2. Privacy in Australian law

Updates and background for this project (Digest)

• Introduction
• Statutory regulation
• The common law of Australia
• The criminal law and privacy

• to give an overview of the various federal and New South Wales statutes relating to privacy, which generally establish regulatory regimes concerned with “information privacy”, rather than provide causes of action for invasion of privacy;
• to assess the adequacy of the common law of Australia, which does not provide a general civil cause of action for invasion of privacy, but which protects privacy interests in specific causes of action; and
• to examine the scope of protection of privacy in criminal law.

Commonwealth

2.2 The main federal privacy statute is the Privacy Act 1988 (Cth) (“Privacy Act”). It regulates the handling of an individual’s personal information, which is defined as “information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”¹

2.3 Initially, the Privacy Act applied exclusively to the Commonwealth and Australian Capital Territory (“ACT”) public sectors. Commonwealth and ACT public sector agencies are required to comply with Information Privacy Principles (IPPs) relating to the collection, storage, use and disclosure of personal information.

2.4 In 1990, the coverage of the Privacy Act was extended to consumer credit reporting. Provisions were added for the purpose of regulating the handling by credit reporting agencies and credit providers of credit reports and other information on the creditworthiness of individuals.²

2.5 In 2000, amendments to the Privacy Act established a further set of privacy principles, known as the National Privacy Principles (NPPs), which apply to the private sector entities that fall within its definition of “organisation”. It defines “organisation” as an individual, body corporate, partnership, or any other unincorporated association or trust that is not exempt from the operation of the Privacy Act.³ Among those that are exempt are small businesses (defined as those that had an annual turnover of $3 million or less in the previous financial year)⁴ , registered political parties⁵ and media organisations.⁶

2.6 There are a number of other federal statutes relating to dealings with personal information. For example, the handling of tax file numbers is regulated by various statutes, such as the Income Tax Assessment Act 1936 (Cth), Taxation Administration Act 1953 (Cth) and Data-matching Program (Assistance and Tax) Act 1990 (Cth).⁷

2.7 Other significant federal statutes relating to privacy include the following:

• The Freedom of Information Act 1982 (Cth) grants every person a right to access documents held by government agencies or Ministers, including information about the person who is seeking access. The Act provides for exemptions, such as documents relating to national security, defence or international relations, cabinet documents, internal working documents of government agencies and Ministers, documents subject to legal professional privilege, documents affecting personal privacy, etc.⁸ The Act also provides a right for an individual to have personal information relating to him or her amended by the relevant government body.⁹ Similar access and amendments rights are provided by the Privacy Act and the parallel State information privacy statutes. This is the main area of overlap between freedom of information and information privacy statutes.¹⁰
• The Telecommunications (Interception and Access) Act 1979 (Cth) safeguards the privacy of individuals when using the telecommunications system, telephones in particular. It does this by making it an offence to intercept communications passing over the telecommunications system, while balancing this with Australia’s law enforcement and national security interests. It specifies the circumstances in which it is permissible for law enforcement agencies and the Australian Security Intelligence Organisation to intercept communications under the authority of a warrant, subject to reporting and accountability mechanisms.
• The Australian Postal Corporation Act 1989 (Cth) safeguards the privacy of individuals when using the postal services system. It does this by making it an offence to open or examine articles while they are in the course of the post and under the control of the Australian Post.¹¹

2.8 In New South Wales, the Privacy and Personal Information Protection Act 1998 (NSW) is the main privacy statute. It regulates the handling of personal information (excluding health information)¹² by New South Wales public sector agencies. Unlike the Commonwealth Privacy Act, it does not cover the private sector. It sets out Privacy Protection Principles (“PPPs”) that are similar, but not identical, to the IPPs found in the Commonwealth Act.¹³ It defines personal information as “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.”¹⁴

2.9 In addition to the Privacy and Personal Information Protection Act 1998 (NSW), the following are some of the most significant New South statutes relating to privacy:

• The Health Records and Information Privacy Act 2002 (NSW) protects the privacy of an individual’s health information.¹⁵ It does this by requiring those who handle health information to comply with 15 Health Privacy Principles.¹⁶ It covers New South Wales public sector agencies and any “private sector person”, which is defined as a natural person (for example a GP, physiotherapist, optometrist, etc), a body corporate, a partnership, a trust or any unincorporated association or body. Small businesses, as defined by the Privacy Act, are exempt.¹⁷
• The Workplace Surveillance Act 2005 (NSW) prohibits the surveillance by employers of their employees, except where the employer notified the employees about the surveillance, or where the employer has a covert surveillance authority granted by a Supreme Court judge. The forms of surveillance that are regulated by the Act are: (1) camera surveillance; (2) computer surveillance (including the sending and receipt of emails and the accessing of internet websites); and (3) tracking surveillance (such as the use of a Global Positioning System tracking device).¹⁸
• The Listening Devices Act 1994 (NSW) prohibits the use of a listening device to listen to or record a private conversation, unless such use falls within one of the exceptions specified by the Act, or is authorised by a warrant granted by a judge of the Supreme Court.
• The Crimes (Forensic Procedures) Act 2000 (NSW), which identifies the circumstances in which forensic procedures can be performed on certain persons and makes provision for a DNA database, contains the general statement that forensic procedures “must be carried out in circumstances affording reasonable privacy to the suspect”.¹⁹ The Act also contains a general prohibition on the disclosure of information revealed by a forensic procedure or stored on the DNA database,²⁰ and provides that a recording of a forensic procedure must be stored so as to protect it against unauthorised access.²¹
• The Freedom of Information Act 1989 (NSW) gives every person a right to obtain information held as records by New South Wales government agencies, Ministers, local government and other public bodies. Like its federal counterpart, the Act grants access and amendment rights to an agency’s records or documents.²² The States Records Act 1998 (NSW) and the Local Government Act 1993 (NSW) also provide rights of access to New South Wales government records.²³

2.10 The various federal and New South Wales privacy statutes are regulatory and prescriptive in nature in the sense that they govern conduct by government agencies and the private sector when dealing with the subject matter of the relevant legislation. They provide penalties for contravention of their provisions, such as criminal fines or imprisonment.²⁴ Some of them provide for the remedy of injunction.²⁵ As a general rule, they do not provide for civil liability for breach of their provisions. Those that do contain civil liability provisions have complex requirements and do not allow parties to go directly to the courts for a remedy.²⁶

2.11 The Commonwealth Privacy Act, for example, does not provide for direct civil action by individuals against agencies or organisations that breach the Act. The only compensation available to complainants is through the Privacy Commissioner’s power to make a declaration that a complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint.²⁷ Such a determination is not binding on the parties. This is because Commonwealth judicial power can only be exercised by a court in accordance with Chapter III of the Constitution.²⁸ However, the Privacy Commissioner’s determination may be enforced through proceedings in the Federal Court or the Federal Magistrates Court.²⁹ Since the commencement of the Privacy Act in 1989, the Privacy Commissioner has made only 2 determinations containing compensation for loss or damage.³⁰

2.12 The Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) currently provide for a system of complaints and review concerning privacy related matters.³¹ Under those Acts, there are two avenues of redress for those who feel their privacy has been invaded. The first is by way of complaint to Privacy NSW.³² The Privacy Commissioner may decide either to investigate and conciliate the complaint, refer it to a more appropriate agency,³³ or decline to investigate the matter.³⁴

2.13 The other method of complaint can occur where a person believes his or her privacy has been invaded by a NSW public sector organisation. In such a case, the person can direct the organisation to conduct an internal review of the conduct that led to the complaint.³⁵ Privacy NSW is responsible for overseeing internal reviews. Should an individual be unhappy with the outcome of a public sector agency’s internal review, he or she may take the matter to the Administrative Decisions Tribunal (“the ADT”). The ADT has the power to order the agency to change its practices and policies, to apologise to the complainant, or to take steps to remedy the damage caused. Compensation is available in limited circumstances where the complainant has suffered financial loss, or physical or psychological damage, up to a maximum of $40,000. The option of review by the ADT is not available for complainants who elect to have the Privacy Commissioner deal with the matter.

2.14 While the existing complaints mechanisms offer some redress for invasions of privacy, they do not provide complete coverage. For example, the option of directing an agency to conduct an internal review, with the possibility of review by the ADT, is an effective one. However, it is only available in relation to complaints against NSW public sector organisations. The alternative option of lodging a complaint with the Privacy Commissioner can be used in relation to a broader range of complaints made against individuals or private sector agencies, but lacks an external review component, and is only effective in cases where conciliation is possible.

2.15 The various privacy statutes deal mainly with privacy interests relating to personal information, personal communications, and work-related behaviour. They do not cover many other forms of privacy, for example, the interest in freedom from interference with one’s person or “personal space”, other than in the employer-employee context. The remedies they provide, including their narrow civil liability provisions, would only be available for the incursions of specific privacy interests regulated by the statutes. For civil liability arising from invasions of privacy in general, one must look to the general law, which is the repository of various doctrines governing liability for causing harm to others.

