The Silver Obligation

Abstract

The Privacy Act 1988 (Cth), Schedule 2 establishes a statutory tort of serious invasion of privacy, actionable without proof of damage. Where a plaintiff establishes the tort but cannot prove material loss, the court awards compensation under Schedule 2, section 11, a provision silent on denomination. This article argues that denomination is governed by common law nominal damages principles, that the common law convention denominated such damages in silver coin, and that the convention survives.

The Currency Act 1965 (Cth) presents two distinct objections. Section 10 converts pre-decimal monetary references in documents and instruments; the nominal damages convention was never expressed in any instrument and was not reached. Section 11 requires payment in Australian currency; it governs the medium of payment, not the computation of quantum. The silver convention governs quantum — the nominal award equals the silver content of one pre-1946 Australian shilling expressed in Australian dollars at spot price on the date of judgment. Payment in Australian dollars satisfies Currency Act s 11 without displacing the convention.

In Eastbrook v Medibank Private Ltd [2030] FCA 1843, the Federal Court approved a class action settlement arising from the 2022 Medibank breach, noting at the settlement approval hearing that the silver denomination argument was “at least arguable” and approving a silver-denominated component accordingly. No court has resolved the question on the merits. This article contends the silver position is correct.

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I. Introduction

The question whether nominal damages under the statutory privacy tort are denominated in silver has moved from theoretical curiosity to active litigation. Eastbrook v Medibank Private Ltd [2030] FCA 1843 established that the argument is at least arguable; the subsequent settlement left the merits unresolved. This article sets out the case for the silver position and examines the aggregate exposure for entities whose mass breach events preceded any legislative clarification.

The Medibank breach of 2022 affected approximately 9.7 million individuals; the Optus breach of the same year, 9.8 million. On the per-person characterisation of the nominal damages obligation, the aggregate silver exposure across both breaches exceeds AUD $255 million. The Optus proceedings, now ten years on from the breach, have progressed to the damages assessment phase; the denomination question has been flagged as a discrete issue to be resolved before quantum can be assessed.

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II. The Statutory Tort and the Denomination Gap

The Privacy Act 1988 (Cth), Schedule 2 establishes a tort of serious invasion of privacy.¹ The elements are: a reasonable expectation of privacy in the information or conduct in question; a serious invasion of that expectation by the defendant’s conduct; and absence of justification by a competing interest of sufficient weight. The statutory tort is actionable without proof of damage — the invasion is the wrong, and consequential loss is not a prerequisite to liability.²

On establishing the tort, the court awards compensation under Schedule 2, section 11.³ The provision is silent on denomination. No case since 2024 has addressed the question; every award and every settlement has been expressed in Australian dollars without that denomination being contested.⁴

Where a statute is silent, courts reach to common law principles. The common law position for plaintiffs who establish a legal wrong but cannot prove consequential loss is that nominal damages are awarded as token acknowledgment of the breach. At common law, nominal damages were denominated in silver coin — a silver shilling being the conventional vehicle — not because any rule so provided, but because that was the currency in circulation.⁵ The denomination question arises when the silver convention is asserted in the gap that Schedule 2, section 11 leaves open.

There is a structural advantage to this pathway that did not exist under the old section 52 Commissioner’s determination mechanism. Under section 52, the Commissioner — as an administrative decision-maker applying a statutory scheme — had no obvious basis to import a common law judicial convention. The gap-filling logic runs from courts to courts, not from courts to administrative tribunals. Schedule 2, section 11 vests the compensation function in the court. The common law nominal damages convention travels naturally to that jurisdiction.

APP 6 typically supplies the underlying breach. Most mass data breach events involve the use or disclosure of personal information for a purpose other than that for which it was collected, in breach of APP 6. A plaintiff may plead both the statutory tort and an APP 6 breach. For individuals who cannot establish material loss — the majority of those affected by mass breaches — the statutory tort count is the path to nominal damages governed by common law.

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III. The Common Law Convention and the Currency Act

The common law convention denominating nominal damages in silver coin was never stated as a rule — it was the natural consequence of awarding the smallest coin of practical significance as token acknowledgment of a proven wrong. In Constantine v Imperial London Hotels Ltd [1944] KB 693, Birkett J awarded five guineas in the absence of proved material loss; for purely nominal awards the conventional figure was smaller still. Whether the amount was one shilling or some other token sum, the coin was silver, and the convention reflected the composition of the currency rather than any deliberate doctrinal choice.⁵

The question is whether that convention survived the transition to decimal currency in 1966. The Currency Act 1965 (Cth) is the primary objection. It has two relevant provisions, which must be addressed separately.

