1. Introduction

Updates and background for this project (Digest)

• This inquiry
• Statutory tort or statutory cause of action?
• The significance of a statutory cause of action
• What should a statutory cause of action protect?
• Is there need for more general protection of privacy in New South Wales?
• Should development of an action for invasion of privacy be left to the common law?
• Considerations underlying the case for reform
• The next step

THIS INQUIRY

1.1 In recent years, a demand for the recognition and development of a general law of privacy has emerged in common law countries.¹ Two factors in particular have contributed to it.² First, the emergence since 1945 of human rights law, both international³ and national,⁴ that usually includes recognition of a right to privacy. Secondly, the occurrence of notorious and egregious violations of privacy that breach perceived societal norms. Whether perpetrated by the media, or occurring in other contexts, such as law enforcement, private investigation or workplace monitoring, these violations are sometimes facilitated by the use of advanced technology, including surveillance devices. The Commission has already recommended a comprehensive regime to regulate surveillance in New South Wales.⁵ In doing so, we regarded the protection of personal privacy as a paramount consideration underpinning the regulatory regime, given the pervasive incidence of surveillance in modern society.⁶

1.2 The Commission is now asked to consider the more general question whether existing legislation in New South Wales is effective in protecting individual privacy.⁷ One particular issue to which our terms of reference direct us is the desirability of introducing a “statutory tort of privacy” in New South Wales. This is the broadest, and most difficult, matter that the Commission must confront in this reference. Our response to it potentially influences our approach to the other particular topics to which our terms of reference direct attention, including the statutory regulation of privacy in New South Wales and the content of privacy protection principles. It is obviously desirable that the legislative statement of privacy protection principles as well as the way in which privacy is dealt with in the particular pieces of legislation listed in our terms of reference, should be consistent with a more general statutory cause of action protecting privacy if one is to be introduced.

1.3 The Commission’s first response to this reference is, therefore, to publish this Consultation Paper, which addresses only the question whether or not a statutory cause of action for invasion of privacy should be introduced in New South Wales. Its purpose is to serve as a basis for community consultation on, and generally to promote public debate of, that issue. Such consultation will also provide a background to, and context for, further consultations focussing on other aspects of this reference. We propose to release a second consultation paper on those aspects of the reference in the second half of 2007.

1.4 In conducting this reference, the Commission is specifically required to liaise with the Australian Law Reform Commission (“ALRC”), which is currently reviewing the federal law of privacy and its relationship with relevant State laws.⁸ The Commissions have agreed to work closely in conducting their respective inquiries. Our decision to focus attention initially on the desirability of the development of a statutory cause of action for invasion of privacy in New South Wales was made in consultation with the ALRC. While our terms of reference and those of the ALRC substantially overlap, the ALRC is not specifically asked whether a cause of action for invasion of privacy should be recognised in Australia. The ALRC will, however, deal with this issue in its final Report.⁹

STATUTORY TORT OR STATUTORY CAUSE OF ACTION?

1.5 The Commission refers throughout this Paper to a “statutory cause of action for invasion of privacy” rather than to a “statutory tort of privacy”, the expression used in our terms of reference. Our choice of terminology is deliberate.

1.6 The expression “tort” embraces a number of individual causes of action in which, generally, damages are sought in respect of a breach of duty recognised at common law. It is difficult to define the common core of these causes of action.¹⁰ Yet to transfer the description “tort” from common law to a statutory cause of action implies that the particular action is linked in some way to this imprecise common core.¹¹ There is a general risk of incoherence in doing this, bearing in mind the large number and variety of obligations and duties created by statute. In the context of privacy, the risk is magnified by the difficulties associated with defining the basis and scope of the cause of action for invasion of privacy.¹²

1.7 The reason for categorising a statutory cause of action as a tort is to make applicable to that cause of action rules or principles applicable to torts generally, such as the provisions of apportionment legislation or statutes of limitation.¹³ The Commission is of the view that an attempt to develop a 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.¹⁴ Further, a cause of action for invasion of privacy may involve consideration of competing interests, including the public interest, that have not traditionally been relevant in the development of tortious causes of action.¹⁵

1.8 In any event, the description of a statutory cause of action as “tortious” is not necessarily conclusive of its legal categorisation, which, in respect of any particular issue, must occur principally by reference to the statute itself. The purposes and provisions of the statute determine the applicability of any general rules and principles of tort, as well as the underlying rationale of those rules and principles themselves.¹⁶

THE SIGNIFICANCE OF A STATUTORY CAUSE OF ACTION

1.9 If broadly based, the enactment of a statutory cause of action for invasion of privacy would constitute the first legislative attempt in New South Wales to protect privacy generally. Depending on its terms, the legislation would also be the first to give individual plaintiffs clear-cut access to a range of civil remedies (including damages) for invasions of their privacy. This is in contrast to the piecemeal protection of privacy currently provided by the statute law of New South Wales. Apart from invasions of privacy that attract criminal responsibility,¹⁷ the characteristics of such protection are that it tends to be limited to particular types of privacy invasion (for example, information privacy); to apply only in certain contexts (for example, in the public sector); and not to yield a private right of action (for example, to compensation) at the instance of the aggrieved party.¹⁸

1.10 A statutory cause of action for invasion of privacy in New South Wales would potentially fill a gap or gaps in the common law, which has no conception of privacy that leads to the general imposition of civil liability on a person who invades the privacy of another. At common law, privacy is protected in a number of tortious causes of action. These have included, or could possibly include, trespass to land, private nuisance, defamation, injurious falsehood, passing off and the intentional infliction of harm.¹⁹ More recently, breach of confidence, which has come to be largely an equitable doctrine, has emerged as the most likely vehicle for the more general protection of privacy.²⁰

1.11 It is essential to understand that when we say that privacy is protected in several causes of action, we are not saying that these causes of action protect privacy as such. Rather, privacy is sometimes protected in these causes of action because, in the circumstances of the particular case, the invasion of privacy satisfies the elements of the cause of action in question. The protection of privacy in the particular cause of action is, therefore, incidental. For example, a newspaper that is responsible for covertly taking a photograph of a nude plaintiff having a shower and then publishing that photograph is liable to the plaintiff in defamation because the publication may impute that the plaintiff “deliberately permitted a photograph to be taken of him with his genitals exposed (that is shown) for the purposes of reproduction in a publication with a widespread readership”,²¹ thereby lowering the plaintiff’s reputation in the eyes of right-thinking members of the community; or simply that “the plaintiff is a person whose genitals have been exposed to the readers of … a publication with a widespread readership”, thereby damaging the plaintiff’s reputation by exposing him to less than trivial ridicule.²² From a legal point of view, it is irrelevant that the action in defamation incidentally protects the plaintiff’s privacy, even though the protection of his privacy is likely to have been the principal motivation for the plaintiff bringing the action. In a situation such as this, the right that is protected is not a right to privacy.

