The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.
Some members of the Council believe there should be a statutory cause of action for some invasions of privacy. They consider that this course is especially appropriate in the light of recent and likely advances in communication and surveillance technologies that provide greatly increased opportunities for such invasions. They also believe it is preferable to establish a statutory right at the national level than for current common law causes of action to be extended by the courts in a piecemeal, protracted and unpredictable manner which may differ considerably between States. They believe an appropriately designed statutory cause of action would encourage the handling of complaints by alternative dispute resolution. Other members of the Council consider that existing protections from laws relating to trespass, stalking, surveillance devices etc and from relevant court rules are sufficient. They see expansion as an unnecessary and unjustifiable intrusion on public access to information and freedom of expression. These members are concerned that the statutory cause would unduly limit exposure of corruption, deception or some other form of illegality or impropriety, which is adverse to the public interest. They also believe that it should not be introduced in the absence of a statutory right of freedom of expression, enshrined in a Bill of Rights or analogous legislation. They argue that the cause of action is likely to be of little practical use to people who are not wealthy.
All members of the Council agree that if there is to be a general cause of action it should apply only where there is a reasonable expectation of privacy and the bar for plaintiffs should be set very high. This could include, for example, restrictions along the general lines of the Australian Law Reform Commission’s recommendations that the invasion should have to be serious and to be highly offensive to a reasonable person. It should be a defence to establish that in the particular circumstances of the case the public interest in enabling access to information about matters of public concern and in allowing freedom of expression outweighs the public interest in maintaining privacy.
As no one is marching in the streets under the "what do we want" banner and opponents have muddied the waters with plenty of nonsense, the attraction of the "too hard basket" means politics seems likely to trump rationality. On this score shadow attorney general Senator Brandis has joined the media chorus recently, telling The Australian (paywall) the sort of thing it loves to hear: the proposal is part of a "gradual, Fabian-like erosion of traditional rights and freedoms in the name of political correctness." Well it's got better pedigree than that. Clearly the senator has a lot of reading to catch up on-but here is a precis.
that consideration be given to a model where an individual alleging a privacy invasion initially complains to the OAIC under a model similar to that currently used for complaints of privacy interference in breach of the Privacy Act. An option to proceed to court could be available in limited circumstances such as permitting the OAIC to refer a question of law to the Federal Court for guidance, and allowing a party to commence court proceedings where the OAIC declines to make a determination following an unsuccessful conciliation.