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NSW Privacy Laws
The invasion of privacy, including the misuse of personal information, is unlawful under various state and federal laws which govern both the State of NSW and the whole of Australia. In NSW, there are three main laws that protect the privacy of individuals. These are:
1. .the Federal Privacy Act 1988 (Cth)
- sets privacy standards for dealing with personal information
- applies to Australian Government (Commonwealth) and ACT government agencies
- applies to private sector organisations across Australia
- is administered by the Office of the Federal Privacy Commissioner
2. the Privacy and Personal Information Protection Act 1998 (NSW)
- sets privacy standards for dealing with personal information
- applies to NSW state and local government agencies
- is administered by Privacy NSW
3. the Health Records and Information Privacy Act 2002 (NSW)
- sets privacy standards for dealing with health information
- applies to NSW state and local government agencies
- applies to private sector persons and organisations in NSW
- is administered by Privacy NSW.
There are other laws which impact on particular aspects of privacy, such as
Privacy of communications:
Bodily privacy:
What if none of the Acts apply to my situation?
In some cases there will be other laws, policies or standards that we can use to judge whether or not a person's privacy has been breached. Which one applies to a complaint will depend on the circumstances. For example a complaint about the disclosure of a person's criminal record will be assessed against compliance with the Criminal Records Act; a complaint about a search of a bag at the supermarket will be assessed against industry best practice guidelines.
When giving advice or investigating complaints about the handling of personal information by organisations which are not obliged to comply with the PPIP Act or HRIP Act , Privacy NSW follows the data protection principles.
In other cases we will rely on the following general tests as to whether or not a person's privacy has been breached. These tests treat the following as breaches of privacy:
- the intrusion upon a person’s seclusion or solitude, or private affairs
- public disclosure of embarrassing facts about a person
- publicity which places a person in a false light in the public eye
- appropriation of a person’s name or likeness.
Privacy Law Reform
Privacy law, at both a national and State level, is under review.
The Australian Attorney General has asked the Australian Law Reform Commission to examine the Privacy Act 1988 and report any recommended changes by March 2008.
The New South Wales Attorney General has asked for a similar review of privacy and related legislation in New South Wales, including whether there should be a statutory tort of privacy.
Relevant information releases are included below:
Public Meeting on Privacy and You
The New South Wales Law Reform Commission held a public seminar on the 26 March 2007 on a person’s right to privacy as part of Law Week 2007 celebrations. All interested members of the public and legal profession were invited to attend.
The seminar focussed on whether a person should be able to bring an action to protect his or her privacy.
The Chairman of the Law Reform Commission, Hon James Wood AO QC, said: “This law week seminar will highlight some of the complex issues in the law of privacy and consider whether the current law provides an effective framework for the protection of an individual’s privacy.”
“We welcome input from interested members of the public on this topic. The seminar will provide an interactive, stimulating and informed learning environment for everyone present,” he said.
Professor Michael Tilbury, Commissioner in charge of the NSW Law Reform Commission’s review of privacy laws, outlined the scope of the privacy review. Attendees were invited to ask questions and raise issues about this law reform topic.
The privacy review resulted from a request by the Attorney General for the Commission to inquire into and report on whether existing legislation in New South Wales provides an effective framework for the protection of the privacy of an individual.
In particular, the Commission is to consider:
- the desirability of: privacy protection principles being uniform across Australia;
- a consistent legislative approach to privacy under various NSW statutes; and
- introducing a statutory tort of privacy in NSW.
Speakers included Professor Michael Tilbury, Full-time Commissioner, NSW Law Reform Commission and Professor Les McCrimmon, Commissioner-in-charge of ALRC Privacy Inquiry. See copies of presentation documents by Professor Michael Tilbury and Professor Les McCrimmon.
Any member of the public can comment on the matters raised in a current Issues Paper or Discussion Paper. The Commission would like to hear from you if you have an opinion on a matter under review or personal experiences of the issues involved. You do not need legal qualifications to make a submission, although the Commission welcomes input from the legal community.
There is no set format for submissions. A short comment in a letter may be sufficient. Alternatively, a person may wish to prepare detailed suggestions or a critique of several pages. Submissions are usually sought within a specified time (identified in the relevant paper). It would be helpful if comments and submissions addressed specific issues or proposals in our consultation papers.
Submissions can be made in writing, or over the telephone to:
New South Wales Law Reform Commission
GPO Box 5199
SYDNEY NSW 2001
AUSTRALIA
Telephone: (02) 9228 8230
Facsimile: (02) 9228 8225
TTY: (02) 9228 7676
Email: nsw_lrc@agd.nsw.gov.au
Website: www.lawlink.nsw.gov.au/lrc
Other Media ReleasesO
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ALRC media release: Health information and internet privacy top youth privacy concerns (11 April 2007)
ALRC media release: Law Reformers ask Sydney to ‘have a say’ on business & privacy (15 March 2007)
ALRC media release: Telemarketing, information privacy top community concerns (5 June 2006)
Review of NSW privacy legislation
On 11 April 2006, the Attorney General, the Hon R J Debus MP made the following reference to the NSW Law Reform Commission:
Pursuant to section 10 of the Law Reform Commission Act 1967 (NSW), the Law Reform Commission is to inquire into and report on whether existing legislation in New South Wales provides an effective framework for the protection of the privacy of an individual. In undertaking this review, the Commission is to consider in particular:
- The desirability of privacy protection principles being uniform across Australia;
- the desirability of a consistent legislative approach to privacy in the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Protection 2002, the State Records 1998, the Freedom of Information Act 1989 and the Local Government Act 1993.
- The desirability of introducing a statutory tort of privacy in New South Wales.
- Any related matters.
The Commission should liaise with the Australian Law Reform Commission which is reviewing the Privacy Act 1988 (Cth) as well as other relevant Commonwealth, State and Territory agencies.
Attorney-General's media release: Australian Law Reform Commission to review Privacy Act (31 January 2006)
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ALRC Media release: Protecting privacy in a wired world: new ALRC inquiry (31 January 2006)
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