A discrete exercise

8.30 The ALRC has proposed a discrete public interest balancing exercise. Another option might be to have public interest matters considered when determining whether the plaintiff had a reasonable expectation of privacy.[23]

8.31 Public interest matters will no doubt be relevant to the question of whether the plaintiff had a reasonable expectation of privacy. For example, the fact that the information is about a politician will be relevant to whether there is public interest in the information.

8.32 However, it may sometimes be artificial to consider public interest matters in the context of an expectation of privacy. Sometimes, a person’s expectation of privacy may seem perfectly reasonable, even though the strength of a competing public interest, perhaps unknown to many reasonable people, suggests that the invasion of privacy should not be actionable.

8.33 The NSWLRC argued that the two issues of whether or not a matter is legitimately private, and the significance of competing interests

are not always clearly separable. Thus, a competing public interest may be of such force in the circumstances that the case will focus principally on it in reaching a conclusion that no reasonable expectation of privacy arises.[24]

8.34 Given the importance of considering competing public interests, the ALRC considers that there should be a clear and discrete public interest element in the cause of action.