The Information Privacy Act 2000 (Vic) applies to both the public sector (for example, government bodies) and private organisations. The Act sets out guidelines for the collection and disclosure of personal information.
It also contains guidelines about how ‘sensitive information' is collected - this includes information or an opinion about a person's sexual preferences or practices. Generally, organisations must not collect sensitive information about you unless:
- you have consented
- the collection is required under law or
- you are legally incapable of giving consent and the collection is ‘necessary to prevent or lessen a serious and imminent threat to the life or health of any individual'.
In addition, the Health Records Act 2001 (Vic) contains Health Privacy Principles that relate specifically to health information.
If someone has breached the Information Privacy Act you can complain to:
Victorian Privacy Commissioner
Tel 1300 666 444
Office of the Privacy Commissioner (Australia)
Takes complaints about the use of personal information by private organisations, under federal legislation.
Tel 1300 363 992 or TTY 1800 620 241
Some professional relationships create a legal duty of confidentiality - for example doctor and patient, or lawyer and client.
Anything you tell your doctor or lawyer, or any knowledge they have about such things as your sexual orientation, gender identity, health, medical status, and financial affairs is confidential and should not be given (disclosed) to anyone without your consent. However, a doctor can break this confidence if they believe you are endangering someone else by your actions or endangering your own life.
A lawyer can break this confidence if they believe you may commit a crime or an act of fraud.
If you believe your doctor or lawyer has failed in their obligation to maintain confidentiality, you can complain to the relevant professional body ( Australian Medical Association, Victorian Branch, Health Services Commissioner or Legal Services Commissioner).
See: ‘Where to get help'
You can also take private legal action but you should get legal advice first as this will be costly and time consuming.
See: ‘Taking action'
There is no legal obligation to disclose your sexual orientation in most situations, although there may be health reasons why you should tell your doctor something about your sexual practices.
If you are being required to disclose your sexual orientation or if you are discriminated against because of a disclosure, you may be able to make a complaint of discrimination.
However, if you want to donate blood, organs or sperm you must disclose this information.
Under the Health Act 1958 (Vic), for blood donations, you must answer questions about sexual activity in the past 12 months, including whether you have had male to male sex, had sex with a man you suspect of being bisexual or had sex with or worked as a sex worker. If you answer yes, current policy is that you will not be allowed to donate blood.
For sperm and tissue donations, you must answer the same questions about your own and your partner's sexual activity for the past five years. If you answer yes, this does not automatically disqualify you from making the donation but clinics may be reluctant to accept it.
There are severe penalties, including fines or imprisonment, for making a false statement.
The issue of confidentiality and disclosure is complicated in relation to HIV.
Coming out is less of a legal issue than a social and practical one. It can be an enormous relief to be able to be open and truthful about our lives and who we are. It is up to you to choose who you come out to and when.
Remember, it is very difficult to control the flow of information once you start coming out. Think carefully about who you tell and make it clear whether you want your sexual orientation or gender identity to be common knowledge. Even if you ask someone to keep it confidential, it would be extremely difficult to enforce any legal obligation. If you experience discrimination or violence because you have come out, you can take legal action. Get legal advice first.