Serious Invasions of Privacy in the Digital Era (Australian Privacy Foundation Submission to the Australian Law Reform Commission)

Abstract

This submission by the Australian Privacy Foundation (APF) to the Australian Law Reform Commission (ALRC) strongly endorses establishment in national legislation of a cause of action for serious invasion of an individual's privacy which, for convenience, this submission shall generally refer to as a statutory tort. The submission answers the 27 questions asked by the ALRC in its October 2013 Issues Paper 'Serious Invasions of Privacy in the Digital Era'. Such a tort has been recommended by a succession of law reform commissions and other bodies. Recurrent recommendation demonstrates that there is a substantive and significant need for the tort and that after wide consultation those bodies consider that legislation is both desirable and viable. The tort has not been ruled out by the High Court and could be accommodated under the national constitution. As noted by the law reform commissions the tort will not inhibit effective law enforcement or national security activity. It will not inhibit the implied freedom of political communication, a freedom that the High Court and Supreme Courts have indicated is not absolute. There is no reason to believe that the tort will burden the legal system with inappropriate litigation. Criticisms of the tort are exaggerated and typically reflect vested interests. Fundamentally, the tort offers an effective remedy for problems that are evident in Australian law, that are of concern to many Australians, and that have been acknowledged by both courts and law reform bodies over a considerable period of time. The tort will provide coherence across the Australian jurisdictions, where there is major inconsistency including, for example, in surveillance devices legislation. The tort will also offset regulatory incapacity, in particular the very restricted scope of the Privacy Act 1988 (Cth) - concerned with information privacy - and under-resourcing of the Office of the Australian Information Commissioner (OAIC). It will fill a long-standing gap in the common law protection of the right to privacy, which is not adequately covered by existing causes of action. The Foundation further considers that an important role of the tort is in signalling to all Australians that privacy should be respected as a matter of rights and obligations; that 'signalling' function is likely to be as significant as any deterrent associated with damages under the tort.