The courts have intervened due to the slow legislative process. Over a decade ago, the Australian Law Reform Commission advised parliament to create a new privacy tort. Instead of promptly introducing a bill, the process has involved years of advocacy, consultations, and multiple government inquiries.
Judges sometimes find themselves in a challenging position where they must decide between conflicting interests. A notable case in the Victorian County Court involved Judge My Anh Tran, where the case concerned a woman grappling with immense trauma: her mother had attempted to kill her father, who subsequently disclosed sensitive information about their conversations during public discussions.
The daughter was devastated that her private struggles were exposed and sought the court’s help. However, Australian law lacks a tort for invasion of privacy, unlike many other countries. This means individuals cannot seek legal recourse for such violations. Although some of the father’s statements were potentially covered under the tort of breach of confidence, this offered limited protection and did not adequately address the daughter’s suffering.
Typically, a judge might express compassion for the plaintiff but would likely dismiss any privacy violation claims. While it’s unclear if Judge Tran privately wrestled with the decision, the situation echoes a question posed in Vikram Seth’s: “Do you not want to do justice?” Last week, Judge Tran responded affirmatively, delivering justice for the daughter by establishing new legal precedents. In a detailed judgment exceeding 50,000 words, she articulated the need for Australian courts to provide victims recourse for privacy invasions.
This case is both important and contentious, as new laws are usually enacted by parliament rather than the judiciary. The courts have intervened due to the slow legislative process. Over a decade ago, the Australian Law Reform Commission advised parliament to create a new privacy tort. Instead of promptly introducing a bill, the process has involved years of advocacy, consultations, and multiple government inquiries.
Recently, the government proposed a bill aimed at establishing a tort for significant privacy violations, but it is still undergoing scrutiny and debate, with no guarantee it will pass.
This context clarifies why Judge Tran acted as she did. Common law, or judge-made law, addresses gaps where legislation is unclear or absent. As judges navigate disputes, they contribute to the evolution of common law.
Developing common law can resemble a long-term tennis match. A judge may signal the need for a shift in the law, but it can take years for another case to arise where a different judge acts on that suggestion. In 2001, the High Court hinted in the Lenah Game Meats case that, should parliament neglect to create privacy legislation, common law might step in.
It’s important to note the use of “might.” The judges were cautious not to assert a definitive outcome, signaling a potential change and inviting other judges to engage. Two Victorian circuit courts judges responded in 2003 and 2007, but the matters were settled before a higher court could review them. While Judge Tran’s 2024 ruling may still be contested on appeal, it currently stands.
Thus, Judge Tran’s decision exemplifies a rare instance where common law has advanced more quickly than parliamentary action. Lawmakers should feel a sense of inadequacy akin to a sports car driver overtaken by a child on a bicycle.
This situation has also led to a familiar issue for anyone who has waited a long time for public transport: after years of anticipation for a privacy tort, two have now emerged simultaneously. This does not represent an abundance of legal options but instead presents a challenge that parliament must address.
Although Judge Tran appropriately sought to deliver justice to the daughter, it is now up to parliament to codify this privacy tort into law. Legislation enacted by parliament is fundamentally more democratic and better equipped to balance various public interests than judge-made laws. This balance is crucial regarding privacy, as any tort must protect privacy rights while also upholding freedom of expression and press freedom.
Judge Tran’s ruling should motivate parliament to take action, ensuring justice for Australians who experience significant violations of their privacy.
