Introduction

At first glance, there appears to be fairly extensive statutory regulation of individual privacy in Australia. Closer investigation reveals that such regulation is generally aimed at ‘the fair handling of personal information’ (‘information privacy’). This leaves unregulated other aspects of privacy, such as the invasion of the personal space of an individual (‘intrusion on seclusion’). The legislation's application may also be restricted to particular bodies (such as public sector agencies), while its enforcement mechanisms are likely to be directed principally to the implementation of the principles, standards, rules and procedures it prescribes, rather than to the provision of remedies aimed at redressing individuals for harm they have suffered as a result of its infringement. This lack of focus on individual redress is not met by any general protection of privacy in private law. Traditionally, as is well known, there is no tort of invasion of privacy at common law. Nor does equitable doctrine extend to protect privacy as such.

Calls for the more general protection of privacy in modern law are usually sourced to a famous article of Warren and Brandeis in 1890. Over a century later, that call remains largely unheeded, at least in Australia. But times may be changing. Legislatures have begun to recognize a ‘right’ to privacy in human rights charters; the pressure for the protection of individual privacy is apparent in case law; and recent reviews of privacy in Australia and New Zealand have mooted, or called for, the development of a statutory action for invasion of privacy.