THE COMMON LAW OF AUSTRALIA

2.16 This section addresses the scope of protection that the common law of Australia offers to privacy. In doing so, it draws not only on Australian case law but also on relevant English case law. It does so where there is a dearth of Australian authority. Except historically, English law is no more a source of the common law of Australia than any other system of law.³⁶ The persuasiveness of the reasoning in many of the English cases leads us to believe, however, that the solutions proposed in those cases could be adopted as part of the common law of Australia. Further, there are indications that aspects of the English approach to the causes of actions that are discussed in this section may be followed in Australia.³⁷

No general action for breach of privacy

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor

2.17 The question whether a cause of action for breach of privacy might, or should, be recognized at common law has been the subject of judicial consideration in Australia. For example, in Church of Scientology Inc v Woodward, Justice Murphy identified “unjustified invasion of privacy” as a developing tort.³⁸ However, the development of privacy law has been regarded as restricted by the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,³⁹ where the High Court expressly rejected, in dicta, the recognition of a tort based on invasion of privacy.

2.18 The case concerned an attempt by the plaintiff, who owned a racecourse, to prevent the defendants from observing the races from a raised platform on adjacent land and broadcasting commentary on the races through a radio station. In the course of rejecting the plaintiff’s claim on various grounds, including nuisance, Chief Justice Latham declared:

The claim under the head of nuisance has also been supported by an argument that the law recognizes a right of privacy which has been infringed by the defendant. However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists.⁴⁰

2.19 For more than 60 years, Victoria Park was regarded as authority for the proposition that Australian common law does not recognise a general right to privacy.⁴¹ However, in the more recent case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (“Lenah Game Meats”),⁴² the High Court indicated that the judgment in Victoria Park does not preclude the recognition of a cause of action for invasion of privacy in Australia.

2.20 The facts in Lenah Game Meats were as follows: Lenah Game Meats Pty Ltd (“Lenah”) is a corporation engaged in the processing and supply of game meat. A person or persons broke into and installed hidden cameras in Lenah’s possum abattoir in Tasmania. The film was handed over to Animal Liberation Ltd, which in turn gave a copy to the Australian Broadcasting Corporation (“ABC”) so the latter could broadcast it. The Supreme Court of Tasmania, at first instance, refused Lenah’s application for an interlocutory injunction to prevent the ABC from broadcasting the film footage. On appeal, the Full Court of the Supreme Court granted the interlocutory injunction. The defendant then appealed to the High Court.

2.21 Lenah argued, among others matters, that the High Court should recognise the existence of a tort of invasion of privacy and hold that it had a prima facie cause of action on that basis.

2.22 Chief Justice Gleeson considered the privacy claim only briefly since he considered that breach of confidence would have adequately covered the case had the activities filmed been private. He acknowledged that “[t]he law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy.” ⁴³ However, he said courts should be cautious in declaring a new privacy tort for two reasons: first, the lack of precision of the concept of privacy; and secondly, the tension that exists between the interests in privacy and interests in free speech.⁴⁴ He also expressed the opinion that the basis of privacy is human dignity, so that a right to privacy might be inapplicable to corporations.⁴⁵

2.23 Justices Gummow and Hayne (with whom Justice Gaudron agreed) held that “the decision [in Victoria Park] does not stand for the proposition respecting the existence or otherwise of a tort identified as unjustified invasion of privacy.” ⁴⁶ They examined recent developments in England and the established torts in the United States to identify a rationale for the legal protection of privacy interests as distinct from other interests, such as reputation or commercial interests. They concluded that it was to be found in the fundamental value of personal autonomy, a value that could only be invoked by natural persons, not corporations.⁴⁷ Consequently, their Honours considered that as Lenah was an artificial legal person, the case was the wrong vehicle to examine the contours of privacy law. Their Honours outlined two ways in which privacy protection may develop in the common law:

It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, “free from the prying eyes, ears and publication of others”. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. ⁴⁸

2.25 Justice Callinan did not find it necessary to resolve the privacy issue since Lenah’s application for an interlocutory injunction could be granted based on other grounds. Nevertheless, he expressed his views on the matter. He described the “conservative views” of the three judges in the majority in Victoria Park as “having the appearance of anachronism, even by the standards of 1937”.⁵² He examined the law in other jurisdictions, such as the United States, England and New Zealand, and opined that corporations and government agencies might be able to enjoy similar rights to privacy as natural persons.⁵³ Further, he made the following observation:

Having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made. ⁵⁴

2.26 Subsequent to Lenah Game Meats, Senior Judge Skoien of the District Court of Queensland, in Grosse v Purvis, held that a tort of invasion of privacy does exist in Australia.⁵⁵

2.27 The plaintiff in Grosse v Purvis alleged that she had suffered psychological harm as a result of a prolonged course of stalking and harassment by the defendant after she ended their sexual relationship. The plaintiff based her action on the following conduct by the defendant: persistent loitering at or near the plaintiff’s places of residence, work and recreation; unauthorised entry into her home; offensive phone calls at home, work and on her mobile phone; and use of offensive and insulting language towards herself. The plaintiff’s action was based on a number of causes of action, including invasion of privacy, harassment, trespass to land, private nuisance, intentional infliction of harm, and negligent infliction of psychiatric damage.

2.28 On the invasion of privacy claim, Senior Judge Skoien, after examining the judgments in Lenah Game Meats and acknowledging the boldness of his decision,⁵⁶ held that there is in Australia an actionable right of an individual person to privacy. For purposes of this particular case, his Honour identified the essential elements of the tort as:

• a willed act by the defendant,
• which intrudes upon the privacy or seclusion of the plaintiff,
• in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
• and which causes the plaintiff detriment in the form of mental, psychological, emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.⁵⁷

2.30 Judge Hempel, sitting in the County Court of Victoria, has recently handed down another “bold” privacy decision in Jane Doe v Australian Broadcasting Corporation.⁵⁸ In a radio broadcast, the defendant Corporation had negligently identified the plaintiff as the victim of a rape, for which her estranged husband had been convicted. It is an offence under Victorian law to publish information identifying the victim of a sexual assault.⁵⁹ Both the journalist and sub-editor responsible for the broadcast, having pleaded guilty to this offence, were dealt with in criminal proceedings. As a result of the rape, the plaintiff suffered psychiatric injury and post traumatic stress disorder, which was exacerbated by the radio broadcast. The plaintiff instituted civil proceedings against the Corporation for breach of statutory duty, negligence, breach of confidence and breach of privacy. The plaintiff successfully made out the ingredients of each cause of action. In respect of her claims in breach of statutory duty, negligence, and breach of privacy, she recovered damages for economic loss (loss of earnings and medical expenses) and non-economic loss (chronic symptoms with the psychiatric injury). She also recovered compensation for breach of confidence, which comprised the same element of non-economic loss as in the other claims, but with an additional amount for the “hurt, distress, embarrassment, humiliation, shame and guilt” experienced as a result of the broadcasts.⁶⁰ The plaintiff’s claim for aggravated and exemplary damages failed. Judgment was entered for the plaintiff in the sum of $234,190, comprising totals of $124,190 for economic loss and $110,000 for non-economic loss.

2.31 While recognising that the privacy claim in this case differed from that in Grosse v Purvis, Judge Hempel nevertheless upheld it on the basis that, in the circumstances, the defendant had invaded the plaintiff’s privacy by unjustifiably publishing personal information, that is information that the plaintiff had a reasonable expectation would remain clearly private. This amounted to an “actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort”.⁶¹ Unlike many situations in which privacy claims are potentially generated, her Honour pointed out that it was not necessary in this case to resolve any tension between privacy and freedom of speech, since the Victorian Parliament had made publication of the material here in issue a criminal offence.⁶²

Other case law after Lenah Game Meats

2.32 The precedential value of the judgments in Gross v Purvis and Jane Doe will depend on their acceptance by superior courts. In a number of cases since Lenah Game Meats superior courts have rejected privacy claims.

2.33 In Giller v Procopets,⁶³ the defendant videotaped his sexual encounters with the plaintiff, his former de facto wife, who was not aware of the filming until the sixth occasion. The defendant showed the videotapes to some people and distributed copies to others, including relatives and friends of the plaintiff. One of the causes of action pleaded by the plaintiff was a claim for invasion of privacy. The Supreme Court of Victoria rejected this claim, holding that “the law has not developed to the point where the law in Australia recognises an action for breach of privacy.”⁶⁴

2.34 In Milne v Haynes,⁶⁵ the plaintiff was engaged in family law proceedings as a result of his marriage breakdown. A niece of the plaintiff’s former wife visited his house and, in his absence, obtained information from a woman about his plans to travel overseas. The niece swore an affidavit to this effect, which became the basis of the ex-wife’s application for orders from the Family Court to restrain the plaintiff from leaving the country. The plaintiff sued his former wife and her niece, among others, for alleged violation of his privacy. The Supreme Court of New South Wales dismissed this claim and held that “[t]here is, as yet, no recognition in the courts of this state of a tort of breach of privacy.”⁶⁶

2.35 In Moore-Mcquillan v Work Cover Corporation,⁶⁷ the Supreme Court of South Australia considered the appellant’s claim for breach of privacy in being kept under video surveillance by a private investigator engaged by Work Cover. The Court accepted that the current law was stated in Lenah Game Meats.

2.36 None of the judgments in these cases considered Grosse v Purvis. However, the Federal Court, in Kalaba v Commonwealth of Australia,⁶⁸ expressly refused to adopt Grosse v Purvis and concluded that the weight of authority indicates that a cause of action for breach of privacy does not currently exist in Australia.

