Recommendation 11–3 The Act should provide for a defence of necessity.

11.41 The ALRC recommends a defence of necessity be available under the new tort to protect individuals and organisations from liability where they had a reasonable belief that their conduct in invading the plaintiff’s privacy was necessary to prevent an imminent and greater harm,[44] and where that conduct was a reasonable response to the situation. This defence will usually arise where the conduct was a response to an imminent danger or emergency, but may also be based on a semi-permanent state of affairs, where no other action could reasonably be taken to prevent the harm. This defence should be in line with the common law defence of necessity.

11.42 The defence of necessity operates in existing areas of Australian tort and criminal law[45] and several stakeholders supported a defence of necessity.[46]

11.43 Situations of public emergency, where emergency service professionals need to access the private information of at-risk or vulnerable persons, may give rise to this defence.[47] This necessity may arise, for example, where an individual has indicated an intention to self-harm and mental health professionals or emergency services obtain or disclose private information. It may also arise where a doctor is called to a school and needs to reveal private information about a child’s vaccination record or a contagious disease or condition in dealing with an urgent situation.

11.44 The Australian Subscription Television and Radio Association (ASTRA) argued that the defence should be formulated in the following way: that the conduct was ‘considered by the person acting to be reasonably necessary to eliminate or reduce a possible health, safety or security risk to themselves or another person’.[48]

11.45 Guardian News and Media Limited and Guardian Australia noted that, while a defence of necessity would be unlikely to apply to media organisations, there may be some situations where such a defence may be required:

There are nevertheless some times when the appropriate public or private body does not disclose information which it may be in the public interest to disclose in aid of public safety and the media discloses.[49]

11.46 Several stakeholders opposed the inclusion of a defence of necessity,[50] or were concerned at what conduct it might excuse. Australian Pork submitted that the inclusion of such a defence would mean ‘that any person infringing the rights may do so on the basis of a value judgement rather than a legal or public good basis’.[51]

11.47 However, existing law on the defence of necessity indicates that the belief of the defendant as to the necessity of their actions must be reasonable.[52] It has been suggested that the same latitude should be given to someone acting out of necessity as is given to someone acting in self-defence: that is, it will not matter if their belief in the necessity is mistaken, as long as it is reasonable.[53]

11.48 In the new tort, as with other intentional torts, the defence of necessity may apply in both public and private settings. Public necessity may involve ‘invading the rights of private individuals in order to protect the community at large’,[54] such as taking action to prevent a fire spreading.

11.49 A defence of private necessity would operate when the defendant commits a tort towards the plaintiff in order to protect persons or property (either their own, or a third party’s) against the threat of imminent harm.[55] It does not matter if the altruist fails to achieve the objective, as long as the attempt was reasonable:

Everyone who acts reasonably in a real emergency for the purpose of saving the goods of another from damage or destruction, whether he derives or is likely to derive any pecuniary advantage from the action or not, or is fulfilling any legal obligation.[56]

11.50 In the context of medical emergencies, courts have explained the proper function of the defence of necessity as justifying the administering of emergency procedures where a patient is not capable of providing consent.[57]

11.51 Considerations relevant to the defence may also be relevant to whether the plaintiff had a reasonable expectation of privacy and in relation to the public interest test, but the ALRC considers that a complete defence of necessity should be available to defendants as in other torts. This will be particularly important for emergency services, law enforcement officers and health professionals.[58]