4.1 This chapter sets out the ALRC’s proposals for how a statutory cause of action for serious invasion of privacy should be set in the context of existing laws.
4.2 The ALRC proposes that the statutory cause of action be contained in a new, stand-alone Commonwealth Act. Including the new action in a Commonwealth Act would ensure consistency in the operation of the cause of action throughout Australia.
4.3 The new cause of action should be set out in a new Act, rather than the Privacy Act 1988 (Cth). The Privacy Act largely concerns information privacy, while the new cause of action is designed to remedy a number of different types of invasions of privacy, including physical invasions of privacy.
4.4 The ALRC proposes that a statutory cause of action for serious invasion of privacy should be a tort. If the statutory cause of action were a tort, there would be increased certainty around various ancillary matters, such as vicarious liability. There would also be the benefit of more consistency, since the statutory cause of action would operate in concert with existing tort law.
4.5 Finally, this chapter provides an overview of the elements of the statutory cause of action that are set out in Chapters 5–8. In discussing the elements of the statutory cause of action, it is important to consider these elements together. There are significant interactions between the elements, and the ALRC’s reasons for proposing the content of one proposal will therefore often depend on the ALRC’s proposals for the other elements.