**Please note that the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth) which amends the Privacy Act 1988 (Cth) (passed, but not effective until March 2014) will make significant changes to the law in this area.**
Whether you can access information on yourself or whether an organisation or person can access information about you, will depend on what that information is and who has the information. There are three broad groups which collect information on people:
- the Commonwealth Government
- the State Government
- private businesses and individuals.
There is no general right for people to see the information held by businesses or other individuals. There is no common law right to privacy. In other words, just because a business or individual has a file on you does not automatically mean you have the right to see that file.
In contrast, Commonwealth and State legislation gives people the right to access information held by government departments and agencies (for example, the Australian Taxation Office, Centrelink, the Police and Commonwealth and State health departments) and certain private sector entities.
The Privacy Act 1988 (Cth) outlines how, why and what information the Commonwealth Government can compile and store, and ensures that information collected is safely held and not abused (for example, it ensures that information not provided to a particular Commonwealth department or organisation is not transferred to another department or organisation without the knowledge or consent of that person, except in limited circumstances). Some private bodies, such as health organisations, must comply with similar requirements under this law.
At present, there is no privacy legislation applying to State Government departments although Cabinet has issued privacy instructions to departments giving a measure of protection to South Australians. There are also limits under the Public Sector Act 2009 on what public servants can do with information and various Acts also contain confidentiality provisions in relation to personal information.
None of these laws bind private individuals. The only limitations on an individual invading someone's privacy are contained within other specific legilsation. For example, stalking and recording private conversations.
It is not uncommon for someone to record a conversation. This might be done by an employer or by someone with whom a person is having a dispute. The Listening and Surveillance Devices Act 1972 (SA) prohibits the recording of a private conversation, the penalty for which is a fine up to $10 000 or imprisonment for up to a maximum of two years [s 4].
A private conversation can only be recorded by a person who is a party to the conversation and the recording is 'in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person' [s 7].
It is not enough that a person wants to gain an advantage in civil proceedings for them to secretly record conversations.
A person who is not taking part in a conversation cannot lawfully record a conversation.
Photography and Film
There are no general restrictions on the taking of photographs or film in a public place or from a public place. The only restrictions would be that the photo not: be indecent (such as 'up the skirt' photos), of a child in a provcative or sexual manner, be used for voyeurism, protected by a court order (eg. child custody or witness protection), defamatory or being for commercial purposes.
If the photos or film are being taken on private property, then the owner of that property may impose their own limitations on who can take photos of what. This means that if a sporting club uses council owned property for its events then the council may impose limitations on photography. This does not stop someone taking photos on the private property from a public place outside that property.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.