State Uproar Over Gillard Plan To Expose All Public Agencies To Civil Suits
Article courtesy of The Australian – CHRIS MERRITT
28 July 2011
Every public sector agency, federal and state, could be sued over privacy breaches under a proposed civil action being considered by the Gillard government.
The prospect of a wave of litigation triggered by Canberra’s planned privacy tort led to furious protests by the states yesterday.
The governments of Victoria and Western Australia called for Canberra to rule out any changes that would expose their agencies to litigation.
Victorian Attorney-General Robert Clark said: “Poorly designed commonwealth privacy laws imposed on state government agencies could cost Victorian taxpayers considerable sums of money in compliance costs and in potential damages.”
Under the plan being considered by federal Privacy Minister Brendan O’Connor, a proposed privacy tort could be used against all government agencies. At present, there is no provision under the Privacy Act.
The plan is outlined in a 2008 Australian Law Reform Commission report that Mr O’Connor has said will form the basis of an issues paper on his privacy plans.
The report recommends that state and territory public sectors be included in a federal tort.
Victoria and Western Australia said they were not consulted before Mr O’Connor began a media blitz aimed at promoting the government’s plan for the new federal tort to enable people to sue each other — and the media — for serious invasions of privacy.
The backlash from the states over the privacy tort comes after the government’s plan triggered moves backed by independent senator Nick Xenophon to end the exemption for political parties from privacy laws.
When informed of the concerns of the states, Mr O’Connor’s office issued a statement saying the minister stood by his earlier statement that while the issues paper on the privacy tort would be based on the ALRC report, “it won’t be confined to those recommendations alone”.
As well as exposing state and federal government agencies to damages claims, the ALRC’s plan is at odds with legal changes introduced almost a decade ago aimed at easing the risk of legal liability facing government agencies.
If the plan is implemented, it would be easier to sue most state government agencies for breaches of privacy than to sue them over negligence that causes physical injuries. Mr Clark said his government would be very concerned by any move by the commonwealth to extend privacy laws to regulate the state public sector.
“If poorly thought through, it could inhibit the proper and legitimate exchange of information between state government agencies such as law enforcement,” Mr Clark said.
While the proposed federal tort is aimed at protecting “serious” invasions of privacy, Mr Clark said there was “a serious risk with open-ended phrases that there will be unintended consequences”.
His views are in line with those of West Australian Attorney-General Christian Porter.
“The Western Australian public sector should not be legislated for by the commonwealth,” Mr Porter said.
He said the federal government had previously proceeded on the basis that privacy regulation of state and territory public sectors would remain the legislative responsibility of state governments.
But Queensland Attorney-General Paul Lucas said the law of negligence applied to the states “and so should any statutory tort of privacy”.
“I can’t comment on whether that should be through federal co-operative legislation or state legislation until . . . we see what the details of the commonwealth proposal are,” Mr Lucas said.
The report being considered by Mr O’Connor says the federal government has sufficient constitutional power for its legislation to cover state government agencies as well as the commonwealth.
“The statutory cause of action for invasion of privacy should be in federal legislation and should cover federal agencies, organisations and individuals,” the ALRC told the federal government in its 2008 report.
“As no states or territories currently have a statutory cause of action for invasion of privacy, failure to extend the coverage of the cause of action to state and territory public sectors would result in gaps in coverage.”
The commission’s plan differs sharply from the normal law governing the liability of government agencies. Unlike claims for physical injuries, payout for breaches of the privacy tort would be made even if the invasion of privacy caused no damage.
The privacy tort would also clash with some of the “tort reforms” that were introduced by state governments almost a decade ago to end excessive damages claims and address a blow-out in insurance premiums. Those changes introduced a higher threshold test when negligence claims were brought against most government agencies.
Plaintiff lawyer Tom Goudkamp, managing director of Stacks Goudkamp, said: “This has made it almost impossible to sue local councils over potholes that cause injuries unless you can prove somebody had actual knowledge of the risk.”
The states introduced those tort reforms after former NSW chief justice Jim Spigelman criticised excessive damages payouts and warned that the law of negligence had become “the last outpost of the welfare state”.
The test for negligence in most of the state public sectors now focuses on whether a reasonable government agency in the position of the agency being sued could have foreseen the damage caused by its actions. But for the privacy tort, the test for liability proposed by the ALRC places more weight on the views of a judge. The test for the privacy tort would require a judge to decide whether there was a “reasonable expectation of privacy”.
While the privacy tort could be brought against all public-sector agencies, the ALRC has recognised that constitutional limitations mean top state officials and ministers will be beyond its reach.