The Judicial Law-Making Function and a Tort of Invasion of Personal Privacy

Abstract

There has long been debate about whether there should be a tort of invasion of personal privacy. While the debate has traditionally focused on the precise formulation of the tort, consideration of whether the tort’s advancement would be within the bounds of the judicial law-making function has been largely overlooked. Extant literature validly points out that invasions of privacy are now commonplace in our technological society. However, societal change alone is unlikely to be sufficient to justify the establishment of a new tort. This article explores whether there is a more principled justification for the common law development of a tort of invasion of personal privacy by critically assessing whether it can be integrated into the underlying foundations of contemporary Australian tort law. It is argued that upon an acceptance that the rights-based theory provides a leading account of Australian tort law, it can be determined that the judicial advancement of a tort of invasion of personal privacy would be justified and legitimate.