On August 12, 2008, the day after the Australian Law Reform Commission launched its report on privacy law, I described its proposal for a statutory tort of privacy as one of the most hare-brained ideas to emerge from a proud institution. After the debate on privacy that has unfolded in the past couple of weeks, it is now clear that this was inaccurate. The push for a privacy tort is not one of the commission's most hare-brained ideas -- it is THE most hare-brained idea.
The prospect of a wave of litigation triggered by Canberra's planned privacy tort led to furious protests by the states yesterday.
"should cover federal agencies, organisations and individuals. It also should cover state and territory public sector agencies, subject to any of the constitutional limitations discussed in Chapter 3"
The federal government could decide, however, to include a provision that provides that the federal Act is not intended to exclude or limit the operation of a law of a state or territory that is capable of operating concurrently with the federal Act.If the latter policy option prevails, it is essential to ensure that the states and territories enact uniform legislation. Failure to do so would give rise to the fragmentation and inconsistency that has characterised the regulation of information privacy to date.
11.1 The Commission agrees with the ALRC’s view that national consistency should be one of the goals of privacy regulation. A nationally operating privacy regime would do much to eliminate inconsistencies in the law between jurisdictions, and potential “forum-shopping”. This would help reduce the costs and other burdens on organisations operating across State borders, and more effectively regulate privacy invasion by trans-jurisdictional technologies, such as the Internet.
11.2 In keeping with this goal, we agree with the view put forcefully in our submissions that it is essential that a statutory cause of action such as we recommend be a part of the law of all Australian jurisdictions.This could be achieved by means of federal legislation...
11.3 Recognising that the province of private law is foremost a matter of State law within Australia’s federal system, our preferred model for achieving uniformity is for State and Territory legislatures to enact the Bill attached to this report. This would necessitate agreement between all jurisdictions on the provisions of the statutory cause of action for invasion of privacy. Each jurisdiction would then incorporate substantially uniform provisions within its own legislation. To maintain uniformity into the future it would be desirable to provide an agreed mechanism by which amendments can be made, such as reaching consensus through the Standing Committee of Attorneys General (SCAG). The enactment of totally new legislation would be unnecessary in most, if not all, cases. In NSW, for example, the Civil Liability Act 2002 (NSW) is an appropriate instrument in which to locate civil law privacy protection
"privacy tort" that "would also clash with some of the "tort reforms" to end excessive damages claims and address a blow-out in insurance premiums. Those changes introduced a higher threshold test when negligence claims were brought against most government agencies."
74.117 Individuals should be protected from unwanted intrusions into their private lives or affairs in a broad range of contexts, and it is the ALRC’s view that a statutory cause of action is the best way to ensure such protection..... (I)t does away with the distinction between equitable and tortious causes of action, and between the defences and remedies available under each.74.118 The ALRC supports the view.. that the ‘statutory cause of action for invasion of privacy should not be constrained at the outset by an assumption that rules otherwise applicable to torts generally should necessarily apply to the statutory cause of action for invasion of privacy’. In addition this approach allows for the consideration of competing interests, including the public interest, ‘that have not traditionally been relevant in the development of tortious causes of action’.