In March, the Standing Committee on Law and Justice in the NSW Parliament tabled the Remedies for the serious invasion of privacy in New South Wales report.
It recommended the state government introduce a statutory cause of action for “serious invasions of privacy” enforceable by the NSW Civil and Administrative Tribunal.
The committee also proposed increasing the administrative responsibilities of the Privacy Commissioner to provide a low-cost remedy for citizens facing privacy breaches.
During a speech to mark the launch of Privacy Awareness Week last Monday, former High Court Justice Kirby called for the NSW government to adopt the report’s recommendations.
“The step urged by the NSW Parliamentary Committee to afford a new remedy for serious invasions of privacy in NSW is a wise and modest one,” he said.
“It is long overdue. Action by the courts and others cannot be anticipated, certainly in the short term.”
Mr Kirby pointed to Australia’s failure to legislate on privacy as a threat to individual freedom, leaving enormous power in the hands of the media.
“To withhold such protections from the law does not mean that lines are not drawn or that legal principles do not exist,” he said.
“It simply means that, in the equation of competing freedoms, the expression of, and defences for, the right to privacy are left substantially in the hands of those with economic, political or other power to invade it.
“This is the position in which we now find ourselves in contemporary Australia. Media and other publishers become judge and jury of their own suggested abuses.”
He suggested privacy was valuable to Australians, emphasising the necessity of protecting not just the physical space around an individual, “but also projection of the full personality, dreams, desires and fears of the individual in relation to chosen others”.
“An individual enjoys not only a public life, but also a private existence,” he said.
Mr Kirby reflected on the “inertia” of privacy legislation improvements in Australia, noting that several attempts to implement privacy legislation had been scuttled.
In particular, he blamed powerful media interests for blocking attempts at privacy reform, most recently in 2014 when the Australian Law Reform Commission tabled the Serious Invasions of Privacy in the Digital Era report.
“Once again it entered the jaws of media dangers. Once again it proposed a carefully defined statutory cause of action,” he said.
“But the federal government changed. Once again our political leaders retreated in the face of media fire and brimstone.”
Nonetheless, Mr Kirby expressed hope that this latest report from NSW would be passed into legislation.
In particular, he lauded the committee’s strong cross-party support, its low-cost model, and its clear-sighted approach to the issue.
“Leaving privacy to be whittled away by new technology and by increasing legal exceptions confirms the urgent need to reinforce the public champions for this value,” he said.
“The time has come for Australia to provide fresh remedies. Otherwise, not so long from now, we will wake up one day to find privacy, as a value in our society, has been effectively eroded because our lawmakers were inattentive, indifferent or fearful of the privacy invaders who demand that they remain judges in their own cause.”