Most Australian states and territories have enacted Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. to protect information privacy. However, Australian law does not expressly protect the right to personal privacy in the broader sense, either through legislation or the (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws.. Also, legislative protections of the privacy of personal information do not include breaches by individuals acting in a personal The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult..
Privacy protection under the UNICCPR
The right to privacy in The Universal Declaration of Human Rights (1948) was mirrored in Article 17 of the United Nations International A formal, written agreement that creates a legal obligation, in a deed or on a certificate of title. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick. on Civil and Political Rights (1966) (UNICCPR) to which Australia is a signatory and agreed to be bound on 13 August 1980. The UNICCPR is a Extra information accompanying an Act of parliament or a contract, such as tables, lists or forms. to the Australian Human Rights Commission A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1986 (Cth) (‘AHRC Act’) and the Australian Human Rights Commission is responsible for monitoring Australia’s compliance with the UNICCPR. However, although Australia has agreed to be bound by the UNICCPR, it is not incorporated into the AHRC Act to the extent that it has created enforceable rights.
On 25 September 1991, Australia agreed to be bound by the first optional protocol, which allows individuals whose countries are A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. to the UNICCPR and the protocol – and who have exhausted all domestic remedies (if any) – to submit a written communication to the United Nations Human Rights Committee (‘HR Committee’).
This occurred when Nicholas Toonen, who lived in Tasmania, sent a communication to the HR Committee arguing that Tasmania’s law that criminalised homosexual sex between consenting adults was a breach of privacy under Article 17 of the UNICCPR. The HR Committee agreed that because of the Tasmanian law, Australia was in breach of its obligations under the treaty and rejected the argument that the interference was not arbitrary (HR Committee Communication No. 488/1992 Toonen v Australia). In response to the HR Committee’s view, the Commonwealth Government passed a law overriding the Tasmanian law. Note that Toonen sent his communication in 1991 and the HR Committee responded in 1994. Also, Australia is not bound by the HR Committee’s response and could have chosen to take no action to remedy the breach.
Privacy protection under the common law
Ettingshausen v Australian Consolidated Press
Australian common law provides limited personal privacy protections, for example, through To damage another person’s reputation by publishing or communicating false statements about them. The old common law distinction between libel (written and published defamation) and slander (spoken defamation) no longer has any legal significance. and (1) Going onto someone’s land without permission. (2) Trespass to goods is wrongful interference with someone’s personal property, for example doing something that harms someone’s computer. (3) Trespass to the person is doing something that interferes with a person’s body without their permission, for example giving a very drunk person a tattoo. laws (see Chapter 11.2: Defamation and your rights, and Chapter 6.4: Neighbour disputes).
In Ettingshausen v Australian Consolidated Press Ltd (1991) 23b NSWLR 443, the A person who begins a civil action against another person., a well-known rugby player, successfully took defamation action about the publication of a photograph taken after a game, which was found to show his genitals. This case was, in reality, a claim for breach of privacy.
Australian Broadcasting Corporation v Lenah Game Meats
In 2001, in the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) HCA 63 (‘Lenah Game Meats case’), the High An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. heard on The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. a claim of breach of privacy made by a corporation in relation to an animal rights group secretly filming an abattoir that processed possums. The footage had been given to the Australian Broadcasting Corporation (ABC), which planned to broadcast it.
While ultimately rejecting the corporation’s claim of breach of privacy – on the ground that corporations have no rights of privacy, which is fundamentally about personal autonomy – the High Court invited the possibility of the development by courts of a cause of action for invasion of privacy.
Since this decision, Australian courts have been moving towards developing a cause of action for breach of privacy, although this has often been through findings of breach of confidence.
Grosse v Purvis
In the case of Grosse v Purvis  QDC 151, the plaintiff brought an action for breach of privacy after years of stalking by the A person who has been charged with a criminal offence or against whom a civil action has been brought. and public and private statements by him to the effect that the plaintiff engaged in immoral sexual acts.
