The Minister for Home Affairs, the Hon Brendan O’Connor, has foreshadowed release of a discussion paper regarding establishment of a statutory tort of breach of privacy. The tort has been proposed in successive Australian and state law reform and parliamentary committee reports, in particular the Australian Law Reform Commission’s 2008 For Your Information: Australian Privacy Law and Practice report, the Victorian Law Reform Commission’s 2010 Surveillance in Public Places final report and the NSW Law Reform Commission’s 2009 Invasion of Privacy report. The proposal for establishment of a statutory cause of action appears to be reactive, reflecting publicity in the UK and US over privacy breaches by major media organisations. It is independent of current parliamentary consideration of major amendments to the Privacy Act 1988 (Cth); those amendments do not feature a tort.
From a commercial practice and human rights perspective statutory remedies for serious breaches of privacy are attractive. Pending release of the discussion paper it is unclear whether the government will adopt a conservative approach, given strong criticism by News Corp journalists in particular that the tort would chill free speech. The proposal has attracted more attention than the Cybercrime Legislation Amendment Bill 2011 (Cth), aimed at a fundamental extension of Australian data protection law alongside amendments that enable Australian accession to the Council of Europe Cybercrime Convention (ie sharing local phone and internet traffic data with foreign law enforcement agencies).
BRUCE ARNOLD teaches law at the University of Canberra.