Question 10–2 Should the new Act provide for a defence of necessity?

10.59 The ALRC is not proposing a defence of necessity at this stage in the Inquiry, however the ALRC welcomes stakeholder responses to the question raised in this section.

10.60 A defence of necessity would protect individuals from liability where a situation of overwhelming urgency justifies a serious invasion of privacy.[57] This defence will arise in situations where a defendant is or feels compelled[58] to invade an individual’s privacy in order to prevent or reduce the occurrence of a more serious harm. 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. This necessity may arise for example, where an individual has indicated an intention to commit suicide and mental health professionals or emergency services require private information from another individual. Or where a doctor is called to a school and needs to reveal private information about vaccinations or a contagious disease or condition.[59]

10.61 The defence of necessity is an established defence to intentional torts to protect activities and conduct pursued to prevent a greater harm,[60] including in medical and other emergencies, and is recognised in criminal law.[61]

10.62 This defence differs from qualified privilege as it does not involve a mutual interest between two parties which necessitates the disclosure of private information or intrusion into someone’s seclusion. Moreover, a defence of necessity provides more targeted protection than is offered by the public interest test as arguably public interest focuses on invasions carried out in the interests of public or community safety and wellbeing rather than that of an individual or smaller group. While there may be some overlap in defences, the ALRC does not consider this a problem.