The Queensland District Court noted that in the Lenah Game Meats case the High Court had removed the barrier to people attempting to rely on a A civil wrong that causes harm, intentionally or otherwise. A person affected by a tort can take action in court to claim compensation for damage caused by the wrong, or an injunction to stop the wrong continuing. of privacy and awarded aggravated and A court order that a wrongdoer pay the victim a larger amount of damages than would be needed just to compensate them for their loss. Its purpose is to punish the wrongdoer and make an example of them. See also general damages; special damages. to the plaintiff for breach of her privacy.
Giller v Procopets
In the case of Giller v Procopets  VSC 113, the Victorian Supreme Court stated that the law had not developed to the point where the law in Australia recognised an action for breach of privacy. The facts of that case were that the defendant, while in a relationship with the plaintiff, had secretly and then with her To agree to something being done, to approve an action or arrangement. See also informed consent., videotaped them having sex. After the breakdown of the relationship, he had disclosed the recordings to family and friends.
Ms Giller brought an action for breach of privacy and breach of confidence, among other actions. While the trial judge rejected the breach of privacy, he found there had been a breach of confidence but since the distress she suffered fell short of mental illness, he found there were no grounds to (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. compensation.
The Victorian Court of Appeal unanimously confirmed the finding of breach of confidence and as a result found it unnecessary to decide conclusively whether a tort of invasion of privacy should be recognised under Australian law. Importantly, it rejected the decision that compensation could not be awarded and ordered A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages. against Mr Procopets (Giller v Procopets  VSCA 236).
This case was an important step in breach of confidence being used as a remedy for breach of privacy, although it is limited in scope by the need for a A relationship where one person trusts and relies up another person. to have existed between the plaintiff and the defendant.
Doe v Australian Broadcasting Corporation
In Doe v Australian Broadcasting Corporation  VCC 281, the ABC published information on two separate occasions that identified the plaintiff as a victim of rape by her husband, contrary to section 41(1A) of the Judicial Proceedings Reports Act 1958 (Vic).
In addition to finding a breach of Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. duty and breach of confidence, Justice Hempel also found the defendant was liable in tort for invasion of privacy, relying on the High Court’s comments in the Lenah Game Meats case. The decision was appealed but the appeal subsequently withdrawn.
Recommendations for law reform
In light of the slow and piecemeal development of a right of privacy at common law there have been a number of recommendations by Australian law reform commissions that there be a statutory cause of action for breach of privacy.
In 2009, the New South Wales (NSW) Law Reform Commission released a report, Invasion of Privacy (report 120); available at www.lawreform.justice.nsw.gov.au. It recommended that the Civil Legal responsibility, enforced by civil or criminal courts. Act 2002 (NSW) be amended to provide a statutory cause of action for invasion of privacy.
In 2008, the Australian Law Reform Commission (ALRC) recommended a statutory cause of action be developed for serious invasions of privacy (ALRC report 108).
The Victorian Law Reform Commission made a similar recommendation in its 2010 report, Surveillance in public places: final report; available at www.lawreform.vic.gov.au.
On 3 September 2014, the ALRC’s final report, Serious invasions of privacy in the digital era (ALRC report 123), was tabled. This report responded to the then Attorney-General’s referral to the ALRC following the Australian Government’s A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement. of its issues paper, A Commonwealth statutory cause of action for serious invasion of privacy. The ALRC recommended that if there were to be a statutory cause of action for serious invasion of privacy it should be a Commonwealth Act and be an action in tort. It should be available only in circumstances where a person had a reasonable expectation of privacy and would cover:
intrusion upon seclusion either by physically intruding into a person’s private spaces by watching, listening, recording private activities or affairs or by the misuse of private information such as by collecting or disclosing private information about a person – including untrue information, but only if it would be private if true.
In March 2016, the NSW state parliament’s Law and Justice Committee recommended that NSW should create a new legal action for serious invasions of privacy (report no. 57: Remedies for serious invasions of privacy).
The NSW Government responded on 5 September 2016. In relation to the key recommendation, the government stated that as the federal government has publicly confirmed that it does not support a tort of privacy, and no other Australian The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. has indicated a willingness to take steps in this A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation., NSW cannot act alone in the absence of an agreed approach at a national level.
For information on the development of a statutory tort of privacy and common law developments internationally, see the ALRC report 108; Chapter 74 of the report provides a useful overview.