Minister for Privacy and Freedom of Information Brendan O'Connor today released the Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy. I haven't had a close look but it appears to pull together ground covered in the three law reform commission reports that recommended legislation. The commissions had their own consultative processes before reaching that conclusion, so it's ground hog day for those who take an interest. Contrary to what you might soon read in some coverage the media is not the central focus. Responses are invited by 4 November to 19 questions. Law degrees are not meant to be a mandatory requirement for participation.
1. Do recent developments in technology mean that
additional ways of protecting individuals’ privacy should be considered in
Australia?
2. Is there a need for a cause of action for
serious invasion of privacy in Australia?
3. Should any cause of action for serious invasion
of privacy be created by statute or be left to development at common law?
4. Is ‘highly offensive’ an appropriate standard
for a cause of action relating to serious invasions of privacy?
5. Should the balancing of interests in any
proposed cause of action be integrated into the cause of action (ALRC or
NSWLRC) or constitute a separate defence (VLRC)?
6. How best could a statutory cause of action
recognise the public interest in freedom of expression?
7. Is the inclusion of ‘intentional’ or ‘reckless’
as fault elements for any proposed cause of action appropriate, or should it
contain different requirements as to fault?
8. Should any legislation allow for the
consideration of other relevant matters, and, if so, is the list of matters
proposed by the NSWLRC necessary and sufficient?
9. Should a non-exhaustive list of activities
which could constitute an invasion of privacy be included in the legislation
creating a statutory cause of action, or in other explanatory material? If a list were to be included, should
any changes be made to the list proposed by the ALRC?
10. What
should be included as defences to any proposed cause of action?
11. Should particular organisations or types of
organisations be excluded from the ambit of any proposed cause of action, or
should defences be used to restrict its application?
12. Are the remedies recommended by the ALRC
necessary and sufficient for, and appropriate to, the proposed cause of action?
13. Should the legislation prescribe a maximum
award of damages for non-economic loss, and if so, what should that limit
be?
14. Should any proposed cause of action require
proof of damage? If so, how should
damage be defined for the purposes of the cause of action?
15. Should any proposed cause of action also allow
for an offer of amends process?
16. Should any proposed cause of action be
restricted to natural persons?
17. Should any proposed cause of action be
restricted to living persons?
18. Within what period, and from what date, should
an action for serious invasion of privacy be required to be commenced?
19. Which forums should have jurisdiction to hear
and determine claims made for serious invasion of privacy?
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