Introduction to Privacy
Contributed by Dr Bruce Baer Arnold, University of Canberra and current to February 2022.At a glance
Privacy is a fundamental but contested value in Australian life and the legal system. It is an aspect of human dignity: something that differentiates people from nonhuman animals and corporations, something embodied in the Australian Capital Territory’s Human Rights Act, something deserving of protection under a national Bill of Rights that would empower all Australians. Unfortunately, it is weakly protected in law and day by day practice. It is not an absolute. Many of our entitlements as citizens or benefits as consumers involve being required to share or choosing to share information about ourselves and people with whom we deal. This chapter of the Handbook provides an overview of privacy law and practice for people in the ACT. The expectation is that readers will get a sense of the overall architecture of that law: the main legislation at the national and Territory levels, the key agencies and some relevant case law. Readers will also get a sense of current and emerging privacy issues that may affect them in daily life, for example the increasing use of drones and biometric imaging or registration as part of COVID.Structure
The chapter initially provides a brief discussion of what is ‘privacy’. That discussion is useful for understanding why there are disputes about the behaviour of individuals or organisations and why privacy law resembles a sometimes-moth-eaten patchwork rather than a seamless up-to-date set of rules. The chapter next provides an overview of privacy as an area of law. That overview considers both the ACT and the national legal framework. Both are relevant because disregard of privacy may be addressed under the Territory’s law, under Commonwealth law, under both or under neither. Readers are alerted that law regarding privacy resembles a patchwork, one with numerous holes. Much language about privacy rights is misplaced, given that those ‘rights’ are not readily enforceable. Much talk about rights also incorrectly assumes that privacy is only a matter of identifiers (such as the Tax File Number and Medicare Number) and files. Building on that overview the chapter looks at the Commonwealth (national) regime, which is a matter of law passed by the Australian Parliament and decisions by the national courts, in particular the High Court. The national Privacy Act 1988 (currently under review) affects many people and bodies in the ACT. However, very importantly, it is not the only national enactment dealing with privacy. Numerous other Acts of the Australian Parliament have provisions regarding privacy or specifically weaken what people across the nation might regard as their right/s to privacy. The chapter goes on to discuss the ACT privacy regime, i.e. the range of enactments made by the ACT Legislative Assembly and specific to the Territory. Those Acts are not restricted to public administration, i.e. are broader than what ACT government agencies can/cannot do in dealing with personal information. The discussion includes some coverage of decisions by ACT courts and tribunals. Given the complexity and dynamic nature of those privacy regimes, the chapter then highlights frequent issues or questions, including for example questions about employer surveillance of employees (within and outside premises), data sharing as part of COVID and misconceptions that privacy law criminalises making photos/videos of children in public or private places. It indicates that the most effective remedies for some disregard of privacy will often occur outside the main Commonwealth and ACT information privacy enactments. The chapter briefly notes ways that people in the ACT can assert their privacy rights. One way is using the grievance or conciliation mechanisms available under the national Privacy Commissioner, the ACT Privacy Commissioner, the ACT Human Rights Commissioner and internal review by government agencies or other bodies. Given the uneven nature of privacy protection those mechanisms will be cheaper and sometimes as effective as litigation in Territory and national courts. Another way is politely and calmly alerting a neighbour, school, business or other entity that particular behaviour is wrong. Much disregard of privacy is a matter of organisations doing what is administratively convenient without an understanding of law and without any questions from people who are affected by the particular business or government agency. The chapter concludes with pointers to contacts and resources.Using this chapter
In contrast to some areas of law, the recognition of privacy and protection of individuals from disregard of their privacy is both dynamic and often determined by the specific jurisdiction. That means information in this chapter may become out of date, in particular because law reform regarding privacy typically occurs on a stop-start basis rather than steadily. It also means that readers should be aware that law in the ACT is not necessarily the same as law in New South Wales or another jurisdiction. The rules in the ACT will rarely be the same as law in New Zealand, the United Kingdom or the United States. Details matter. Readers should be wary about relying on sources such as Wikipedia that are often legally uninformed or that have unstated biases towards US law. It is also useful to recognise that there are disagreements among legal practitioners, academics and public policy-makers about what is necessary and what is lawful. That is one reason that Australia has an appeal court system and government Ministers are disappointed when courts disagree with their interpretation of Acts made by parliament. This chapter offers a broad introduction to key features of the privacy regime in the ACT and answers some common questions (for example what can you do if a neighbour is using a drone to ‘spy’ on you or can you be required to provide an identity document). It is however not a substitute for formal advice by a legal practitioner.