2.37 The plaintiff in Kalaba had been a prisoner of war in World War II in Hungary and requested the Commonwealth Government to assist him to obtain compensation from the Hungarian Government. The request was initially refused. Subsequently, the Commonwealth Government requested the Australian Permanent Mission to the United Nations to obtain, through the UN High Commissioner for Human Rights, records relating to the plaintiff’s confinement, allegedly without the plaintiff’s knowledge or consent. The plaintiff argued that this breached his right to privacy. Rejecting this argument, Justice Heerey said that, at the moment, the weight of authority was against the recognition of a cause of action for breach of privacy.

2.38 The recent High Court case of Batistatos v Roads and Traffic Authority of New South Wales ⁶⁹ did not involve any issue relating to privacy. Nevertheless, Justice Callinan, obiter, reiterated his statement in Lenah Game Meats that the time was ripe for the consideration at least of the recognition by the law of a cause of action for invasion of privacy. He, acknowledged, however, that since his opinion in Lenah Game Meats had been only a dissenting one, “it is difficult to see how an advocate in New South Wales could seek to bring this matter before the courts now even though the law is moving in that direction in the United Kingdom.” ⁷⁰

Other causes of action

2.39 While the weight of authority has not recognised a cause of action for breach of privacy in Australia, there are a number of causes of action under the general law that can provide a measure of protection for various aspects of privacy. They include the following.

Trespass to land

2.40 Trespass to land occurs where a person directly, unlawfully and either intentionally or negligently, enters and/or remains on, or causes any physical matter to come into contact with, another person’s land, in respect of which that person is entitled to exclusive possession.⁷¹ The tort is capable of providing protection against invasions of privacy by those who enter private property to install surveillance equipment,⁷² photograph, film, and record or interview the occupants of the land,⁷³ other than in accordance with due authority arising, for example, under warrant or statutory power.

2.41 The requirement that there be a direct interference with the plaintiff’s land limits the capacity of this tort to protect invasions of privacy, since it provides a remedy only where there is physical intrusion upon that land. Moreover, unless the plaintiff can make out a case for aggravated⁷⁴ or exemplary⁷⁵ damages or for the repair or reinstatement of any physical damage occasioned by the trespass, the damages recoverable may be confined to a nominal award. Otherwise, the only remedy may be an injunction to restrain an apprehended breach or repetition of the breach.

Private nuisance

2.42 Private nuisance has been defined as “unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it”.⁷⁶

2.43 While this action is directed at interference with recognised rights in property, it may be used in situations where the plaintiff is seeking to protect some privacy interest. For example, in a case in the Queen’s Bench Division in 1977, Justice Griffiths (obiter) recognised that although mere observation from a neighbouring property does not of itself constitute nuisance, harassment by constant surveillance of a person’s house from the air, accompanied by the photographing of his or her every activity, might constitute an actionable nuisance.⁷⁷

2.44 In Raciti v Hughes⁷⁸ the Supreme Court of New South Wales granted the plaintiffs’ application for an injunction against an adjoining occupant to prevent the operation of video surveillance equipment, which overlooked their backyard. In granting the injunction, Justice Young, while recognising the “general rule that what one can see one can photograph without it being actionable”,⁷⁹ stated in relation to the instant case:

On the evidence before me at the moment there is a deliberate attempt to snoop on the privacy of a neighbour and to record that on video tape. It seems to me that this is an actionable nuisance.⁸⁰

2.46 Further, private nuisance has traditionally been regarded as available only to persons who hold an interest in the land entitling them to exclusive possession, not to mere licensees.⁸² Hence, where a husband and wife reside in a house that is owned by the wife, the husband is a licensee only and cannot sue for nuisance to the premises.⁸³ This rule restricts the class of people who can have standing to sue for nuisance.

2.47 Some courts have used the action for private nuisance to deal with telephone harassment that is invasive of a person’s privacy.⁸⁴ In Khorasandjian v Bush, the English Court of Appeal held that harassment by telephone is an actionable interference and is within the scope of the principles of private nuisance.⁸⁵ The case concerned a young woman who, after ending her friendship with the defendant, was followed around and threatened by the latter and pestered with telephone calls to her parents’ home and at her grandmother’s to such an extent that the telephone numbers had to be changed. The decision is of interest because the court (by majority) held that the fact that the plaintiff did not have a proprietary interest in the premises to which the calls were made, was not fatal to the plaintiff’s entitlement to an injunction.

2.48 However, in Hunter v Canary Wharf Ltd,⁸⁶ the House of Lords effectively overruled Khorasandjian and similar cases. Lord Hope said that the Khorasandjian case was “concerned with the invasion of the plaintiff’s person, not the invasion of any interest in land … the solution to the case ought not to have been found in the tort of nuisance, as her complaint of the effects on her privacy of the defendant’s conduct was of a kind which fell outside the scope of the tort”.⁸⁷ Lord Goff was of similar opinion, observing that the decision in Khorasandjian has used the law on private nuisance “to create by the back door a tort of harassment”, which he suggested was an unsatisfactory approach to the development of the law.⁸⁸ These passages underline the limitations of the use of private nuisance to address claims of invasions of privacy.

Defamation

2.49 In broad terms, defamation is the publication of a statement that has a tendency to injure a person’s reputation in the estimation of others, usually by bringing the person into hatred, ridicule or contempt. The aim of the civil action for defamation is “to vindicate and to protect the reputation of the person defamed”.⁸⁹

2.50 It may also, in certain situations, incidentally provide a remedy for breach of privacy. For example, in Ettingshausen v Australian Consolidated Press Limited,⁹⁰ a photograph of a well-known Rugby League player was taken while he was in the shower and published in a magazine with wide readership. The New South Wales Supreme Court held that the published photograph was capable of subjecting the plaintiff to a more than trivial degree of ridicule and therefore capable of defaming him.

2.51 In New South Wales, the defence of justification has provided, until recently, some protection for privacy. Unlike the common law, which provides a complete defence if a defamatory imputation is true, section 15 of the Defamation Act 1974 (NSW) required the defendant to show that the imputation was not only substantially true, but also (amongst other matters) that it related to a matter of “public interest”. Legislation in the Australian Capital Territory, Queensland and Tasmania also rejected the notion that truth alone could justify a defamatory publication by requiring that the publication not only be true but also for the “public benefit”.⁹¹ Neither the “public interest” nor the “public benefit” test justified the publication of information that was merely “of interest to the public”. The published material “must be seen as relevant to promoting the public good rather than simply pandering to a desire for scandal or invading the legitimate privacy of an individual.”⁹²

2.52 The “public interest” or “public benefit” requirement was characterised as involving “the weighing of the right to privacy against the public interest of free discussion of matters of public concern.”⁹³ It has also been described as “the closest the law of defamation comes, as presently framed, to protect privacy, at least in those jurisdictions which so limit the defence of truth.”⁹⁴ In one case, responding to criticism by the plaintiff, a Member of Parliament, of “salacious pictures and disgusting letterpress” published by the defendant newspaper, the defendant published a statement, derived from an allegation made in divorce proceedings by his ex-wife, that the plaintiff was a “brutal wife basher”. The court held that plaintiff could not justify: the mere fact that a Member of Parliament had criticised the newspaper did not make it a matter of public benefit to publish “something that took place between himself and his wife some three or four years ago”, even if the facts were truly stated.⁹⁵

2.53 In our review of the law of defamation in 1995, the Commission recognised the importance of the defence of justification in providing limited privacy protection and concluded that:

[U]ntil such time as there is a thorough review of the desirability of introducing a tort of invasion of privacy, the law of defamation should continue to provide limited protection for persons’ privacy even if such protection ought not, in itself, to be a goal of the law of defamation. In particular, the Commission is concerned about the potentially serious threat to individuals’ privacy which would result from amendment of the current defence of justification.⁹⁶

Injurious falsehood

2.55 Where a false statement (whether defamatory or not), calculated to cause, and producing, actual damage to the plaintiff, is maliciously published, the plaintiff may have an action for injurious falsehood.⁹⁹ For example, an action may lie for a publication that the plaintiff has ceased to carry on or has closed down his or her business¹⁰⁰ or was not available for future employment.¹⁰¹ Injurious falsehood is variously referred to as “malicious falsehood” or “trade libel”.¹⁰²

2.56 In England, malicious falsehood was effectively used in Gordon v Kaye¹⁰³ to protect the privacy of the plaintiff. The plaintiff was a well-known actor and the star of a popular television comedy series. He had a car accident that resulted in severe head and brain injuries, for which he was placed on a life support machine and intensive care for a few days. Subsequently, he was moved to a private room. For fear that his recovery might be hindered if he had too many visitors and to lessen the risk of infection, the hospital authorities took steps to restrict visits. There was, for example, a list of authorised visitors and there were signs at the entrance of the ward and on the plaintiff’s door regarding the restrictions.

2.57 The defendants were the editor and publisher of a publication described as having a lurid and sensational style. A journalist and a photographer for the publication, ignoring the warnings regarding the visitation restrictions, surreptitiously entered the plaintiff’s room. They interviewed him and took photographs, including some showing substantial scars to his head. The defendants claimed that the plaintiff agreed to be interviewed, but medical evidence was later presented that showed that the plaintiff was not fit to be interviewed or to consent to the interview. In fact, a quarter of an hour after the journalists left him, the plaintiff had no recollection of the incident.

