Principle 3: Privacy should be balanced with other important interests

2.16 The privacy of an individual is not an absolute value or right which necessarily takes precedence over other values of public interest. As stakeholders noted, it must be balanced with a range of other important values, freedoms and matters of public interest, including, in no particular order or hierarchy:

  • freedom of speech,[13] including the freedom of the media and the implied constitutional freedom of political communication;[14]

  • freedom of artistic and creative expression and innovation in the digital era;[15]

  • the proper administration of government and matters affecting the public or members of the public;

  • the promotion of open justice;

  • national security and safety;

  • the prevention and detection of criminal and fraudulent activity and the apprehension of criminals;[16]

  • the effective delivery of essential and emergency services in the community;[17]

  • the protection of vulnerable persons in the community;

  • national economic development and participation in the global digital economy;[18] and

  • the value of individuals being enabled to engage in digital communications and electronic financial and commercial transactions.[19]

2.17 This list is not an exhaustive list of public interest matters. Some stakeholders emphasised the need for a holistic approach to the balancing of interests in particular circumstances,[20] while others stressed the need for the balancing process to consider the degree to which any interference with one interest was necessary and proportionate to the protection of the other. This latter concept is stressed in privacy litigation in the United Kingdom since the introduction of the Human Rights Act 1998 (UK), and is also relied upon in European case law dealing with the European Convention on Human Rights.[21]

2.18 There was widespread support among stakeholders for the articulation of this principle, and no stakeholders submitted that privacy should be regarded as an absolute right. Stakeholders suggested the following additions to the above list:

  • the public’s right to be informed on matters of public importance, in real time rather than after delay,[22] and to have access to publicly available information and accurate historical records;[23]

  • the need for transparency in government, corporate and organisational dealings or operations that affect individuals;[24] and

  • the desirability of Australian businesses being able to compete in the global economy and to encourage innovation and business in Australia.[25]