Statutory tort of harassment
Recommendation 15–1 If a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation creating a tort of harassment. 15.7 A serious invasion of privacy may often also amount to harassment. Harassment involves deliberate conduct. It may be done maliciously, to cause anxiety or distress …
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Read moreCriminal offences for harassment
15.31 This section outlines a range of Commonwealth, state and territory criminal offences for conduct that amounts to harassment. There appear to be some gaps in state laws, and it seems Commonwealth cyber-harassment laws could be clearer and more actively enforced.State stalking and harassment laws15.32 State and territory laws criminalise stalking. These offences often target …
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Read moreHarassment laws in other countries
15.44 The Protection from Harassment Act 1997 (UK) creates criminal offences when a person engages in a ‘course of conduct’ that amounts to harassment.[48] It is an offence for a person to pursue a course of conduct which amounts to harassment of another and which they know or ought to know amounts to harassment.[49] Harassment …
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Read moreTechnology neutral surveillance legislation
Recommendation 14–2 Surveillance legislation should be technology neutral. It should regulate surveillance through the use of listening devices, optical devices, tracking devices, data surveillance devices, and other devices and systems. 14.32 The ALRC recommends that surveillance legislation be technology neutral. This would mean that surveillance legislation could more readily be applied to any existing or …
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Read moreLawful authority
Recommendation 11–1 The Act should provide for a defence that the defendant’s conduct was required or authorised by law. 11.7 The defence of lawful authority protects a defendant from liability for serious invasions of privacy where the conduct was required or authorised by law.[1] This defence will be especially important for government authorities that are …
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Read moreNon-survival of the cause of action
Recommendation 10–3 A cause of action for serious invasion of privacy should not survive for the benefit of the plaintiff’s estate or against the defendant’s estate. 10.46 The ALRC recommends that an action for serious invasion of privacy should not survive the death of a plaintiff. 10.47 This recommendation means that actions cannot survive for …
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Read moreNegligence
7.45 The ALRC does not recommend that negligent invasion of privacy be actionable under the new tort. Negligence depends on whether the actor’s conduct[46] measured up to an objective standard of what a reasonable person in the position of the defendant would or would not do in the circumstances. In this objective test, the intention …
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Read moreExisting legislative privacy protection
Information privacy3.5 The Privacy Act 1988 (Cth)is Australia’s key information privacy law.[1] It is concerned with the security of personal information held by certain entities, rather than with privacy more generally.[2]3.6 The Privacy Act provides 13 ‘Australian Privacy Principles’ (APPs) that regulate the collection, use, disclosure and other handling of personal information.[3] The APPs bind …
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Read moreFilling the gaps in existing law
3.50 Although the existing law provides protection against some invasions of privacy, there are significant gaps or uncertainties. These include the following:The tort actions of trespass to the person, trespass to land and nuisance do not provide protection from unauthorised and serious intrusions into a person’s private activities in many situations.[80] A statutory cause of …
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Read moreA Commonwealth harassment Act
Proposal 14–1 A Commonwealth harassment Act should be enacted to consolidate and clarify existing criminal offences for harassment and, if a new tort for serious invasion of privacy is not enacted, provide for a new statutory tort of harassment. Alternatively, the states and territories should adopt uniform harassment legislation. 14.5 This new Commonwealth harassment Act …
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