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Wednesday, June 12, 2013

Privacy cause of action: reference redux for ALRC

At 9 this morning I gave the Opening Address to the Privacy Reform and Compliance Forum in Sydney titled "Privacy Law Reform – Is that all there is?"

On the statutory cause of action for breach of privacy I said:
As part of the media reform package the Minister announced in March it was to be sent off to the ALRC, from whence it came, for further examination. Now presumed dead?  Not quite. But highly likely. Senator Brandis in a series of exchanges with Professor Croucher of the ALRC in Senate Estimates two weeks ago led with over 70 queries, corrections and challenges on where this stands at present. My short summary of all this:
'There has been discussion about terms of reference with the Attorney General's office and the Department in the context of the Commission's future work program; a draft or two was kicking around at some point; the reference may or may not eventuate, at the Attorney's call; and Professor Croucher is confident if it does, that it would involve more than simply a rerun of the same issue considered in detail in the Commission's 2008 report'...
I added:
Given the announcement last week of a new inquiry for the ALRC—a review of the Native Title Act 1993 -  and release of terms of reference for an inquiry into Legal Barriers for People with Disabilities, another ALRC look at this issue anytime soon seems long oddsRing Tom Waterhouse."
Great predictive powers! (Not).

At 10, Attorney General Dreyfus addressed the forum....
Announcing he has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era.The inquiry will address both prevention and remedies for serious invasions of privacy - a cause of action inquiry with digital age tags attached, if you like. In line with the intimation from Professor Croucher about the nature of any inquiry if the AG went ahead.

The inquiry isn't framed in terms of should we or shouldn't we - for this reason, sure to strike terror and alarm in Holt St-but to prepare a detailed legal design of a cause of action, among other innovative ways to address the problem of invasion of privacy in the digital age.

The commission has been asked for recommendations by June next year regarding:

  1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.
  2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
  3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:
    1. legal thresholds
    2. the effect of the implied freedom of political communication
    3. jurisdiction
    4. fault elements
    5. proof of damages
    6. defences
    7. exemptions
    8. whether there should be a maximum award of damages
    9. whether there should be a limitation period
    10. whether the cause of action should be restricted to natural and living persons
    11. whether any common law causes of action should be abolished
    12. access to justice
    13. the availability of other court ordered remedies.
  4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

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