This page outlines the Australian privacy regimes, highlighting
the interaction of national and state/territory law, practice
and consumer attitudes.
It covers -
Principles, operational challenges and debates are discussed
in more detail in the broader Privacy
Guide elsewhere on this site, in the following pages
and in supplementary notes on such matters as the Australia
Card, unauthorised photography and ANPR.
This profile refers to plural privacy regimes - rather
than a single, unified national system - for three reasons.
The first reason is that privacy law and practice in Australia
involves the national (aka Commonwealth) government, the
state governments and the major territory governments.
Those jurisdictions have all enacted specific personal
privacy and other statutes, consistent with the formal
demarcation of powers featured in the discussion of constitutional
arrangements elsewhere on this site. Depending on the
circumstances, an individual or organisation may potentially
be affected by national and or state/territory law.
The second reason is that although discrete privacy statutes
are important, much privacy protection (and disagreement
about its adequacy) involves a range of statute law and
common law rather than a single 'Privacy Act' and may
be administered by multiple agencies rather than by a
single official privacy watchdog.
Some of that statute law serves to extend or strengthen
the rights of individuals; on occasion (for example the
national Census Act) it predates the 1988 and 2000 national
Privacy Acts. Some of the statute law features exceptions
that have been criticised as weakening protection. Some
common law does not recognise what overseas theorists
and lawmakers regard as substantial privacy rights/responsibilities.
The third reason is that many Australians (including members
of the legislatures and the judiciary) have traditionally
conceptualised privacy on a 'use' basis rather than on
the basis of overarching principles (for example as a
key human right). Much Australian privacy law is thus
industry or activity-specific and in practice may operate
independently of specific Privacy Acts. There is no general
tort of privacy and a broad right to privacy is not explicitly
identified in the national Constitution.
The Australian regimes feature both discrete legislation
(eg the Privacy Act 1988) that is only concerned with
privacy protection and specific provisions in legislation
that has another purpose (eg non-disclosure provisions
in the national Census Act and state motor vehicle registration
That legislation covers action by officials and by the
private sector. It results from incremental development
that has been episodic and sometimes inconsistent. As
with much legislation, the creation of privacy statutes
has tended to be reactive, after for example egregious
abuses by private investigators, financial sector and
health service providers.
Broadly we can discern several categories of 'privacy'
statutes, which coexist -
that is identified as a Privacy Act
legislation identified as a Health Privacy Act
concerned with 'workplace' or 'covert' surveillance
protection provisions in other legislation, for example
in the national postal, telecommunications, archives
and taxation statutes
rights charters such as the Victorian Charter of
Human Rights & Responsibilities which feature
a right to privacy.
legislation has traditionally embodied a wariness about
extending duties to the private sector, whether on the
basis that courts did not recognise an underlying right
of privacy or because concerns were thought to be addressed
through other law.
It is important to note that the statutes typically allow
individuals to waive rights and feature substantial exceptions
for law enforcement/national security purposes.
codes and practice
What do Australians think about privacy? What are expectations
about rights and responsibilities?
The most useful answer to those questions is that there
is real uncertainty, an uncertainty that is consistent
with questions in other
countries. There is little detailed independent authoritative
data. Interpretation is contentious and bias is evident
in much commercial research on "what Australians
Uncertainty reflects inconsistencies between expressed
views and actual practice. It also reflects the diversity
of roles, experience and interests. There isn't a single
'privacy demographic'. Perceptions and actions (or lack
of action) are instead quite complex, affected by factors
such as age, ethnicity, education, income, status and
A presentation at the 2006 Victorian Justice Department
privacy workshop (PDF)
noted that attitudes to privacy are often determined by
which side of the counter - or the camera - the speaker
is on and whether that person's privacy has been seriously
breached in the past.
Australians often claim to greatly value their own privacy
and, as discussed later in this profile, embrace notions
such as "a man's home is his castle" but act
as if there is a 'right to know' that legitimises media
surveillance of celebrities (including harassment by paparazzi),
'foot in the door journalism' and vilification of stigmatised
groups such as 'dole bludgers'.
