The final report by the Australian Law Reform Commission (ALRC) of its inquiry into serious invasions of privacy in the digital era was tabled in Parliament on 3 September 2014, having been provided to the Attorney-General on 30 June 2014.
The report is the end product of a reference given to the ALRC in June 2013 (towards the end of the Gillard government). One of the principal tasks assigned to the ALRC was to make recommendations about “[t]he detailed legal design of a statutory cause of action for serious invasions of privacy”.
The ALRC published an interim discussion paper (summarised here) at the end of March 2014. On 4 April 2014 The Australian newspaper reported that the current Attorney-General (a member of the government led by Prime Minister Abbott) issued a statement in response to the discussion paper which included the following: “The government has made it clear on numerous occasions that it does not support a tort of privacy.”
Nonetheless, the Attorney-General did not withdraw the reference given to the ALRC by his predecessor, so the ALRC performed its statutory duty and duly finalised its report.
Although it is apparent that the current Australian Government has no intention of introducing a statutory cause of action of serious invasions of privacy, the ALRC’s work may well be considered by a future government. As requested, the ALRC has made detailed recommendations about the elements of a statutory cause of action. The report contains an interesting discussion of the respective merits of allowing a cause of action to develop through the courts and a statutory alternative, concluding with the following observation (at 1.40):
“The advantages of statutory reform should not be underestimated by those who oppose a new privacy tort. If instead of statutory reform, the equitable action for breach of confidence were extended, defendants may be faced with a much stricter standard of liability. There may also not be a clear and separate ‘seriousness’ threshold and countervailing public interests may not be given sufficient weight. Such things considered, potential defendants may prefer a more targeted statutory tort, such as the one designed in the Report”
The key features of the statutory cause of action remain as described in our summary of the discussion paper.
It remains to be seen whether the current government will consider those aspects of the ALRC’s report dealing with alternatives to a statutory cause of action. The ALRC maintained its proposal in the discussion paper that federal, state and territory laws should be amended to confirm that compensation may be awarded for emotional distress in breach of confidence cases involving private information (as the Victorian Court of Appeal awarded in Giller v Procopets – see recommendation 13-1 of the report). However, it changed its position in respect of a number of other proposals canvassed in the discussion paper (and recommends against adopting them), including:
- a proposal that the Australian Communications and Media Authority be given the power to declare that a person be given a specific amount of compensation by a broadcaster if ACMA determines that the broadcaster’s breach of a broadcasting code of practice constitutes a serious invasion of the person’s privacy; and
- a proposal that a new Australian Privacy Principle be enacted as part of the Privacy Act to impose an obligation to take reasonable steps, on receipt of a request from an individual, to delete or de-identify any personal information the organisation held about the individual, or otherwise provide reasons for noncompliance with the request.
The report also makes recommendations about reform of the patchwork of Australia’s surveillance devices laws and harassment laws. The Australian Government is considering re-writing the legislation dealing with telecommunications interception and access issues. We expect those officers in the Attorney-General’s department with carriage of that project will have regard to the ALRC’s recommendations about surveillance device laws. However, we suspect that the telecommunications interception re-write is sufficiently complex and controversial in the light of the government’s data retention proposals that those involved will be reluctant to widen its scope.
To conclude, the ALRC’s report will be a useful reference for academics and some practitioners in the future, but in the short term we expect that it will have very little impact on the Australian Government’s approach to privacy law reform.