Transparency in political donations

The interim report [PDF] on donations and NSW electoral law comments

In June 2014, Premier Baird established the Panel to consider and report on long term reform of election funding laws in New South Wales. The Panel members are Dr Kerry Schott (Chair), The Hon. John Watkins, and Mr Andrew Tink AM. The Panel members have been appointed under Letters Patent issued by the Governor.

Following its terms of reference, the Panel is required to investigate options for long term reform of NSW political donations laws. This includes consideration of whether it is feasible and in the public interest to provide full public funding of State election campaigns. The Panel is required to report by 31 December 2014.

The panel's  terms of reference are 

to consider and report to the Premier by 31 December 2014 on options for long term reform of political donations, including:

1. Whether or not it is feasible and in the public interest given all considerations (including legal, constitutional and others), to provide full public funding of State election campaigns.

2. What is the appropriate level to cap the expenditure on State election campaigns and what methodology should be utilised to determine that cap?

3. If full public funding of State election campaigns is to be provided: (a) what measures can be put in place to ensure the integrity of public funding; (b) what is the appropriate regulation of third party campaigners (such as peak bodies, companies or industrial organisations) to run political campaigns and the impact of full public funding on them; (c) what is the impact on minor parties and independent candidates; and (d) what is the level of public funding that would be required?

4. If full public funding of State election campaigns is not to be provided, what models are recommended, taking into account issues including: (a) what is the appropriate level of caps on political donations; (b) what measures can be put in place to ensure that any caps are effective; (c) what is the appropriate regulation of third party campaigners (such as peak bodies, companies or industrial organisations) to run political campaigns and the impact of any proposed models on them; (d) what is the impact on minor parties and independent candidates; and (e) what is the level of public funding that would be required?

5. In considering all reform options, the Panel should consider: (a) what controls should apply to the making of donations, such as (i) whether or not particular entities or groups of donors should be excluded; (ii) whether prior approval of a majority of members of a corporate entity or other organisation is required; (iii) Any limitations or restrictions on such political donations; and (b) the appropriate frequency and timing of disclosure obligations under election funding laws.

6. Whether the penalties for contravening provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW) are commensurate with the nature of the offence. This should include advice on penalties that could apply to donors, intermediaries or recipients of unlawful donations.

 The report comments

The Panel advertised widely to invite written submissions by 17 September 2014, and published an Issues Paper and a series of Working Papers on its website to guide and inform the debate. The Panel has so far received over 70 submissions from a broad range of interested people and organisations including members of the public, political parties, Members of Parliament (past and present), academics, peak bodies and other third-party interest groups. The issues that the Panel is considering have been covered by the media and this has led to some lively social media debate. The common theme has been disgust with corruption with different views about how to address it.

Different opinions are held about limits on political donations and electoral expenditure, the level of public funding that should be provided, and the extent to which the State should regulate the internal governance of political parties. The Panel hosted roundtable discussions with leading academics on 24, 25 and 29 September 2014 to further inquire into these issues. Members of the public were invited to attend and transcripts have been published on the Panel’s website (see http://www.dpc.nsw.gov.au/announcements/panel_of_experts_-_political_donations).

The submissions received by the Panel do reveal some areas of consensus. Most agree that more frequent and meaningful disclosure of political donations would help electors cast an informed vote, perhaps improving public confidence in the electoral system. Many submissions describe the current offences and penalties as inadequate and call for increased penalties to match the seriousness of deliberate breaches of election funding laws. A longer timeframe to bring prosecutions of potential breaches of election funding law was also commonly advocated. There have also been calls to better educate candidates and Members of Parliament about both ethical conduct and compliance with the Act.

Although the Panel has not yet formed a view on all of the matters set out in its terms of reference, it has prepared a short Interim Report on those areas where it has formed a clear view or identified a broad direction for action.

The Panel favours a number of measures to improve transparency, accountability and integrity of the election funding regime, including:

• more frequent and timely disclosure of reportable political donations so that voters are aware of fundraising activity before an election; 

• increased penalties for serious breaches of election funding laws, a longer time period for commencing prosecutions and a new general anti-circumvention measure; and 

• mandatory education programs for candidates and Members of Parliament on ethical conduct and compliance with the Act.

