Head of power
4.13 This section examines the scope of the Commonwealth’s power to legislate with respect to privacy under the Constitution. This issue was previously discussed in the ALRC’s report, For Your Information: Privacy Law and Practice (ALRC Report 108, 2008).
4.14 The Commonwealth has the power to make laws with respect to ‘external affairs’. This power enables the Commonwealth to implement obligations under a bona fide treaty. It is open to the legislature to decide the means by which it gives effect to those obligations, but those means must be ‘reasonably capable of being considered appropriate and adapted to that end’.
4.15 Australia is a State Party to the International Covenant on Civil and Political Rights (ICCPR). Australia ratified the ICCPR on 13 November 1980. Article 17 of the ICCPR provides:
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.
4.16 In light of the Commonwealth’s power to implement treaty obligations under s 51(xxix), it is likely that a law which created a statutory cause of action for serious invasion of privacy would be valid as a means of giving effect to Australia’s obligation under art 17 of the ICCPR.
4.17 The ALRC considers that the enactment of a statutory cause of action for serious invasion of privacy satisfies the requirement of proportionality. It is ‘reasonably capable of being considered appropriate and adapted’ to implementing art 17 of the ICCPR. The courts grant latitude to Parliament in selecting the means by which to give effect to a treaty obligation. Moreover, art 17(2) of the ICCPR explicitly provides that the protection of law should be afforded to those subject to interference with or attacks on their privacy. Therefore, the law conforms to the treaty and carries its provisions into effect.
4.18 The ALRC noted in 2008 that the current Privacy Act 1988 (Cth) is purportedly enacted on the basis of the external affairs power. In addition, the ALRC canvassed other heads of power, which may also support aspects of the statutory cause of action. One of these was the Commonwealth’s power to legislate with respect to ‘postal, telegraphic, telephonic and other like services’. This head of power has been interpreted broadly. The technology-neutral phrase ‘other like services’ demonstrates that the possibility of developments in technology was contemplated by drafters when framing section 51(v). Radio and television broadcasting have been held to be within the Commonwealth’s power under s 51(v). Although the Commonwealth’s power to regulate the internet under this head of power is yet to be considered by the High Court, it is likely that it would be a ‘like service’.
4.19 If the Commonwealth does enact a statutory cause of action, it may expressly or impliedly ‘cover the field’ on the subject matter. Any State Act which was inconsistent with the Commonwealth Act would be inoperative.
4.20 The Commonwealth’s power to legislate is subject to both express and implied constitutional limitations.
Implied freedom of political communication
4.21 The legislative power of the Commonwealth is subject to the implied freedom of political communication. In assessing whether a law infringes the freedom, there are two questions:
1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?
A law will only infringe the implied freedom if the answer to the first question is ‘yes’ and the answer to the second question is ‘no’.
4.22 The ALRC considers that the proposed statutory cause of action would not infringe the implied freedom of political communication. The proposed cause of action requires that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest. The freedom of expression includes the freedom to discuss governmental matters. It is likely that the cause of action is ‘reasonably appropriate and adapted’ to serve a legitimate end, that is, the protection of privacy, in a manner compatible with the maintenance of representative and responsible government.
Impact on States
4.23 The ALRC’s 2008 report discussed the Melbourne Corporation principle, as an implied limitation on the Commonwealth’s power to legislate. Most recently, the High Court expressed the Melbourne Corporation principle as concerned with
whether impugned legislation is directed at States, imposing some special disability or burden on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments.
4.24 The ALRC considers that a statutory cause of action, while imposing a burden on State agencies, would not curtail the States’ capacity to function as governments.
ALRC, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) [3.17]–[3.28].
Constitution s 51(xxix).
Commonwealth v Tasmania (1983) 158 CLR 1.
Victoria v Commonwealth (’The Industrial Relations Act case’) (1996) 187 CLR 416, 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
Leslie Zines, The High Court and the Constitution (Butterworths, 4th ed, 1997) 288.
Richardson v Forestry Commission (1988) 164 CLR 261, 345 (Gaudron J).
Privacy Act 1988 (Cth) Preamble.
Constitution s 51(i), (v), (xiii), (xiv), (xx).
Constitution s 51(v).
Jones v Commonwealth (No 2)  HCA 6 (3 February 1965).
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 493.
R v Brislan; Ex parte Williams (1935) 54 CLR 262; Jones v Commonwealth (No 2) (1965) 112 CLR 206.
Helen Roberts, ‘Can the Internet be Regulated?’ (Research Paper No 35, Parliamentary Library, Parliament of Australia, 1996) 25.
Constitution s 109.
Monis v The Queen (2013) 87 ALJR 340;  HCA 4,  (French CJ).
Fortescue Metals Group Ltd v Commonwealth (2012) 247 CLR 486,  (Hayne, Bell and Keane JJ). French CJ, Crennan and Kiefel JJ agreed with the joint reasons on this issue in separate judgments: , , . See also Austin v Commonwealth (2003) 215 CLR 185.