2.58 On an application made on behalf of the plaintiff, the trial court granted an injunction restraining the defendants from publishing or distributing the photographs and any statements made by the plaintiff at the interview. The judge also ordered the defendants to deliver up any tape-recording, notes of interview and photographs that they had taken during the interview. The defendants appealed against the judge’s order.

2.59 The Court of Appeal held that there was no right to privacy in English law. Lord Justice Glidewell said:

It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.¹⁰⁴

If ever a person has a right to be let alone by strangers with no public interest to pursue, it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlines the plaintiff’s complaint. Yet it alone, however gross, does not entitle him to relief in English law.¹⁰⁵

2.62 The injunction granted on the basis of malicious falsehood afforded only limited protection. If the defendant had intended to publish the photographs alongside the story telling their readers the truth, namely that their photographer had entered the plaintiff’s hospital room uninvited and the photographs had been taken without the plaintiff’s consent, then no injunction could have been granted for malicious falsehood. The protection that the tort offers to privacy would be even more limited if the action for injurious falsehood is limited to statements about the plaintiff’s goods or business.¹⁰⁶

Passing off

2.63 The appropriation of the name, image or likeness of a person without his or her consent is arguably a form of invasion of privacy to the extent that his or her interest in the exclusive use of his or her own identity is infringed.¹⁰⁷ The action for passing off may be useful in this context. One form of passing off is the use of the name or image of some well-known person without his or her consent by someone who promotes goods or services by suggesting that the person whose name or image is being used approves of or has some connection with the goods or services.

2.64 An example of a New South Wales case is Henderson v Radio Corporation Pty Ltd where the plaintiffs, two well-known professional ballroom dancers, succeeding in obtaining an injunction to restrain the defendants from releasing a record of ballroom dancing music, which displayed their photograph on the cover without their consent. The Supreme Court held that the plaintiffs’ potential to exploit the goodwill in their names and reputation could be damaged by the defendant’s conduct.¹⁰⁸

2.65 The elements of passing off are: (1) the plaintiff has goodwill or a reputation in a business or specific trade; (2) misrepresentation, by the defendant, of a connection between the defendant or the defendant’s goods or services or business, and the plaintiff or the plaintiff’s business; and (3) damage, or the threat of it, usually in the form of diversion of custom, lost sponsorship fees or tarnished reputation.¹⁰⁹

2.66 It is apparent from these requirements that the purpose of the action is to protect a commercial or proprietary interest – that is, the plaintiff’s goodwill or reputation – which the defendant has benefited from without compensation to the plaintiff. Passing off will not apply where the person whose name or image was used does not possess a reputation capable of being commercially exploited and no relevant injury resulting from the use of his or her name or image is suffered.

2.67 Consider, for example, this hypothetical example. A couple with two young children were buying a house and land package from a property developer and the selling agent took their photographs in front of the house they had chosen. Without their consent, one of the photographs was used in the property developer’s marketing campaign. The couple objected to the unwanted publicity, especially since it involved their young children, and were unhappy that their place of residence had been disclosed to the general public. They would not be able to use the tort of passing off since they are not able to “cash in” on a celebrity status by endorsing the defendant’s services. In essence, they are seeking to protect their family’s privacy, and it is unlikely that the tort of passing off will be extended to protect a “right to endorse” in every individual.¹¹⁰

The intentional infliction of harm

2.68 In the 1897 English case of Wilkinson v Downton,¹¹¹ the defendant, by way of a practical joke, told the plaintiff that her husband, while returning in a wagonette from a race meeting, had met with an accident and had both legs broken, and that she had to go at once in a cab with two pillows to fetch him home. The plaintiff suffered a violent shock to her nervous system producing vomiting and serious physical consequences, for which the defendant was held liable in damages. The basis of the decision is that “[i]f a person deliberately does an act of a kind calculated to cause physical injury for which there is no lawful justification or excuse and in fact causes injury to that other person, he is liable in damages”.¹¹² Two aspects of the rule in Wilkinson v Downton potentially limit its application to cases involving invasions of privacy.

2.69 The first relates to its uncertain scope, particularly the identification of the intention necessary to satisfy it.¹¹³ The rule extends to conduct “calculated to cause”, and causing, damage for which there is “no lawful justification or excuse”. But what conduct falls within this? The bad joke in Wilkinson v Downton did, as did many of the acts of the spurned lover in Grosse v Purvis.¹¹⁴ But an unauthorised strip-search in Wainwright v Home Office¹¹⁵ did not. A mother and son were strip-searched for drugs on a prison visit. The search was conducted in breach of prison rules – for example, the son, who was mentally impaired, was poked on the armpit, his penis handled and his foreskin pulled back. The incident caused humiliation and distress, and with respect to the son, post-traumatic stress syndrome. The House of Lords held that there was no liability under Wilkinson v Downton.¹¹⁶ The prison guards who had ordered the plaintiffs to strip had acted in good faith, believing that they were correctly following established procedures for the search in question and not intending to increase the humiliation and distress necessarily involved in a strip-search.¹¹⁷ Their conduct simply lacked the objectionable qualities of the conduct found in Wilkinson v Downton and Grosse v Purvis.

2.70 Secondly, the plaintiff must show that his or her reaction to the defendant’s conduct is accompanied by some “physical injury”. This clearly includes psychiatric injury.¹¹⁸ Mere distress will not, however, suffice.¹¹⁹ This was another reason why the mother’s claim failed in Wainwright v Home Office.¹²⁰ In contrast, because he had suffered a recognisable psychiatric injury, the son would have succeeded on the basis of Wilkinson v Downton if the other elements of the tort had been present. Many invasions of privacy will not result in psychiatric damage. Unless extended to mental distress, Wilkinson v Downton may, therefore, prove of limited use in the context of privacy.

2.71 Such an extension was hinted at in the New Zealand case of Tucker v News Media Ownership Ltd.¹²¹ The plaintiff, who had a serious heart problem, embarked on a successful fund-raising campaign for a heart transplant operation to be performed in Australia after the operation originally planned in New Zealand fell through by reason of a change in government policy concerning the availability of this form of surgery. A newspaper reporter informed the plaintiff that his newspaper had received information that the plaintiff had been convicted of criminal offences involving indecency. The plaintiff successfully applied for interim injunctions restraining several media organisations from publishing details of his convictions. In his proceedings for permanent injunctions, the plaintiff pleaded causes of action based on intentional infliction of distress and the American tort of invasion of privacy.

2.72 A doctor gave evidence that the plaintiff was very sick, that further stress could be fatal and publication by the media of his previous convictions could cause extreme emotional shock. In the meantime, the plaintiff lost funding for the heart transplant operation. Upon the defendant’s application to discharge the injunctions, the High Court accepted that there was a serious question to be tried in relation to the application of the tort of intentional infliction of emotional distress or physical damage.

2.73 In the course of examining this issue, Justice McGechan made it clear that he supported the “introduction into the New Zealand common law of a tort covering invasion of personal privacy at least by public disclosure of private facts”. After referring to the American tort of invasion of privacy by public disclosure of private facts, Justice McGechan said:

I do not think it beyond the common law to adapt the Wilkinson v Downton principles to significantly develop the same field and meet the same needs. ¹²²

2.75 However, in Wainwright v Home Office Lord Hoffman (with whom the whole House agreed) was prepared to extend Wilkinson v Downton to cases of “mere distress” only on the understanding that the intention necessary to establish the tort is that “[t]he defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not”.¹²³ Indeed, even if this test were applied, his Lordship was still doubtful that there should be liability for the intentional infliction of mere distress or humiliation.¹²⁴ Lord Scott was more firmly of the view that such conduct ought not, as a matter of policy, to give rise to liability at common law.¹²⁵

2.76. The decision of the House of Lords in Wainwright v Home Office¹²⁶ is, potentially, of even greater significance in heralding the demise of the rule in Wilkinson v Downton. After holding that there is no common law cause of action for invasion of privacy,¹²⁷ the House expressed the opinion that Wilkinson v Downton has no leading role in modern law.¹²⁸ The reason centres on the “imputed intention” formulated by Justice Wright in Wilkinson v Downton as an ingredient of the tort.¹²⁹ The formulation was a response to the refusal to recognise nervous shock or psychiatric injury as “damage” in the law of negligence.¹³⁰ Once this difficulty had been overcome, the law of negligence could subsume the rule in Wilkinson v Downton,¹³¹ and, arguably, has done so if “intention” for the purposes of the rule means no more than it does in negligence.¹³² There is weighty support for such an analysis in Australia.¹³³ At most, the tort of intentional infliction of harm would seem capable of applying to invasions of privacy that are deliberate and, perhaps, possess some element of vindictiveness.¹³⁴

Breach of confidence

2.77 A broad understanding of this action is that defendants breach a duty of confidence where they disclose or use information obtained directly or indirectly from a plaintiff with knowledge or notice that the information is confidential, or where they use confidential information that has been obtained improperly or surreptitiously.¹³⁵ A breach of confidential information can often be viewed as a breach of privacy. In the famous case of Prince Albert v Strange, the defendant was a publisher who had obtained copies of private etchings made by the Prince Consort of members of the royal family at home. The publisher obtained them from an employee of a printer to whom the Prince had entrusted the plates. Vice-Chancellor Knight-Bruce, in granting an injunction restraining the publication of a catalogue containing descriptions of the etchings, said that it was

an intrusion - an unbecoming and unseemly intrusion … offensive to that inbred sense of propriety natural to every man - if, intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life - into the home (a world hitherto sacred among us) … ¹³⁶

2.79 In the Commission’s view, the common law of Australia is unlikely to follow the English example of transforming breach of confidence in this way. Nor, in our view, ought it to do so. Subsuming privacy in breach of confidence leads inevitably to “conceptual artificiality and distortion”,¹³⁹ as some of the leading English authorities acknowledge.¹⁴⁰ The Commission agrees with the New Zealand Court of Appeal that clear legal analysis requires separate actions for breach of confidence and invasion of privacy.¹⁴¹ There are at least three reasons why this is so.