In the Panel's view, these measures would not require significant legislative amendment or lead to further complications in an already complicated Act. The Panel believes that they could have a practical impact in terms of transparency, accountability and integrity.

The report notes

In New South Wales, annual disclosure obligations apply to political parties, elected members, candidates and groups. Third-party campaigners and major political donors are also required to lodge annual declarations with the EFA.

For donations of $1,000 or more, details including the name and address of the donor must be disclosed and are published in the EFA’s searchable online database. For donations under $1,000, the total amount of small donations and the total number of persons who made those donations must be disclosed. Donations of less than $1,000 from the same source in the same financial year must be aggregated for the purposes of the disclosure threshold. Given the broad definition of ‘political donation’ under the Act, the disclosure rules capture membership and affiliation fees, the proceeds of fundraising ventures and functions, and transfers of money to the NSW branch of a political party from the federal or other State or Territory branches of the party.

Annual disclosures must be lodged within 12 weeks of 30 June each year (or within 16 weeks of 30 June each year in the case of major donors). This means there is a delay between the making of a donation, the disclosure of that donation to the EFA and the release of information about the donation to the public. For example, disclosures (other than disclosure by major donors) covering the period from 1 July 2012 to 30 June 2013 were not due to be lodged until 22 September 2013 and were not available to the public until 25 November 2013. This means that NSW voters had to wait up to seventeen months to find out the sources and amounts of political donations made during the 2012-13 financial year.

A number of jurisdictions require either continuous or real-time disclosure in the lead up to an election. For example:

• The New York City Campaign Finance Board requires candidates to report political donations within 24 hours of receipt using a software package called C-SMART. Disclosure statements are then published on the Board’s website in near real time. 

• In New York State elections, candidates must lodge three campaign disclosure reports in addition to their annual disclosure reports: 32 days and 11 days pre-election and 10 days post-election. Donations of $1,000 or more received in the 11-day period before the election must be disclosed within 24 hours of receipt. Electronically filed disclosures are generally available through the New York State Board of Elections’ searchable database on the day they are received. 

• Ontario, Canada requires donations of $100 or more to be reported within 10 days of being deposited. Information about such donations is then published on the Elections Ontario website within 10 days of being reported. 

• In the ACT, donations over $1,000 must be disclosed within seven days if received after 1 January in an election year. Disclosures are generally made available for public inspection within a week. 

• From 2015, South Australia will require immediate reporting of donations over $25,000 and weekly disclosure of donations of $5,000 or more in the lead-up to elections.

Privacy Frameworks

'The Trouble with European Data Protection Law' by Bert-Jaap Koops in (2014) International Data Privacy Law argues

The trouble with Harry, in Alfred Hitchcock’s 1955 movie, is that he’s dead, and everyone seems to have a different idea of what needs to be done with his body. The trouble with European data protection law is the same. In several crucial respects, data protection law is currently a dead letter. The current legal reform will fail to revive it, since its three main objectives are based on fallacies. The first fallacy is the delusion that data protection law can give individuals control over their data, which it cannot. The second is the misconception that the reform simplifies the law, while in fact it makes compliance even more complex. The third is the assumption that data protection law should be comprehensive, which stretches data protection to the point of breaking and makes it meaningless law in the books. Unless data protection reform starts looking in other directions — going back to basics, playing other regulatory tunes on different instruments in other legal areas, and revitalising the spirit of data protection by stimulating best practices — data protection will remain dead. Or, worse perhaps, a zombie.

'APEC's CBPRs in Operation for Two Years: Low Take-Up, and Credibility Issues' by Graham Greenleaf in (2014) 129 Privacy Laws & Business International Report 12 argues 

APEC’s Cross-Border Privacy Rules system (CBPRs), like any other form of regulation, cannot simply be assumed to be credible and effective. In addition to its professed standards (considered in the previous article, G Greenleaf (2014) 128 PLBIR, 27-30), its operation in practice must be examined to determine whether it credibly upholds and enforces those standards. APEC’s Cross-Border Privacy Rules system (CBPRs) is not yet in full operation, but the initial operation of any institution is often a major determinant of its future path. The first two years of APEC CBPRs operation is examined in this article and found wanting.

