In a paper given at the Comparative Perspectives on Privacy and Media Law Conference, Clare College, Cambridge Dr David Rolph considers the arguments for and against the introduction of a statutory cause of action for invasion of privacy.  His paper, Towards an Australian Law of Privacy: arguments for and against [pdf] looks at the submissions made in response to the issues paper [pdf] published by the Australian Government in September 2011.

He notes that a number of submissions argued that the existing legal protections for privacy under Australian law were inadequate.  There were a number of strong submissions in favour of legislation rather than leaving the common law to be developed by the Courts.  Some argued that this would implement Australia’s obligations under the Article 17 of the International Covenant on Civil and Political Rights.  He points out, however, that such arguments are unlikely to be given weight by legislators as Australia has no constitutional or statutory protection for human rights at a national level.

Those who opposed reform argued that there were already substantial privacy protections under Australian law and the need for reform had not been demonstrated.  Dr Rolph suggest that the strongest argument against is a concern about the impact on freedom of expression – in the absence of any comprehensive constitutional or statutory protection for freedom of speech.

Dr Rolph conclued that predictions in this area were difficult.  He notes that the Government has not responded to the consultation process and observes that

“It finds itself in a difficult political position, which might make it hard to legislate such form, particularly given the concerted opposition of a number of media outlets to a cause of action for invasion of privacy“

He summarises the position before the courts and the legislature in relation to privacy as “a lot of interest but little action“.

Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).

The paper was originally published in the Gazette of Law and Journalism – Australia’s leading online media law journal.