WHAT SHOULD A STATUTORY CAUSE OF ACTION PROTECT?

1.12 An argument for the introduction of a statutory cause of action for invasion of privacy in New South Wales must be based on the inadequacy of the protection currently afforded privacy by statute and common law. The argument that the current law is inadequate is itself necessarily founded on some understanding of what the statutory cause of action ought to protect. This involves identifying both what privacy is and the circumstances in which its invasion ought to generate a civil cause of action. But there is an immediate problem, acknowledged by the High Court in Australian Broadcasting Corporation v Lenah Game Meats (“Lenah Game Meats”),²³ and identified in a vast literature:²⁴ the difficulty of pinning down the meaning of the “abstract and contentious notion”²⁵ of privacy.

1.13 The difficulty has provoked an extensive search for a definition of the term.²⁶ Illustrative of the futility of the search is the most famous attempt at definition, Warren and Brandeis’s “right to be let alone”.²⁷ So stated, privacy is both meaningless (criminals have no “right to be let alone” to pursue their criminal activities) and difficult to distinguish from other concepts (victims of an assault suffer not only an attack on their bodily integrity but also on their “right to be let alone”). Similar comments can be made about the understanding of privacy underpinning decisions of courts in various jurisdictions where “privacy” has been found to have the capacity to resolve disputes involving: a woman’s right to make personal choices regarding her body in the first six months of pregnancy;²⁸ the validity of laws placing restrictions on the availability of contraception to married couples;²⁹ the compatibility of laws criminalising homosexual activity with human rights norms;³⁰ the right to refuse unwanted medical treatment;³¹ and the corresponding right to die.³² While normal speech, in which privacy is capable of applying to almost every aspect of the human experience,³³ would endorse this broad usage of privacy,³⁴ the danger becomes that “[p]rivacy seems to be about everything, and therefore it appears to be nothing”.³⁵

1.14 One way in which theorists seek to avoid this result is by identifying the reasons why privacy is protected and then attempting to refine and particularise the meaning of the notion by reference to those reasons. The two reasons most commonly identified, especially in the context of privacy in human rights discourse,³⁶ are the “inherent dignity” of every individual and respect for the “autonomy” of the individual.³⁷ Yet the identification of either “dignity” or “autonomy” as the basis of privacy is highly problematic. Their role as essential or even desirable attributes of personhood or of the human condition is usually bare assertion. More significantly, their meaning varies from writer to writer and remains essentially indeterminate.³⁸ As a result they are of little use in determining the boundaries of privacy protection. This point becomes even more apparent when the reasons for the protection of privacy are widened beyond “dignity” and “autonomy” to include “freedom”, “the ability to control one’s life” (including decision making and information control) and “consent”.³⁹ Moreover, focus on any of these concepts tends to promote a notion of privacy that is too absolute, one that fails to account for the importance of other factors, such as security and freedom of speech, in the development of the human person and of society.⁴⁰

1.15 A more pragmatic approach identifies categories of privacy in order to imbue the term with a workable meaning. For example, Privacy International identifies the following categories of privacy:

• Information privacy, or data protection;
• Bodily privacy, including protection against invasive procedures and DNA testing;
• Privacy of communications, covering security of electronic and standard mail and telephone communications; and
• Territorial privacy, covering surveillance and protection against other intrusions into people’s physical space.⁴¹

• The “intimate sphere” deals with the “inner world of thoughts and feelings and their expression through media such as confidential private letters or personal diaries”.⁴³ The intimate sphere involves information about the most private aspects of life, and may therefore be revealed only with the subject’s consent.⁴⁴ A subset of rights falls within the intimate sphere and includes the right to privacy of medical reports, and of personal mail; the right not to have one’s conversations recorded covertly; and the right not to be photographed without consent.⁴⁵
• The “private sphere” covers personal matters “which are not by their very nature of public interest, but cannot be characterised as intimate or secret”.⁴⁶ This category includes information concerning one’s family and home life. Invasions into the private sphere may be justified if some special public interest can be established.
• The “individual sphere” relates to the “public, economic and professional life of the individual”, and receives the least protection.⁴⁷

• information collection, including surveillance and interrogation;
• information processing;
• information dissemination; and
• intrusion.⁴⁹

The Commission’s view

1.19 The Commission’s task is a limited one: to determine whether or not there should be a statutory cause of action in New South Wales that protects privacy. Within that limited framework, we can at least say that the indeterminate nature of privacy means that a statutory cause of action for invasion of privacy could not, at least at this stage in the development of the law, embrace a general free standing right to privacy, such as those found in human rights instruments.⁵⁰ This does not mean, however, that more particularised rights of privacy, or that identified privacy interests and values, should not attract statutory protection and generate civil liability.

1.20 For the purposes of this Issues Paper, the Commission is content to assume that a statutory cause of action for invasion of privacy should generally aim to protect persons from unwanted intrusions into their private lives or affairs in a broad range of contexts,⁵¹ such as those identified by Privacy International, in German law and by Solove.⁵² A more precise identification of the boundaries of a possible cause of action for invasion of privacy, of the contexts in which it operates and of the bases from which it is drawn, can only be made after we have had the benefit of community consultation. That is therefore a task left to our final Report.

IS THERE NEED FOR MORE GENERAL PROTECTION OF PRIVACY IN NEW SOUTH WALES?

1.21 The Commission has identified five reasons that argue for the introduction of a statutory cause of action for invasion of privacy in New South Wales.

