Recommendation 15–1 If a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation creating a tort of harassment.
15.7 A serious invasion of privacy may often also amount to harassment. Harassment involves deliberate conduct. It may be done maliciously, to cause anxiety or distress or other harm, or it may be done for other purposes. Regardless of the intention, harassment will often cause anxiety or distress. Harassment also restricts the ability of an individual to live a free life.
15.8 In some instances, harassment will clearly amount to an interference with someone’s privacy. For example, the following conduct—where it is repeated, unwanted and intended to distress and demean an individual—may amount to harassment and an invasion of privacy:
following or keeping someone under surveillance;
eavesdropping and wiretapping;
reading private letters and other private communication;
using surveillance devices to monitor, intimidate or distress someone;
publishing private information;
taking photos of someone in a private context, without their permission; and
making persistent and unwanted contact, such as by telephone or email.
15.9 The ALRC has received submissions from numerous stakeholders outlining different forms of behaviour that would seem to amount to both harassment and a serious invasion of privacy.
15.10 If a new tort for serious invasions of privacy is not enacted, the ALRC recommends the enactment of a statutory cause of action for harassment. This will help deter and redress some egregious types of invasion of privacy that are not currently the subject of effective legal protection.
Existing civil remedies
15.11 There are gaps and limitations in existing civil remedies for persons subjected to harassment.
15.12 Australian courts have not recognised a common law cause of action for harassment. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Gummow and Hayne JJ referred to ‘what may be a developing tort of harassment’, citing the work of Professor Stephen Todd from New Zealand. New Zealand has now enacted the Harassment Act 1997 (NZ) and the courts have recognised a tort of intrusion into seclusion.
15.13 In Grosse v Purvis, a Queensland District Court judge recognised an actionable right to privacy after a finding that the defendant had persistently and intentionally stalked and harassed the plaintiff for six years. Because of his conclusion on the actionable right to privacy, there was no need to decide whether a tort of harassment should be recognised.
15.14 At present, Australian law does not provide civil redress to the victims of harassment. There is some protection in defamation law, as well as the torts of battery or trespass to the person where conduct becomes physically threatening or harmful. If bullying or harassment, including cyber-bullying, occurs on school property within school hours, a school may be liable under the law of negligence on the basis of a non-delegable duty of care.
15.15 However, many instances of harassment will involve a serious invasion of privacy and yet not give rise to an existing tort. As discussed in Chapter 3, this is a significant gap in the protection of privacy in the common law. For example, the tort of trespass to land can be used only where there has been an unlawful intrusion onto property. Surveillance or harassment from outside the property would not come within the tort. Further, the harassment may occur on property where the victim is not the occupier with the required title to sue for trespass.
15.16 Harassment may not involve any physical contact amounting to battery, or threat of physical contact amounting to assault.
15.17 The tort of nuisance requires an interference with the lawful occupier’s use and enjoyment of land. Nuisance has been useful in limited cases, such as where a CCTV camera was erected at a neighbour’s backyard, prohibiting their use and enjoyment of the garden. However, again, a person’s right to sue is limited.
15.18 The tort of wilful infliction of nervous shock is an inadequate remedy for many instances of harassment, as a plaintiff must prove actual physical or psychiatric injury. Harassment, however, will often result only in emotional distress.
A harassment tort
15.19 Given these gaps, the ALRC recommends the enactment of a new tort to provide civil remedies, including damages, to persons subjected to harassment. Several stakeholders supported a statutory tort of harassment. The tort would be actionable where there is a course of conduct, linked by a common purpose and subject-matter, intentionally committed to cause distress and intimidation. Further work is necessary on the detailed design of the tort, but these might be the key elements.
15.20 It is important that the threshold is not set too low, so the new tort does not capture behaviour which is merely irritating or slightly disturbing. A new tort for harassment would provide for a targeted avenue of civil redress where the conduct is not redressed by existing torts. Civil remedies, particularly compensatory damages, can vindicate a plaintiff’s interests.
15.21 Several stakeholders opposed the introduction of a statutory tort of harassment. For example, the Australian Mobile Telecommunications Association and Communications Alliance argued that the existing privacy regulatory framework is adequate to prevent and redress conduct amounting to harassment. However, the ALRC considers the gaps identified above demonstrate the need for a civil action in privacy or harassment.
15.22 Guardian News and Media Limited and Guardian Australia submitted that it would be preferable to introduce the new privacy tort than modify existing laws relating to harassment. Their submission raises the concern that a harassment tort does not involve a public interest balancing test, unlike the new privacy tort. Given this, they consider that there is ‘[s]ignificant potential for an harassment style of action or crime to significantly impact on bona fide journalistic activities’.
15.23 Suitable defences would be needed for a harassment tort. The ALRC considers that in designing such defences, consideration should be given to ensuring the tort does not unreasonably affect responsible journalism on matters of public importance.
