Although protection of privacy in Australian law has evolved considerably since the stance taken in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor that “any person is entitled to look over the plaintiff’s fence to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence” ((1937) 58 CLR 479 at 494) there is currently no clear cause of action for invasion of privacy in statute or at common law.

An Issues Paper [PDF]  has been released recently in response to the Australian Law Reform Commission’s recommendation to introduce a statutory course of action for serious invasions of privacy. The Minister for Privacy and Freedom of Information, Brendan O’Connor, stated in a press release that it is vital that Australia’s privacy laws and protections are keeping pace with technological changes.  The paper was welcomed by the Office of the Australian Information Commissioner.

In inviting submissions on whether Australia should introduce a statutory cause of action for privacy and, if so, what it should include, the Issues Paper poses 19 questions for consideration. These include whether this development should be created by statute or left to common law, the appropriate standard for determining a serious breach of privacy, considerations on freedom of expression (as this is not protected by statute), defences, restricting the legislation to individuals to exclude corporations and appropriate levels of damages. The paper is based on the recommendations of the Victorian Law Reform Commission  and the New South Wales Law Reform Commission  in addition to the ALRC and there are some differences in their suggested approaches, for instance differing on whether this should be included in a Commonwealth Act to maintain consistency, or if private law needs to remain foremost a matter of State law within Australia’s federal system.

The recent decision in Smallbone v New South Wales Bar Association ([2011] FCA 1145) illustrates the broader application of data protection law to privacy issues arising in between private parties and provides judicial guidance in relation to the exception that applies when access to information has been requested by an individual but their interest has to be balanced with the need to protect the privacy of other individuals.

In Smallbone the issue was the extent to which the National Privacy Principles (“NPP”) set out in Schedule 3 of the Commonwealth Privacy Act 1988 applied to limit the applicant’s access to information gathered about him by the respondent. The applicant, a barrister and a member of the respondent organisation, sought an injunction under s 98 of the Act and ancillary relief in the form of access to the information held by the respondent in relation to his application to be appointed as Senior Counsel. To consider the application the respondent had collated personal information including opinions relating to the applicant from various sources, as set out in the New South Wales Bar Association’s Senior Counsel Protocol as at June 2011. NPP 6.1 (c) provides as follows:

6.1 If an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual, except to the extent that:  …

(c) providing access would have an unreasonable impact upon the privacy of other individuals.

It was held that while the applicant was entitled to access the information held by the respondent in relation to his application, the respondent had no obligation to provide access to information which discloses the identity of persons who have provided the information to the respondent or, in the case of judicial officers, the identity of the court to which they are appointed to, or the identity of or any information relating to other applicants for appointment as Senior Counsel in 2011.

Laura Sandwell is a graduate of the University of East Anglia with a particular interest in public law.