No broad protection of privacy in civil law

1.22 First, and most obviously, the law of New South Wales may not protect privacy as broadly as it should, at least outside the criminal law.⁵³ As noted above, the protection of privacy is incidental at common law, and legislation affords protection principally to information privacy.⁵⁴ If privacy is to protect a broader range of interests, as our discussion of its nature and scope may suggest,⁵⁵ reform of the law of New South Wales is necessary.⁵⁶

A more invasive environment

1.23 Secondly, there is at least a widespread perception of an “increasingly invasive social environment”⁵⁷ that calls for the greater protection of privacy. In a case in the United States Supreme Court concerning publication in the media of an unlawfully intercepted telephone conversation, Chief Justice Rehnquist said:

Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business emails, our medical and financial records, or our cordless and cellular telephone conversations.⁵⁸

1.25 One matter that the Commission will address in consultations is the extent to which the social environment in New South Wales is actually more invasive than it has been in the past. In doing so, we will be mindful of the potential of new technologies to enhance privacy rather than simply to act as a threat to it.⁶⁰

Giving effect to Australia’s international obligations

1.26 Thirdly, the introduction of a broadly based statutory cause of action for invasion of privacy in New South Wales would implement Australia’s international obligations, in particular, article 17 of the ICCPR, which provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.⁶¹

1.28 Interpreting article 17 of the ICCPR, the United Nations Human Rights Committee has stated that privacy includes a “sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone”.⁶⁶

1.29 In 1991 Australia acceded to the First Optional Protocol to the ICCPR,⁶⁷ which allows individuals subject to the jurisdiction of a State Party to take a complaint concerning a human rights breach by that State to the Human Rights Committee.⁶⁸ The complaints procedure is only available after all domestic remedies have been exhausted. The Human Rights Committee then issues a decision on the complaint but the findings and recommendations by the Committee are not binding on federal or State Governments. It is up to the State Party to decide how it will respond, so there may be little or no practical benefit for complainants.

1.30 In 1994 the Human Rights Committee opined that Tasmania’s laws criminalising homosexual activity between consenting adults violated the complainant’s right to privacy under Article 17 of the ICCPR.⁶⁹ The Commonwealth and Tasmanian governments subsequently legislated to correct the offending law.⁷⁰ Although the ICCPR does not form part of Australian law since it has not been incorporated into domestic law by Parliament,⁷¹ this case demonstrates that it can be indirectly influential. Moreover, like other treaties and conventions, its provisions can be used as an aid in statutory interpretation,⁷² in the development of the common law⁷³ and (less securely) as giving rise to a “legitimate expectation” in administrative law.⁷⁴

1.31 A right to privacy, reflecting the human rights norms outlined above, is contained in the Charter of Human Rights Act 2006 (Vic) and the Human Rights Act 2004 (ACT). Both Acts provide that a person has the right:

• not to have his or her privacy, family, home or correspondence unlawfully interfered with; and
• not to have his or her reputation unlawfully attacked.⁷⁵

1.32 Fourthly, the experience of other jurisdictions suggests the need for a more general protection of privacy than that currently given by the law of NSW.⁷⁶ Although the nature of privacy dictates that the way in which privacy is protected in Australia is peculiarly a question for Australians and Australian law to determine,⁷⁷ our historically close ties with the United Kingdom, and perhaps especially with New Zealand, suggest that the traditional approach of our law at least requires reconsideration. While it is true that the laws of both these jurisdictions now have to take account of a human rights framework, this does not mean that developments in those jurisdictions are totally irrelevant to Australia. In particular, it is worth noting that the weak protection given to privacy at common law has not prevented the development of a tort of invasion of privacy in New Zealand, notwithstanding the absence of right to privacy in the New Zealand Bill of Rights Act 1990 (NZ).⁷⁸ In addition, it is arguable that the increased protection afforded to privacy in English law is attributable to a natural development in the common law, rather than to a “shift in the centre of gravity” in the doctrine of breach of confidence prompted by the Human Rights Act 1998 (UK).⁷⁹

1.33 The developments in common law and other jurisdictions provide extensive information and background – in case law, legislation, law reform reports, government inquiries and academic commentary – from which the ingredients of a cause of action for invasion of privacy can be derived.⁸⁰ Chapters 3-5 of this Issues Paper give an overview of, and analyse, these developments to inform and facilitate our consultations on this issue.

The weakening of privacy protection in defamation law

1.34 Fifthly, legislation has removed the indirect protection afforded to privacy in the law of defamation. Before 1 January 2006, defendants could justify the publication of a defamatory imputation on the ground that it was true and that it related to a matter of public interest.⁸¹ The linkage of truth and public interest prevented a defendant escaping liability in defamation simply by proving that what had been published of and concerning the plaintiff was true. The object was to protect privacy interests by discouraging the publication of private facts. For example, if the defendant published a statement that the 60 year old plaintiff was a thief, and the evidence was that the plaintiff had been convicted of shop lifting when he was 18, the defendant may not have been able to raise a defence of justification. Even though the statement was true, it may not have related to a matter of public interest. In short, it may simply have invaded the plaintiff’s privacy.⁸² The Defamation Act 2005 (NSW), enacted as part of a uniform law initiative, now enables the defendant in these circumstances to rely only on the substantial truth of the matter published.⁸³

SHOULD DEVELOPMENT OF AN ACTION FOR INVASION OF PRIVACY BE LEFT TO THE COMMON LAW?

1.35 The arguments in favour of the more general protection of privacy leave open the question whether a cause of action for invasion of privacy should be developed by statute or at common law. At common law, such a development could occur through the expansion or transformation of one or more of the existing actions that currently protect privacy interests, breach of confidence being the most likely candidate. For reasons that we explain elsewhere, we regard this approach as unsatisfactory.⁸⁴ This leaves the possibility of the development of a common law tort of invasion of privacy, there being nothing in the common law of Australia to prevent such a development.⁸⁵

1.36 The development of such an action may arguably have advantages in comparison to the enactment of a statutory cause of action. The action could evolve to address identified issues and respond to specific needs as they came before the courts. Judges are well placed to know the types of privacy claims that are being litigated, and the gaps in the current law that cause injustice by failing to prevent serious incursions into privacy from being remedied appropriately. Over the course of time, the scope and substance of the tort action would be carefully developed on a case by case basis, other competing interests and considerations being carefully balanced against the right to bring the action for invasion of privacy. Such common law evolution would be appropriate given the nebulous nature of privacy as a concept, and the difficulty any legislature would undoubtedly have in precisely pinning it down.⁸⁶

