Occasionally, judges are faced with a terrible dilemma. Before them stands an innocent victim, and yet the law doesn’t provide a clear way of achieving justice.
Judge My Anh Tran confronted this scenario in the Victorian county court. The woman who brought the case was dealing with an unimaginable trauma: her mother had tried to murder her father. The father had then written and spoken publicly about this, revealing highly sensitive information the daughter had disclosed in confidential counselling sessions and private emails with her father.
The daughter was horrified that her private trauma was laid bare, and she asked the court to intervene. The problem was that, unlike most comparable countries, Australian law doesn’t have a tort for invasion of privacy. In other words, Australians can’t seek a court’s protection when their privacy is invaded in this way. Some, but not all, of the father’s public communications were covered by the existing tort of breach of confidence – but this provided only limited protections, and did not sufficiently recognise the indignities suffered by the daughter.
The conventional path would have been for a judge to express sympathy for the plaintiff, then dismiss the claims about a violation of the daughter’s privacy. We don’t know if Judge Tran agonised privately over this case. But at some point in a lawyer’s career, they must face the question posed in Vikram Seth’s A Suitable Boy: “Do you not want to do justice?”
Last week, Judge Tran answered this question. She didn’t only do justice for the daughter, she did so by creating new law. In a judgment spanning more than 50,000 words, the judge explained why Australia’s courts should finally give victims an opportunity for justice when their privacy has been invaded.
This case is significant and controversial. New laws generally come from our parliament, not the courts.
The courts have stepped in because parliament has been so slow to act. More than 10 years ago, the Australian Law Reform Commission recommended parliament create a new privacy tort. Rather than moving straight to a bill, we’ve had years of advocacy from industry and civil society, community consultation and multiple government inquiries and reviews.
Finally, last month, the government introduced a bill to create a new tort for serious invasions of privacy. But it’s still being pored over and debated, and there’s no certainty the bill will pass.
This helps explain why Judge Tran acted in the way she did. The common law – that is, judge-made law – fills gaps where our legislation is silent or ambiguous. As they consider and decide on disputes, our judges also apply and develop the common law.
The process of developing the common law can be like a tennis match, albeit one played out over decades. The match starts when a judge drops a hint that the common law might need to shift in a particular way, but it might take many years before another case comes along where a different judge acts on the hint.
In 2001, the high court in the Lenah Game Meats case suggested that, if our parliament fails to create new legislation that would allow Australians to sue for a breach of privacy, the common law just might do so itself.
We should emphasise the word “might”. The judges were careful not to be too definitive – they were starting a tennis match, and inviting other judges to play. Two Victorian circuit court judges took up this invitation in 2003 and then in 2007, but before a higher court could consider their findings, the parties agreed to settle. Judge Tran’s 2024 decision might still be overturned on appeal, but for now it stands.
In other words, Judge Tran’s decision is a rare example of the common law moving less slowly than our parliament. MPs should feel the same embarrassment the driver of a sports car feels when overtaken by a kid on a pushbike.
This has also created a problem familiar to anyone who has spent hours at a bus stop: having waited decades for a privacy tort, now two have come along at once. Rather than an embarrassment of legal riches, this creates a problem that only our parliament can resolve.
While Judge Tran was right to offer justice to the daughter, now parliament should take responsibility for putting this privacy tort in legislation. Laws made in our parliament are inherently more democratic, and often better able to balance the competing public interest considerations, than judge-made laws. This balance is particularly significant in the context of privacy, because any tort must both protect the right to privacy and also uphold freedom of expression and freedom of the press.
Judge Tran’s judgment should spur our parliament into action, by enabling justice for Australians who suffer serious invasions of their privacy.
• Prof Edward Santow served as Australia’s human rights commissioner from 2016-2021. He and Sarah Sacher work at the UTS Human Technology Institute
