Alternative Law Journal

Privacy as a human right?

Bruce Baer Arnold

ACT

The incoherence of Australia’s recognition of privacy as a human right is demonstrated by the idiosyncratic nature of privacy statutes across the states and territories, the weakness of Commonwealth law in the absence of a justiciable Bill of Rights, and regulatory incapacity on the part of watchdogs such as the Office of the Australian Information Commissioner. It is puzzling, for example, that New South Wales and Victoria have enhanced their information privacy statutes (albeit while weakening the state privacy commissioners) and sought to establish technology-neutral legislation regarding surveillance devices but South Australia has yet to provide statutory protection for information privacy.

Discrepancies in protection are highlighted in the consultation by the ACT government, concluding this month, about ‘civil surveillance regulation’. That consultation centred on an issues paper for the government by Daniel Stewart of the ANU College of Law regarding private sector surveillance in the Territory. It follows establishment of the Workplace Privacy Act 2011 (ACT) and the Information Privacy Act 2014 (ACT). The latter statute represented a step forward, with a discrete information privacy regime for the Territory beyond the Privacy Act 1988 (Cth).

The consultation took place amid expressions of concern in several jurisdictions about intrusive behaviour by investigators for insurers and other finance sector entities, reflected in a recent commitment by the Financial Services Council that its members would not break the law. That commitment, although presumably heartfelt, needs to be read in conjunction with issues highlighted in the issues paper. For example, in particular jurisdictions protection against non-government surveillance is dependent on the type of surveillance device rather than inappropriate intrusion per se.

The consultation is likely to lead to statute reform in the Territory, potentially including amendment of the Listening Devices Act 1992 (ACT) and the workplace privacy statute. As the title suggests, the devices statute is limited; it does not cover optical, geospatial tracking and data access devices/applications. The Territory workplace privacy regime does not extend beyond workplaces. Weak coverage, alongside the absence of recognition of a statutory cause of action for serious invasions of privacy, means that some disregard of the privacy rights inherent in the Human Rights Act 2004 (ACT) and international privacy conventions will be inadequately addressed, if at all, under tort law and the Crimes Act 1900 (ACT).

The issues paper offers sensible recommendations, including establishment of a broad Surveillance Act, potential restriction of communication of the results of inadvertent observations made via drones and other devices, recognition of public interests on the basis of proportionality and necessity, and emphasis that the restriction of tracking should centre on principles rather than on specific devices/uses.

The consultation unfortunately lacks the courage of the Government’s stated human rights convictions, forgoing the opportunity to propose an effective Territory statutory cause of action for serious invasions of privacy, aka the ‘privacy tort’. It is a lost opportunity and a more forward-looking government, perhaps undistracted by the parochial concern with light rail that dominated the October election, might have explored a comprehensive privacy statute that would serve as a benchmark for law reform in other jurisdictions.

BRUCE BAER ARNOLD teaches law in the School of Law and Justice at the University of Canberra.

Cite as

(2016) 41(4) AltLJ 285