1.37 However, with few exceptions,⁸⁷ Australian judges, like their English counterparts, have shown a marked reluctance to find a tort of invasion of privacy in the common law.⁸⁸ The reasons are easy to understand. Finding such a tort means generalising the specific instances of privacy protection in the common law by asserting that the common law has now reached a stage of development that justifies the articulation of a general principle of privacy from which it is appropriate that the further development of the law should take place.⁸⁹ Apart from the difficulty of articulating the general principle,⁹⁰ most judges obviously doubt that the common law has reached that stage of development. In such circumstances, judges are naturally reluctant to elevate a value, currently protected incidentally⁹¹ and weakly,⁹² in other torts or causes of action into a “right” that everyone is then under a duty to respect as such, and, if they do not do so, to become subject to civil liability. To go down this path before litigation clearly establishes the need for such a right and corresponding duty would involve making assumptions about the nature of contemporary society and the demands of its citizens. Making those assumptions prematurely would expose the courts to the charge of usurping the role of the legislature to make new law. Even judges sympathetic to the development of a cause of action for invasion of privacy have questioned whether it ought to be established by the courts rather than by Parliament.⁹³

1.38 The Commission is of the view that left to the common law, a cause of action for invasion of privacy is unlikely to develop in the foreseeable future.⁹⁴ Even if a majority of judges were favourably disposed to the development of a common law tort, they would need to wait for the appropriate case to come before the courts, leaving the statutory path to reform of the law potentially swifter and surer.

1.39 However, the Commission acknowledges three potential problems with introducing a cause of action for invasion of privacy by statute, rather than allowing one to develop at common law. Our preliminary view is that none of these provides a convincing reason for rejecting the statutory path to reform.

1.40 The first difficulty is that, as we have already noted,⁹⁵ privacy is almost impossible to pin down definitively in a meaningful or accurate way. Potentially this leaves the field of operation of any proposed cause of action extremely uncertain, making it difficult for those who wish to know whether or not an action for invasion of privacy exists, and, perhaps more significantly, for those who are unsure whether their actions may constitute a breach.

1.41 The position is different in those systems of law that have a statutory cause of action for invasion of privacy but also have human rights legislation and a significant body of case law on aspects of privacy. This has helped to guide and contextualise the meaning of privacy in those jurisdictions.⁹⁶ In New South Wales, the absence of such a context potentially leaves the scope and operation of a legally enforceable right to privacy too uncertain. The danger is reduced if the courts develop a tort of invasion of privacy incrementally from case to case without having to articulate the boundaries of the cause of action at the outset.⁹⁷

1.42 The Commission does not underestimate the difficulty of achieving sufficient certainty in any statutory reform of privacy law. An extreme response is possible: the creation of a cause of action that narrowly protects a particular aspect of privacy and carefully defines it – for example, a civil action against defendants who have appropriated plaintiffs’ identities.⁹⁸ A broader cause of action is, however, needed if privacy is to be protected more generally. There are many examples of the creation of broadly based statutory obligations whose essential meaning remains undefined, or defined in such an indeterminate way, that their application to particular fact situations is necessarily left to subsequent case law. Examples are the requirement of “fair conduct” (however described) in trade practices and fair trading legislation⁹⁹ or the prohibition of “discrimination” in equal opportunity legislation.¹⁰⁰ The courts’ interpretation of such statutory obligations in their application to the facts of particular cases resembles the incremental development of the common law. However, the courts’ interpretation of these obligations is at least directed by context, however broadly stated – for example, “trade and commerce” in the case of fair trading legislation¹⁰¹ or the identification of the areas in which equal opportunity legislation is to operate.¹⁰² By contrast, in the case of privacy, there is simply no given context.

1.43 A statute enacting a broadly based statutory cause of action for invasion of privacy must, therefore, at least identify the contexts in which it is intended to apply. Moreover, in an environment where the primary objective of statutory interpretation is to give effect to the purposes of the statute,¹⁰³ the statute should also ideally clarify its purposes. To the extent to which it identifies its purposes and contexts, the lack of specificity in the notion of privacy is not necessarily an insurmountable problem. In Chapter 6, the Commission, noting that statutory causes of action for breach of privacy have been developed or recommended in other common law jurisdictions,¹⁰⁴ addresses the possible ways in which this may be achieved.

1.44 A second difficulty with the development by statute of a cause of action for invasion of privacy is the practical and symbolic effect that the creation of such a cause of action would have on other rights and interests that lack a legislative basis. Jurisdictions that currently provide for a statutory cause of action for invasion of privacy generally do so within broader constitutional or human rights frameworks that recognise a “right to privacy” alongside other rights and interests, such as freedom of speech and national security. Without privileging one over another,¹⁰⁵ courts in these jurisdictions engage in a delicate balancing act, giving appropriate weight to the various rights and interests based on the facts at hand. This is important not only for the sake of clarity, but for balancing countervailing rights and interests, such as freedom of speech and national security, which are arguably more readily definable than privacy, and may, therefore, be more easily established.¹⁰⁶ Apart from the limited freedom of political communication implied in the Constitution,¹⁰⁷ there is no broad legislative protection or recognition of rights applicable to New South Wales that could counterbalance privacy. While any cause of action for privacy violation that is statutorily based and is not a code, would necessarily recognise and balance other competing common law interests (such as freedom of speech),¹⁰⁸ the creation of a statutorily based right of action for invasion of privacy alone runs the risk of creating the impression that privacy rights automatically take precedence unless competing interests are sufficient to displace them.

1.45 The implication is that a statutory cause of action for invasion of privacy should carefully consider the weight that ought to be given to relevant countervailing interests.¹⁰⁹ In particular, the legislation should consider whether such interests ought to feature in the formulation of the elements of the cause of action itself, or should be available as defences to the statutory right. The practical importance relates to the burden of proof: if a matter is an element of the cause of action, the plaintiff must establish it as part of his or her case; but if it is a defence, the burden of establishing it rests on the defendant.¹¹⁰ Putting the burden of the countervailing consideration on the defendant rather than the plaintiff could, for example, give undue weight to privacy at the expense of that countervailing consideration.