As a community we appear to be keen on closer surveillance
of known - or even potential - terrorists, drug traffickers
and paedophiles but reluctant to peer behind the veils
sheltering tax evaders. Young people appear to be particular
sensitive to exposure of health information to parents
but, along with many of their adult peers, actively divulge
personal information for an opportunity to win a prize
or as part of interaction with their peers through media
such as blogs and social
Is there a broad 'privacy consciousness' in Australia?
Some of the inconsistencies evident in what people say
they want and what they do can be attributed to a digital
quietism, with expectations that individuals lack capacity
to change the regimes and perceptions that lack of publicity
means no problems are occurring (one reason why US mandatory
data reporting is significant).
The OFPC has conducted several studies of consumer attitudes
the Australian model
Expectations regarding privacy and mechanisms for its
regulation are culturally influenced. Conceptualisation
of privacy and of, for example, the role of the state
in articulating community wants or acting on behalf of
citizens, may vary significantly from one nation to another.
The regimes described in the following pages can be viewed
through a US, EU or UK lens but differ in some degree
from overseas regimes. That is significant for two reasons.
The first is that Australia is situated in a global economy,
with policymaking being influenced by business and government
agencies in North America and Europe. Astute observers
have commented that principle is not always reflected
in practice (and that there is substantial variation on
a national basis, in for example the UK, or in 'commercial'
rather than 'national security' treatment) but broadly
Europe is more protective of privacy than the US. Australia,
like Canada, is being pulled in both directions; tensions
are evident in government (which contrary to some claims
often does not speak with one voice), within the commercial
and academic legal communities, and within business.
The second reason is that advocates look overseas for
benchmarks, for codes of practice and legislation that
might be adapted by Australia, and more broadly for a
'language' that can used in debate - both to conceptualise
needs/concerns and to rally constituencies.
Inconsistencies also reflect the way that debate about
privacy principles, law and practice has been framed.
That is evident in characterisation of privacy as something
that inhibits or prevents social goods. Polemicists have
claimed that it is antithetical to economic growth, improved
health services and public safety. Academic Mirko Bagaric
thus commented in 2007 that "the right to privacy
is the adult equivalent of Santa Claus and unicorns"
and that privacy (along with human rights) "is a
middle-class invention by people with nothing else to
Others - including the Australian Law Reform Commission
and High Court Justice Michael Kirby - have argued that
respect for privacy represents a respect for individuals
that is fundamental to maintenance of a 'moral' civil
societ, is not antithetical to good governance and may
indeed underpin economic growth by ensuring exchange of
accurate information on a basis of trust.
Arguably much debate about privacy in relation to public
policy is quite shallow, with a poor understanding of
issues and current practice. Much debate has been determined
by US rhetoric; a disappointing aspect has been the tendency
of liberties groups to emulate US anxieties about a government
'big brother' while ignoring private sector privacy abuses.
Another disappointment has been dismissal by government
and by some business sectors of privacy as something that
is valued but must be sacrificed in the interests of national
security or financial stability.
The absence of a comprehensive academic study of Australian
privacy law (past and present) may come as a surprise
to some readers. Unfortunately there is no definitive
study of the different statutes and of how Australian
courts, businesses, government agencies and citizens have
engaged with the law. Much writing is instead distinctly
atomistic and often located in specialist journals or
Points of entry into the Australian literature include
Brett Mason's Privacy Without Principle: The Use and
Abuse of Privacy in Australian Law and Public Policy
(Melbourne: Australian Scholarly Publishing 2006), the
provocative Privacy Law in Australia (Leichhardt:
Federation Press 2005) by Carolyn Doyle & Mirko Bagaric,
Margaret Jackson' Hughes on Data Protection in Australia
(Pyrmont: Lawbook 2001) Des Butler's 2005 'A Tort of Invasion
of Privacy in Australia?' in 29 Melbourne University
Law Review 339 and successive reports from law reform
bodies, in particular the Australian Law Reform Commission
(1979, 1983, 2004 and 2006).
A perspective is offered by Colin Bennett & Charles
Raab's The Governance of Privacy: Policy Instruments
in Global Perspective (Cambridge: MIT Press 2006);
other works are highlighted in the more detailed Privacy
guide elsewhere on this site.
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