Recommendation 11–2 The Act should provide a defence for conduct incidental to the exercise of a lawful right of defence of persons or property, where that conduct was proportionate, necessary and reasonable.
11.32 The defence will arise in several circumstances: self-defence; defence of another person; and defence of property.
11.33 The requirement that the conduct be proportionate, necessary and reasonable is an important qualification. In tort law, the question of whether a defendant’s conduct was proportionate and reasonable is a question of fact. The qualification that conduct be ‘reasonable, proportionate and necessary’ will provide a court with the opportunity to balance competing interests. This qualification to the defence reflects concepts of proportionality and reasonableness found generally in tort law and in human rights jurisprudence. As noted in Chapters 2 and 9, privacy is an interest which must be viewed in the context of competing interests and assessments of proportionality. The balancing process in this defence is consistent with other elements of the cause of action, specifically the reasonable expectation of privacy and the public interest test.
11.34 The recommended defence to an invasion of privacy should arise only where the defendant has reasonable grounds for believing that the conduct was necessary, which is analogous to the position at common law in tort. The ALRC considers that the objectivity of this condition is desirable in view of the wide range of conduct that may be involved in an invasion of privacy.
11.35 A defendant acting in an emergency would also have the defence of necessity in some of the circumstances that would come within this defence.
11.36 The defence will also protect individuals from liability where their conduct protects a third party from harm. The conduct is more likely to be considered necessary and reasonable where that third party is under the individual’s care or responsibility, such as a member of their family, or where that third party is incapable of exercising self-defence, but the defence would not be limited to such circumstances. At common law, the defence extends to protection of an individual’s household, employer, family members and even, in some circumstances, strangers.
11.37 The defence would also protect individuals from liability where their conduct was in defence of property, although different weight is given to the defence of property compared with the defence of persons. This is analogous to the defence for intentional torts where a defendant’s conduct in response to a threat or harm to their property is reasonable.
11.38 The defence that conduct was incidental to the defence of persons or property operates in the statutory causes of action for ‘violation of privacy’ in a number of Canadian provinces. The precise provisions vary:
Manitoba includes a defence where
the act, conduct or publication was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of person, property, or other interest of the defendant or any other person by whom the defendant was instructed or for whose benefit the defendant committed the act, conduct or publication constituting the violation.
11.39 The ALRC considers that a specific defence is unnecessary to protect investigations into potential fraud or misrepresentation. The Insurance Council of Australia proposed such a defence. It is in the interests of all policy holders that insurers have safeguards against fraudulent claims. Where they have reasonable grounds for suspecting fraudulent conduct, they or others on their behalf may often carry out investigations that could be viewed as invasions of privacy. The defence that the conduct was required or authorised by law is wide enough to cover these circumstances. For example, such conduct may be authorised by the statutory scheme under which the risk is insured, as in s 116 of the Motor Vehicle Compensation Act 1999 (NSW), which requires a licensed insurer to ‘take all such steps as may be reasonable to deter and prevent the making of fraudulent claims’. Alternatively, such conduct may already be expressly or impliedly authorised by the contract between the insurer and the insured.
11.40 In addition, the ALRC considers that individuals or organisations that engage in such conduct may be protected from liability under the public interest balancing test recommended in Chapter 9. In that chapter, the ALRC recommends that ‘the prevention and detection of crime and fraud’ be included in a list of public interest factors to be considered by a court.
Similar defences were recommended by the VLRC, ALRC and NSWLRC: Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) rec 27b; NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [6.2]; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) rec 74–4.
Balkin and Davis, above n 3, [6.15].
Law Institute of Victoria, Submission 22.
The UN Human Rights Committee has stated that proportionality is a fundamental test which is necessary to justify any restriction on human rights under the ICCPR: UN Human Rights Committee, General Comment No 29, UN Doc CCPR/C/21/Rev1/Add11 (2001).
The ABC submitted that the qualification of proportionality is ‘appropriate’ and consistent with media guidelines including their Editorial Policies and Code of Practice: ABC, Submission 46.
Ashley v Chief Constable of Sussex Police  2 WLR 975. In that case, it was held that a reasonable, though mistaken belief, in a threat of danger is sufficient to ground self-defence. Cf Civil Liability Act 2002 (NSW) s 52.
Balkin and Davis, above n 3, [6.17]. The defence of another person in criminal law has been codified in some Australian jurisdictions: Criminal Code Act 1995 (Cth) cl 10.4; Civil Liability Act 2002 (NSW) s 52.
Balkin and Davis, above n 3, [6.18].
This defence in criminal law is codified in some Australian jurisdictions, for example: Criminal Code Act 1899 (Qld) s 274. In tort law, civil liability legislation also applies to defences of property: see, eg, the Civil Liability Act 2002 (NSW) s 52.
A Canadian court dismissed this defence in Watts v Klaemnt (2007) BCSC 662, . In that case, a judge held that interception, recording and publication of telephone calls went well beyond what could be regarded as incidental to the exercise of a lawful right of defence of persons or property.
Privacy Act, RSBC 1996, c 373 (British Columbia) s 2(2)(b); Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 4(1)(b); Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 5(1)(b).
Privacy Act, CCSM 1996, c P125 (Manitoba) s 5(c).
Insurance Council of Australia, Submission 15.