1.46 Thirdly, if New South Wales were to introduce a statutory cause of action for invasion of privacy, it would be the only jurisdiction in Australia to have such an action. This would create a lack of uniformity in the laws of the several Australian jurisdictions that would not occur if the change occurred as part of the development of the common law of Australia. The Commission is reluctant to promote any reform of the law that immediately results in a lack of uniformity between the laws of Australian jurisdictions. However, the following considerations should be borne in mind:

• There is already discrepancy between the laws of Victoria and the Australian Capital Territory on the one hand and the laws of other Australian jurisdictions on the other, to the extent to which Victoria and the ACT recognise privacy as a human right.111 While the Commission recognises that the context in which the human rights legislation of these jurisdictions is operative is limited,112 that legislation is at least indicative of a trend towards the greater protection of privacy within Australia. There is also significant divergence between the statutory laws of the various Australian jurisdictions dealing with privacy regulation.113
• It is possible that the enactment of a statutory cause of action for invasion of privacy in New South Wales would influence the development of the common law of Australia. If NSW were to enact a cause of action for invasion of privacy, the general law would continue to protect privacy incidentally in the actions mentioned above.¹¹⁴ However, in the course of deciding cases, courts in NSW would confront the relationship between the statutory cause of action and the general law. If the statutory right to protection of privacy were broadly based, this would likely provoke incisive analyses of the rationale and boundaries of the relevant general law causes of action. In turn, this may provide the impetus to the development of a more general action for invasion of privacy at common law, which, at least in theory, would have the potential to be more flexible, and perhaps more expansive, than the statutory right.
• The context of this reference, which involves collaboration between the Commission and the ALRC, at least ensures that the objective of achieving consistency between New South Wales and federal statutory law is constantly in view.

1.47 The Commission’s provisional conclusion is that, if a cause of action for invasion of privacy is to be introduced into the law of New South Wales, it is preferable to do so by statute rather than by leaving it to common law development.¹¹⁵

CONSIDERATIONS UNDERLYING THE CASE FOR REFORM

1.48 Four factors need to be borne in mind in considering any proposal for the introduction of a statutory cause of action for invasion of privacy in New South Wales.

The constitutional implication of freedom of political communication

1.49 The introduction of a statutory cause of action for invasion of privacy in New South Wales will take effect subject to the constitutional implication of freedom of political communication, which invalidates State legislation to the extent to which it operates as a burden on the freedom.¹¹⁶ While the scope of the implication is probably limited,¹¹⁷ its potential application means that it is necessarily crucial to the formulation of any statutory cause of action in New South Wales.

The criminal law and privacy

1.50 Privacy interests are protected to some extent in the criminal law, and the availability of criminal sanctions could conceivably negate the need for the development by statute of a civil action for invasion of privacy. In Chapter 2, we outline the extent to which criminal responsibility is imposed on offenders for breach of privacy interests.

1.51 Our tentative conclusion is, first, that the protection of privacy interests in the criminal law of New South Wales is not as widespread as may be appropriate; secondly, and in any event, that, depending on circumstance, invasions of privacy should be capable of generating civil or criminal responsibility, or both. For example, if a defendant has, for the purposes of sexual gratification, used equipment hidden on his body to film underneath the skirts of female passengers on public transport over a period of time,¹¹⁸ it is right that he should be criminally responsible for his conduct, which may have affected countless unknown “victims”. If such a defendant is criminally liable in New South Wales,¹¹⁹ criminal responsibility would not be an adequate response if one of his victims became aware that she was being filmed and, as a result, suffered distress and humiliation. In our view, such a victim ought to have access to civil remedies to seek redress for the invasion of her privacy.

1.52 It is true that, if the conduct in question were to give rise to criminal responsibility, the victim might be able to obtain compensation from the State or pursuant to an order of the sentencing court.¹²⁰ However, victims of privacy invasion may be unable to bring themselves within the provisions of the legislation, which, relevantly, does not provide compensation for mere distress and humiliation,¹²¹ and limits compensation to crimes of violence in the case of State compensation.¹²² Moreover, limits (generally $50,000) are placed on the amount of compensation that can be awarded under the legislation.¹²³ In any event, compensation may be inadequate to address the conduct in question. For example, victims of peeping Toms¹²⁴ may need access to civil remedies (such as injunction) to prevent future instances of the occurrence of the offending conduct.

Integrating a statutory cause of action within the current privacy framework

1.53 Existing mechanisms for the protection of privacy in NSW, such as those in the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW),¹²⁵ have a different focus and offer different remedies from the cause of action discussed in this paper. Determining how a cause of action for invasion of privacy will be integrated with the existing statutory regulation of information privacy is a challenge that the Commission needs to address during the course of this reference.

Potential undesirable consequences of a statutory cause of action

1.54 The Commission is conscious that the availability of a statutory cause of action for invasion of privacy can operate in practice in an undesirable way. In particular, it is impossible to come away from a review of developments in the law in Australia, New Zealand, the United Kingdom and Europe without suspecting that a statutory cause of action for invasion of privacy is likely to be used mainly by celebrities or corporations in order to protect their commercial interests or, simply, to attempt to suppress freedom of speech. Whatever the exact relationship between privacy and freedom of speech in any particular context,¹²⁶ and regardless of whether or not there are circumstances in which privacy ought to protect commercial interests,¹²⁷ the Commission regards it as axiomatic that a statutory cause of action should aim to make its protection available to all members of the community whose privacy is relevantly breached. Any reform proposal must, therefore, investigate the overall regulatory framework in which privacy will develop. Within that framework, expensive litigation ought not to be the only means of establishing a relevant invasion.¹²⁸ As part of its overall reference, the Commission will, therefore, be examining the regulatory framework of privacy in New South Wales and possible avenues for redress other than through litigation in the courts.

THE NEXT STEP

1.55 Whether or not there is a case for the introduction of a statutory cause of action in New South Wales needs to be tested in community consultation. The challenge of consultation is to close the gap between the law and policy revealed in cases and the literature, which this Paper discusses, and the current sentiment in the New South Wales community as to whether or not privacy stands in need of greater protection in the civil law.

The Commission’s approach

1.56 We make two proposals in this Issues Paper. On the assumption that a statutory cause of action for invasion of privacy should be introduced in New South Wales, we propose that the statute should take a particular form.¹²⁹ In addition, we propose that a range of remedies should be available in response to the cause of action.¹³⁰

1.57 These proposals are put forward simply for the purpose of providing a framework for the discussion of the issues that arise if a statutory cause of action should be introduced. They represent a model of a statutory cause of action for invasion of privacy that the Commission, at this stage of its inquiry, views as, overall, the most suitable for adoption in the law of NSW. They do not represent a provisional view on whether or not a statutory cause of action should be introduced in New South Wales. Nor, assuming that a statutory cause of action for invasion of privacy should be introduced in NSW, do they represent our final view on the model that the statutory cause of action should take.

