Australia: The Australian Government's Issues Paper on a statutory cause of action for serious invasions of privacy

Last Updated: 30 October 2011
Article by Dudley Kneller, Jacqueline Scarlett and Darryl Slabe

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 fence.1

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 (NSWLRC).

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 privacy".

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 exhausted."3

In any event, this Issues Paper brings Australia another step closer towards a statutory right to sue for serious invasions of privacy.

We will keep you informed as further updates come to light.


1 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (Latham CJ).

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 2011).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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