15.24 Describing the statutory harassment action as a tort action will provide certainty on a number of ancillary issues that will inevitably arise. However, further work would need to be done on the detailed design of a cause of action for harassment. The design of the statutory cause of action for serious invasion of privacy in this Report may provide some guidance on the design of a new harassment tort, as will harassment actions in other countries, discussed below.
Uniform state and territory legislation
15.25 The ALRC recommends that the states and territories enact uniform legislation providing for a tort of harassment.
15.26 It is unclear whether the Commonwealth has the power to enact a general tort of harassment. The Commonwealth has the power to legislate with respect to communications made over the internet or other electronic communications—under the communications power in section 51(v) of the Australian Constitution. However, the Constitutional basis of a more general harassment Act—covering harassment which occurs ‘offline’—is less certain.
15.27 Although it is not clear, the Commonwealth’s external affairs power might also support a new Commonwealth harassment Act. It may be argued that harassment constitutes ‘an arbitrary or unlawful interference with … privacy, family, home or correspondence’, under art 17 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party. At its broadest, a person’s privacy could be considered to be interfered with by some forms of harassment. However, unlike surveillance (for example), harassment in general does not appear to be clearly recognised as involving interference with ‘privacy’ within the meaning of art 17 of the ICCPR. Article 17 has not been interpreted in General Comments of the Human Rights Committee, nor in case law, as involving protection from harassment.
15.28 By way of comparison, the sexual harassment provisions in the Sex Discrimination Act 1984 (Cth) seem to be supported by the external affairs power through giving effect to provisions of the Convention on the Elimination of all Forms of Violence against Women.
15.29 The states may also refer matters to the Commonwealth under s 51(xxxvii) of the Australian Constitution.
15.30 If the Commonwealth were to enact a cause of action for harassment, the relevant statute might include a ‘reading down’ provision, to attempt to ensure the validity of the law to the extent it would operate in cases that are clearly within power. Another option might be for the Commonwealth to enact more limited causes of action for harassment. For example, a tort of harassment using internet or telecommunications technology would seem to be more clearly within the Commonwealth’s legislative powers.
Ruth Gavison, ‘Privacy and the Limits of the Law’ (1979) 89 Yale Law Journal 421, 429.
In Howlett v Holding,an injunction was granted to restrain aerial surveillance under the Protection from Harassment Act 1997 (UK). This case involved the defendant flying banners from private aircraft addressed to, and referring to, the plaintiff in derogatory terms, and dropping leaflets containing information about the plaintiff: Howlett v Holding  EWHC 41 (QB) (25 January 2006).
Some of these are examples of conduct that has been the subject of claims under the Protection from Harassment Act 1997 (UK).
Domestic Violence Legal Service and North Australian Aboriginal Justice Agency, Submission 120; Women’s Legal Services NSW, Submission 115; National Children and Youth Law Centre, Submission 61; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48.
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, .
Stephen Todd, ‘Protection of Privacy’ in Nicholas Mullany (ed), Torts in the Nineties (LBC Information Services, 6th ed, 1997).
C v Holland  3 NZLR 672. The New Zealand provision is discussed further below.
Grosse v Purvis  QDC 151 (16 June 2003); Des A Butler, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 352. Doubt has been expressed about the correctness of Grosse v Purvis: see Ch 3. The case was settled before the defendant’s appeal was heard.
Commonwealth v Introvigne (1982) 150 CLR 258.
See Barbara McDonald, ‘Tort’s Role in Protecting Privacy: Current and Future Directions’ in J Edelman, J Goudkamp and S Degeling (eds), Torts in Commercial Law (Thomson Reuters, 2011).
Plenty v Dillon (1991) 171 CLR 635.
Kaye v Robertson  FSR 62.
Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) [3.16].
Raciti v Hughes (1995) 7 BPR 14, 837.
Hunter and Others v Canary Wharf Ltd; Hunter and Others v London Docklands Corporation  UKHL 14.
Wilkinson v Downton (1897) 2 QB 57; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417.
Domestic Violence Legal Service and North Australian Aboriginal Justice Agency, Submission 120; Office of the Victorian Privacy Commissioner, Submission 108; Public Interest Advocacy Centre, Submission 105; N Henry and A Powell, Submission 104; Australian Sex Party, Submission 92. The Australian Sex Party preferred a model whereby civil remedies were available for breaches of the criminal law.
Uren v John Fairfax & Sons (1966) 117 CLR 118, 150 (Windeyer J).
News Corp Australia, Submission 112; Free TV, Submission 109; AMTACA, Submission 101; ASTRA, Submission 99.
AMTACA, Submission 101.
Guardian News and Media Limited and Guardian Australia, Submission 80.
Australian Constitution s 51(xxix).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1980, 1249 UNTS (entered into force 3 September 1981).