This article shows that the APEC CBPRs processes, despite the conscientious efforts to improve them by representatives from some economies, are lacking in significant respects. The Final Reports by the APEC CBPRs Joint Operations Panel (JOP) lack sufficient independent assessment by JOP of whether an economy’s implementation of its laws will in substance deliver what is required by the APEC CBPRs requirements. The first JOP processes to appoint an AA were flawed, to an extent which should not have been acceptable to APEC member economies. Partly as a result, the first year’s operation of the only existing AA (US company, TRUSTe) has been carried out in a way which is not compliant with CBPRs requirements. This means that the renewal of that AA’s recognition is a major credibility test for JOP.

'Greenleaf's 'India's Draft the Right to Privacy Bill 2014 – Will Modi's BJP Enact it?' in (2014) 129 Privacy Laws & Business International Report 21 comments

From 2011-13 there there were three significant proposals for a comprehensive data privacy law in India but none gained the endorsement of the previous government. The overwhelming victory in India’s May 2014 national elections of the Bharatiya Janata Party (BJP) may end the log-jam of legislative inactivity that characterised the last few years of the previous Congress-led government.

In February 2014 the previous Bills were joined by the draft The Right to Privacy Bill 2014, a redraft of its 2011 draft Bill by the Committee of Secretaries (CoS), the heads of seven of India’s most powerful Ministries and Departments. This draft Bill represents the current thinking of India’s bureaucracy, and the election of a new government capable of enacting legislation makes it timely to review its main provisions.

This article argues that, for residents of India (but not persons overseas), this Bill would, if enacted, provide significant protections of international standards, if they were enforced. That is a significant ‘if’, because the enforcement mechanisms in the current ‘Rules’, particularly the Cyber-Appellate Tribunal (CAT) which this Bill also relies upon, have not functioned for three years. India has no track record whatsoever of enforcing data privacy laws. It would be up to the proposed data protection authority (DPA) to change that before The Right to Privacy Act would be credible. This brief assessment is not a detailed critical appraisal of the Bill, which would no doubt reveal many points of detail on which it could be improved, but the overall structure of the Bill is sound in theory, and compares well with most data privacy laws in Asia.

A related issue is that the BJP did not have any specific election policy in relation to India’s universal ID numbering system (UID), and so is not committed to scrapping it. BJP Ministers have floated a possible merger of the National Population Register (NPR) being developed by the Registrar General of India (RGI) and the UID. Expanded use of personal identifiers such as the UID are one reason the Notes to the draft 2014 Bill say ‘a need has been felt’ for data privacy legislation. It remains a strong possibility that these two issues will be dealt with together.

Injunctions

'Injunctions contra mundum: The Ultimate Weapon in Containment' by Jeff Berryman in (2014) 26 Intellectual Property Journal 287 argues

Over the last fifteen years English courts have developed the injunction contra mundum, one made against all the world and used primarily to prevent infringement of privacy and breaches of confidence. The order has attracted recent criticism because it is frequently sought by celebrities to suppress publicity about their private and family life. Such an order intersects a number of substantive areas of law, including; the developing tort of privacy; freedom of speech, the Internet and prior restraint; the open court principle; defamation; and the ability to enforce court orders across jurisdictional boundaries. This article addresses the difficulties of introducing such an injunction into Canadian common law and whether it is necessary.

Employment Privacy

'Re-Conceptualising Privacy and Discrimination in an Age of Talent Analytics' by Mark Burdon and Paul David Harpur in (2014) 37(2) University of New South Wales Law Journal 679 argues

Employee recruitment and retention have always been contentious and complex decisions for employers. Historically, hiring was based on social processes of human interaction – a prospective employee traditionally submitted a job application and a manager would decide whether or not to call the person in for an interview. The traditional process is by no means perfect, as exemplified in Michael Lewis’s Moneyball. The subsequent success of the Oakland A’s is often touted as a justification for the use of ‘big data’ in the workplace, or ‘talent analytics’ as it is commonly called. Talent analytics has opened up new employer opportunities which use predictive techniques to improve the accuracy of recruitment and retention decisions. Moneyball encapsulates the start of a journey that is gathering increasing momentum. We are entering an age of predictive recruiting and retention which is challenging and changing the foundations of employee selection, with many potential positive benefits for both employers and employees. However, we contend that negative implications can arise through potential forms of discriminatory action that are very different to traditionally constructed forms of discrimination based on certain attributes, such as age, disability, race or sex. Discrimination in the talent analytics era can still be founded on these attributes but discriminatory decisions can now also be founded on random attributes generated through endless correlations of predictive patterns and segmentations founded on prescriptive actions. In order to find a balance between the benefits and the potential negative impacts of talent analytics, we put forward a new conceptual framework, an info-structural perspective which affords the viewer a different lens to consider these new problems and thus moves discussion away from the confines of first generation anti-discrimination and information privacy laws. We then suggest that new forms of info-structural due process could ameliorate issues of structural discrimination through the greater integration of information privacy law and anti-discrimination law.

