The Right to Privacy and the Australian Constitution

It is rather ironic that I am speaking about the right to privacy as a constitutional issue in Australia at the tail end of 2020. For this was a year in which it was abundantly clear that we in Australia have no constitutional right to privacy, whether ‘privacy’ is understood in the traditional sense of freedom from intrusion into private life, or in a more extended sense of control over personal information (alternatively termed ‘data protection’ or ‘data privacy’). Yet we do have an implied constitutional freedom of political communication inherent in the democratic principles of our Constitution established in 1900: or so the Australian High Court has held in a series of cases dating back to the early 1990s. That was the subject of my colleague Adrienne Stone’s excellent paper at your symposium last year. In this paper I explore the reasons for the absence on the side of privacy, both at the time of the Constitution and now. Nevertheless, I argue that the right to privacy has achieved a quasi-constitutional status, reflected in various decisions of the High Court including Smethurst v Commissioner of Police this year. And we can expect to see it further develop in the digital century.