edit]
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.
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.
