Related privacy inquiries

1.20 During the course of this Inquiry, the Victorian Law Reform Commission (VLRC), the New South Wales Law Reform Commission (NSWLRC) and the New Zealand Law Commission (NZLC) also conducted privacy inquiries. These Commissions and the ALRC produced separate consultation papers and final reports, but worked closely and cooperatively, sharing ideas, information and a number of consultation meetings.

VLRC privacy inquiries

1.21 In March 2002, the VLRC was asked to examine two issues of public concern relating to privacy: workplace privacy and privacy in public places.[26]

Workplace privacy

1.22 The VLRC completed its inquiry into workplace privacy in 2005. The Workplace Privacy: Final Report considered the surveillance, monitoring, physical and psychological testing, and searching of workers, as well as the collection, use and disclosure of personal information in workers’ records. [27] The report also included a draft Workplace Privacy Bill.[28]

1.23 The ALRC is advised that, at the time of writing this Report, the Standing Committee of Attorneys-General (SCAG) is considering the VLRC’s report into workplace privacy and seeking to develop a consistent, national approach. Options for reform are being considered to regulate workplace surveillance (including email and internet monitoring), covert surveillance practices, surveillance and monitoring of employees outside of work, and genetic testing in the workplace, including the taking of bodily samples.

1.24 Apart from considering whether employee records should be exempt from the provisions of the Privacy Act,[29] the ALRC has not dealt specifically with workplace privacy in this Report, in order to avoid unnecessarily duplicating the work being undertaken by SCAG.

Surveillance in Public Places

1.25 A consultation paper focusing on surveillance in public places is scheduled for release by the VLRC in mid-2008.It is anticipated that the final report will be completed by the end of 2008.

1.26 While the privacy implications of surveillance are considered in a variety of places in this Report—for example, the telecommunications context is considered in Part J, and the protection of a right to personal privacy is considered in Part K—the ALRC has not focused specifically on the issue.

NSWLRC privacy inquiry

1.27 On 11 April 2006, the Attorney General of New South Wales asked the NSWLRC to inquire into and report on whether existing state legislation provides an effective framework for the protection of the privacy of an individual. In undertaking the review, the NSWLRC was directed to consider:

  • 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 (NSW), Health Records and Information Privacy Protection Act 2002 (NSW), State Records Act 1998 (NSW), Freedom of Information Act 1989 (NSW) and Local Government Act 1993 (NSW);
  • the desirability of introducing a statutory tort of privacy in New South Wales; and
  • any related matters.

1.28 The NSWLRC also was directed to liaise with the ALRC and other relevant Commonwealth, state and territory agencies.

1.29 In May 2007, the NSWLRC released the first of the consultation papers to be published during the course of its inquiry. Consultation Paper 1, Invasion of Privacy (NSWLRC CP 1), addresses the desirability of introducing a statutory cause of action for invasion of privacy in New South Wales, and puts forward for consultation proposals for the introduction of such a cause of action. The NSWLRC intends to release a second consultation paper on the remaining aspects of its inquiry in mid-2008. A final report should be completed by the end of 2008. NSWLRC CP 1 is considered in detail in Part K of this Report.

NZLC privacy inquiry

1.30 The NZLC privacy review is proceeding in four stages. Stage one,which has been completed, was a high level policy overview which considered privacy values, changes in technology, international trends, and their implications for New Zealand law.[30] In stage two, which also has been completed,[31] the NZLC considered ‘whether the law relating to public registers requires systematic alteration as a result of privacy considerations and emerging technology’. In stage three, ‘the Commission will consider and report on the adequacy of New Zealand’s civil and criminal law to deal with invasions of privacy’. A review and update of the Privacy Act 1993 (NZ) will constitute stage four.[32] The Terms of Reference for the NZLC privacy review do not specify a reporting date for the projects.

[26] Victorian Law Reform Commission, Workplace Privacy: Options Paper (2004), [1.1]. The Terms of Reference can be found at <>.

[27] See Victorian Law Reform Commission, Workplace Privacy: Final Report (2005); Victorian Law Reform Commission, Workplace Privacy: Options Paper (2004); Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002).

[28]Victorian Law Reform Commission, Workplace Privacy: Final Report (2005), Appendix 5.

[29] The use and disclosure of workers’ personal information is discussed in Ch 40.

[30] Two documents were produced in this stage of the inquiry: M Hickford, A Conceptual Approach to Privacy: Miscellaneous Paper 19 (2007) New Zealand Law Commission; New Zealand Law Commission, Privacy Concepts and Issues: Review of the Law of Privacy Stage 1, Study Paper 19 (2008).

[31]New Zealand Law Commission, Public Registers—Review of the Law of Privacy, Stage 2, Report 101 (2008).

[32] New Zealand Law Commission, Review of Privacy (2006) <
.aspx?ProjectID=129> at 5 May 2008. All four stages are described in detail in the Terms of Reference, which can be found on the NZLRC’s website.