In 1937, the Australian attitude to privacy was summed up by a
now oft cited aphorism by Chief Justice Latham:
Any person is entitled to look over the plaintiff's
fence to see what goes on in the plaintiff's land. If the
plaintiff desires to prevent this, the plaintiff can erect a higher
Since then, technological and social change has brought into
question the relevance of that position. In its 2008
report2, the Australian Law Reform Commission (ALRC)
considered the range of privacy protections available in Australia.
The ALRC made 295 recommendations and in 2009, the Government
responded to 197 of these. For further background, see our previous
eAlert! on this issue.
The Australian Government has now released an
Issues Paper that is specifically designed to respond to
another of the ALRC's recommendations: whether Australia should
introduce a statutory cause of action for invasions of privacy, and
if so, what elements it should entail.
The Issues Paper was released on 23 September of this year. It
poses a number of questions, and invites comments and suggestions
from the public by 4 November 2011. The paper sets out the
arrangement in various international jurisdictions, and summarises
the views put forward by the ALRC, the Victorian Law Reform
Commission (VLRC) and the New South Wales Law Reform Commission
There was agreement among the advisory bodies that if the cause
of action was introduced into statute, the main element of the
cause of action should require the plaintiff to show that there had
been, in the circumstances, a "reasonable expectation of
The ALRC and VLRC further recommended that the plaintiff should
also be required to show that the invasion of privacy would be
"highly offensive to a person of ordinary sensibilities".
Whether this "objective seriousness" limb would remain so
strict is open to question. The NSWLRC advocated that the
"highly offensive" test would limit the "reasonable
expectation of privacy" limb, and considered this to be
unwarranted in principle. A different test could require only that
the invasion be "sufficiently serious to cause substantial
offence". The NSWLRC was of the view that a court should take
account of a number of matters and interests in determining the
cause of action, including, but not limited to, the relationship
between the parties, the vulnerability of the plaintiff and the
nature of the invasion of privacy.
The Issues Paper also highlighted matters relating to the public
interest, including the interest in protecting individuals'
privacy, the implied constitutional freedom of political
communication, the interest in protecting freedom of expression and
the interest of the public being informed about matters of public
concern. It left open whether these matters should be included
within the cause of action (as per the ALRC and NSWLRC), or whether
the onus should shift by including these matters as a defence to
the action (as per the VLRC).
Some of the other questions posed by the Issues Paper were:
whether "intentional" or "reckless"
elements were required to determine fault
whether the legislation should allow for a consideration of a
specific range of relevant factors, or examples of types of
invasions of privacy
what defences and exemptions should exist
what remedies should exist
whether damage needed to be proved.
The response to the Issues Paper has been mixed. The
Australian put forward that the "real goal here should be
to come up with a way of protecting privacy that achieves its goal
without inflicting unexpected damage on other valuable interests
... litigation should only be used when all other avenues have been
In any event, this Issues Paper brings Australia another step
closer towards a statutory right to sue for serious invasions of
We will keep you informed as further updates come to light.
1Victoria Park Racing and Recreation
Grounds Co Ltd v Taylor (1937) 58 CLR 479 (Latham
2 Australian Law Reform Commission, "For
Your Information: Australian Privacy Law and Practice"
ALRC Report 108 (2008).
3 Editorial, The Australian,
"Rolling out the picnic rug" (24 September
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