The Law Council of Australia (LCA) has expressed support for the development of a statutory tort of serious invasion of privacy, in its submission to the review of the Privacy Act 1988 (Cth).
LCA President Tass Liveris said technological advances had increased the risk of these types of breaches, while limiting the capacity for the current legislative framework to keep pace.
“If an individual is harmed by a serious invasion of their privacy – such as someone’s private activities being watched or recorded, or private information like medical records being made public – there is currently no tortious right of action,” he said.
“This limits a person’s ability to pursue compensation or an injunction.”
The LCA’s submission said the design of this legal privacy protection must be sufficiently flexible to adapt to rapidly changing technologies and capabilities, without needing constant amendments.
Mr Liveris said a new statutory tort would require extensive public consultation.
“We support introduction of this statutory right on the condition there are sufficiently high thresholds in place to ensure actions are limited to serious invasions of privacy, and the scope of the tort is carefully considered and drafted to address the risk of unintended consequences,” he said.
“The location of a new statutory tort will also need to be carefully considered, particularly if it is to apply to intrusion upon seclusion (e.g. physically intruding into a person’s private space or by watching, listening to or recording private activities or private affairs) as the Privacy Act primarily regulates information privacy.”
The LCA also recommended the definition of ‘personal information’ be updated, and existing exemptions, including in relation to small businesses, employee records and journalism, be clarified.