2.80 First, confidentiality and privacy are simply different concepts. While most confidential acts and information could arguably be described as private, not all private activity is necessarily confidential. Before information can be considered confidential for the purpose of breach of confidence, it must be inaccessible to the public.¹⁴² Yet this may be an inappropriate test in the context of invasion of privacy. Lenah Game Meats highlights the point. In that case, covert filming (following a trespass) of the possum slaughtering operations inside Lenah’s processing plant was considered not to have the necessary quality of confidence to satisfy an action for breach of confidence, but could, arguably, have satisfied Chief Justice Gleeson’s test of what constitutes “private”, namely, the disclosure or observation of information or conduct that would be highly offensive to a reasonable person of ordinary sensibilities.¹⁴³ However, as such an action does not exist in Australian law, and the High Court did not take the opportunity to develop an action at common law, Lenah failed on all counts.

2.81 Secondly, the doctrine of breach of confidence, developed primarily in the exclusive jurisdiction of equity,¹⁴⁴ seems an unsuitable vehicle for the introduction and development of greater privacy protection. Equity intervened to protect confidential information by reason of the circumstances in which that information was obtained. As Meagher, Gummow and Lehane put it:¹⁴⁵

The fundamental notion is that the defendant placed trust and confidence (as used in the nineteenth century cases)¹⁴⁶ in the plaintiff or that the defendant obtained surreptitiously or improperly that which he could otherwise have obtained either not at all or only on a limited basis.

2.83 The transformation that this requires in the action for breach of confidence has been achieved in England either by appealing to the human rights framework in which the action is developing,¹⁴⁹ or by regarding the action as having transformed itself into a tort of misuse of private information.¹⁵⁰ The first approach is irrelevant in Australia. The second involves a fusion of common law and equity that the common law of Australia is unlikely to embrace.¹⁵¹ Indeed, even if an action for invasion of privacy were kept strictly within the bounds of breach of confidence, other difficulties arising from the fusion of common law and equity would potentially remain – such as the range of available remedies.¹⁵² Whatever the merits of the fusion argument,¹⁵³ it is difficult not to agree with Lord Bingham that protecting privacy through the breach of confidence doctrine is likely to do “impermissible violence to the principles upon which that cause of action is founded”.¹⁵⁴

2.84 Thirdly, although the legal notion of confidence is not necessarily restricted to the disclosure of “information” in any technical sense, it is unclear to what extent breach of confidence would be useful beyond situations involving the unjustified publication of private information. Yet the pressure to recognise an action for invasion of privacy is not limited to this situation, but extends to circumstances, such as those involving an interference with the plaintiff’s person or personal space, where it may be impossible to apply the breach of confidence doctrine. Thus, it is difficult to see how the plaintiffs who were unlawfully strip-searched in Wainwright v Home Office,¹⁵⁵ or the woman who was a victim of stalking and harassment by a former lover in Grosse v Purvis,¹⁵⁶ would have an action in breach of confidence. If a cause of action for invasion of privacy is warranted in such situations, there is the danger, as in Lenah Game Meats, that the attempt to fit privacy into breach of confidence will simply result in the plaintiff being left without redress.

2.85 In summary, the Commission’s view is that the English approach of extending, or transforming, the action of breach of confidence fails to give adequate recognition to privacy as such. This not only arguably diminishes the significance and effectiveness of privacy as a legal concept, but means that invasion of privacy is in danger of always remaining the “missing cause of action” referred to in Lenah Game Meats.¹⁵⁷

Conclusion

2.86 The above survey demonstrates that there are a number of causes of action in which privacy interests are currently protected, or which can be developed to protect such interests. One obvious way in which the law of privacy could evolve, therefore, is through the further and appropriate development of all these actions, the combined effect of which would be to cover all aspects of privacy that need protection.¹⁵⁸ In his study of Canadian tort law, Professor Klar argued that the existence of these causes of action made a separate tort of invasion of privacy unnecessary:

The concept of privacy is too ambiguous and broad to be able to be covered adequately in one cause of action. It is desirable to have the different aspects of privacy protection dealt with in separate torts which more clearly can focus on the interests at hand. Gaps in the law which cannot be filled by extending traditional principles can be dealt with as they arise, either through the expansion of the common law or by legislative intervention.¹⁵⁹

2.88 From the Commission’s point of view, the argument from coherence is not about the proper development of legal doctrine: it is about sensible law reform. Lord Goff gave a good example in his criticism of the attempt by the English Court of Appeal in Khorasandjian v Bush, which we have discussed above,¹⁶² to extend the tort of private nuisance to encompass abusive telephone calls:

If a plaintiff, such as the daughter of the householder in Khorasandjian v Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much abuse, or indeed, an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at a place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home.¹⁶³

THE CRIMINAL LAW AND PRIVACY

2.90 In addition to the general systems of privacy regulation, there are a number of areas where criminal sanctions might punish or deter invasions of privacy. The focus of the criminal law is, of course, different from any proposed private cause of action for breach of privacy. Nevertheless, the existence of criminal offences that impact on certain aspects of privacy needs to be acknowledged and recognised as part of the overall regulation of privacy in New South Wales.

2.91 In Chapter 1, we discussed the meanings and dimensions of privacy. Some of the concepts associated with the meaning of privacy include personal dignity and autonomy, and the right to control decisions regarding one’s life, including one’s body and possessions. In many ways, the criminal law protects the most basic aspects of human privacy, by creating offences that prohibit injury, or threats of harm, to people or damage to land or property.

2.92 The criminal law also creates offences to prevent intrusions into human dignity by means of unauthorised prying, or interference with personal communications. As noted earlier in this chapter, Commonwealth and State laws respectively prohibiting the unauthorised interception of telecommunications and the use of listening devices generally, and of surveillance devices in the workplace, contain criminal offences and penalties.¹⁶⁴ This section discusses some other areas where conduct that may amount to an invasion of privacy may be prosecuted under the criminal law.

Property offences

2.93 Offences against private property impinge on personal privacy insofar as they interfere with a person’s legal and moral proprietary rights. While the criminal law abounds with property offences, a few are discussed here by way of example. In addition to the common law action for trespass discussed at paragraph 2.XR, criminal offences for unauthorised entry onto land also exist. For example, the Inclosed Lands Protection Act 1901 (NSW) makes it an offence to enter onto inclosed lands without lawful excuse and without the consent of the owner, and to remain on those lands after being requested to leave.¹⁶⁵ A further offence will be committed if a person remains on the land after being requested to leave, and behaves in an offensive manner.¹⁶⁶

2.94 Part 4 of the Crimes Act 1900 (NSW) deals specifically with property offences, including robbery, theft, extortion, larceny, sabotage and malicious damage to property. So far as property containing personal information is concerned, the interception and taking away of a postal article from a private mail box after delivery by Australia Post may constitute a larceny.¹⁶⁷ Rummaging through a garbage bin left in the street, and taking documents or photographs from it, including those of a private nature, would seemingly not give rise to an offence of larceny if the taker believed they had been abandoned.¹⁶⁸ However, a contrary view has been expressed that a person who deposits garbage in a sealed receptacle retains a proprietary interest in it until it is taken up by the authorised collector and mixed with other collected refuse.¹⁶⁹

Offences against the person

Assaults

2.95 Personal privacy is directly violated by acts causing, or threatening to cause, physical harm, including assault and sexual assault.¹⁷⁰ As was pointed out in Marion’s Case,¹⁷¹ the corollary of the provisions creating an offence of assault, which embodies the notion that, prima facie, any physical contact or threat of it is unlawful, is:

a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person.¹⁷²

2.96 The Crimes Act 1900 (NSW) also makes it an offence to stalk or intimidate another person, with the intention of causing him or her to fear physical or mental harm.¹⁷³ “Intimidation” is defined as conduct amounting to harassment or molestation, or the making of repeated telephone calls, or any conduct that causes a person to have a reasonable apprehension of injury to him or herself or to anyone with whom he or she has a domestic relationship, or of violence or damage to any person or property.¹⁷⁴

Peeping or prying

2.97 The Crimes Act 1900 (NSW) creates an offence of peeping or prying applying to a person who is in or on or near a building without reasonable cause with intent to peep or pry upon another person.¹⁷⁵

The publication of false or embarrassing information

2.98 Although the common law misdemeanour of criminal libel has been abolished, the Crimes Act 1900 (NSW) preserves the offence of criminal defamation. A person commits criminal defamation if he or she, without lawful excuse, publishes matter defamatory of another living person, knowing the matter to be false and with intent to cause serious harm to that person or any other person, or being reckless as to whether such harm is caused.¹⁷⁶

2.99 While somewhat peripheral, the Crimes Act also makes it an offence to tender for insertion or to cause to be inserted in any newspaper any bogus advertisement, that is, one which contains any material false statement or representation with respect to the personal particulars of another person.¹⁷⁷