1.58 To facilitate community consultation, the Commission poses a number of questions that focus on the major issues that relate to the introduction of a statutory cause of action for invasion of privacy. These questions are listed at pages x-xi. The Commission invites submissions on these questions and other issues raised in this Consultation Paper.

1. In our review of defamation, we recommended that urgent consideration be given to the development of privacy laws: NSW Law Reform Commission, Defamation, Report No 75 (1995), [2.36] (Recommendation 1).

2. See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 1, [188] (Kirby J) (“Lenah Game Meats”).

3. Especially, Universal Declaration of Human Rights, <www.unhchr.ch/udhr> at 10 January 2007, art 12 (1948); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] Australian Treaty Series 23, art 17, (generally entered into force for Australia 13 November 1980) (“ICCPR”); European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, <www.echr.coe.int> at 10 January 2007, art 8 (entered into force on 3 September 1953) (“ECHR”).

4. Charter of Human Rights and Responsibilities Act 2006 s 13(a) (Vic); Human Rights Act 2004 s 12(a) (ACT). See also Human Rights Act 1998 Sch 1, Pt 1, art 8 (UK). Compare New Zealand Bill of Rights Act 1990 (NZ), which contains no reference to privacy.

5. NSW Law Reform Commission, Surveillance: An Interim Report, Report No 98 (2001).

6. NSW Law Reform Commission, Surveillance: An Interim Report, Report No 98 (2001), [1.3]-[1.13], [2.4]-[2.7].

7. Terms of Reference are set out at p vii.

8. For the ALRC’s terms of reference, see ALRC, Review of Privacy, Issues Paper No 31 (2006), at 5-6.

9. See Review of Privacy, [1.68]-[1.69], [1.87].

10. See F Trindade, P Cane and M Lunney, The Law of Torts in Australia (4th ed, OUP, 2007) ch 1.

11. See K Stanton, P Skidmore, M Harris and J Wright, Statutory Torts (Sweet & Maxwell, 2003) ch 1.

12. See para 1.12-1.18.

13. Stanton, Skidmore, Harris and Wright, [1.002]. See also Douglas v Hello! Ltd (No 3) [2006] QB 125, [96] (categorisation for purposes of private international law).

14. Compare the statutory actions for violation of privacy in some Canadian Provinces, where the violation is expressly a tort: See Privacy Act, RSNL 1990, c P-22 (Newfoundland and Labrador) s 3(1); Privacy Act, RSS 1978, c P-24 (Saskatchewan) s 2; Privacy Act, CCSM c P125 (Manitoba) s 2(2); Privacy Act, RSBC 1996, c 373 (British Columbia) s 1(1).

15. See especially para 7.27-7.48.

16. Just as a statutory “injunction” takes its content from the provisions of the statute in question: see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, [28]-[29] (Gaudron, McHugh, Gummow and Callinan JJ); Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, [89] (Gummow and Hayne JJ). Consider also the relationship between the general law and the scope of s 52 of the Trade Practices Act 1974 (Cth) and the remedies supporting it: especially Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470, 503-507 (Lockhart and Gummow JJ); Marks v GIO Holdings Ltd (1998) 196 CLR 494.

17. See para 2.90-2.112.

18. See para 2.8-2.15.

19. See para 2.39-2.76.

20. See para 2.79-2.85.

21. See Ettingshausen v Australian Consolidated Press Ltd (Supreme Court of New South Wales, Common Law Division, No 12807/91, 10 February 1993, Hunt J, unreported). Earlier proceedings are reported at (1991) 23 NSWLR 443.

22. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, 447-449.

23. (2001) 208 CLR 199, [41] (Gleeson CJ), [116] (Gummow and Hayne JJ).

24. For two recent contributions, see C Doyle and M Bagaric, Privacy Law in Australia (Federation Press, 2005) ch 2; B Mason, Privacy Without Principle: The Use and Abuse of Privacy in Australian Law and Public Policy (Australian Scholarly Publishing, 2006) pt 1.

25. See Roger Clarke, Introduction to Dataveillance and Information Privacy, and Definitions of Terms (1997) Australian National University <www.anu.edu.au/ people/Roger.Clarke/DV/Intro.html> at 10 Janaury 2007. And see especially Raymond Wacks, “The Poverty of Privacy” (1980) 96 Law Quarterly Review 73.

26. For some attempts, see United Kingdom, Report of the Committee on Privacy and Related Matters Cmnd 1102 (1990), [3.7] (“Calcutt Report”); United Kingdom, Report of the Committee on Privacy Cmnd 5012 (1972), [38] (“Younger Report”). See also Edward Bloustein, “Privacy as an Aspect of Human Dignity” (1964) 39 New York University Law Review 962, 971; Alan F Westin, Privacy and Freedom (Bodley Head, 1970), 7; Roger Clarke, Introduction to Dataveillance and Information Privacy, and Definitions of Terms (1997) Australian National University <www.anu.edu.au/ people/Roger.Clarke/DV/Intro.html> at 10 Janaury 2007.

27. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 193 and 195. Warren and Brandeis credit Judge Cooley with coining the term in his publication Torts (2nd ed, 1888), 29. For many, the “right to be let alone” remains one of the “simplest and most meaningful answers to the question of ‘what is privacy?’”: see M Crompton, “Privacy, Technology and the HealthCare Sector”, The Australian Financial Review 4th Annual Health Congress 2002, Background Paper, <www.privacy.gov.au/news/speeches/ sp79notes. html> at 10 January 2007.

28. Roe v Wade 410 US 113, 116 (Justice Blackmun) (1973) (dealing with the concept of personal liberty in the Fourteenth Amendment).

29. McGee v Attorney General [1974] IR 284 (such laws held an arbitrary interference with the right to privacy).

30. In 1994, the United Nations Human Rights Committee found that Tasmanian laws criminalising homosexuality infringed the right to privacy contained in Article 17 of the ICCPR: see Toonen v Australia (Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)).

31. In the matter of Quinlan (1976) 70 NJ 10 (regarding turning off life support equipment). Compare Re BWV (2003) 7 VR 487.

