Do Australians have a legal right to privacy?

Parliament of Australia

Department of Parliamentary Services

Parliamentary Library RESEARCH NOTE

Information, analysis and advice for the Parliament 14 March 2005, no. 37, 2004–05, ISSN 1449-8456

Full PDF Document can be found here:

http://www.aph.gov.au/Library/pubs/...4-05/05rn37.pdf

Do Australians have a legal right to privacy?

The advent of the Internet and mobile phones have made communication easier and quicker, but the change is not necessarily for the best. This is illustrated, among other things, by recent media reports about the misuse of mobile phones, particularly camera phones (or ‘phonecams’).1In October 2004, for example, a man pleaded guilty to using a mobile phone to photograph women in change rooms in a fashion store. Then in December 2004, another man pleaded guilty to using a mobile phone to photograph topless women at Coogee Beach. Similarly, as Edward Mandla, National President of the Australian Computer Society, wrote in June 2004 (when calling for tighter controls and guidelines for mobile phone use): “When you invite a tradesperson into your home to quote on a job, you look at the phone clipped to his belt and call it a tool of the trade. But consider that he could now record and send to the Internet the contents of your closet or your drawers or the way you live.”

While these examples raise issues about individual morality, they also raise issues about the sufficiency of the law to protect the community from breaches of privacy. This Research Note briefly examines the law of privacy in Australia—both legislation and common law—to highlight the fact that while the law offers some protections, there is currently no legal right to privacy in Australia—although the courts are moving towards recognising such a right.

Legislation

There is no constitutional right to privacy in Australia, but there are some pieces of legislation which afford certain but incomplete protections. On 1 February 2005, for example, the Waverley Council (a Sydney local council) voted 7:5 to ban cameras from its council-run changing rooms at places like Bondi. While this decision will presumably become enshrined in a local by-law, it illustrates the need for better legal protection of personal privacy for society as a whole. At state level, there are various laws which have the effect of protecting privacy, particularly criminal laws, but nothing affords a right to privacy per se. For example, the man mentioned above who took photos of women in a fashion store was charged with ‘filming for an indecent purpose’, not with any invasion of the womens’ privacy. Likewise, the man who photographed the women on Coogee Beach was charged with ‘behaving offensively in a public place’—an offence that could cover a multitude of behaviours. Other laws, such as the Neighbouring Land Act (No. 2) 2000 (NSW), acknowledge the desirability of people living in harmony, but do not confer an absolute right to privacy on any individual.

Do Australians have a legal right to privacy?

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