9.1 Privacy is an important public interest, but it must be balanced with, and sometimes give way to, other rights and interests.
9.2 Although respecting privacy will promote free expression and the free media necessary for effective democracy, privacy can sometimes conflict with these and other important public interests. Where breaching someone’s privacy is justified for an important public interest, privacy must give way.
9.3 In this chapter, the ALRC recommends that, in order for a plaintiff to have a cause of action under a tort for serious invasion of privacy, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest.
9.4 The ALRC also recommends that the Act provide guidance on the meaning of ‘public interest’, by setting out a list of public interest matters. These include freedom of expression, freedom of the media, public health and safety, and national security.
9.5 The ALRC recommends that competing interests be considered when determining whether the plaintiff has a cause of action. It should be an element of the tort, rather than a defence. A plaintiff should not be able to claim that a wrong has been committed—that their privacy has been seriously invaded—where there are strong public interest grounds justifying the invasion of privacy.
9.6 The defendant will generally be best placed to bring the court’s attention to any evidence of countervailing public interests. The ALRC therefore recommends that the Act should provide that the defendant has the burden to adduce such evidence. The court must then be satisfied that the public interest in privacy outweighs these other public interests. The Act should provide that the plaintiff bears the onus of satisfying the court of this.