74.1 A tort of invasion of privacy has found legislative expression in some jurisdictions in the United States and Canada since the 1970s. While the courts in the United Kingdom (UK) do not recognise such a tort by that name, in practice, the equitable action for breach of confidence has been used to address the misuse of private information. The New Zealand courts have recognised the existence of a common law tort of privacy. In Australia, no jurisdiction has enshrined in legislation a cause of action for invasion of privacy; however, the door to the development of such a cause of action at common law has been left open by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats).[1] To date, two lower courts have held that such a cause of action is part of the common law of Australia.[2]

74.2 The development of a tort of invasion of privacy by the common law courts may result in piecemeal and fragmented privacy protection, with some jurisdictions prepared to take an active role in the development of the tort and others waiting for further guidance from the High Court. In the context of privacy protection this is problematic. It may be difficult for individuals and organisations (such as media outlets) to assess the effect of the law on their operations and to implement appropriate policies to minimise their potential liability if the common law is developing at different rates and with variations from state to state (as was the case for many years with the law of defamation). Some courts also may choose to adopt the ‘breach of confidence’ approach based on case law in the UK, which would result in further inconsistency.

74.3 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC proposed that, to ensure consistent privacy protection in this area, a cause of action for a serious invasion of privacy should be recognised by the legislature in Australia.[3] It was also noted that, as part of its review of privacy laws in New South Wales, the New South Wales Law Reform Commission (NSWLRC) is looking at the desirability of introducing a statutory tort of privacy in that state. In May 2007, the NSWLRC released Consultation Paper 1, Invasion of Privacy (NSWLRC CP 1), which is discussed in detail below. In DP 72, the ALRC generally agreed with the proposals for reform put forward in NSWLRC CP 1.

74.4 In DP 72, the ALRC confirmed that, in an effort to ensure uniform development in this important area of law, the NSWLRC would take primary responsibility for the formulation of proposals for reform. With the consent of those consulted or making a submission, consultation notes and submissions to the ALRC Inquiry were shared with the NSWLRC.

74.5 This Report has been published before the NSWLRC has finalised its report on this issue. The ALRC necessarily has made its own recommendations in relation to the possible enactment in federal law of a cause of action for serious invasion of privacy. The ALRC remains committed to the view that uniform development in this area of law would be desirable. The views of the ALRC in this Report, however, should not be taken as the final views of the NSWLRC.

74.6 In this chapter, the ALRC outlines:

  • an overview of developments in the law on this issue in Australia and elsewhere;

  • NSWLRC CP 1, with particular emphasis on the impact federally of the issues discussed in that consultation paper;

  • the submissions and consultations to this Inquiry; and

  • the ALRC’s recommendations for the introduction of a statutory cause of action for a serious invasion of privacy.

[1]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

[2]Grosse v Purvis (2003) Aust Torts Reports 81–706; Doe v Australian Broadcasting Corporation [2007] VCC 281. These cases are discussed below.

[3] Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposals 5–1 to 5–7.