What Is the Right to Privacy Under Section 49?

Section 49 of the Constitution protects a broader interest than the physical intrusion covered by section 44.

Three protected areas

1. Private and family life. The widest limb. It covers relationships, household arrangements, health information, and the ordinary business of living that is nobody else’s concern.
2. Communications with other persons. Letters, telephone calls, messages, email. This is the limb engaged by interception and by access to stored communications.
3. Personal papers and effects. Documents, records, devices and belongings — whether or not they are on premises that section 44 protects.

The word “reasonable”

Section 49 does not guarantee privacy; it guarantees reasonable privacy. The qualifier is built into the right, so the first question in any case is what expectation of privacy was reasonable in the circumstances — a question that turns on the nature of the information, where it was held, and how it was obtained.

That is distinct from the second question: whether a law that restricts the right satisfies section 38. Both must be addressed, and under section 38(3) the burden on the second lies on the party relying on the law’s validity.

Section 49(2) — biometric identification

Subsection (1) does not prevent any law from authorising the capture, storage and use of personal information — including finger or palm print and iris image — to identify a person in order for the person to obtain a passport or visa, or to exercise their right to vote at elections.

This subsection was added to accommodate biometric systems in travel documents and the electoral roll. Note how narrowly it is drawn. It permits capture, storage and use for the purpose of identifying the person in connection with a passport, a visa, or voting. Use of the same data for other purposes is not authorised by section 49(2), and would have to be justified under section 38 like any other restriction.

Interception of communications

Interception engages section 49(1) directly. The principal statute is the Protection of Private Communications Act (Chapter 272), and surveillance and computer-related powers also arise under the Cybercrime Code Act 2016, provisions of which have been considered against the Basic Rights: see Re Section 21(2) of the Cybercrime Code Act 2016 [2024] PGSC 77; SC2608.

Where a power to intercept or to compel production of communications is relied on, the checkable questions are the section 38 ones: does the law say it is made for that purpose, does it specify the right restricted, was it certified as passed by an absolute majority, is the restriction necessary for a listed public interest, and is it reasonably justifiable in a democratic society?

Privacy against private parties

Because section 34 applies Division 3 as between individuals and to corporations and associations, section 49 is not only a constraint on the State. Employers, landlords, banks, telecommunications providers and social media users are in principle within its reach. The qualifier “as far as may be” in section 34 means the application has to make sense in the context — but the door is open in a way it is not in most jurisdictions.

Remedies

A breach is enforceable under section 57, with reasonable damages and, if the court thinks proper, exemplary damages under section 58. Section 57(5) is particularly useful here: relief is not limited to actual or imminent infringement, but may be given where there is a reasonable probability of infringement, or where an action a person reasonably wishes to take is inhibited by the likelihood of, or a reasonable fear of, infringement.

Depending on the facts, section 41 may also apply: a lawful power exercised in a harsh, oppressive or disproportionate way in the particular case is an unlawful act.