The Law Handbook 2024

Chapter 12.2: Privacy and your rights 1123 NOTE Under the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic), the Victorian Health Complaints Commissioner can refer complaints to the Victorian Information Commissioner. Charter of Human Rights and Responsibilities Act Underthe Charterof HumanRightsandResponsibilitiesAct 2006 (Vic) (‘ Human Rights Charter ’), individuals’ privacy, family, home and correspondence cannot be unlawfully or arbitrarily interfered with (s 13). The wording of section 13 mirrors that of Article 17 of the United Nations International Covenant on Civil and Political Rights (1966). The Human Rights Charter does not provide a new avenue of redress for individuals who believe their privacy has been breached. Rather, it imposes an obligation on all Victorian public sector organisations to act in a way that is compatible with the human rights protected by the Human Rights Charter. The Victorian Ombudsman can investigate complaints about a public authority’s administrative action that breaches the Human Rights Charter. The HumanRightsCharter alsoallows a complainant toraise a human rights argument along with existing remedies or legal proceedings involving public authorities. There are a number of examples of proceedings before VCAT where a breach of the right to privacy under the Human Rights Charter has been raised. The Human Rights Charter requires that all legislation, whether enacted before or after the Charter, is as far as possible interpreted in a way that is compatible with human rights. It also provides that all new legislation introduced into the Victorian Parliament must be accompanied by a statement of compatibility with the Human Rights Charter (see Chapter 11.1: Discrimination and human rights). Other Victorian legislation related to privacy Freedom of Information Act Under the Freedom of Information Act 1982 (Vic) (‘ FoI Act (Vic) ’), individuals have the right to access and correct documents containing their personal information that are held by public sector organisations. However, under section 33 of the FoI Act (Vic), a document is exempt from release if releasing it would unreasonably disclose information about the personal affairs of any person (including a deceased person). The exemption does not generally apply if the personal information relates to the applicant only. If a decision is made to grant access to a document containing personal information, then (if practicable) the individual (or in the case of a deceased person, their next of kin) should be notified and advised of their right of appeal to VCAT. For more information, see Chapter 12.3: Freedom of Information Law. Public Records Act The Public Records Act 1973 (Vic) imposes obligations on public sector organisations relating to the retention and disposal of public records. These obligations override any conflicting provisions in the PDP Act or HRAct. Where public records transferred to the Public Records Office contain information of a private or personal nature, the government minister responsible can declare that the records should not be available for public inspection for a specified period of time. Surveillance Devices Act The Surveillance Devices Act 1999 (Vic) regulates the installation, use and maintenance of surveillance devices throughout Victoria, and the communication and publication of surveillance records. Breaching this Act is a criminal offence. Telecommunications Act The Telecommunications (Interception) (State Provisions) Act 1988 (Vic) (‘ Telecommunications Act (Vic) ’) enables the Independent Broad-based Anti- corruption Commission and Victoria Police to intercept telecommunications in accordance with the Telecommunications (Interception and Access) Act 1979 (Cth). The Telecommunications Act (Vic) provides safeguards and oversight by creating a public interest monitor who must be notified of all applications for a warrant under the Commonwealth Act, including matters that are adverse to granting a warrant. The Telecommunications Act (Vic) also imposes strict record-keeping requirements, limits access to