Privacy in Australian law is not an absolute right and there is no clearly recognised tort of invasion of privacy or similar remedy available to people who feel their right to privacy has been violated. Privacy is, however, affected and protected in limited ways by the Australian common law and a range of Commonwealth, state and territorial laws, and administrative arrangements.
"The current landscape in Australia includes federal and state information privacy legislation, some sector-specific privacy legislation at state level, regulation of the media and some criminal sanctions. Regarding civil causes of action for invasion of privacy, however, the current position in Australia is unclear. There have been some indications by the courts that a tort of invasion of privacy may exist in Australia. The Australian Law Reform Commission has recommended the enactment of a statutory cause of action for invasion of privacy.":para 4.87
There is no statutory definition of privacy in Australia. The Australian Law Reform Commission (ALRC) was given a reference to review Australian privacy law in 2006. During that review it considered the definition of privacy in 2007 in its Discussion paper 72. The ALRC found there is no "precise definition of universal application" of privacy; instead it conducted the inquiry considering the contextual use of the term "privacy".:para 1.37-1.45
In reaching that conclusion, the ALRC began by considering the concept of privacy::para 1.29
"It has been suggested that privacy can be divided into some separate, but related concepts:
Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as cr information, and medical and government records. It is also known as "data protection";
Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches;
Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and
Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks.
Privacy at common law
It is unclear if a tort of invasion of privacy exists under Australian law. The ALRC summarised the position in 2007::para 5.12, 5.14
"In Australia, no jurisdiction has enshrined in legislation a cause of action for invasion of privacy; however, the door to the development of such a cause of action at common law has been left open by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats). To date, two lower courts have held that such a cause of action is part of the common law of Australia. ..."
"At common law, the major obstacle to the recognition in Australia of a right to privacy was, before 2001, the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (Victoria Park). In a subsequent decision, the High Court in Lenah Game Meats indicated clearly that the decision in Victoria Park 'does not stand in the path of the development of … a cause of action (for invasion of privacy)'. The elements of such a cause of action — and whether the cause of action is to be left to the common law tradition of incremental development or provided for in legislation — remain open questions."
Since at least the 19th century, it has been the practice to enclose mail in an envelope to prevent infringement of confidentiality. The unauthorised interception of mail of another is a criminal offence.
An Attorney-General discussion paper notes:
"The primary objective of the current legislation governing access to communications is to protect the privacy of users of telecommunications services in Australia by prohibiting covert access to communications except as authorised in the circumstances set out in the Telecommunications (Interception and Access) Act 1979."
require telecommunications service providers to retain for two years telecommunications data (not content) prescribed by regulations;
provide for a review by the PJCIS of the mandatory data retention scheme no more than three years after the end of its implementation phase;
limit the range of agencies that are able to access telecommunications data and stored communications;
provide for record-keeping and reporting the use of, and access to, telecommunications data; and
require the Commonwealth Ombudsman to inspect and oversight these records for compliance, and Telecommunications Act 1997 to make consequential amendments.
Despite being considered by some an absolute and whole violation of the right to privacy under the Privacy Act 1988 the topic, whilst debated, was never brought to light by mainstream media. The consideration was postured due to the nature of the 'metadata' being retained under the Act and the concept that whilst not directly capturing the content of communications undertaken the bill gives considerable leeway in the kind of metadata being collected.