Constitutional issues

Head of power

4.15 This section examines the scope of the Commonwealth’s power under the Australian Constitution to legislate for the new tort. This issue was discussed in the ALRC’s report, For Your Information: Privacy Law and Practice (2008).[15] The constitutional aspects of the ALRC’s recommendations with regard to surveillance and harassment legislation are discussed in chapters 14 and 15 respectively.

4.16 The Commonwealth has the power to make laws with respect to ‘external affairs’.[16] This power enables the Commonwealth to give effect to its international obligations under a bona fide treaty.[17] It is open to the legislature to decide the means by which it gives effect to those obligations, but those means must be ‘reasonably capable of being considered appropriate and adapted to that end’.[18] This is a key issue in considering the constitutionality of a Commonwealth statute providing a cause of action. The ALRC noted in 2008 that the Privacy Act was enacted on the basis of the external affairs power and other powers.[19]

4.17 Australia is a State Party to the International Covenant on Civil and Political Rights (ICCPR). Australia ratified the ICCPR in 1980. Article 17 provides:

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

4.18 The ICCPR was ratified by Australia subject to a number of reservations and declarations which included, in relation to art 17, the right to ‘enact and administer laws which, insofar as they authorise action which impinges on a person’s privacy, family, home or correspondence, are necessary in a democratic country in the interests of national security, public safety, the economic well-being of the country, the protection of public health or morals, or the protection of the rights and freedoms of others’.[20] Australia withdrew this reservation to art 17 on 6 November 1984.

4.19 In light of the Commonwealth’s power to implement treaty obligations under s 51(xxix), it is likely that a law which created a statutory cause of action for serious invasions of privacy would be valid on the basis that the law would be reasonably capable of being considered appropriate and adapted to fulfilling Australia’s obligations under art 17 of the ICCPR.

4.20 To reflect art 17, the new tort would need to be seen as a measure aimed at prohibiting or regulating certain conduct in order to protect privacy.

4.21 Article 17 is intended to be a general protection against arbitrary or unlawful interference with privacy; it is not intended merely to restrict the actions of governments. The Human Rights Committee, which is an independent body established to supervise the application of the ICCPR,[21] in its General Comment 16 on art 17, states:

In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons.

States parties are under a duty themselves not to engage in interferences inconsistent with article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons.[22]

4.22 ‘Arbitrary interference’ means interferences that are not reasonable in the particular circumstances. General Comment 16 says expressly:

The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.[23]

4.23 In its Toonen decision, the Human Rights Committee also said:

The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.[24]

4.24 The High Court grants some latitude to Parliament in selecting the means by which to give effect to a treaty obligation.[25]

4.25 It has been suggested that a treaty setting out a ‘broad objective with little precise content and permitting widely divergent policies by parties’ may not be sufficiently specific to support legislation.[26] However, the High Court has recognised that international obligations need not be defined with the precision required under domestic law, and that ‘absence of precision does not, however, mean any absence of international obligation’.[27] Moreover, art 17(2) of the ICCPR explicitly provides that the protection of law should be afforded to those subject to interference with or attacks on their privacy, so that there is not a problem of insufficient specificity.

4.26 The ALRC considers that the enactment of a statutory cause of action for serious invasion of privacy carries the provisions of art 17(2) into effect and satisfies the requirement of proportionality. The creation of the action is likely to act as a disincentive to engage in invasions of privacy in Australia. Conferring a private right to redress will have the effect of protecting persons from interferences with their privacy. Further, in addition to according individuals the ‘protection of law’ as required by art 17(2), a statutory cause of action could be said to further the fulfilment of Australia’s obligation to provide an effective remedy to violations of art 17 as required by art 2(3) of the ICCPR.

4.27 The limited interests protected by the cause of action are generally accepted as falling within the notion of ‘privacy’. To aid the courts in interpreting the statutory cause of action, it could be made clear in the Act or extrinsic material (such as the Explanatory Memorandum) that Parliament did not intend that the cause of action would extend beyond what is encompassed in the notion of ‘privacy’ in art 17.