2.100 In addition, a person commits an offence if he or she conveys information that he or she knows to be false or misleading and that is likely to make the recipient fear for the safety of any person.¹⁷⁸

Invasion of personal privacy through photography

Summary offences

2.101 The Summary Offences Act 1988 (NSW) creates a number of offences of relevance. The first relates to the filming or attempted filming of a person for indecent purposes, that is, for a sexual purpose or sexual gratification, without that person’s consent, where that person was in a state of undress, or was engaged in a private act, or was in circumstances in which a reasonable person would reasonably expect to be afforded privacy.¹⁷⁹ The second offence is ancillary to the first offence, and relates to the installation of a device, or the construction or adaptation of the fabric of a building or other structure to facilitate the installation or operation of such a device, with the intention of enabling the commission of the first offence.¹⁸⁰

2.102 There have also been at least two successful prosecutions of persons charged with offensive behaviour in a public place as the result of photographing topless sunbathers on Sydney beaches without their consent.¹⁸¹ Two Sydney councils attempted, in 2005, to impose a ban on the unauthorised photography of children on beaches or at council-conducted swimming pools. Each was forced to withdraw the ban following public protests and/or a realisation of the lack of authority to take such action in respect of people on public property.¹⁸²

The public/private distinction

2.103 As the law currently stands, there is a distinction between the filming of persons while they are on public lands and on privately owned lands respectively. As a general principle, there is no restriction upon the filming of people on public lands, or requirement for their consent. Where they are on privately owned lands, however, the owner of those lands can take steps to prohibit any such activity, upon pain of the photographer being compelled to leave the premises.

2.104 In each instance, the relevant conduct can only be prosecuted if it falls within the provisions of the Summary Offences Act 1988 (NSW), or the Workplace Surveillance Act 1998 (NSW), or involves child pornography within the reach of the relevant State or Commonwealth criminal legislation.¹⁸³ In these respects, the law in New South Wales does not go as far as provisions recently introduced in Queensland, making it an offence to observe or visually record another person in circumstances where a reasonable person would expect to be afforded privacy without their consent.¹⁸⁴

2.105 This topic is the subject of ongoing consideration by the Standing Committee of Attorneys General, which published a Discussion Paper in 2005 canvassing questions relating to the taking of unauthorised images of children, the use or publication of unauthorised photographs/images taken in public places, and the requirement of consent for the use of photographs for particular purposes.¹⁸⁵ It also makes reference to the creation of some possible offences and of a civil right in relation to the unauthorised use of one’s image.

Information protection

2.106 There is a significant body of legislation restricting access to or release of personal information held by government agencies, as well as to information maintained by private individuals or bodies, the breach of which attracts criminal sanctions.

2.107 For example, there are offences that relate to:

• unauthorised access to, or modification of, data held in a computer with intent to commit a serious indictable offence;
• unauthorised modification of data with intent to cause impairment;
• unauthorised impairment of electronic communications to or from a computer; and
• unauthorised access to or modification of restricted data held in a computer, that is, data to which access is restricted by an access control system.¹⁸⁶

2.109 There are restrictions on the supply of DNA material, and the use of information on DNA database systems, the breach of which gives rise to criminal sanctions.¹⁸⁷

2.110 In addition, there are restrictions on accessing and/or releasing or using information of a confidential nature, with associated penalties for unauthorised access and use, for example, in relation to:

• income tax records;¹⁸⁸
• credit reporting information;¹⁸⁹
• protected social security information;¹⁹⁰
• communications carried by telecommunications carriers or service providers;¹⁹¹
• health information;¹⁹² and
• personal information available to public sector officials.¹⁹³

Workplace privacy

2.112 There are also prohibitions and offences in relation to some forms of workplace surveillance, for example, surveillance of employees in change rooms, toilet facilities and bathrooms.¹⁹⁵ Additionally, there are restrictions on the use and disclosure of workplace surveillance records, with penalties for breaches.¹⁹⁶ Covert surveillance of a workplace is also prohibited unless it is authorised by a covert surveillance authority,¹⁹⁷ although that too is subject to certain exceptions for law enforcement agencies, correctional centres, courts and casinos,¹⁹⁸ and to a defence that the surveillance was for the security of the workplace.¹⁹⁹ There are also provisions concerning the secure storage and the permitted use and disclosure of covert surveillance records, the breach of which constitutes an offence.²⁰⁰

1. Privacy Act 1988 (Cth) s 6(1).

2. Privacy Act 1988 (Cth) pt IIIA.

3. Privacy Act 1988 (Cth) s 6C(1).

4. Privacy Act 1988 (Cth) s 6D(1).

5. Privacy Act 1988 (Cth) s 6C(1).

6. Privacy Act 1988 (Cth) s 7B(4).

7. There are provisions under other federal legislation that require or authorise certain acts involving the collection, use and disclosure of personal information. For example, the Census and Statistics Act 1905 (Cth) and the Commonwealth Electoral Act 1918 (Cth) require or authorise the collection of large amounts of personal information. Other Acts require or authorise the disclosure of personal information in a range of circumstances, such as the Australian Passports Act 2005 (Cth), Corporations Act 2001 (Cth), Telecommunications Act 1997 (Cth) and Migration Act 1958 (Cth).

8. See Freedom of Information Act 1982 (Cth) pt IV (exempt documents). For a recent decision illustrating one class of exempt documents (internal working doucments of govenrment agencies or Ministers), see McKinnon v Secretary, Department of Treasury [2006] HCA 45.

9. See Freedom of Information Act 1982 (Cth) pt V (amendment and annotation of personal records).

10. There are at least two areas of potential friction or conflict. The first is where a document subject to protection from disclosure under an information privacy statute is required to be disclosed under freedom of information legislation. The second is where a person who has rights of access and amendment under information privacy laws has similar rights which are subject to differently worded exceptions under freedom of information legislation: see M Paterson, Freedom of Information and Privacy in Australia (Butterworths, 2005), [1.46]-[1.51].

11. See Australian Postal Corporation Act 1989 (Cth) pt 7B (dealing with articles and their contents).

12. Privacy and Personal Information Protection Act 1998 (NSW) s 4A.

13. There are a number of differences between the federal IPPs and the New South Wales PPPs. For example, in relation to the principle relating to storage and security of personal information, the NSW Act provides that the relevant public sector agency must not keep information longer than necessary. Further the agency must ensure secure disposal of personal information, in accordance with retention and disposal requirements: Privacy and Personal Information Act 1998 (NSW) s 129(a) and (b). The Commonwealth IPPs are silent on this matter

14. Privacy and Personal Information Protection Act 1998 (NSW) s 4(1). The wording is similar to the definition in the Commonwealth Privacy Act. However, the main difference between the two definitions is that the New South Wales Act contains a list of exceptions. It excludes from the definition, among other things, information about an individual who has been dead over 30 years, that is contained in a publicly available publication and information arising out of various Acts such as the Witness Protection Act 1995 (NSW): Privacy and Personal Information Act1998 (NSW) s 4(3).

15. The Act defines health information as personal information or an opinion about an individual’s physical or mental health or disability, an individual’s express wishes about the future provision of health services to him or her, or a health service provided to an individual. It also includes other personal information collected in providing a health service, or other personal information about an individual collected in connection with the donation of an individual’s body parts, organs or body substances. Further, it includes genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health of the individual or any of his or her siblings, relatives or descendants: Health Records and Information Privacy Act 2002 (NSW) s 6.

16. See Health Records and Information Privacy Act 2002 (NSW) sch 1.

17. Health Records and Information Privacy Act 2002 (NSW) s 4.

18. Workplace Video Surveillance Act 2005 (NSW) s 3. A question arises as to the continuing operation of the Workplace Surveillance Act 2005 (NSW) by reason of recent amendments to the Workplace Relations Act 1996 (Cth). As amended, the Workplace Relations Act 1996 (Cth) applies to the exclusion of State or Territory industrial laws, including an Act of a State or Territory that applies to employment generally and has as one or more of its main purposes (among others): regulating workplace relations (including industrial matters) or providing for the terms and conditions of employment: Workplace Relations Act 1996 (Cth) s 4, 16. The Workplace Relations Act 1996 (Cth) identifies matters covered by State or Territory laws which it does not exclude (“non-excluded matters”), such as workers compensation, occupational health and safety, child labour, long service leave, etc: Workplace Relations Act 1996 (Cth) s 16(3). The matters dealt with in the Workplace Surveillance Act 2005 (NSW) do not appear do come under the “non-excluded matters” under the Workplace Relations Act 1996 (Cth). The High Court has upheld the validity of s 16 of the Workplace Relations Act 1996 (Cth): New South Wales v Commonwealth [2006] HCA 52.

19. Crimes (Forensic Procedures) Act 2000 (NSW) s 44(a).

20. Crimes (Forensic Procedures) Act 2000 (NSW) s 109.

21. Crimes (Forensic Procedures) Act 2000 (NSW) s 110(2). The recording must generally be electronic: s 57(1).

22. See Freedom of Information Act 1989 (NSW) pt 3 (access to documents), pt 4 (amendment of records).

23. See States Records Act 1998 (NSW) pt 6 (public access to State records after 30 years); Local Government Act 1993 (NSW) pt 2 (access to information).

