Is my privacy really protected under Australian law?
Consider these three privacy incidents:
- The Minister for Human Services releases to a reporter the personal details of a welfare recipient who had publicly criticised the government.
- A woman secretly places a hidden camera in her father’s room in a nursing home to record what happens because she fears he is being abused by a staff member.
- A CCTV camera in an apartment block records a couple who are not married to each other in an intimate activity in the lift.
All of these incidents raise questions of privacy, which is an increasingly vexed legal area in today’s world of hi-tech surveillance and the storing of personal data on all of us.
State and federal laws designed to protect privacy
There are laws in place designed to protect privacy in certain conditions, but this protection is not absolute.
In NSW privacy is protected by several laws, including the Privacy and Personal Information Protection Act 1998. (For more information please see our July 2021 article NSW set to introduce mandatory data breach notification scheme to protect privacy.)
Under federal law privacy is protected under the Privacy Act 1988.
We give our personal information to the government on the understanding it will be held secure and not released to others.
We go about our work on the understanding we are not under surveillance unless we are told we might be. Public places have laws protecting CCTV recordings, but in the workplace the employer has to inform everyone if there are cameras and people may be recorded.
We think we have a right to privacy in our own home without being watched, but if there is a camera in the lift recording us, we have to be told it is there.
Did the government breach privacy laws by disclosing private information about its critic?
The government claimed that the disclosure of private information of a welfare recipient to a journalist was legal under section 202 of the Social Security (Administration) Act 1999, as well as section 162 of the A New Tax System (Family Assistance) (Administration) Act 1999.
Section 202 allows for the release of protected information to facilitate “efficient and effective delivery of a work-related service” – but whether this is sufficient justification to release personal data on critics of a government service could soon be tested in court. It would be an interesting legal test case on what the government can do with the personal information supplied by its citizens.
The opposition has referred the matter to the Australian Federal Police, arguing that the release of personal information on somebody who had criticised the government was a breach of the privacy laws.
Secret filming of abuse by employee of nursing home
In the second case, where a woman had secretly filmed an Adelaide nursing home employee abusing her bedridden 89-year-old father, she took the shocking video to police. The ABC 7.30 Report showed the video when it covered the story.
Initially the nursing home accused the daughter of breaching the Privacy Act, The Aged Care Act and the Video Surveillance Act, but the crucial video evidence was found to be admissible in court and the employee was convicted of aggravated assault.
NSW surveillance law makes exception for violence, threats or damage to property
In NSW secret surveillance comes under the Surveillance Devices Act 2007. Generally it requires the user to notify people in the vicinity that there is a camera, and that they may be filmed or recorded.
The law says it is generally an offence to record a private conversation or film a location secretly, but there are exceptions, such as recording threats or placing hidden cameras to record abuse.
It is legal to install surveillance cameras on your property, but not in bathrooms or bedrooms without the consent of the person being filmed.
It would be an offence to share that raunchy CCTV footage of the couple in the apartment lift, be it privately to others or on social media. It is not an offence to pass on footage that reveals a crime such as violence, abuse or damage to property.
For information on electronic surveillance of employees by their employers, please see Can your boss use electronic surveillance to monitor you when you’re working from home?