Three rights every man and woman can rely on when dealing with a government agency

A right to privacy

Since June 2025, every man and woman in Australia has held a direct statutory right to protection from serious invasions of privacy (aside from common law right), as now there is a new tort inserted into the Privacy Act 1988. It applies where a man or woman’s seclusion has been intruded upon, or their information misused, and it does not require proof of actual damage to be actionable. This is a comparatively recent development in Australian law, but it is now a real and enforceable right, not merely a matter of custom or courtesy. Where an agency seeks personal information, a man or woman is entitled to ask why it is needed, and to object where the request goes beyond what is genuinely required.

Privacy and Other Legislation Amendment Act 2024: https://www.legislation.gov.au/C2024A00128/asmade/text
The clearest primary source providing a summary of the relevant sections together is the OAIC’s page:
https://www.oaic.gov.au/privacy/your-privacy-rights/more-privacy-rights/statutory-tort-for-serious-invasions-of-privacy

A right not to be penalised before a court has found against you

It is a settled constitutional principle, confirmed by the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) and again in Alexander v Minister for Home Affairs (2022), that Parliament may prescribe offences and penalties, but the adjudication of guilt and the imposition of punishment are exclusively judicial functions. No agency, officer or department, however senior, can lawfully impose a fine, forfeiture or penalty on a man or woman without a court first making that finding. Where legislation sets out an offence and directs any penalty toward prosecution, as much Commonwealth legislation does, a man or woman is entitled to treat any administrative demand for payment as exactly that, a demand, not a debt, until a court has actually decided the matter.

A right to require proof of authority

Where an agency asserts a power to compel a man or woman to act, whether to answer questions, hand over documents, or perform some other service, that power must actually exist and must actually have been properly given to the officer or agent asserting it. A man or woman is entitled to ask the agency to identify the specific statutory provision relied upon, and, where that provision itself depends on a delegation from a more senior officer or statutory position holder, to produce the delegation instrument itself, not merely an assurance that one exists. An agency that cannot do this has not established that the man or woman it is writing to owes it anything at all.

Taken together

These three rights work together sensibly. A man or woman may decline to hand over information they consider excessive or unjustified, decline to treat an administrative demand as a debt before any court has ruled on it, and require an agency to show its authority before acting on its instructions. None of this is a licence to ignore a properly issued, properly authorised, lawful direction indefinitely; where such a direction exists and is not complied with, a penalty can still ultimately follow, but only once a court has heard the matter and made a finding. What these rights guarantee is process, not immunity: the right to be asked properly, told the truth about the source of the authority being exercised, and judged by a court rather than by the agency that is making the claim.

Audi alteram partem: hear the other side. It is not merely a courtesy. It is the law.

Last Updated 4 weeks ago

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