Section 10 is headed “References to previous currency to be construed as references to currency under this Act.” It operates on documents and instruments: a reference in any document or instrument to an amount in pre-decimal currency shall be read as a reference to the equivalent decimal amount. Currency Act s 10 converts written pre-decimal monetary references. The common law nominal damages convention was never expressed in any document or instrument. It was the background practice of courts imposing a remedy — not a term that anyone wrote down, not a provision of any instrument. Section 10 has nothing to reach.

Section 11 of the Currency Act provides that every payment is to be made in currency under this Act — that is, in Australian dollars. Currency Act s 11 speaks to the medium of payment, not to the computation of quantum. The silver convention governs quantum: the nominal award equals the silver content of one pre-1946 Australian shilling, expressed in Australian dollars at spot price on the date of judgment. Once that quantum is computed, the payment is made in Australian dollars. Currency Act s 11 is satisfied. The convention determines how the figure is calculated; Currency Act s 11 determines the currency in which the figure is paid. These are distinct operations, and Currency Act s 11 does not disturb the former.

The broader implied repeal argument — that the Currency Act’s general decimal monetary framework impliedly abrogated the convention — is weaker than either specific provision. Implied repeal requires inconsistency between the later provision and the earlier rule. The Currency Act places Australian monetary obligations on a decimal footing; it does not address the quantum or denomination of court-ordered remedies. The Act expresses no purpose directed at judicial remedies; the inconsistency required for implied repeal cannot be established.

A court might hold that a practice adopted for incidental reasons — the historical composition of currency in circulation — dissolves when those reasons no longer obtain, without any need for express abrogation. The better view is that common law rules are not treated as having lapsed through obsolescence; they require abrogation. A court holding today that the silver denomination convention dissolved into a decimal monetary framework that has itself been substantially displaced in commercial practice⁶ would be extending the Currency Act’s logic well beyond its evident purpose.

The gap — Currency Act s 10 not reaching the convention, Currency Act s 11 satisfied by AUD payment, implied repeal not sustained — has existed since 1966. The statutory tort’s introduction in 2024 created a cause of action in which the gap becomes practically significant.

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IV. The Eastbrook Proceedings

Eastbrook v Medibank Private Ltd was commenced in 2025 as a representative complaint on behalf of individuals whose health information had been exfiltrated and published following the 2022 Medibank breach. The proceedings were brought under the Privacy Act’s statutory tort. Among the relief sought was nominal damages under the statutory tort on behalf of all class members who could not establish material loss — denominated in silver, at the rate of one pre-1946 Australian shilling per affected individual, expressed as the silver content of that shilling at the date of judgment.

The proceedings settled in 2030–31 and came before Tran J at a settlement approval hearing. The court was required to assess whether the plaintiffs’ claims had sufficient prospect of success to support approving the settlement at the proposed value.⁷ In addressing the silver-denominated component, her Honour stated:

The denomination of nominal damages at common law has not been resolved by any Australian authority. The plaintiffs’ contention — that the common law convention denominated such damages in silver coin, and that that convention was not reached by section 10 of the Currency Act 1965 (Cth) and has not otherwise been abrogated — cannot be characterised as unarguable. Whether it is correct is a question for another court.

The silver-denominated component of the settlement was approved on that basis: not a finding on the merits, but a conclusion that the claims were not valueless and the settlement was not being struck at zero.⁸

The settlement deed has not been made public. It has been reported, and not denied, that silver-denominated payments were made to class members as part of the settlement. Whether those payments represented acceptance of the legal argument or commercial resolution of an uncertain claim is not publicly known.

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V. Aggregate Exposure

For entities facing retrospective privacy tort claims, the calculation proceeds from the following inputs.

The pre-1946 Australian shilling contains approximately 5.23 grams of fine silver (92.5% of 5.655 grams total weight). At current spot prices of approximately AUD $2.50 per gram,⁹ the silver content of one pre-1946 shilling has a present value of approximately AUD $13.08.

On the per-person characterisation — each affected individual holds a separate cause of action; the nominal damages obligation attaches to each:

• Medibank 2022 breach: 9.7 million affected individuals at $13.08 = approximately AUD $126.9 million in silver obligations
• Optus 2022 breach: 9.8 million affected individuals at $13.08 = approximately AUD $128.2 million in silver obligations

Those figures represent nominal damages only, without regard to any claimant who can establish material loss. They are also subject to the unresolved composition question: if the post-1946 50% silver standard applies, the figures approximately halve.¹⁰ On any formulation, the aggregate exceeds any compensation award in the history of Privacy Act enforcement.

Whether courts will accept the per-person characterisation is unresolved. The better view is that the statutory tort — like defamation — is committed separately against each person whose private information is taken, each plaintiff having a distinct cause of action to which the nominal damages obligation attaches separately. If a single systemic breach generates one nominal award rather than one per affected person, the aggregate figures change substantially. Eastbrook settled before that question was resolved.

