The Australian Law Reform Commission’s (ALRC) long-awaited final report on privacy invasion includes a detailed plan for a new course of action.

It says while no legal protection exists currently, serious invasions of privacy are occurring with “increasing ease and frequency” in the digital age.

“The mobile phones in our pockets are all potential surveillance devices, drones are becoming cheaper and more advanced and personal information once put online seems impossible to destroy or forget.”

A cause of action – a set of criteria for launching a lawsuit – would bring Australia into line with New Zealand, the UK, the US and Canada.

But how would it work, and when would it be implemented?

The invasion must be intentional or reckless, and the plaintiff must have had a reasonable expectation of privacy, the report says.

A court must consider the invasion serious, taking into account whether it was highly offensive, distressing or harmful.

It must also be satisfied that the public interest in privacy outweighs any countervailing public interest, such as freedom of expression, freedom of the media and national security.

If the recommendations are adopted the consequences could be far-reaching, raising the spectre of class actions against companies that have mishandled personal information.

During consultation on the report, a major concern for the insurance industry was that a cause of action could restrict its ability to carry out surveillance against suspected fraud.

In a submission to the ALRC the Insurance Council of Australia (ICA) argued it is “crucial that workable defences are provided... to avoid unwarranted interference with legitimate commercial interests, such as those of insurers”.

ICA proposed a specific defence for this purpose, but the ALRC has dismissed this suggestion.

However, it acknowledges that safeguards against fraudulent claims are in the interests of all policyholders.

“The defence that the conduct was required or authorised by law is wide enough to cover these circumstances,” the report says.

“In addition, the ALRC considers that individuals or organisations that engage in such conduct may be protected from liability under the public interest balancing test.”

ICA GM Regulation and Policy John Anning told insuranceNEWS.com.au it is vital to safeguard surveillance to detect fraud.

“The ALRC accepted that without question, albeit via a different approach,” he says.

“We understand the logic of that and it seems reasonable to us. We never took a position on whether there should be a right to privacy – that’s outside our remit.

“But we are satisfied with the outcome.”

The ICA submission also warned of the new tort’s possible impact on claims costs.

“For example, the tort would provide another avenue for which policyholders, primarily in relation to public liability cover, can be sued and for which insurers may have to indemnify under their policies.

“If a new tort does result in an increase in claims costs, insurers would need to reflect the greater risk by specifically excluding the tort from coverage or re-evaluating the premium.”

Mr Anning told insuranceNEWS.com.au the issue is still a concern, “but it would very much depend on how the right to privacy was translated into legislation”.

This may not be a worry any time soon.

The ALRC report was commissioned by the previous Labor government, and current Attorney-General George Brandis has already noted he is not in favour of a new course of action.

Indeed, law firm Allens believes it is highly unlikely the Coalition will implement any of the report’s plans.

“This is the second occasion in six years that the ALRC has made similar recommendations,” it says. “This latest proposal looks destined for the same fate as the last.”