An open-ended action?

5.74 Some stakeholders submitted that the new tort should be framed more broadly—that it should not be confined to intrusions upon seclusion and misuse of private information. They favoured a single cause of action, often because this was thought to make the action more flexible—that is, open to invasions other than by misuse of personal information or intrusion upon seclusion.^[85] Witzleb, for example, said the action should be formulated broadly, to leave its further development to the courts.^[86] The Australian Privacy Foundation likewise said that introducing two torts may result in some privacy breaches not being covered.^[87] The Office of the Australian Information Commissioner (OAIC) supported the enactment of ‘a single and comprehensive tort’, rather than one confined to intrusion upon seclusion and misuse of private information. The OAIC said that confining the tort ‘risks leaving gaps in privacy protection’ and makes the tort less flexible and adaptive to new technologies and practices’.^[88]

5.75 Other stakeholders stressed the need for certainty. For example, Telstra submitted that the categories of conduct caught by any cause of action ‘should be listed exhaustively, using unambiguous and objective terms, in order to reduce the uncertainty and impact that the introduction of such a cause of action would cause to businesses and service providers’.^[89]

5.76 The ALRC considers that the Act should provide as much certainty as possible on what may amount to an invasion of privacy. This will make the scope of the action more predictable and targeted. The ALRC recommends that the new tort should not be broadly drafted to capture all invasions of privacy, but rather should be confined to the two more precisely defined types of invasion of privacy that are the key mischief that the cause of action is designed to remedy. Arguing for even greater prescription and certainty than the ALRC recommends, Professor Kit Barker submitted that

generalised causes of action give great discretion and little guidance to judges. More discrete, lower-level rules provide higher levels of guidance and greater predictability. Joseph Raz is notorious for preferring rules to general principles for precisely these reasons. They give greater respect to the rule of law.^[90]

5.77 As discussed below, greater guidance could, in theory, also be achieved by enacting two separate and tailored causes of action, but the ALRC considers this to be unnecessary.