Australia, Right to Privacy

There is no general legal right to privacy in Anglo-Australian law. This was confirmed in Australian High Court decision of Victoria Park Racing and Recreation Grounds Co Ltd v. Taylor in which the court ruled that the common law did not recognize any general right to privacy nor any tort in violation of privacy. In 1988 this situation changed somewhat when the Commonwealth Government enacted the Privacy Act 1988 (Cth). The Commonwealth Privacy Act deals primarily with information privacy (ie the handling of personal information). The Privacy Amendment Act 1990 (Cth) addresses the activities of credit reporting agencies and credit providers.

The Privacy Act provides protection through regulating the handling of personal information by federal government agencies. This is done by establishing rules of conduct (Information Privacy Principles or ‘IPPs  for the collection, retention, access to, correction, use and disclosure of personal information. These principles apply to Commonwealth departments and agencies. The Act also provides protection for the use of tax file numbers and consumer credit information.

Under the Act the office of Privacy Commissioner was established within the Human Rights and Equal Opportunity Commission. The Commissioner is empowered to take privacy protection measures in relation to Commonwealth departments and agencies and tax file number users. An individual alleging a breach of privacy can complain to the Privacy Commissioner, who is authorized to investigate and conciliate complaints. The Commissioner is empowered make determinations, which includes making a determination that an agency has breached an IPP and should pay damages to an aggrieved party.

The Commissioner can also make a determination that the ‘public interest in compliance with the IPPs is outweighed by the public interest in the continuation of an act of practice that is inconsistent with the IPPs. Such an act would not be treated as an interference with privacy. The Commissioner is similarly empowered to investigate and conciliate privacy complaints concerning misuse of tax file numbers in the public and private sectors. If conciliation is unsuccessful the Commissioner can make determinations which are enforceable in the Federal Court by the Commissioner or the complainant.

The Privacy Act also extended the law of confidentiality through amending the Freedom of Information Act 1982 (Cth) (FOI Act). It is now required, where reasonably practicable, that a person whose affairs are dealt with in a document be consulted before that document is disclosed under the FOI Act. There are some additional information privacy provisions in other Commonwealth laws which relate to specific information or practices such as data matching, spent criminal convictions and the use of Medicare information. Other privacy issues such as video surveillance and telephone interception and physical intrusion into private spaces are not specifically covered under Commonwealth privacy legislation, although there may be remedies against intrusions upon privacy in this manner covered by other more general laws.

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