32. Schiavo v Jeb Bush, Governor of the State of Florida, and Charlie Crist, Attorney General of the State of Florida (Florida Circuit Court, Pinellas County, Civil Case No. 03-008212-CT-20-UCN522003CA008212CICI, 6 May 2004). Terry Schiavo’s right to die was founded on Article 1, s 23 of the Florida Constitution, which provides that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life”.

33. See Australian Privacy Charter,<www.privacy.org.au/About/PrivacyCharter.html> at 10 January 2007. See also the Global Internet Liberty Campaign, “Privacy and Human Rights: An International Survey of Privacy Laws and Practice”, <www.gilc.org/privacy/survey/intro.html> at 10 January 2007; and Privacy International, “Overview of Privacy” <www.privacyinternational.org> at 10 January 2007.

34. See Australian Law Reform Commission, Privacy, Report No 22 (1983), vol 2 [20] (adopting an ordinary language approach to the meaning of privacy).

35. Daniel J Solove, “A Taxonomy of Privacy” (2006) 154 University of Pennsylvania Law Review 477, 479.

36. For example, United Nations Convention on the Protection of Migrant Workers and Members of their Families, opened for signature 18 December 1990, <www.ohchr.org/english/bodies/cmw> at 10 January 2007, preamble (entered into force 1 July 2003); United Nations Convention on the Rights of the Child, opened for signature 10 November 1989, <www.ohchr.org/english/countries/ratitication> at 10 January 2007, preamble (entered into force for Australia 16 January 1991).

37. See especially Australian Braodcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [43] (Gleeson CJ); Douglas v Hello! Ltd [2001] QB 967, [126] (Sedley LJ).

38. See Doyle and Bagaric, 32-35 (“dignity”), 35-38 (“autonomy”). See also J Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss” 41 San Diego Law Review 1521 (2004).

39. See Daniel J Solove, “A Taxonomy of Privacy” (2006) 154 University of Pennsylvania Law Review 477, 485-486; Australian Law Reform Commission, Privacy, Report No 22 (1983), vol 2 [1032]-[1033]; Kate Foord, Defining Privacy (Victorian Law Reform Commission, Occasional Paper, 2002), 2.

40. See Doyle and Bagaric, ch 2.

41. See Privacy International, Overview of Privacy 2004 www. privacyinternational.org/article.shtml at 17 January 2007.

42. See N Nolte and JDR Craig, “Privacy and Free Speech in Germany and Canada: Lessons for an English Privacy Tort” (1998) 2 European Human Rights Law Review 162; Rosalind English, “Protection of Privacy and Freedom of Speech in Germany” in Madeleine Colvin (ed) Developing Key Privacy Rights (Hart Publishing, 2002) at 77.

43. Nolte and Craig, 174.

44. Nolte and Craig, 174.

45. English, 81.

46. Nolte and Craig, 174.

47. Nolte and Craig, 174.

48. Solove, 483-485.

49. Solove, 488-489.

50. Which usually place the duty to respect the right on a public authority (rather than on individuals), although the horizontal effect of the instrument may be to create or influence private rights: see R Clayton and H Tomlinson, The Law of Human Rights (Oxford University Press, 2000), [5.38]-[5.99].

51. This is a variation of the “concept” of privacy in Sedley LJ’s judgment in Douglas v Hello! Ltd [2001] QB 967, [126]. The variation is made to allow for context and so that corporations are not necessarily precluded from having access to the cause of action: see Lenah Game Meats (2001) 208 CLR 199, [328] (Callinan J).

52. See para 1.15-1.18.

53. The extent to which the criminal law protects privacy is discussed at paras 2.90-2.112.

54. See para 1.9-1.11.

55. See para 1.12-1.18.

56. This accords with views expressed by the Centre for Law and Genetics, Submission to the ALRC’s Review of Privacy, January 2007 (Professor Margaret Otlowski, Associate Professor Dianne Nicol, Professor Don Chalmers); and by the Australian Government Office of the Privacy Commissioner, Submission to the ALRC’s Review of Privacy – Issues Paper 31, February 2007, [22]-[31].

57. Douglas v Hello! Ltd [2001] QB 967, [111] (Sedley LJ).

58. Bartnicki v Vopper 532 US 514, 541 (2001).

59. Lenah Game Meats (2001) 208 CLR 199, [40].

60. Doyle and Bagaric, 175-176.

61. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] Australian Treaty Series 23, art 17 (generally entered into force for Australia 13 November 1980) (“ICCPR”).

62. Universal Declaration of Human Rights, <www.unhchr.ch/udhr> at 10 January 2007, art 12 (1948).

63. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, <www.echr.coe.int> at 10 January 2007, art 8 (entered into force on 3 September 1953) (“ECHR”).

64. United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, opened for signature 18 December 1990, <www.ohchr.org/english/bodies/cmw> at 10 January 2007, art 14 (entered into force 1 July 2003) (“ICMW”).

65. United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, <www.ohchr.org/english/countries/ratification/11.htm> at 10 January 2007, art 16 (entered into force 2 September 1990, and for Australia on 16 January 1991) (“CROC”).

66. Coeriel and Aurik v The Netherlands United Nations Human Rights Committee, 52nd sess, UN Doc CCPR/C/52/D/453/1991, [10.2] (1991).

67. Optional Protocol to the ICCPR, opened for signature 16 December 1966, [1980] Australian Treaty Series 39 (entered into force for Australia 25 December 1991).

68. The Human Rights Committee is established under Part IV of the ICCPR to monitor the compliance of State Parties with their human rights obligations under the ICCPR.

69. Toonen v Australia Communications No 488/1992, UN Doc CCPR/C/50/D488/1992 (1994).

70. Human Rights (Sexual Conduct) Act 1994 (Cth); Criminal Code Act 1924 (Tas) as amended by Act No 12 of 1997.

71. Dietrich v The Queen (1992) 177 CLR 292, 305 (Mason CJ and McHugh J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286 (Mason CJ and Deane J); Re Minister of Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, [120] (“Lam”).

72. Lam (2003) 214 CLR 1, [100] (McHugh and Gummow JJ).

73. Lam (2003) 214 CLR 1, [100] (McHugh and Gummow JJ).

74. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. But see Lam (2003) 214 CLR 1, [84]-[102] (McHigh and Gummow JJ).

