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Australia – Privacy Or Public interest? Supreme Court Of SA Finds No Duty Of Privacy.

3 May, 2013

 

Context

 

Privacy protection may arise in two ways under Australian law.

 

The collection and disclosure of personal information within the private sector and within the Commonwealth public sector is subject to regulation by the Privacy Act 1988 (Cth). Statutory protection also exists in some jurisdictions in respect of the State or Territory public sectors.

 

The case of Sands v State of South Australia dealt with the handling of personal information within the South Australian public sector. South Australia is a jurisdiction which does not have privacy or data protection legislation regulating the handling of information within its public sector. Nevertheless South Australia does have an Administrative Instruction (PCO12- Information Privacy Principles Instruction), issued by the Department of the Premier and Cabinet, which requires government agencies to comply with a set of privacy information principles similar to the information privacy principles currently contained in the Privacy Act 1988 (Cth).

 

Whether or not there is a general right to privacy at common law, regardless of the existence of any statutory protection, has been the subject of considerable debate over many years.
 

It has traditionally been accepted that the common law in Australia does not recognise a general right of privacy. This was determined initially by the High Court in Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479. In recent years, there have been indications that courts might be sympathetic to acknowledging privacy rights in certain situations.

 

Specifically, in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, the High Court indicated that the decision in Victoria Park “does not stand in the path of the development of … a cause of action [for invasion of privacy]”. The elements of such a cause of action remained open to question.

 

Conflicting interpretations of the implications of Lenah Game Meats followed. The District Court of Queensland was supportive in Grosse v Purvis [2003] QDC 151, but the Victorian Supreme Court was less supportive of the existence of a common law privacy right in Giller v Procopats [2004] VSC 113.

 

In Jane Doe v ABC [2007] VCC 281, the Victorian County Court awarded damages to a rape victim for breach of statutory duty, negligence and breach of confidence and breach of privacy. Her Honour considered that Giller did not stand in the way of the court following Grosse.

 

As a result of these divergent decisions, any common law privacy right in Australia remains at best illdefined and incomplete.

 

In 2008, the Australian Law Reform Commission recommended the creation of a statutory privacy right in Australia. In 2011, the Department of the Prime Minister and Cabinet released an Issues Paper entitled A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, in which submissions were sought as to the desirability of the creation of such a right. There has been no subsequent government initiative, however, to continue the debate.

 

The Sands case

 

The Sands case related to publications and statements allegedly made by the South Australia Police Force in connection with their investigation into the 1997 murder of Corinna Marr. Sands claimed that, by leaking his name to the media and through a subsequent media release and press conference (which did not name him), the South Australia Police Force had made publications and statements containing defamatory imputations with respect to the plaintiff, including that:

 

 

  • there were strong grounds to suspect that the plaintiff had murdered Ms Marr;
  • alternatively, there were reasonable grounds to suspect that the plaintiff had murdered Ms Marr; and
  • the plaintiff had so conducted himself so as to warrant the suspicions set out above.

 

Kelly J, in the Supreme Court of South Australia, after dealing with the allegations of defamation, turned to the remaining causes of action pleaded – namely a breach of a statutory duty arising under the Criminal Law (Forensic Procedures) Act 1998 (SA) and breaches of duties of care, confidentiality and privacy owed to the plaintiff.

 

In relation to breach of privacy, the plaintiff relied on a decision of the Victorian County Court in Doe v Australian Broadcasting Corporation [2007] VCC 281. In that case, Hampel J interpreted the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 as setting out a test for the circumstances in which a duty of confidentiality or privacy may be breached.

 

Kelly J disagreed with the decision in Doe, saying that the Court’s reliance on the Lenah Game Meats case had been misplaced and suggesting that the Lenah Game Meats decision indicated a further development in the law would be required in order to acknowledge the existence of a tort of privacy in Australia.

 

In any event, Kelly J distinguished the facts in Doe on the basis that, in that case, a statutory duty was owed to a victim of crime to establish protection from publication of personal details of the victim by the media.

 

Kelly J went on to identify the following further reasons mitigating against a finding of breaches of any duty of confidentiality or privacy:

 

  • a suspect “cannot claim that he or she has a right to privacy in respect of any information that might inculpate them in the commission of a serious offence”;
  • the only disclosures made by the South Australia Police Force were in the course of taking a lawful step in the course of the investigation – and one which was occasioned by the plaintiff’s refusal to voluntarily provide a fingerprint sample; and
  • any suggestion that the police must keep confidential and private the fact that a person is a suspect in a criminal matter would be in conflict with the duties of the police to properly investigate serious crimes.

 

On this basis, Kelly J dismissed the plaintiff’s claims in relation to breaches of duty of privacy, confidence and care.
 

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For further information, please contact:

 

Tim Brookes, Partner, Ashurst
tim.brookes@ashurst.com

 

Gordon Hughes, Partner, Ashurst
gordon.hughes@ashurst.com

 

Amanda Ludlow, Partner, Ashurst
amanda.ludlow@ashurst.com

 

Jane Burton, Ashurst
jane.burton@ashurst.com

 

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