Commonwealth Statutory Cause of Action for Serious Invasion Of Privacy

The Australian Law Reform Commission (ALRC) had recommended the introduction of a statutory cause of action for serious invasions of privacy. The ALRC’s recommendation are generally supported by both the Victorian Law Reform Commission and the New South Wales Law Reform Commission.

The Issues Paper by the Attorney General’s Department canvasses issues relating to the  introduction of a Commonwealth Statutory Cause of Action for Serious Invasion of Privacy  , and can be found on the Attorney-General’s website.

The Issues paper discusses whether Australia should introduce a statutory cause of action for egregious breaches of privacy and, if so, what elements a statutory cause of action might include.

The Paper has elicited over seventy submissions.

It is only recently that a tort of privacy in Australia has started to evolve at common law, but no clear cause of action for privacy related invasions has emerged, as exists in other jurisdictions such as New Zealand, the United States, Canada, the United Kingdom and the European Union.

The cases of  Grosse v Purvis [2003] QDC 151 and Doe v Australian Broadcasting Corporation  (2007) VCC 281 have both expressly acknowledged the existence of a common law right to an action for the tort of privacy in Australia.  However these decisions acknowledge a common law cause of action providing limited protection.  The Victorian Court of Appeal’s decision in Giller v Procopets [2008] VSCA 206 dismantled a barrier to recognising a tort of privacy through the use of the  action for  breach of confidence by finding that damages for breach of confidence are available for psychological distress which does not result in a plaintiff suffering a recognisable psychiatric injury.  However the contours of the action for breach of confidence weren’t expanded as the Court was able to arrive at it’s decision by finding a breach of confidence based on a sexual relationship between partners.

The submissions respond to the appropriateness of creating a statutory cause of action in addition to addressing the balance between the protection of privacy and competing interests such as freedom of expression.

The respondents also express their views on the appropriateness of tests articulated in other jurisdictions with different constitutions and human rights protections, would be an appropriate standard for  a statutory cause of action for the tort of breach of privacy if introduced into Australian law.

An excellent critique of privacy and privacy law can be found in a submission by Jessie Porteus.












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