The Queensland and Commonwealth governments are set to introduce changes to privacy laws with wildly different consequences.
Australia's fraught relationship with the right to privacy continues, as Queensland legislation that would allow the names of defendants in sexual offence cases to be published passes Parliament, while the federal government considers legal reforms to give internet users more control over their personal information.
The Justice and Other Legislation Amendment Act 2023 (Qld), set to come into effect on 3 October, would bring Queensland laws regarding the identity of sexual offence defendants in line with those in other states and territories.
Under Section 7 of the Criminal Law (Sexual Offences) Act 1978 (Qld), there is a presumption that pre-trial news reports cannot reveal any part of the identity of a person charged with sexual offences in Queensland. There must be a “good and sufficient reason” to justify publishing that information.
However, under the amended Section 7, the presumption would be reversed, with defendants required to apply for a non-publication order. The only acceptable grounds are to ensure the “proper administration of justice,” to “prevent undue hardship or distress” on the person, or for their safety.
For one high-profile individual charged with two counts of rape in Toowoomba, this amendment is bad news. However, Justice Applegarth of the Queensland Supreme Court agreed to impose an ‘interim suppression order’ until the defendant can apply for a non-publication order under the new legislation.
Meanwhile, at the other end of the privacy spectrum, the Commonwealth government is set to introduce legislation that would protect the private lives of Australians online.
Under the proposed laws, companies that store online data would be required to allow users to give their “informed consent” for the storage of that data, rather than hiding it in the fine print or legal jargon. This would operate alongside a time limit on how long user data can be stored.
Internet users would also be able to opt-out of the use of their data for marketing and advertising purposes, and targeted advertisements would be placed under stricter regulations to ensure that they are reasonable and don’t harass or bombard users.
This contrast is indicative of a broader issue with privacy in Australia. Lawmakers are forced to reconcile the long-standing common law opposition to a right to privacy with the rise of mass media and the internet, which makes personal information more public than ever before.
An early Australian case, relying on the English legal tradition, that rejected a right to privacy was Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937). Here, a person whose house neighboured a race track decided to construct a platform above his fence that would allow people to watch and bet on the races, without having to pay through the race track’s company.
Speaking as part of the majority, Chief Justice Latham said:
“However desirable some limitations upon invasion of privacy might be, no authority was cited which shows that any general right to privacy exists. … No doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard … [yet] a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour’s premises, and so interfering, perhaps, with his [neighbour’s] comfort.”
The concern in this case was with a “mere ground of invasion of privacy,” so people had to turn to private property rights against trespassing or causing a nuisance. However the latter was often ineffective, and trespassing laws did not prevent a person from standing outside of private property and taking photos of the property and its owners, like in Bathurst City Council v Saban (1985).
To make things even more complicated, even the implied freedom of political communication, which protects a person’s right to engage in political discourse, can allow trespassing on private property in certain cases, like Brown v Tasmania (2017), allowing further intrusions of privacy.
Even though there will never be an absolute right to privacy, these proposed federal reforms show that privacy can be protected. Through legislation, governments can override established principles of common law and create protections for privacy, especially in newly developing areas of privacy, such as the internet, which 20th-century judges could not have anticipated.
But this is a balancing act. Politicians must balance privacy against other factors. The Queensland government, like other state and territory governments, has agreed that privacy does not override the importance of allowing justice to be done.
Earlier this year, South Australian legislation prohibiting the use of evidence obtained by using a ‘surveillance device’ to record ‘the carrying on of a private activity’ prevented criminal charges being brought against greyhound owners accused of animal cruelty. Public backlash to this protection of privacy has led to an investigation that could cause legislative reform.
Changes to privacy laws are not always popular, because these changes are politically motivated. Yet the 21st century has brought with it new challenges to the privacy of individual citizens, and as technology like AI continues to be developed, it seems like the issue of privacy may never be truly settled.
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Sources:
Bathurst City Council v Saban (1985) 2 NSWLR 704.
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43.
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; [1937] HCA 45.
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