Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

Consultation Paper 1 - Invasion of Privacy; Submission to the NSW Law Reform Commission (September 2007)

Submission to the NSW Law Reform Commission September 2007 Background The Office of the Privacy Commissioner (''the Office'') is an independent statutory body whose purpose it is to promote and protect privacy in Australia. The Office has responsibility for the protection of individuals personal information that is handled by Austr...

pdfConsultation Paper 1 - Invasion of Privacy; Submission to the NSW Law Reform Commission (September 2007)

Submission to the NSW Law Reform Commission

September 2007

Background

The Office of the Privacy Commissioner (''the Office'') is an independent statutory body whose purpose it is to promote and protect privacy in Australia. The Office has responsibility for the protection of individuals' personal information that is handled by Australian and ACT government agencies, and personal information held by all large private sector organisations, health service providers and some small businesses. The Privacy Act 1988 (Cth) regulates how these agencies and organisations handle personal information.

The Office welcomes the opportunity to offer general comments on the Commission''s Consultation Paper 1 titled ''Invasion of Privacy''.1

Earlier this year, the Office had the opportunity to provide a response to the Australian Law Reform Commission''s (ALRC) Review of Privacy, Issues Paper 31.2  In that Review the ALRC posed the question whether a cause of action for breach of privacy should be recognised by the courts or the legislature in Australia.  If legislation was the preferred model, what elements and defences should be included and should the cause of action be located in State and Territory legislation or federal legislation.

The Office understands that the ALRC and the NSW Law Reform Commission (NSWLRC) are working closely in conducting their respective Inquiries and submissions made to the ALRC in respect of this issue have been made available to the NSWLRC.3  Whilst the Office does not propose to provide an in-depth response to all of the technical issues raised in the NSWLRC''s Consultation Paper, the Office wishes to provide general comments regarding the development and form of a cause of action concerning privacy, particularly as the proposed model may influence, or go some way to, informing a national approach.

The Development of a Cause of Action Regarding Privacy

As indicated in the Office''s response to the ALRC''s Issues Paper 31, the Office supports the development of a cause of action regarding privacy.  Further, the Office believes that such a development ''would send a message that privacy is an important right that warrants specific recognition and protection within the Australian community.'' 4  

Currently in Australia, individuals must rely on a patchwork of common law and statutory measures to protect various aspects of privacy indirectly, including for example, defamation, nuisance and trespass to land.  However, this may result in individuals having to rely on elements of other actions which may be ill-suited to the circumstances of their privacy related grievance.  The Office is of the view that a dedicated privacy based cause of action could serve to complement the already existing legislative based protections afforded to individuals and address some gaps that currently exist both in the common law and legislation.

Additionally, the development of a body of law specific to privacy may facilitate a deeper understanding of the many and varied contextual issues faced by the community when grappling with privacy issues.  This developing body of law could, over time, reflect society''s expectations and attitudes towards privacy generally and be reflective of technological changes to ensure the law remains responsive to future developments.

The Office agrees with the NSWLRC''s opinion that it may be necessary for the legislature to undertake to establish such a cause of action, particularly in light of the lack of further judicial developments since the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited5.  However, the Office notes the Commission''s reservation regarding the introduction of a statutory cause of action for invasion of privacy in New South Wales alone and the resultant inconsistency this could create across Australian jurisdictions. 

The Office is keenly aware that consistency of privacy legislation and uniformity of privacy principles is already an issue between jurisdictions6 and whilst the development of a statutory cause of action in New South Wales may provide the necessary impetus to develop a more general action at common law, the Office encourages the ongoing collaboration between the NSWLRC and the ALRC to propose a cause of action that could be uniformly applied by the State and Territory or federal governments to ensure consistency and promote certainty. 

In addition, the Office agrees that it is imperative that any development of a statutory cause of action should endeavour to ensure its protections are accessible to all individuals in the community.7  The further consideration of alternative avenues for redress is an important one and the Office encourages both the NSWLRC and the ALRC to consider this issue cooperatively in the interests of promoting consistency in privacy law within Australia.

The Proposed Statutory Cause of Action

The Office is cognisant that the proposed model has been developed primarily within the context of the jurisdiction of New South Wales.  However, as referred to previously, the Office holds the view that it is essential that any model put forward be able to be adapted by other States and Territories or at a federal level to minimise fragmentation.

Precisely how such a model is drafted is a challenging task.  For the reasons discussed in Consultation Paper 1, the Office broadly supports the NSWLRC''s preferred approach whereby a general statutory cause of action is supported by a non''exhaustive list of the types of conduct that may be actionable.8  It would seem that such an approach would address the dual purposes of allowing flexibility in the development of the law and its application to different contexts, whilst at the same time providing some guidance as to the scope that such a cause of action would cover.

Whilst the example list provided in Consultation Paper 19 addresses a broad range of acts that may be considered relevant within the context of personal privacy, it seems that the issues of bodily or territorial privacy have not been specifically included in the list, except perhaps indirectly by reference to an interference with a person''s home or family life or unauthorised surveillance.  It may be useful for the NSWLRC to consider whether the inclusion of other aspects of personal privacy may result in a more comprehensive list of circumstances in which an individual can bring an action.

