As noted in this blog and in articles in Privacy Law Bulletin and the Conversation the need for that inquiry is unclear, given that both the Commission (ALRC), the NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have previously made cogent recommendations regarding establishment of a statutory tort of serious invasion of privacy. Observers might be forgiven that the current inquiry is an exercise in street theatre and delay rather than a substantive move towards law reform.
The terms of reference are -
The ALRC should make recommendations 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:
- legal thresholds
- the effect of the implied freedom of political communication
- jurisdiction
- fault elements
- proof of damages
- defences
- exemptions
- whether there should be a maximum award of damages
- whether there should be a limitation period
- whether the cause of action should be restricted to natural and living persons
- whether any common law causes of action should be abolished
- access to justice the availability of other court ordered remedies.
4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.
The Commission should take into account the For Your Information ALRC Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 and relevant Commonwealth, State, Territory legislation, international law and case law.There is no indication that the ALRC will be provided with additional resources in conducting the inquiry, which is scheduled for completion mid next year.