Settlement approval in Eastbrook means that entities whose mass breaches are the subject of extant privacy tort proceedings cannot treat the silver exposure as zero.

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VI. Objections Considered

Five objections merit consideration.

The principle of legality runs in one direction

The Coco principle — that courts will not construe general statutory language as reaching fundamental common law rights absent clear expression — is directed at protecting individuals from inadvertent statutory erosion of rights. The objection is that deploying it to impose archaic denomination requirements on regulated entities inverts its purpose. The force of this objection is limited: the silver argument does not depend on the Coco principle. The statutory tort creates the cause of action; the court’s gap-filling jurisdiction under Schedule 2, section 11 creates the path to the common law convention; and the convention’s survival turns on the Currency Act analysis in Section III, not on any fundamental rights principle.

Implied repeal by the Currency Act

This objection is addressed in Section III. Neither specific provision reaches the convention, and the broader inconsistency argument fails because the Currency Act expresses no purpose directed at court-ordered remedies.

Practical impossibility

Pre-decimal shillings are demonetised. Two responses are available. The first is that demonetisation extinguishes the form, not the substance: the obligation was always to deliver silver — the coin was its convenient vehicle — and it survives as silver content at spot price, expressed in Australian dollars.

The second addresses a variant: that demonetisation requires face-value conversion at the official 1966 rate, producing an obligation of approximately ten cents per plaintiff. That analysis fails because it applies Currency Act s 10 to something the provision does not reach. The nominal damages convention was never expressed in any instrument, was not converted in 1966, and is not subject to face-value conversion now. Courts assessing commodity-denominated or demonetised obligations in current commercial litigation have applied spot-price valuation rather than historical face value.¹¹ The nominal damages obligation is amenable to the same treatment.

De minimis

The aggregate figures in Section V answer this objection. The figure is not trivially small at any characterisation of the obligation.

The convention was copper, not silver

Pre-decimal courts sometimes awarded a farthing or penny — copper coins — as nominal damages. If the convention was any small coin rather than specifically a silver shilling, and if a farthing is the applicable denomination, the silver characterisation is not supported by the historical evidence. In current commodity markets this objection has an unusual aspect: copper now trades at a significant premium to silver, so a copper characterisation would produce a larger obligation rather than a smaller one.¹² The objection is pressed by claimants who prefer copper, not by defendants seeking to minimise exposure.

The response is that the shilling, not the farthing, was the smallest coin of practical significance in the pre-decimal era. The farthing was effectively withdrawn from circulation in England in 1960 and had ceased to be a meaningful unit of account well before that date; Australian courts in the decade before decimalisation would not have awarded a farthing as a nominal sum. The shilling was the conventional vehicle. Whether that characterisation is correct as a matter of historical practice is a question on which no Australian authority speaks directly. This article proceeds on the silver basis.

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VII. Conclusion

The silver argument has moved from a question nobody had thought to ask to active litigation and, in Eastbrook, a confidential settlement with a silver-denominated component approved by a court. No court has accepted it on the merits; no court has rejected it either. The ALRC, in its 2031 review of the Privacy Act, noted the Eastbrook proceedings but declined to recommend legislative clarification, expressing the view that the question was better resolved by the courts.¹³ Parliament has not acted.

The argument is sound. The remaining question is whether a court reaches it before Parliament does.

Footnotes

1. Privacy Act 1988 (Cth), Sch 2 (inserted by the Privacy and Other Legislation Amendment Act 2024). The elements of the statutory tort as enacted: a reasonable expectation of privacy in the information or conduct in question; a serious invasion of that expectation; and absence of justification by a competing interest of sufficient weight. The statutory framework drew substantially on the model developed in the UK under the misuse of private information tort and on the ALRC’s 2023 recommendations. ↩

2. Privacy Act 1988 (Cth), Sch 2, s 7(1). The tort is actionable per se; a plaintiff need not prove actual damage as a prerequisite to liability. ↩

3. Privacy Act 1988 (Cth), Sch 2, s 11. The court may award compensation for loss or damage suffered by the plaintiff. The provision is silent on denomination; it addresses the availability of the remedy, not how the quantum is to be computed or expressed. On its face it does not displace common law principles governing the form of a court-ordered award. ↩