75. Charter of Human Rights Act 2006 (Vic) s 13 and Human Rights Act 2004 (ACT) s 12.

76. See Chapters 3-6.

77. Lenah Game Meats (2001) 208 CLR 199, [332] (Callinan J dissenting).

78. Hosking v Runting [2005] 1 NZLR 1.

79. See Campbell v MGN Ltd [2004] 2 AC 457, [86] per Lord Hope, doubting Lord Hoffman’s assertion to the contrary: at [51].

80. See Centre for Law and Genetics, Submission to the ALRC’s Review of Privacy, January 2007 (Professor Margaret Otlowski, Associate Professor Dianne Nicol, Professor Don Chalmers).

81. Defamation Act 1974 (NSW) s 15(2).

82. See NSW Law Reform Commission, Defamation Report No 75 (1995), [2.33].

83. Defamation Act 2005 (NSW) s 25.

84. See para 2.79-2.85, 2.86-2.89.

85. Lenah Game Meats (2001) 208 CLR 199, [107], [132] (Gummow and Hayne JJ, with whom Gaudron J agreed); [187] (Kirby J); [316]-[320] (Callinan J dissenting). For a full consideration of this case, see para 2.19-2.25.

86. See par 2.19.

87. See Grosse v Purvis [2003] QDC 151; Jane Doe v Australian Broadcasting Commission [2007] VCC 281. See para 2.26-2.31.

88. Lenah Game Meats (2001) 208 CLR 199. See also Wainwright v Home Office [2004] 2 AC 406. Compare Hosking v Runting [2005] 1 NZLR 1.

89. Lenah Game Meats (2001) 208 CLR 199, [132] (Gummow and Hayne JJ).

90. See para 1.12.

91. See para 1.11.

92. See especially P Stein and J Shand, Legal Values in Western Society (Edinburgh University Press, 1974) ch 8, esp 200-201.

93. See Lenah Game Meats (2001) 208 CLR 199, [335]-[336] (Callinan J dissenting).

94. A pessimism shared by Justice Callinan: see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, [216]. See also R Wacks, “Why there will Never be an English Common Law Privacy Tort” in A Kenyon and M Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (Cambridge UP, 2006) 182.

95. See para 1.12-1.13.

96. See Chapters 3-5.

97. See par 1.11.

98. For example, Privacy Act, RSBC 1996 c 373, s 3(2) (British Columbia), discussed at para 3.42, 5.15-6.17.

99. See Trade Practices Act 1974 (Cth) pt V; Fair Trading Act 1987 (NSW) pt 5.

100. See NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977, Report No 92 (1999) ch 2.

101. See especially Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; C Lockhart, The Law of Misleading or Deceptive Conduct (2nd ed, LexisNexis Butterworths, 2003), 37-57.

102. See Anti-Discrimination Act 1977 (NSW) pt 4.

103. Interpretation Act 1987 (NSW) s 33.

104. See para 3.42-3.63, 6.2-6.23.

105. Because “qualified” rights are here in issue. Human rights (such as the right to life) may also be “unqualified”, in which case they are not weighed against other rights: see R Clayton and H Tomlinson, The Law of Human Rights (Oxford University Press, 2000), [6.86]-[6.104].

106. This point was recognised by the High Court in Lenah Game Meats (2001) 208 CLR 199, [181], [207].

107. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The implied freedom creates no private right of action: at 575.

108. An important interest at common law: see Lange, 564-565.

109. This point was made in relation to respect for artistic freedom by the Arts Law Centre of Australia, Submission to the ALRC’s Review of Privacy, 15 January 2007.

110. See paras 7.47-7.48.

111. See para 1.31.

112. See, for example, Charter of Human Rights and Responsibilities Act 2006 (Vic) pt 3 (defining the public context in which the legislation applies).

113. See ALRC, Review of Privacy, Issues Paper No 31 (2006), ch 2.

114. See para 1.11. See also para 2.39-2.89.

115. See R Wacks, “Why there will Never be an English Common Law Privacy Tort” in A Kenyon and M Richardson (eds), New Dimensions in Privacy Law (Cambridge UP, 2006) 154, 182-183.

116. See especially Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 523.

117. For the scope of the implication, see M Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate, 2000) ch 2.. See also A Stone, “Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication” (2001) 25 Melbourne University Law Review 13; G Taylor, “Why the Common Law Should be only Indirectly Affected by Constitutional Guarantees; A Comment on Stone” (2002) 26 Melbourne University Law Review 623; D Meagher, “What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication” (2004) 28 Melbourne University Law Review 438.

118. In Melbourne, a man was caught using hidden cameras in his sneakers secretly to film underneath the skirts and dresses of female train and tram commuters: see “Camera ‘shot up skirts’”, The Australian (Sydney), 18 January 2007, 5. In a separate case, a man was charged with several offences after he was caught filming women showering in a backpackers’ hotel in Melbourne and taking an “upskirt” photo of a woman at the Australian Open tennis tournament: see “New laws on the way to tackle perverts”, The Australian (Sydney), 26 January 2007, 1.

119. Consider Summary Offences Act 1988 (NSW) s 4, Compare s 21G. And see further, paras 2.90-2.112.

120. Victims Support and Rehabilitation Act 1996 (NSW) pt 2 (State compensation), pt 4 (court ordered payments).

121. Victims Support and Rehabilitation Act 1996 (NSW) pt 2 div 1 and 2, and “compensable injury” in sch 1 (State compensation); s 71(1), read with the definitions of “aggrieved persons” in s 70(a) and “injury” in the Dictionary (court ordered payments).

122. For example to “compensable” injury in the case of State compensation and to $50,000 in the case of court-ordered compensation: see, respectively, Victims Support and Rehabilitation Act 1996 (NSW) Sch 1; s 71.

123. Victims Support and Rehabilitation Act 1996 (NSW) s 19(1) (State compensation); s 77(1) (court ordered payments). Compare s 77C(b).

124. See Crimes Act 1900 (NSW) s 547C.

125. These are discussed in para 2.8-2.9.

126. See para 7.38-7.42.

127. See para 7.51-7.55.

128. See Sir Stephen Sedley, “Towards a Right to Privacy” London Review of Books (London), 8 June 2006, 20, 22-23.

129. See p 160 (Proposal 1).

130. See p 202 (Proposal 2).