Currently there are no statutory laws that grant the "right to privacy" to individuals or corporations in Australia. Further, the common law from 1937 case of Victoria Park Racing and Recreation Ground Co Limited v Taylor
up until 1973 with ABC v Lenah Game Meats
and Giller v Procopets
, identification of the right to privacy is essential to the Australian courts.
However, international instruments such as the Universal Declaration of Human Rights Article 12 and the International Covenant on Civil and Political Rights Article 17 both give the individual an inherent right to privacy. Notification should be that whereas Australia is not a member to the treaty of the International Covenant on Civil and Political Rights, the country has always maintained in action that its laws and judicial decision will always carry the influence of the ICCPR. The Charter of Human Rights and Responsibilities Act 2006 found in Victoria gives individual the right to not having their privacy, family home or correspondence and reputation unlawfully or arbitrarily interfered with.
Despite the above instruments, Australia still does not recognize the right to privacy and confidence as a human right, as earlier mentioned. The Charter of Human Rights and Responsibilities Act for instance does not bind parliament the law making body to make into laws some of the ideas presented in the Charter. It can only recommend but cannot compel Parliament to make into law that which it does not agree with.
The fact that Australia then does not recognize the law of invasion of privacy then raises a number issue. This first identification was in the case of Breen v Williams that posed to the court the issue of confidence in terms of medical records. It is a norm in common law the assertion that he who makes the record owns them. Therefore, in light of medical practitioners, they own the medical records since they are the ones who make them. Handling of medical records is, therefore, as an intellectual property of the one who makes them. However, the patient has no right to access the records, however, upon request, the patient can be furnished with information pertaining to his or her history, findings of physical examination, results of investigations or any tests carried out, the doctors diagnosis and a proposed medication plan.
In this case, Breen had a silicone implant, in 1977, in each breast inserted through a surgery called mammaplasty. Consequently, she developed a condition called breast capsules, which occurs when tissues, which look like scars, form a ring around the breast. She consulted Dr. Williams who advised her that he performs a capsulotomy operation to remove the scar tissue in 1978. In 1984, another doctor through a partial mastectomy due to the fact that the silicone gel was leaking from one of the implants. In 1993, Ms. Breen in bids to create a case against the manufacturers of the Silicon implants sorted copies of her medical records from Dr. Williams. Dr. Williams reminded Breen that the medical records were the property of the Doctor but stated he would not mind releasing the records to her, if she furnished him a document stating that she would not sue him for the kind and form of treatment given to her. She refused Dr. Williams offer and thus instituted the suit. Her suit failed and when the matter reached the High Court, she asserted that her claim to read her medical records based on the following grounds. One that a patient had a proprietary interest in the information recorded in the medical records. Secondly, that there were contractual obligations implied between herself and the doctor, thirdly is that a fiduciary relationship always exists between a doctor and a patient and lastly that she had the right be informed what was contained in her medical records.
Under her proprietary interest claim, it was the Judges held that since the document were written by a professional in order to assist the professional in dispensing their duties remain a property of the professional and not that of the client who is a lay man in light of the profession. It is thus the proprietary rights of the doctors that give him the right to deny the patient access to the records that the doctors primary objective was to act with reasonable care and due diligence and not necessary, specific performance of the contract. As far as the fiduciary relationship claim is concerned, the court held that there are aspects of the doctor-patient relationship that could amount a fiduciary relationship but not considering the whole relationship fiduciary. On the right to know, the court gave the above-mentioned incidences when given information about their medical condition upon a person's request, and the general rule being that patients have precisely no access to their medical information. However, there are exceptions to the rule that are found in various statutory instruments such as Freedom of Information Act of 1992, that grants access to documents and an agency that is supported either directly or indirectly by government funds. The Privacy Act of 1988 that came into force in 2000 that allows persons to access information.
In this case, upholding the Defendant's right was confidential. Australia does recognize a right to confidentiality but does not recognize an equitable right to privacy. Therefore, in cases where the circumstances of the case cannot rely on the right to confidentiality as a cause of action, then in such instances, the aggrieved party has no cause of action and the suit instituted is most likely to fail. The good case of Hosking v Runting further sheds light onto the problem of courts refusing to recognize the need an equitable doctrine of privacy, but holding that confidentiality and privacy are different concepts.
There has thus been reluctance in the Courts of Australia to recognize the right to Privacy. This is seen the ABC v Lenah Games Meat
case where the court ostensibly acknowledge the right to privacy but in the end to refused openly declares that the Applicant had such a right. The Applicant was the owner of an abattoir that caught and slaughtered Possums for meat. The Defendant had obtained videos and pictures of the operation from an individual who secretly installed cameras in the abattoir and retrieved them later with the footages. He gave the videos to an Animal rights group whose representative later transferred the video to the Australian Broadcasting Corporation, which was to air the video later. The Applicant then moved to court seeking interlocutory injunction prohibiting the Defendant from broadcasting the content of the video stating that it would damage her sales. The application dismissal was at the first instance, later reversed by the Full Court of Tasmania upon an Appeal by ABC and the High Court further upheld the appeal.
The case, therefore, did not achieve to make groundbreaking progressive effects on the laws of privacy law in Australia, but in obiter dictum, it signified the need of privacy law. It was stated in obiter dictum time was ripe for a tort of invasion of privacy in the country to be recognized by the common law in the country. Gleeson CJ stated in support that integration of actions regarding privacy should be part of the doctrine of breach of confidence thus making it unnecessary to create a new action in the tort of privacy, since the law of breach of confidence would be sufficient. The judges in the matter were to answer two fundamental questions. This was if possible to grant an interlocutory injunction in an instance where there is no specific cause of action. This was ironic since the High Court in the case of Park Racing and Recreation Grounds Co. Ltd. v Taylor, which held no cause of action, was concerned with matters pertaining to invasion of privacy. The case was to answer the second question whether it was legally acceptable for Lenah Games Meat to rely on the right of privacy, if at all there was such a right.
On the first question, the court held that granting an interlocutory injunction can only be in breach of a legal or equitable right and not based on unconscionable conduct. However, Kirby J. stated contrary to what the majority of the bench stating that an interlocutory injunction granting could be even where there was no granting the court a cause of action. It was based on a case from the New South Whales Supreme Court on the case Lincoln Hunt Australian Pty v Willesee which held that the court has the mandate to issue an interlocutory injunction in instances where a video or photograph had been acquired during a trespass despite the fact there existed no confidentiality agreement. Kirby J. however held that he could not rule in favor of the ABC like the other judges, but Callinan J. dissented and held that there can be an issuing of an injunction.