The new statutory privacy tort: Statutory interpretation traps for lawyers

In this piece, I highlight three statutory construction issues to be aware of when advising clients as to how a court is likely to approach the new tort.

1. What is the relevance of the tort forming part of an existing act?

The tort is contained in Schedule 2 to the Privacy Act 1988 (Cth), which has been in operation for over 35 years and carries with it a large body of case law examining the meaning of its terms. Ordinarily, the tort’s location in Schedule 2 to an act would be highly relevant to the construction of the words and expressions used in Schedule 2, due to the statutory construction presumption that a word or expression has the same meaning throughout an act. But Parliament appears to have done all it can to displace that presumption in the case of Schedule 2. Together, sub-clauses 6(2) and (3) provide that, in determining the meaning of a provision of, or an expression used in, Schedule 2, the rest of the act is to be disregarded. And it works both ways: new s 94A of the Privacy Act provides that, in determining the meaning of an expression used in or a provision of the Privacy Act, Schedule 2 is to be disregarded. Parliament clearly intends Schedule 2 to stand alone as far as the construction of its terms is concerned. This means that, except for where Schedule 2 provides otherwise (for example, the definitions of “agency” and “court/tribunal order” in cl 6(1) of Schedule 2), case law on the construction of terms in the Privacy Act is going to be of limited assistance.

2. What is likely to be the relevance of foreign case law when interpreting the words and expressions in Schedule 2?

As many others have explained, other jurisdictions – particularly the UK, but also Canada, New Zealand, and the United States – have also developed torts for invasion of privacy, and questions arise about how influential cases from those jurisdictions are likely to be on Australian courts as our courts construe the provisions of Schedule 2.

VIEW ALL

The High Court has made clear on many occasions that statutory interpretation begins and ends with the text of the statute considered in its context, which includes legislative history and extrinsic materials: see, e.g., FCT v Consolidated Media Holdings Pty Ltd (2012) 250 CLR 503 at [39]. Among the many examples of extrinsic materials referred to in s 15AB of the Acts Interpretation Act 1901 (Cth) is the explanatory memorandum relating to the bill containing the provision to be interpreted (“EM”, see s 15AB(2)(e)).

In the case of Schedule 2, the relevant bill is the Privacy and Other Legislation Amendment Bill 2024 and the EM, as well as some other relevant extrinsic materials, can be found on that bill’s page on Parliament’s website. The EM makes clear that Parliament intends the courts, when developing the tort through case law, to “draw on key concepts from other torts, including privacy torts, in other jurisdictions”: see EM [358]. Further, EM [415] specifically refers to Naomi Campbell’s case in the House of Lords and states that the balancing exercise in cl 7(3) of Schedule 2 to the bill is similar to that identified by the House of Lords in that case. It thus seems relatively clear that Parliament intended principles developed overseas to have some bearing on the proper construction of Schedule 2.

However, this will always be subject to the text used in Schedule 2 and subject also to due regard being had to the development of those foreign principles. Construction of those parts of the text of Schedule 2 that have complements in foreign case law may well be informed by those complements, but practitioners will need to give attention to why the foreign court developed the law in the way that it did. Was it because of the influence of the Human Rights Act 1998 (UK), which essentially incorporates the European Convention of Human Rights into UK Law? Or some other domestic or international instrument that has no application in Australia? Australian courts are generally very conscious of not importing foreign doctrines that are based on a country’s domestic laws or legal framework that have no equivalent in Australia. So, there may be a limit to how much assistance Australian courts will get from, for example, UK case law to the extent that it is based on the terms of the European Convention. Practitioners will need to assess the foreign case law in its full context before assuming it can be relied on to inform the meaning of words and expressions used in Schedule 2.

3. What is the significance of the fact that Schedule 2 expressly relies on the external affairs power as the basis for its constitutional validity?

A body of foreign or international case law that may have a more legitimate claim to bearing on the construction of Schedule 2 is that relating to the implementation of the International Covenant of Civil and Political Rights (ICCPR). This is because the text of Schedule 2 itself (see cl 4) makes clear that the tort relies for its constitutional validity on the Commonwealth’s legislative power to give effect to Australia’s obligations under that treaty.

It is a recognised presumption of statutory construction that legislation is intended to be consistent with international law, and the presumption is particularly strong where an act is intended to give effect to the substance of a treaty, as Schedule 2 seeks to do with parts of the ICCPR. Paragraph [13] of the EM explicitly refers to articles of the ICCPR that the bill engages, including the right to privacy (Art 17), the right to freedom of expression (Art 19(2)), the right to freedom of conscience, thought and religion (Art 18) and the right to security of the person (Art 9). The EM makes clear that, while Schedule 2 is intended to carry the right to privacy in Art 17 of the ICCPR into effect, that right is not absolute and must be balanced with other rights, and EM [51]–[69] deal with how the privacy tort may promote or limit other ICCPR rights and why any limitation is justified.

Perry Herzfeld and Thomas Prince’s Interpretation (3rd edition, Thomson Reuters, 2024) has an excellent section in chapter 10 about principles that apply when construing an act giving effect to a treaty. One such principle is that it is intended that a treaty be given a consistent construction across the countries that have incorporated it. This means that there may be some countries besides those referred to above the case law of which provides some interpretative assistance.

Conclusion

Before practitioners go straight for the high-profile UK cases for guidance on Australia’s new statutory privacy tort, remember that Australian courts will give primary to the text and context of Schedule 2. So consider:

(i) How is the context (including treaty background) in which those cases arose similar or different to the Australian context?

(ii) How have the relevant articles of the ICCPR been construed, and are those constructions consistent with the text and context of Schedule 2?

Dr Amanda Sapienza is a barrister on Level 22 Chambers, Sydney.