Incidental to lawful rights of defence

Proposal 10–2 The new 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.

10.24 This defence protects individuals from liability where a serious invasion of privacy was necessary to prevent a threatened or actual harm, and where their response to that harm was reasonable.[18] This defence will arise where the defendant has reasonable grounds for apprehending a threat of harm to persons or property. The defence will arise in several circumstances: self-defence; defence of another person; and defence of property. The requirement that the conduct be proportionate, necessary and reasonable is an important qualification. At tort law, the question of whether a defendant’s conduct was reasonable is a question of fact.[19]

10.25 This defence will protect an individual from liability where they act in self-defence. Civil liability legislation around the country provides an analogous protection for self-defence where the conduct to which the person is responding was unlawful and where:

(2) A person carries out conduct in self-defence if and only if the person considers the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.[20]

10.26 The defence will also protect individuals from liability where their conduct protects a third party from harm particularly where that third party is under the individual’s care or responsibility, or where that third party is incapable of exercising self-defence. This may involve the protection of children and young people, vulnerable groups or animals. The defence of the person of another operates at tort law and has been codified in some Australian jurisdictions.[21] At common law, the defence extends to protection of an individual’s household, employer, family members and even, in some circumstances, strangers.[22]

10.27 The defence would also protect individuals from liability where their conduct was incidental to the defence of property in situations where another person threatens to commit, or does commit, trespass to property. This is analogous to the defence for intentional torts where a defendant’s conduct in response to the threat or harm to their property is reasonable.[23]

10.28 The defence that conduct was incidental to the defence of persons or property operates in Canadian law. It has been used in Canada to protect defendants from liability in the following situations: where an employer used covert surveillance to monitor an employee whom the employer reasonably suspected of stealing stock; and where an individual intercepted a neighbour’s phone to gain evidence of blackmail.[24]

10.29 The Insurance Council of Australia proposed a defence that ‘the act or conduct was for the purpose of investigating potential fraud or misrepresentation’.[25] However, the ALRC considers that individuals or organisations that pursue such conduct—where it is reasonable and proportionate—will already be protected from liability given the operation of the public interest balancing test proposed in Chapter 8. In that chapter, the ALRC proposes that ‘the prevention and detection of crime and fraud’ be included in a list of public interest factors to be considered by a court.[26]

10.30 Furthermore, in some instances, the power to investigate fraudulent insurance claims is authorised by statute. For example, s 116 of the Motor Vehicle Compensation Act 1999 (NSW) requires a licensed insurer to ‘take all such steps as may be reasonable to deter and prevent the making of fraudulent claims’.

Reasonable, proportionate and necessary

10.31 The qualification that conduct be ‘reasonable, proportionate and necessary’ will provide a court with the opportunity to balance competing interests.[27] Privacy is a complex concept which necessarily involves analysis of competing interests and assessments of proportionality. The qualification that conduct be proportionate, necessary and reasonable acknowledges the fact that the circumstances leading to an invasion of privacy require careful consideration.

10.32 This balancing process is consistent with other elements of the cause of action, specifically the public interest test. Witzleb argued that requiring a balance of competing interests in the defence that conduct was incidental to the defence of person, property or interests ‘underlies the cause of action as a whole, in particular in relation to countervailing public interests’.[28]

10.33 The operation of this qualified defence relies on concepts of proportionality and reasonableness which are derived from human rights jurisprudence. Their inclusion in the new Act would make it more consistent with Australia’s international human rights obligations to appropriately balance the protection of privacy with free speech and other interests.[29] 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.[30]

10.34 Some stakeholders may argue that this qualified defence shifts the burden of proof from the question of whether there has been a serious invasion of privacy, to whether there has been a justifiable invasion. Any such emphasis would not prevent an equitable outcome. A defendant will be required to show that there was at least an apprehended threat to their privacy interest and that the invasion of privacy was necessary and reasonable for the protection of his or her rights against that threat.

10.35 The ABC submitted that the qualification of proportionality is ‘appropriate’ and consistent with media guidelines including their Editorial Policies and Code of Practices.[31]