24. See Privacy and Personal Information Protection Act 1998 (NSW) s 62; Listening Devices Act 1984 (NSW) s 11; Workplace Video Surveillance Act 1998 (NSW) ss 15-9.

25. See, for example, Privacy Act 1988 (Cth) s 98(1); States Records Act 1998 (NSW) s 72.

26. The Telecommunications (Interception and Access) Act 1979 (Cth) is an exception in expressly granting courts the power to give civil remedies for breaches of certain of its provisions. Section 107A (dealing with the communication or use of an intercepted communication) and s 165 (dealing with the contravention of provisions relating to accessing stored information) provide for a range of civil remedies, including damages (s 107A(7), 165(7)), which, in this context, include “punitive damages”: s 107A(10), 165(10).

27. Privacy Act 1988 (Cth) s 52(1)(b)(iii).

28. See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

29. Privacy Act 1988 (Cth) s 55A.

30. See <http://www.privacy.gov.au/act/casenotes/index.html#comdet> at 1 December 2006. Both cases involved disclosure of personal information by government agencies. The Privacy Commissioner determined $2,643.00 in one case and $5,000 in the other as appropriate compensation.

31. See para 2.8-2.9 for further discussion.

32. See Privacy and Personal Information Protection Act 1998 (NSW) Part 4, and Health Records and Information Privacy Act 2002 (NSW) Parts 3 and 6.

33. For example, the NSW Ombudsman, the Health Care Complaints Commission or the Anti-Discrimination Board.

34. For example, the Privacy Commissioner may decide not to investigate a complaint if he considers it to be lacking in substance, vexatious or frivolous. The Acting Privacy Commissioner estimates that approximately 20 per cent of enquiries and complaints made to Privacy NSW are not investigated for these reasons: letter from John Dickie, Acting Privacy Commissioner, Privacy NSW, to the NSWLRC, 21 February 2007.

35. See Privacy and Personal Information Protection Act 1998 (NSW) Part 5 and Health Records and Information Privacy Act 2002 (NSW) Part 3.

36. Cook v Cook (1986) 162 CLR 376, 390 (Mason, Wilson, Deane and Dawson JJ), 394 (Brennan J).

37. See para 2.68-2.76; 2.22.

38. Church of Scientology Inc v Woodward (1982) 154 CLR 25, 68.

39. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (“Victoria Park”).

40. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, 496.

41. See for example Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 444-446; Northern Territory v Mengel (1995) 185 CLR 307, 354 (Brennan J). See also Cruise and Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125, 125 (Gray J) and Australian Consolidated Press Ltd v Ettingshausen (1991) NSWLR 443, 449 (Hunt J).

42. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (“Lenah Game Meats”).

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

44. Lenah Game Meats (2001) 208 CLR 199, [41].

45. Lenah Game Meats (2001) 208 CLR 199, [43].

46. Lenah Game Meats (2001) 208 CLR 199, [109].

47. Lenah Game Meats (2001) 208 CLR 199, [125]-[126].

48. Lenah Game Meats (2001) 208 CLR 199, [138].

49. Lenah Game Meats (2001) 208 CLR 199, [187].

50. Lenah Game Meats (2001) 208 CLR 199, [189].

51. Lenah Game Meats (2001) 208 CLR 199, [190].

52. Lenah Game Meats (2001) 208 CLR 199, [318].

53. Lenah Game Meats (2001) 208 CLR 199, [328].

54. Lenah Game Meats (2001) 208 CLR 199, [335].

55. Grosse v Purvis [2003] QDC 151.

56. Grosse v Purvis [2003] QDC 151, [442].

57. Grosse v Purvis [2003] QDC 151, [444].

58. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281.

59. See Judicial Proceedings Reports Act 1958 (Vic) s 4(1A).

60. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, [186].

61. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, [157].

62. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, [156].

63. Giller v Procopets [2004] VSC 113.

64. Giller v Procopets [2004] VSC 113, [188]. In Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, [160]-[161] Judge Hempel distinguished Giller on the basis that the courts were not then ready to recognise a “right to privacy”.

65. Milne v Haynes [2005] NSWSC 1107.

66. Milne v Haynes [2005] NSWSC 1107, [19].

67 Moore-Mcquillan v Work Cover Corporation SA [2007] SASC 55.

68. Kalaba v Commonwealth of Australia [2004] FCA 763.

69. Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27.

70. Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, [216], citing the decisions in Douglas v Hello! Ltd [2001] QB 967, [2003] 1 All ER 1087 and [2006] QB 125; and HRH Prince of Wales v Association of Newspapers Ltd [2006] EWHC 522 (Ch).

71. See F Trindade, P Cane and M Lunney, The Law of Torts in Australia (4th ed, OUP, 2007), 132-150.

72. Greig v Greig [1966] VR 376.

73. See Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, 465 (Young J); Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169, 176 (Williams J); Whiskisoda Pty Ltd v HSV Channel 7 Pty Ltd (Victoria, Supreme Court, McDonald J, 9417/93, 5 November 1993, unreported).

74. As in Greig v Greig [1966] VR 376 (where the act of trespass involved entering the plaintiff’s flat and installing a listening device to record the plaintiff’s private conversations).

75. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Coles-Smith v Smith [1965] Qd R 494.

76. Hargrave v Goldman (1963) 110 CLR 40, 59 (Windeyer J).

77. Lord Bernstein v Skyviews and General Limited [1977] 2 All ER 902, 909 (Griffiths J).

78 Raciti v Hughes (1995) 7 BPR 14,837, 14,840.

79. Citing Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, among others.

80. Raciti v Hughes (1995) 7 BPR 14,837, 14,840.

81. See Lord Bernstein v Skyviews and General Limited [1977] 2 All ER 902, 909 (Griffiths J); Raciti v Hughes (1995) 7 BPR 14,837.

82. Malone v Laskey [1907] 2 KB 141; Hunter v Canary Wharf Ltd [1997] AC 655.

83. Oldham v Lawson [1976] VR 654.

84. See Motherwell v Motherwell (1976) 73 DLR (3d) 62 (Supreme Court of Alberta); Stoakes v Brydss [1958] QWN 5 (Supreme Court of Queensland).

85. Khorasandjian v Bush [1993] QB 727.

86. Hunter v Canary Wharf Ltd [1997] AC 655.

87. Hunter v Canary Wharf Ltd [1997] AC 655, 722.

88. Hunter v Canary Wharf Ltd [1997] AC 655, 692.

89. Packer v Meagher [1984] 3 NSWLR 486, 492 (Hunt J).

90. Ettingshausen v Australian Consolidated Press Limited (1991) 23 NSWLR 443.

91. Defamation Act 1901 (ACT) s 6; Defamation Act 1889 (Qld) s 15; Defamation Act 1957 (Tas) s 15.

92. Johnston v Australian Broadcasting Commission (1993) FLR 307, 312 (Higgins J).

93. Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623, 628 (Jacobs and Manning JJA).

94. Johnston v Australian Broadcasting Commission (1993) FLR 307, 312 (Higgins J).

95. Mutch v Sleeman (1928) 29 SR (NSW) 125, 136–137. See also Myerson v Smiths’ Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20, 28–29.

96. NSW Law Reform Commission, Defamation, Report No 75 (1995) [1.24].

97. Defamation Act 2005 (NSW) s 25.

98. See Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (WA) s 25; Defamation Act 2005 (Vic) s 25.

99. See A M Dugdale (gen ed), Clerk & Linsell on Torts (18th ed, Sweet & Maxwell, 2000), [23-02].

100. Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84.

101. Bride v KMG Hungerfords (1991) 109 FLR 256, 280 (Murray J).

102. See Joyce v Sengupta [1993] 1 All ER 897, 901 (Lord Nicholls).

103. Gordon v Kaye [1991] FSR 62 (“Kaye”).

104. Kaye, 66 (Glidewell LJ).

105. Kaye, 70. See also 71 (Leggatt LJ).

106. A matter left open in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, [1] (Gleeson CJ), [60] (Gummow J). See also [154] (Hayne J), [192] (Callinan J). Compare [114] (Kirby J). See also Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 694 (Gleeson CJ); Joyce v Sengupta [1993] 1 All ER 897, 901 (Nicholls VC).

107. See, for example, para 4.56-4.65. Note that where information about a person has commercial value, he or she may have sufficient control over it to impose an obligation of confidence on others: Douglas v Hello! Ltd [2007] UKHL 21,especially [124] (Lord Hoffman)

108. Henderson v Radio Corporation Pty Ltd [1960] SR (NSW) 576.

109. ConAgra Inc v McCain Food (Aust) Ltd (1992) 33 FCR 302, 355-356 (Gummow J); TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc (1999) 45 IPR 43.

110. See F Trindade, P Cane and M Lunney, The Law of Torts in Australia (4th ed, Oxford University Press, 2007), 292-293.

