Privacy and your rights

Under the Freedom of Information Act 1982 (Vic) (‘FoI Act (Vic)’), individuals have the right to access and correct documents containing their personal information that are held by public sector organisations.

However, under section 33 of the FoI Act (Vic), a document is exempt from a freedom of information application if releasing it would unreasonably disclose information about the personal affairs of any person (including a deceased person). The exemption does not generally apply if the personal information relates to the applicant only.

If a decision is made to grant access to a document containing personal information, then (if practicable) the individual (or in the case of a deceased person, their next of kin) should be notified and advised of their right of appeal to VCAT. (See Chapter 12.4: Freedom of information law.)

The Public Records Act 1973 (Vic) imposes obligations on public sector organisations relating to the retention and disposal of public records.

These obligations override any conflicting provisions in the Privacy and Data Protection Act 2014 (Vic) or Health Records Act 2001 (Vic).

Where public records transferred to the Public Records Office contain information of a private or personal nature, the government minister responsible can declare that the records should not be available for public inspection for a specified period of time.

The Surveillance Devices Act 1999 (Vic) regulates the installation, use and maintenance of surveillance devices throughout Victoria, and the communication and publication of surveillance records. Breaching this Act is a criminal offence. 

In August 2010, in Surveillance in public places: Final report, the Victorian Law Reform Commission recommended two courses of action:

• one dealing with misuse of private information;
• the other dealing with intrusion upon seclusion, or unwarranted interference with spatial privacy.

No changes have resulted from the report at this stage.

The Telecommunications (Interception) (State Provisions) Act 1988 (Vic) (‘Telecommunications Act (Vic)’) enables the Independent Broad-based Anti-corruption Commission and Victoria Police to intercept telecommunications in accordance with the Telecommunications (Interception and Access) Act 1979 (Cth).

The Telecommunications Act (Vic) provides safeguards and oversight by creating a public interest monitor who must be notified of all applications for a warrant under the Commonwealth Act, including matters that are adverse to granting a warrant.

The Telecommunications Act (Vic) also imposes strict record-keeping requirements, limits access to records of information from the interceptions, and requires a destruction regime. It also provides for a Victorian inspectorate who must inspect records of interceptions and report on any contravention of the legislation.

Many other Victorian Acts have longstanding, ‘purpose-built’ privacy protection through the inclusion of specific confidentiality provisions. These provisions are often accompanied by significant penalty provisions for non-compliance.

The following Acts are a few examples:

• Road Safety Act 1986 (Vic) – protects driver licence holders and vehicle owners;
• Children Youth and Families Act 2005 (Vic) – in relation to both child protection and youth justice functions;
• Corrections Act 1986 (Vic) – protects the personal information of both past and current prisoners, and that of individuals completing community based orders;
• Sex Offenders Registration Act 2004 (Vic) – protects the personal information of registered sex offenders;
• Business Licensing Authority Act 1998 (Vic) – provides for applications to the Registrar to restrict personal information on public registers from public access;
• Electoral Act 2002 (Vic) – protects electoral roll information from unauthorised use.