Greenleaf, Graham; Waters, Nigel --- "In support of a statutory privacy action in Australian law" [2008] UNSWLRS 33

Last Updated: 12 November 2008

In support of a statutory privacy action in Australian law
Graham Greenleaf and Nigel Waters

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Citation

This paper is the fifth of six submissions that will appear in the UNSW Law Research Series as part of a series made to the Australian Law Reform Commission on the Review of Australian Privacy Law Discussion Paper 72 by researchers on the ‘Interpreting Privacy Principles’ project based at the Cyberspace Law and Policy Centre, University of New South Wales. This paper was also a submission to the NSW Law Reform Commission.

Abstract

As part of its ongoing Review of Australian Privacy Law, the Australian Law Reform Commission, in its Discussion Paper 72, proposed that a new statutory cause of action of for “invasion of privacy” be introduced into the Privacy Act 1988 (Cth). The New South Wales Law Reform Commission is also consulting on the introduction of a statutory action – often referred to as a ‘privacy tort’. This submission supports the proposal from the ALRC that there should be a privacy action stated in general terms and with a non-exhaustive list of examples, but suggests that all of these examples clearly relate to ‘private life’. The right should not apply to legal entities or to deceased persons, and should apply to negligent as well as intentional and reckless acts. If the right is to be limited by a requirement for ‘proof of damage’ it is essential that ‘damage’ include humiliation, emotional distress etc. The submission supports an exhaustive list of defences, but argues for a proportionality condition for all defences and for any ‘authorised by law’ defence to be restricted to specific authorisations.