By Adam Fletcher
Protection of privacy in Australia was brought into stark relief last week with the ABC’s coverage of the Federal Government’s current compulsory Australian Health Survey being conducted by the Australian Bureau of Statistics. The ABC reports that some participants have found the survey “deeply intrusive and a stressful violation of their privacy” because it demanded (among other things) urine samples and details of people’s private lives (deaths in the family, people’s weight etc). It turns out the fluid samples are voluntary, but many of the questions are not, and you can be fined up to $110 per day for refusing to answer. It’s all a bit “Big Brother,” as the ABC puts it.
Privacy also got a guernsey on SBS’ Insight program on Tuesday 25 October. There was a moving story about people who were unable to do anything about neighbours installing intrusive surveillance cameras and slightly less moving stories about footballers being snapped in private situations by overzealous fans. Overall, the program highlighted the gap in privacy protection which exists in this country.
Coincidentally, the Federal Government recently released an Issues Paper on whether Australia should have a statutory cause of action for serious invasion of privacy. Presumably the Bureau of Statistics was not the principal threat to privacy Minister O’Connor had in mind when he released this paper on 21 July. In preparing a response to this paper the Castan Centre has learned that much of the jurisprudence on this issue around the world stems from cases where the State itself is responsible for violations of the right to privacy. From illegal wiretaps to unjustified searches, security officials are responsible for many of the privacy breaches which form the subject of complaints to international human rights bodies.
Of course private companies are increasingly taking over the role of invader, with prime examples being the News of the World phone hacking scandal (an episode which formed part of Minister O’Connor’s stated motivation in publishing the Issues Paper) and Facebook continually hitting the headlines for all the wrong reasons.
As such, our response to the Issues Paper argues that we do need more privacy protection in Australia, but that a right to sue is insufficient. As the Privacy Commissioner, Mr Pilgrim, conceded on Insight this week, his role could benefit from more investigatory and enforcement powers. This is particularly important for systemic problems and complainants who cannot afford to institute proceedings in the courts.
The right to privacy is not unlimited, and opponents of a cause of action argue that it will inevitably impinge on freedom of expression. In my earlier post on this subject, I set out the balancing equation and opponents’ principal arguments. In summary, media organisations and others who place a very high value on freedom of expression, and who are already subject to relevant causes of action including defamation, libel and trespass, don’t believe further privacy protection is warranted.
On the other hand, reports such as those above about Government surveys, dodgy neighbours, Facebook and the myriad other privacy threats faced daily by Australians demonstrate that the ‘right to know’ and the rights of organisations to collect information need to be balanced against a right for people to enjoy their private and home lives without unreasonable interference.
A well-crafted statutory cause of action for serious invasions of privacy could provide for a range of defences to protect freedom of expression. In fact, separate statutory protection for freedom of expression may be justified, given that the ambit of the implied right to freedom of expression in the Constitution is limited to political discussions.
Most Australians would surely agree that such fundamental rights should be legally protected – not to give the courts power over the media, but to give people who suffer offensive interferences with their privacy an avenue for redress if other options (such as negotiation) fail. For many, litigation against the Government or a big media organisation will be unrealistic anyway, which is why we also recommend strengthening the role of the Office of the Information Commissioner (including the Privacy Commissioner). The Australian, Victorian and NSW Law Reform Commissions have all looked at this issue in great detail over the last few years, and all ended up making similar recommendations in their reports.
In conclusion, the Centre welcomes the Federal Government’s Issues Paper, and urges serious consideration of stronger legal protection for privacy in Australia.