At a glance
Privacy is a fundamental but contested value in Australian life and the legal system. It is an aspect of human dignity: something that differentiates people from nonhuman animals and corporations, something embodied in the Australian Capital Territory’s Human Rights Act, something deserving of protection under a national Bill of Rights that would empower all Australians. Unfortunately it is weakly protected in law and day by day practice. It is not an absolute. Many of our entitlements as citizens or benefits as consumers involve being required to share or choosing to share information about ourselves and people with whom we deal.
This chapter of the Handbook provides an overview of privacy law and practice for people in the ACT.
The expectation is that readers will get a sense of the overall architecture of that law: the main legislation at the national and Territory levels, the key agencies and some relevant case law. Readers will also get a sense of current and emerging privacy issues that may affect them in daily life, for example the increasing use of drones and biometric imaging or registration as part of COVID.
Structure
The chapter initially provides a brief discussion of what is ‘privacy’. That discussion is useful for understanding why there are disputes about the behaviour of individuals or organisations and why privacy law resembles a sometimes moth-eaten patchwork rather than a seamless up-to-date set of rules.
The chapter next provides an overview of privacy as an area of law. That overview considers both the ACT and the national legal framework. Both are relevant because disregard of privacy may be addressed under the Territory’s law, under Commonwealth law, under both or under neither. Readers are alerted that law regarding privacy resembles a patchwork, one with numerous holes. Much language about privacy rights is misplaced, given that those ‘rights’ are not readily enforceable. Much talk about rights also incorrectly assumes that privacy is only a matter of identifiers (such as the Tax File Number and Medicare Number) and files.
Building on that overview the chapter looks at the Commonwealth (national) regime, which is a matter of law passed by the Australian Parliament and decisions by the national courts, in particular the High Court. The national Privacy Act 1988 (currently under review) affects many people and bodies in the ACT. However, very importantly, it is not the only national enactment dealing with privacy. Numerous other Acts of the Australian Parliament have provisions regarding privacy or specifically weaken what people across the nation might regard as their right/s to privacy.
The chapter goes on to discuss the ACT privacy regime, i.e. the range of enactments made by the ACT Legislative Assembly and specific to the Territory. Those Acts are not restricted to public administration, i.e. are broader than what ACT government agencies can/cannot do in dealing with personal information. The discussion includes some coverage of decisions by ACT courts and tribunals.
Given the complexity and dynamic nature of those privacy regimes, the chapter then highlights frequent issues or questions, including for example questions about employer surveillance of employees (within and outside premises), data sharing as part of COVID and misconceptions that privacy law criminalises making photos/videos of children in public or private places. It indicates that the most effective remedies for some disregard of privacy will often occur outside the main Commonwealth and ACT information privacy enactments.
The chapter briefly notes ways that people in the ACT can assert their privacy rights.
One way is using the grievance or conciliation mechanisms available under the national Privacy Commissioner, the ACT Privacy Commissioner, the ACT Human Rights Commissioner and internal review by government agencies or other bodies. Given the uneven nature of privacy protection those mechanisms will be cheaper and sometimes as effective as litigation in Territory and national courts.
Another way is politely and calmly alerting a neighbour, school, business or other entity that particular behaviour is wrong. Much disregard of privacy is a matter of organisations doing what is administratively convenient without an understanding of law and without any questions from people who are affected by the particular business or government agency.
The chapter concludes with pointers to contacts and resources.
Using this chapter
In contrast to some areas of law, the recognition of privacy and protection of individuals from disregard of their privacy is both dynamic and often determined by the specific jurisdiction.
That means information in this chapter may become out of date, in particular because law reform regarding privacy typically occurs on a stop-start basis rather than steadily. It also means that readers should be aware that law in the ACT is not necessarily the same as law in New South Wales or another jurisdiction. The rules in the ACT will rarely be the same as law in New Zealand, the United Kingdom or the United States.
Details matter. Readers should be wary about relying on sources such as Wikipedia that are often legally uninformed or that have unstated biases towards US law. It is also useful to recognise that there are disagreements among legal practitioners, academics and public policy-makers about what is necessary and what is lawful. That is one reason that Australia has an appeal court system and government Ministers are disappointed when courts disagree with their interpretation of Acts made by parliament.
This chapter offers a broad introduction to key features of the privacy regime in the ACT and answers some common questions (for example what can you do if a neighbour is using a drone to ‘spy’ on you or can you be required to provide an identity document). It is however not a substitute for formal advice by a legal practitioner.
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