The ALRC vs the Charter

Today brings the release of a truly mammoth three volume report from the Australian Law Reform Commission on privacy protection in Australia. While much of the report is directed to the intricacies of existing privacy legislation and related statutes, the highlight is a dramatic proposal for a new statutory cause of action:

Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where: (a) there has been an interference with an individual’s home or family life; (b) an individual has been subjected to unauthorised surveillance; (c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or (d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances: (a) there is a reasonable expectation of privacy; and (b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy: (a) may only be brought by natural persons; (b) is actionable without proof of damage; and (c) is restricted to intentional or reckless acts on the part of the respondent.

Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the: (a) act or conduct was incidental to the exercise of a lawful right of defence of person or property; (b) act or conduct was required or authorised by or under law; or (c) publication of the information was, under the law of defamation, privileged.

Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following: (a) damages, including aggravated damages, but not exemplary damages; (b) an account of profits; (c) an injunction; (d) an order requiring the respondent to apologise to the claimant; (e) a correction order; (f) an order for the delivery up and destruction of material; and (g) a declaration.

This is an exciting proposal, although whether it has a chance of being adopted I have no idea.

What is quite disappointing, though, is that the ALRC’s lengthy report virtually ignores the Charter and (especially) the ACT’s Human Rights Act. The report duly notes that Victoria has a Charter, including both an interpretation mandate and a conduct mandate, but contains no analysis of the possible use of the conduct mandate as a remedy against invasions of privacy (Charter s. 39(1) would probably greatly limit the remedies available for a breach of privacy by a public authority.) More disturbingly, its brief discussion of the ACT Human Rights Act addresses only its interpretation mandate, ignoring the new conduct mandate that will commence next year, which notably empowers ACT courts to provide appropriate remedies (other than damages) for breaches of the conduct mandate, including breaches of privacy. No reference is made to the human rights consultations in Tas or WA, or the proposed federal consultation. (Indeed, the Report’s summary of existing Federal law doesn’t even mention the Human Rights (Sexual Privacy) Act 1994! Extraordinary.)

While the protections offered by the Charter and ACTHRA are limited in many ways (notably not providing protection from invasions by private individuals or entities), it seems to me that they ought not to be ignored or give only passing mentions in a report that is seeking to make significant changes to how Australians’ right to privacy is protected. (I note that the report was delivered in May 2008 – an extension of two months over the original due date – which is after the enactment of the amendments to ACTHRA; in any event, the terms of reference required the ALRC to consider both existing and proposed state and territory laws.) It seems that no consideration was given at all to proposing that the federal government adopt a similar approach to the Charter or ACTHRA with respect to privacy. (I’m not suggesting that such an approach should have been adopted. That being said, the public interest discussion of Recommendation 74-2 could have usefully drawn on the ‘reasonable limits’ jurisprudence in provisions like Charter s. 7(2) and the defences in Recommendation 74-4 might have benefited from some consideration of defences like Charter s. 38(2).)

I’m well aware of what an enormous task it is for the ALRC to handle such a huge reference and I have no doubt that there’s lots of terrific analysis in the Report. But I think the sidelining of Australia’s two human rights laws (particularly in light of more extensive analysis of common law developments under the UK’s HRA, with no mention of the applicability or non-applicability of those developments in the ACT and Victoria) is a disturbing signal, indicating that Australia’s two human rights laws, each promoting law reform in significant and novel ways, are not being closely tracked or taken seriously by Australia’s peak law reform body.