4.28 In its 2008 report, the ALRC canvassed other heads of power as a basis for legislating on privacy, which may also support aspects of the statutory cause of action.[28] One of these was the Commonwealth’s power to legislate with respect to ‘postal, telegraphic, telephonic and other like services’.[29] The technology-neutral phrase ‘other like services’ demonstrates that the possibility of developments in technology was contemplated by drafters when framing s 51(v).[30] Radio and television broadcasting have been held to be within the Commonwealth’s power under s 51(v).[31] Although the Commonwealth’s power to regulate the internet under this head of power is yet to be considered by the High Court, it does not seem controversial that it would be a ‘like service’.[32]

4.29 The ALRC notes that a number of other powers could be relied upon to provide partial support for Commonwealth legislation enacting a statutory cause of action, but they would not in total provide the Commonwealth with the full support that the external affairs power would provide. The legislation enacting the statutory cause of action could, however, include a ‘reading down’ provision, invoking the communications power and the following additional heads of power to ensure that the legislation is as robust as possible from a constitutional perspective:

  • s 51(xx) of the Constitution, which gives the Parliament the power to make laws with respect to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’;

  • s 122 which confers near plenary power on the Commonwealth to legislate in respect of the Territories;

  • ss 51(xiii) and (xiv), the banking and insurance powers, which would enable the Commonwealth to legislate to regulate relevant conduct of persons engaging in the business of banking or insurance (provided this was not state insurance or state banking carried on within the limits of a state);

  • s 51(i), the interstate and overseas trade and commerce power, which would enable the Commonwealth to legislate with respect to relevant conduct engaged in in the course of interstate or overseas trade or commerce;

  • the ‘geographically external’ aspect of the external affairs power in s 51(xxix), which would permit the Commonwealth to legislate to regulate relevant conduct occurring outside Australia (eg the electronic surveillance of a person in Australia by a person outside of Australia); and

  • s 51(xxxix), the express incidental power, which would enable the Commonwealth to regulate its own conduct and the conduct of bodies established by Commonwealth legislation.

4.30 If the Commonwealth does enact a statutory cause of action, it may expressly or impliedly ‘cover the field’ on the subject matter. Any state act which was inconsistent with the Commonwealth Act would be inoperative.[33]

Constitutional limits

4.31 The Commonwealth’s power to legislate is subject to both express and implied constitutional limitations.

Implied freedom of political communication

4.32 The legislative power of the Commonwealth is subject to the implied freedom of political communication,[34] although the precise scope of the communications protected is still a matter of some uncertainty. In assessing whether a law infringes the freedom, there are two questions.

4.33 The first question is, does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

4.34 The second question is, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?[35]

4.35 A law will only infringe the implied freedom if the answer to the first question is ‘yes’ and the answer to the second question is ‘no’. This test has been affirmed in a number of recent decisions of the High Court.[36]

4.36 The ALRC considers that the recommended statutory cause of action would not infringe the implied freedom of political communication. The recommended cause of action requires that the court be satisfied that the plaintiff’s interest in privacy outweighs the defendant’s interest in freedom of expression and any broader public interest, and includes a number of relevant defences such as absolute privilege. It is suggested that freedom of expression be specified as including the freedom to discuss political matters. It is likely that the cause of action is ‘reasonably appropriate and adapted’ to serve a legitimate end, that is, the protection of privacy, in a manner compatible with the maintenance of representative and responsible government.

4.37 However, it may be prudent to include a provision expressly stating that the Act does not apply to the extent (if any) that it infringes the implied freedom of political communication.[37]

Impact on states

4.38 The ALRC’s 2008 report discussed the Melbourne Corporation principle, as an implied limitation on the Commonwealth’s power to legislate. In 2012, the High Court expressed the Melbourne Corporation principle as concerned with

whether impugned legislation is directed at States, imposing some special disability or burden on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments.[38]

4.39 The immunity applies not only to state governments but also to state agencies, including state corporations, to the extent that they are carrying out the functions of the state.[39]

4.40 The ALRC considers that a statutory cause of action, while imposing a burden on state governments or agencies, would not curtail the states’ capacity to function as governments.This is particularly so in view of the defence of lawful authority, which will provide government agencies including law enforcement agencies with protection from liability for serious invasions of privacy where that conduct was consistent with their statutory powers. The Act would not place any greater burden on a state (or states) than on the Commonwealth itself.[40]