The Elements

In our submission to the ALRC''s Issues Paper 31, the Office noted Professor Des Butler''s model for a tort of privacy10 as a useful basis for further debate regarding this issue.  Professor Butler''s model proposes that the necessary elements include the notions of an individual''s ''reasonable expectation of privacy'' and that the conduct should be considered ''highly offensive to a reasonable person of ordinary sensibilities''. 

As Professor Butler comments, the importation of a ''reasonable expectation of privacy'' will permit flexibility in its application to the circumstances of each particular case and may allow the consideration of such factors as the location of the act or whether the individual is a public figure or not.  Further, Professor Butler argues that the inclusion of a reasonable expectation of privacy ''recognises that the concept is a matter of fact and degree rather than a matter of absolutes.''11  The Office believes that it would be appropriate for this broad requirement to be included as an element of the action to ensure that the contextual nature of the concept of privacy is considered fully in each case.

Furthermore, the addition of an objective standard such as that which is ''highly offensive to a reasonable person of ordinary sensibilities'' is an important qualification.  As Professor Butler states, ''…the differing degrees of sensitivity in the community, necessitate an objective standard…''.12  Moreover, the inclusion of such a standard permits the cause of action to become reflective of societal attitudes as they change and may serve to limit frivolous or vexatious claims.  However, the Office notes that the Consultation Paper at this stage suggests ''offensive (or highly offensive)…''.13  The Office suggests that the standard should stipulate ''offensive'', as opposed to ''highly offensive'', in order to ensure that the threshold is not unattainable and therefore excessively limits individuals in bringing an action.  The Office holds the view that consideration of the level of offensiveness could be taken into account when determining the appropriate remedy to ensure proportionality.

Corporations

The Office holds the view that corporations should not be permitted to bring a cause of action for invasion of privacy. 

In the Office''s submission to the ALRC''s Issues Paper 31, the Office expressed the opinion that privacy protections should not be provided to commercial entities under the Privacy Act 1988 (Cth).14  Such an extension would be at odds with the idea of individual privacy protection that underpins the Act and other relevant international instruments.  Additionally, the Office observed that commercial entities appear to have sufficient protections provided by other laws and the inclusion of such protections may have the unintended result of conflicting with the financial reporting obligations that many corporations must meet.

Consistent with that response, the Office also continues to hold the view that the development of a statutory cause of action should be limited to natural persons, particularly in light of the proposed elements of the action which are more reflective of privacy as a human right. 

Further, excluding corporations from the ability to bring an action regarding privacy would continue to support a consistent approach to the legislative based privacy protections currently provided.

Remedies

The Office broadly supports the idea that a list of remedies be included in the proposed statutory cause of action.  In itself, a review of the types of conduct that may be actionable would seem to clearly indicate the need for a broad spectrum of remedies and the Office believes such an approach should provide courts with the necessary flexibility to address the wide variety of factual scenarios that may stem from a cause of action for invasion of privacy. 

Should the proposed model be adopted federally, the Office also sees potential merit in providing remedies not currently within the powers of the Privacy Commissioner in order to address acts not contemplated by the Privacy Act 1988 (Cth).  However, the Office believes that it would be important to ensure that plaintiffs and/or complainants are precluded from ''forum shopping'' and ''double dipping''.

Conclusion

The development of a cause of action for invasion of privacy will be a significant advancement in the recognition and protection of privacy within New South Wales and potentially Australia.

Given the ongoing collaboration between the NSWLRC and the ALRC, the Office encourages the NSWLRC to consider the development of a model that could be made applicable to all States and Territories, and adopted federally, to ensure the cause of action could be extended to all Australians equally.  Such a development will signify a positive step forward in the privacy law arena and ensure that the community generally will benefit from increased certainty and consistency in this area of law.

Endnotes

1 NSW Law Reform Commission, Consultation Paper 1 - Invasion of Privacy, May 2007, (NSWLRC CP 1),  available at:  http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cp01toc2 Australian Law Reform Commission, Issues Paper 31 -  Review of Privacy, October 2006, available at:  http://www.austlii.edu.au/au/other/alrc/publications/issues/31/3 NSWLRC CP 1, at para 1.4. 4 Office of the Privacy Commissioner, Submission to the Australian Law Reform Commission''s Review of Privacy, February 2007, available at: http://www.privacy.gov.au/publications/submissions/alrc/all.doc, at p68. 5 (2001) 208 CLR 199. 6 See the Privacy Commissioner''s media release (31 August 2007):  Privacy Law Reform ''Essentials'' at:  http://www.privacy.gov.au/materials/types/media/view/62147 NSWLRC CP 1 at para 1.54. 8 NSWLRC CP 1, at para 6.24. 9 Ibid, at para 6.32. 10 D Butler ''A Tort of Invasion of Privacy in Australia?'' [2005] Melbourne University Law Review 11, as retrieved from:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MULR/2005/11.html?query=tort%20and%20privacy11 Ibid as retrieved from:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MULR/2005/11.html?query=tort%20and%20privacy, at p19. 12 Ibid as retrieved from:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MULR/2005/11.html?query=tort%20and%20privacy, at p20. 13 NSWLRC CP 1, at para 7.5. 14 See link at:  http://www.privacy.gov.au/publications/submissions/alrc/all.doc, p67.