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Privacy in an Information Age
Heather Osland has spent years trying to find out why the Victorian government refused to grant her a pardon for murdering her husband.
The Bendigo woman served nearly 10 years in jail for the murder after a jury rejected her defence of “battered woman syndrome”.
In 1999, she applied to the Victorian government for a formal pardon on grounds of compassion, but her petition for mercy was denied.
Under the Victorian Freedom of Information Act 1982, Ms Osland then sought access to legal advice provided to the Attorney-General by three prominent lawyers, advice that the government relied on in refusing her application.
The Secretary of the Department of Justice refused access to the documents, saying they were exempt from FOI laws on the grounds that they constituted privileged communications.
Ms Osland originally sought access to the legal advice through an FOI application to VCAT. Then president Justice Stuart Morris granted access to the documents stating that, although they were subject to exemption under legal professional privilege, the documents should be released as a matter of public interest as provided for under s50(4) of the FOI Act (the public interest override provisions).
The Secretary of the Department of Justice appealed to the Court of Appeal.
The Court of Appeal decided that legal professional privilege applied to the documents and that the public interest override provisions of the FOI Act did not apply, thereby not allowing release of the documents.
In August, a further appeal to the High Court ruled that the matter should be referred back to the Court of Appeal. Although the reasoning of the Court of Appeal was correct in this case, the High Court found that the Court had erred in not examining the documents when considering whether the public interest override actually applied.
Ms Osland won a technical victory in being able to return to the Court of Appeal to have her request for access re-examined.
While Ms Osland continues to exercise her right to access information about her epic legal matters, an individual’s right to privacy has also been in the spotlight with a landmark report claiming Australia’s privacy laws need a major overhaul.
The 2700 page report, For Your Information: Australian privacy law and practice, produced by the Australian Law Reform Commission (ALRC), finds that Australia’s privacy laws are out of date in the digital age.
It recommends 295 changes to privacy laws and practices.
ALRC president David Weisbrot, said the Privacy Act 1988 (Cth) was introduced 20 years ago before the advent of supercomputers, the internet, mobile phones, digital cameras, e-commerce, sophisticated surveillance devices and social networking websites – all of which challenge our ability to safeguard sensitive personal information.
The report touches on 10 key areas including children, credit reporting, health, data breach notification (fraud and identity theft), emerging technologies and creating an action for serious invasion of privacy.
More information
Useful website
ALRC at http://www.alrc.gov.au/
Disclaimer: The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Mr Brendan Kelly of our office.
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