Privacy in Australian law is the right of natural persons to protect their personal life from invasion and to control the flow of their personal information. Privacy is not an absolute right; it differs in different contexts and is balanced against other competing rights and duties. It is affected by the Australian common law and a range of Commonwealth, State and Territorial laws and administrative arrangements.
Looking across the Tasman, the New Zealand Law Commission said in 2009:
"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 that 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 1.49
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."
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