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section heading icon     Australian State/Territory privacy regimes

This page considers the privacy regimes of the Australian states, the Northern Territory and Australian Capital Territory.

It covers -

Australian and New Zealand surveillance agencies are examined here.

subsection marker icon     introduction

The Australian privacy regimes include surveillance, spent convictions, credit reporting, health, adoption records and criminal trespass legislation.

The only states with a comprehensive data protection regime are New South Wales (NSW), with the Privacy & Personal Information Protection Act 1998, and Victoria, with the Information Privacy Act 2000. Commonwealth and State/territory Freedom of Information legislation is identified here, followed by a discussion of Australian and overseas archives legislation

For legislation and practice in New Zealand see the coverage in the Privacy guide.

subsection marker icon     NSW

In New South Wales the 1998 Privacy & Personal Information Protection Act (PPIP) covers the public sector and established an Office of the NSW Privacy Commissioner (NSWPC).

Major government agencies, such as the police, are exempt from some or all of the privacy principles. All state owned corporations, courts, tribunals and Royal Commissions are fully exempt.

The 1998 Workplace Video Surveillance Act (WVSA) was superseded in 2005 by the Workplace Surveillance Act 2005 (WSA). The latter enactment, along with the broader 1984 Listening Devices Act (LDA), features provisions dealing with covert surveillance. In December 2001 the NSW Law Reform Commission issued a major report on Surveillance, calling for a significant extension of privacy protection.

Spent convictions are dealt with under the Crimes Act of 1900 (as subsequently amended) and the Criminal Records Act 1991.

The Health Records & Information Privacy Act 2002 (HRIPA) deals with medical records.

The salient criminal trespass enactment is the Inclosed Lands Protection Act 1901. The legislation is important because restricting physical access to a location remains a key builkding block for the protection of privacy.

subsection marker icon     Victoria

This culminated in the Charter of Human Rights, which took effect this year and is the first in Australia. Taking pride of place in the charter is the right to privacy (section 13).

In Victoria the new Information Privacy Act (IPB) articulates 10 Information Privacy Principles, based on the National Privacy Principles. It is restricted to the public sector and does not apply to health information, covered by the Health Records Act 2001 (HRA) .

The information privacy legislation establishes a State Privacy Commissioner (SPC) to administer the Act and to deal with complaints. The Victorian Act is more comprehensive than the NSW Act: it has fewer exemptions, and covers state government owned enterprises. Complaints to the Privacy Commissioner, if not conciliated, can be decided by the Victorian Civil & Administrative Tribunal which can make binding orders, including for compensation of up to $100,000.

Other Victorian privacy legislation includes the -

  • Surveillance Devices Act 1999 (SDA)

Credit reporting is covered by the Credit Reporting Act 1978. The Equal Opportunity Act 1995 makes it unlawful to request sensitive personal information, such as marital status, that may be used to discriminate against the individual.

The salient criminal trespass enactment is the Summary Offences Act 1966.

An overview of the Victorian regime is provided by the Victorian Law Foundation's Private Lives guide.

subsection marker icon     ACT

Australian Capital Territory government agencies are notionally covered by the federal legislation, although health records were removed from the jurisdiction of the Federal Privacy Commissioner by the ACT Health Records (Access & Privacy) Act 1997 (AHRAP) based on the federal privacy principles and intended to allow patients access to their own medical records in the public and private sectors.

The ACT Listening Devices Act 1992 is here.

subsection marker icon     NT

The Northern Territory is developing privacy legislation for the public sector only, with the Information Act 2002 (IA). Surveillance legislation includes the Surveillance Devices Act 2000 (SDA), which replaced the Listening Devices Act 1990 and Listening Devices Amendment Act 1991.

Spent convictions are dealt with under the Criminal Records (Spent Convictions) Act 1992.

The salient criminal trespass enactment is the Trespass Act 1987.

subsection marker icon     Queensland

The Invasion of Privacy Act 1971 (PDF) was primarily concerned with the licensing of private inquiry agents and the regulation of listening devices, as well as a number of offences relating to unlawful entry of homes. The Privacy Committee Act 1984 established a state Privacy Committee with an Ombudsman complaint-handling function but featured a sunset clause: the Committee was wound down in 1991.

Surveillance legislation includes the Drugs Misuse Act 1986 and Criminal Justice Act 1989.

Spent convictions are dealt with under the Criminal Law (Rehabilitation of Offenders) Act 1986.

In 2003 Justice Skoien of the Brisbane District Court, in Grosse v Purvis [2003] QDC 151, ruled for the plaintiff in a suit for the tort of privacy, noting that in Australia it would be

the first step to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy

albeit "a logical and desirable step". The case is claimed as the first in Australia where a claimant has successfully sued for damage to privacy and creates a right of action independent of statute. As the decision is by the District Court it is not binding on other jurisdictions. Higher courts in subsequent decisions have - in our view unfortunately - held that the law has not developed to the point where action for breach of privacy is recognised in Australia. Examples are Giller v Procopets [2004] VSC 113 and Kalaba v Commonwealth of Australia [2004] FCA 763 and FCAFC 326.

In Grosse v Purvis the Court awarded damages of $178,000 after the defendant stalked the claimant. Skoien held that Queensland law allows an individual to recover damages for mental, psychological or emotional harm (including embarrassment, hurt, distress and post traumatic disorder) for a willed act that intrudes upon the claimant's privacy or seclusion and causes the claimant harm or distress (or prevents or hinders the claimant from doing an act which that person is lawfully entitled to do).

Justice Gillard of the Victorian Supreme Court, in Giller v Procopets, was unpersuaded. He specifically rejected a cause of action based on breach of privacy under Australian law.

subsection marker icon     Tasmania

The other states have issued administrative instructions requiring broad compliance by government agencies with the federal principles but are not moving towards discrete privacy legislation covering public or private sector bodies.

The Instructions in South Australia, Tasmania and Western Australia do not have the force of law and there are few supervisory or enforcement mechanisms. South Australia has a part time Privacy Committee with some advisory and ombudsman functions.

Tasmania has a specific Listening Devices Act 1991 (LDA).

For spent convictions see the Records of Offences (Access) Act (RAO).

The salient criminal trespass enactment is the Police Offences Act 1935.

subsection marker icon     Western Australia

For listening devices legislation in Western Australia see the Surveillance Devices Act 1998 (here).

The State's Spent convictions regime is based on the Spent Convictions Act 1988.

subsection marker icon     South Australia

In South Australia the Listening Devices Act 1972 was amended in 1974, 1989 and 2001, becoming the Listening & Surveillance Devices Act 1972.

Credit reporting is covered by the Fair Trading Act 1987.

For criminal trespass see the Summary Offences Act 1953.

SA legislation is accessible from the State Parliament's legislation database here.

subsection marker icon     voyeurism

Australian privacy, censorship and intellectual property regimes have been criticised for inadequate protection of celebrity personality rights and for failing to prevent online "voyeuristic" photos of teens or other people snapped without their consent.

The 2005 Standing Committee of Attorneys-General Unauthorised Photographs on the Internet And Ancillary Privacy Discussion Paper (PDF) explored concerns regarding both taking photos and their publication on the net. It highlights a range of state and federal legislation, including the Victorian Crimes Act, NSW Summary Offences Act, ACT Public Baths & Public Bathing Act and WA Surveillance Devices Act.

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version of January 2006
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