111. Wilkinson v Downton [1897] 2 QB 57 approved in Janvier v Sweeney [1919] 2 KB 316.

112. See Bunyan v Jordan (1937) 57 CLR 1, 10 (Latham CJ, though leaving open the possibility that the principle is too broadly stated: at 11). See also Northern Territory v Mengel (1995) 185 CLR 307, 347 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

113. See further para 2.76

114. Grosse v Purvis [2003] QDC 151, [453].

115. Wainwright v Home Office [2004] 2 AC 406.

116. Because he had been touched, the son was able to maintain an action in battery.

117. Wainwright v Home Office [2004] 2 AC 406, [45].

118. Wilkinson v Downton [1897] 2 QB 57; Wong v Parkside Health NHS Trust [2003] 3 All ER 932.

119. See especially Giller v Procopets [2004] VSC 113, [177]-[186].

120. Wainwright v Home Office [2004] 2 AC 406.

121. Tucker v News Media Ownership Ltd [1986] 2 NZLR 716.

122. Tucker v New Media Ownership Ltd [1986] 2 NZLR 716, 733.

123. Wainwright v Home Office [2004] 2 AC 406, [45].

124. Wainwright v Home Office [2004] 2 AC 406, [46].

125. Wainwright v Home Office [2004] 2 AC 406, [62].

126. Wainwright v Home Office [2004] 2 AC 406.

127. Wainwright v Home Office [2004] 2 AC 406, [15]-[35].

128. Wainwright v Home Office [2004] 2 AC 406, [41].

129. Wilkinson v Downton [1897] 2 QB 57, 59.

130. Victorian Railways Commission v Coultas (1888) 13 App Cas 222.

131. Wainwright v Home Office [2004] 2 AC 406, [40], [44]. Just as negligence has subsumed Rylands v Fletcher (1868) LR 3 HL 330, [1861-73] All ER Rep 1: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

132. See especially the analysis in Carrier v Bonham [2002] 1 Qd R 474, [25]-[27] (McMurdo P).

133. See Magill v Magill [2006] HCA 51, [20] (Gleeson CJ, referring to Lord Hoffman’s analysis in Wainwright v Home Office [2004] 2 AC 406), [117] (Gummow, Kirby and Crennan JJ, citing Tame v New South Wales (2002) 211 CLR 376, [179] (Gummow and Kirby JJ)).

134. See D Butler, “A Tort of Invasion of Privacy in Australia?” (2005) 29 Melbourne University Law Review 339, 365. Compare, P Watson, “Searching the Overfull and Cluttered Shelves: Wilkinson v Downton Rediscovered” (2004) 23 University of Tasmania Law Review 265.

135. See Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109, 281 (Lord Goff); Douglas v Hello! Ltd [2007] UKHL 21; Lenah Game Meats (2001) 208 CLR 199, [34], [36] (Gleeson CJ).

136. Prince Albert v Strange (1849) 2 De Gex & Sim 652, 64 ER 293; (on appeal) (1849) 1 Mac & G 25, 41 ER 1171. A modern version is Associated Newspapers Ltd v HRH the Prince of Wales [2006] EWCA 1776.

137. For a full discussion of English law, see para 3.3-3.29.

138. See Douglas v Hello! Ltd (No 3) [2006] QB 125, [54]-[82]; Ash v McKennitt [2006] EWCA 1714, [8]-[11] (in both of which the English Court of Appeal summarises the current law).

139. J Caldwell, “Protecting privacy post Lenah: Should the courts establish a new tort or develop breach of confidence?” (2003) 26 University of New South Wales Journal 90, 121.

140. For example, Campbell v MGN Ltd [2004] 2 AC 457, [14] (Lord Nicholls).

141. Hosking v Runting [2005] 1 NZLR 1, [35] (Gault P and Blanchard J); [245]-[246] (Tipping J).

142. See F Gurry, Breach of Confidence (Clarendon Press, 1984) ch IV.

143. Lenah Game Meats (2001) 208 CLR 199, [42].

144. See R P Meagher, J D Heydon, M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, Butterworths Lexis Nexis, 2002) [41-005]-[41-040] (“Meagher, Gummow and Lehane”).

145. Meagher, Gummow and Lehane, [41-045].

146. Where “trust’ and “confidence’ were used interchangeably: Meagher, Gummow and Lehane, [41-035].

147. Meagher, Gummow and Lehane, [41-045].

148. H Delany, “Breach of confidence or breach of privacy: the way forward” (2005) 27 Dublin University Law Journal 151, 166.

149. See the approaches of Lords Hoffman, Hope and Carswell and Baroness Hale in Campbell v MGN Ltd [2004] 2 AC 457.

150. See Campbell v MGN Ltd [2004] 2 AC 457, [14], [15] (Lord Nicholls).

151. Meagher, Gummow and Lehane, ch 2.

152. See P Young, “Recent cases” (2001) 75 Australian Law Journal 303; L Clarke, “Remedial responses to breach of confidence: the question of damages” (2005) 24 Civil Justice Quarterly 316.

153. For recent discussions, see S Degeling and J Edelman, Equity in Commercial Law (Lawbook Co, 2005), Introduction and Pt 1; D Hughes, “A classification of fusion after Harris v Digital Pulse” (2006) 29(2) University of New South Wales Law Journal 38.

154. T Bingham, “Should there be a law to protect rights of personal privacy?” (1996) 5 European Human Rights Law Review 450 ,457.

155. Wainwright v Home Office [2004] 2 AC 406.

156. Grosse v Purvis [2003] QDC 151.

157. Lenah Game Meats (2001) 208 CLR 199, [38] (Gleeson CJ).

158. For example, Hosking v Runting [2005] 1 NZLR 1, [200]-[207] (Keith J dissenting); [268]-[270] (Anderson P dissenting). Consider also Lenah Game Meats (2001) 208 CLR 199, [132] (Gummow and Hayne JJ).

159. L N Klar, Tort Law (Carswell, Toronto, 1991) at 56.

160. Hunter v Canary Wharf [1997] AC 655, discussed at para 2.48.

161. Para 3.4-3.7.

162. See para 2.47-2.48.

163. Hunter v Canary Wharf Ltd [1997] 1 AC 655, 691-692.

164. See para 2.7. 2.9.

165. Inclosed Lands Protection Act 1901 (NSW) s 4.

166. Inclosed Lands Protection Act 1901 (NSW) s 4A.

167. Subject to proof that the item had come into the possession of the person to whom it was addressed, that it was taken without that person’s consent, and without claim of right made in good faith, and with the intent permanently to deprive them of it: see Crimes Act 1900 (NSW) s 117.

168. Donoghue v Coombe (1987) 45 SASR 330.

169. J G Starke, “Current Topic: The privacy of garbage” (1988) 62 Australian Law Journal 582.

170. See offences contained in Crimes Act 1900 (NSW) Part 2, Divisions 8, 9 and 10.

171. Secretary, Department of Health and Community Services v JWB and SWB (Marion’s Case) (1992) 175 CLR 218.

172. Secretary, Department of Health and Community Services v JWB and SWB (Marion’s Case) (1992) 175 CLR 218, 233. The law in this area is, however, subject to qualification in relation to the extent to which parents, or guardianship tribunals, or the courts, or even medical practitioners, can carry out medical procedures without the individual’s consent; and the extent to which law enforcement agencies can lawfully obtain forensic samples, including intimate samples, in circumstances which might otherwise constitute battery: see, for example, Crimes (Forensic Procedures) Act 2000 (NSW) Part 4 (non-consensual samples) and Part 7 (intimate samples), and Crimes Act 1914 (Cth) Part 1D.

173. Crimes Act 1900 (NSW) s 562AB.

174. Crimes Act 1900 (NSW) s 562A.

175. Crimes Act 1900 (NSW) s 547C.

176. Crimes Act 1900 (NSW) s 529.

177. Crimes Act 1900 (NSW) s 545A.

178. Crimes Act 1900 (NSW) s 93IH. That is, in circumstances parallel to those in Wilkinson v Downton [1897] 2 QB 57.

179. Summary Offences Act 1988 (NSW) s 21G.

180. Summary Offences Act 1988 (NSW) s 21H.

181. Summary Offences Act 1988 (NSW) s 4.

182. Waverley and Randwick Councils.

183. Crimes Act 1900 (NSW) Part 3 Division 15; Criminal Code Act 1995 (Cth) s 474.19 and s 474.20.

184. Criminal Code (Qld) s 227A(1) and see also s 227A(2).

185. Australia, Standing Committee of Attorneys General, Unauthorised Photographs on the Internet and Ancillary Privacy Issues, Discussion Paper (2005).

186. Crimes Act 1900 (NSW) Part 6 and Criminal Code Act 1995 (Cth) Part 10.7.

187. See: Crimes Act 1900 (NSW); Crimes Act 1914 (Cth) Part 1D Division 8A and Division 11A; and Criminal Code Act 1995 Part 10.7.

188. Taxation Administration Act 1953 (Cth) s 3C(2).

189. Privacy Act 1988 (Cth) s 18K, 18L, 18N, 18Q, 18S and 18T.

190. Social Security (Administration) Act 1999 (Cth) s 204-206.

191. Telecommunications Act 1997 (Cth) s 276 and s 277.

192. Health Records and Information Privacy Act 2002 (NSW) s 68.

193. Privacy and Personal Information Protection Act 1998 (NSW) s 62.

194. See R v Lloyd [1985] QB 829 and R v Withers [1975] AC 842.

195. Workplace Surveillance Act 2005 (NSW) s 15.

196. Workplace Surveillance Act 2005 (NSW) s 18.

197. Workplace Surveillance Act 2005 (NSW) s 19.

198. Workplace Surveillance Act 2005 (NSW) s 21.

199. Workplace Surveillance Act 2005 (NSW) s 22.

200. Workplace Surveillance Act 2005 (NSW) s 36 and s 37.