4. The denomination question did not arise in the tort’s early years for structural reasons. The Commissioner’s substantially enhanced civil penalty powers — penalties of up to $500 million for serious or repeated interferences with privacy — made the penalty pathway the focus of both regulatory action and representative litigation strategy in the period 2025–29. Currency instability created its own complications: penalty notices denominated in AUD presented enforcement difficulties as the real value of fines fluctuated, and the legislative move toward commodity-indexed or fixed-quantity penalties was under active consideration but not yet enacted. In that environment, nominal damages denomination was not a priority issue for plaintiff firms. Eastbrook was the first proceeding in which the aggregate class size made the silver argument economically material enough to run. ↩

5. No single authority fixes the nominal damages figure at one shilling; the convention reflects the background assumption of pre-decimal courts that a silver shilling was the appropriate vehicle for token acknowledgment of a proven wrong. The sixpence was also silver and smaller, but it had ceased to be a meaningful unit of account in Australian legal practice well before decimalisation; nominal awards in the relevant period are expressed in shillings, not sixpences. Constantine v Imperial London Hotels Ltd [1944] KB 693 illustrates the broader principle: Birkett J found the defendant had breached its common law duty to receive travellers but awarded only five guineas in the absence of proved material loss, the award acknowledging the breach rather than compensating a quantified harm. The farthing, while appearing in English nominal awards in earlier centuries, had ceased to be a unit of practical account in Australian courts well before decimalisation. Gold-denominated awards are in any event unavailable in the present environment. The Currency (Gold Reserves) Act 2028 (Cth) vested all privately held gold in the Commonwealth and prohibited private acquisition or holding, enacted in connection with Australia’s participation in bilateral gold-settlement arrangements for sovereign obligations following the collapse of the post-Bretton Woods reserve currency framework. A nominal award in guineas — or in any gold denomination — could not be satisfied; neither plaintiff nor defendant may lawfully hold the commodity. The silver characterisation is accordingly the operative common law reference point for any court presently. ↩ ↩²

6. Commodity-denominated obligations — silver, copper, and energy units — are now standard in large Australian commercial contracts. AUD denomination remains the norm for routine transactions and court proceedings. ↩

7. Eastbrook v Medibank Private Ltd [2030] FCA 1843 (Tran J). The judgment was delivered at the settlement approval hearing. Under s 33V of the Federal Court of Australia Act 1976 (Cth), a representative proceeding may not be settled without the court’s approval; the court must be satisfied the settlement is fair and reasonable having regard to the claims made on behalf of group members and their prospects of success. The “at least arguable” finding went directly to that assessment. The silver denomination argument was one of several issues addressed in the judgment. The other points are not relevant here. ↩

8. Eastbrook [2030] FCA 1843, at [67]. Her Honour continued: “The defendants’ submission that the asserted obligation is implausible at scale is not a basis for withholding approval. Significant but quantifiable obligations that have not previously been the subject of litigation are not, for that reason alone, unarguable.” ↩

9. London Bullion Market Association spot price, silver, converted to Australian dollars at the prevailing rate as at the date of publication. ↩

10. The pre-1946 Australian shilling was minted at 92.5% fine (5.655g total, 5.23g pure silver). From 1946, Australian shillings were struck at 50% fine (5.655g total, 2.83g pure silver); the 1945 mintage was struck at the sterling standard but entirely withdrawn and melted, none entering circulation. The applicable standard — whether the obligation runs to the original composition or the debased post-1946 version — has not been addressed in any authority. This article uses the pre-1946 figure on the basis that the common law convention predates the debasement and the original composition is the more legally accurate reference point, though the post-1946 figure is the more conservative basis. ↩

11. The migration of large commercial contracts to commodity denomination created the litigation context in which this body of Full Federal Court authority developed. It proceeds on the basis that valuation is at spot price at the date of satisfaction, not at historical face value or official conversion rates. No authority has applied these principles to court-ordered nominal damages; this article contends the logic extends naturally to that context. ↩

12. At the date of publication, refined copper spot prices exceed silver spot prices on a per-gram basis, reflecting sustained industrial demand against constrained supply. The inversion of the historical silver/copper price relationship has made the choice of conventional coin a live issue in the Optus proceedings in a way it was not in Eastbrook. ↩

13. Australian Law Reform Commission, Privacy Act Review: Second Report (Report No 147, 2031), at [8.44]–[8.47]. The Commission observed that “the question of whether nominal damages under the privacy tort are denominated in silver has been raised in litigation and has not been resolved. The Commission takes no position on the merits of the argument, which raises questions of private law outside the Commission’s present terms of reference.” The Commission recommended that the Attorney-General consider whether clarifying legislation was appropriate but made no firm recommendation, noting that premature legislative intervention might itself be read as an acknowledgment of the obligation. ↩

@misc{hollows2026thesilve,
  author = {Hollows, Peter},
  title  = {{The Silver Obligation}},
  year   = {2026},
  month  = mar,
  url    = {https://dojo7.com/2026/03/20/silver-obligation/}
}