Posted by Nicholas Petrie
On 23 September 2011 the Commonwealth government released an issues paper (issues paper) seeking views as to whether it should create a right for individuals to seek redress from another person who seriously invades their privacy.
The issues paper follows an extensive 28-month inquiry into privacy law by the Australian Law Reform Commission (ALRC), which tabled its Report in Parliament in August 2008. One of the ALRC recommendations was that a statutory cause of action be enacted for serious invasions of the privacy of natural persons. Since then, the Victorian and New South Wales Law Reform Commissions have recommended substantially similar legislation be enacted, although the Victorian report recommended two causes of action – for both misuse of information and interference with seclusion.
The publication of this issues paper is sure to reignite debate about the need or otherwise for a statutory cause of action for serious invasions of privacy in Australia. However, it does not substantially add to the debate. Rather, the issues paper summarises the key findings in the 2008 ALRC Report and its Victorian and New South Wales counterparts.
The issues paper notes that there is currently no statutory cause of action and ‘scant common law’ for invasion of privacy in Australia. This is contrasted with the position in the United States, the European Union, the United Kingdom, Canada and New Zealand, which each have varying degrees of privacy protection under common law or statute.
Arguments for and against the need of a statutory cause of action for serious invasion of privacy in Australia are canvassed in the issues paper. However, the paper tends to support the notion that development in the law would be best served by legislative change, rather than incrementally under the common law.
The issues paper considers how a new cause of action should operate, if it were enacted. For example, the paper cites wide support for a ‘reasonable expectation of privacy’ requirement in any new privacy cause of action. Further elements to such a cause of action, including an objective test of seriousness or offensiveness, are also discussed in the paper.
A range of other matters are raised in the issues paper, such as the interaction between a new cause of action for privacy and other public interests, including freedom of expression; the availability of class actions under such a cause of action; and potential defences and remedies that would be available.
Interestingly, the issues paper raises the possibility of an ‘offer of amends’ process, that could be used as an alternative to litigation under a new cause of action.
The focus of this issues paper is the form that a new statutory cause of action should take, if it were enacted; rather than on the actual need for legislation, in light of various protections of privacy that currently exist in Australia under common law and statute.
The central question of whether new legislation to protect privacy is necessary should not be lost in the ensuing debate, particularly as the High Court of Australia has not ruled out the existence of a common law cause of action for invasion of privacy. To the contrary, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, the High Court left that question open to be determined. Furthermore, the continued expansion of the 'breach of confidence' doctrine (as seen in cases such as Giller v Procopets [2008] VSCA 236) has led many commentators to question the need for a separate privacy tort. There are arguments that the development of Australian breach of confidence has resulted in outcomes not all that different to those achieved via privacy developments in the UK and New Zealand. These arguments are not adequately addressed in the government's issues paper.
Some may also consider it surprising that the government has chosen to now advance its consideration of a statutory privacy tort, when it has not yet introduced the first suite of amendments to the Privacy Act 1988 which was foreshadowed following the ALRC Report in 2008. The government has also not responded to a Senate Committee report into online privacy, which made a series of recommendations in April 2011, concerning the collection and use of personal information via the Internet, including the potential erosion of the 'small business' exemption under the Privacy Act.[1]
The Department of Premier and Cabinet has requested responses to the issues paper by 4 November 2011. Responses can be submitted by email to privacycauseofaction@pmc.gov.au.
Partner: Charles Alexander
[1] The report by the Senate Standing Committee on Environment, Communications and the Arts: The adequacy of protections for the privacy of Australians online, did recommend that the government adopt the ALRC recommendation for a statutory tort of privacy, but the government is yet to respond to any of its other recommendations, which arguably have a more immediate relevance to the proposed amendments to the Privacy Act which have already been announced (http://www.aph.gov.au/senate/committee/eca_ctte/online_privacy/info.htm).
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