Moral Rights in Photographs

In Francis v Allen & Unwin [2014] FCA 1027 the Federal Court of Australia has considered an application for summary judgment regarding a copyright and moral rights infringement claim.

Applicant Janette Francis brought proceedings against publisher Allen & Unwin over a photograph in Brothers in Arms: The Inside Story of Two Bikie Gangs, a 1989 book by Lindsay Simpson and Sandra Harvey about the 1984 ‘Milperra Massacre’. Francis claimed that publication of the photograph infringed her copyright and moral rights. The caption of the photograph - "Leanne Walters, shot dead" - indicated that its subject was 15-year-old Leanne Walters, killed in the bikie shooting. The source of the photograph (and all accompanying photographs) is said to be the NSW Police Department.

Francis claimed that she had taken the photograph of herself in a photo booth when she was 27 (ie it was not of Walters) and that the photograph had been used without her permission and without attribution (hence the moral rights claim).

The respondents sought a summary judgment or an order striking out the Francis’s statement of claim, contending that the assertion regarding the photograph was fanciful, implausible, improbable and contrary to all available evidence. The proceeding had no reasonable prospect of success, and was frivolous and vexatious, given that there was no real question of fact as to identity.

In rejecting those contentions the FCA cited Spencer v Commonwealth of Australia (2010) 241 CLR 118 in which French CJ and Gummow J indicated that where there are factual issues capable of being disputed are in dispute the Court should not give summary judgment to the respondent merely because of a view that the applicant is unlikely to succeed on the factual issues. In doing so, it considered its power to give summary judgment for one party where it is satisfied that the other party has no reasonable prospects of success.

The FCA in rejecting the application for summary judgment held that in this instance there was a factual issue capable of being disputed and in dispute. The application by Allens was insufficient to establish the onus of proof for summary dismissal. Allens provided no evidence as to the critical issue of who took the photograph or the circumstances in which it was made. They did not provide sworn evidence from Walters’s father as to his belief that the photograph depicted his daughter. On the other hand Francis provided evidence asserting the photograph was a self portrait and the circumstances in which it was taken, along with a written statement from a former husband that was capable of corroborating her assertions.

The FCA acknowledged that Francis’s claim may be "irrational in some respects", appear to "lack credibility" or involve an "overreaction" to publication of the image. However the Court noted that questions of credibility were inherently unfit for summary resolution. It was not persuaded that the case should not proceed to trial.

The judgment states that evidence by Allens features -

• references to websites operated by Ms Francis; 
• a hearsay account of Ms Francis driving a vehicle in the streets of Campbelltown painted with the words “Walters is a liar”, which was apparently reported to the police; 
• a reference to an action brought by Ms Francis in the Equal Opportunity Tribunal of South Australia against Christies Beach Medical Centre, the relevance of which is opaque; 
• and a reference to a proceeding in the Supreme Court of South Australia in which Ms Francis sued Allen & Unwin over its use of the photograph, in which she maintained it was a photograph of her. 

The judgment states that -

The Supreme Court of South Australia struck out Ms Francis’s statement of claim and dismissed her action with costs when she failed to appear at a directions hearing. According to an account of what occurred from the lawyers who appeared, presumably as agents for Allen & Unwin’s solicitors, the orders were made because the statement of claim did not disclose a reasonable cause of action and was “vexatious” and because the court considered that Ms Francis was unable to plead “a cause of action known to law on which there could be a fair trial”. The respondents drew particular attention to the following two orders Ms Francis sought in that proceeding:

Urgently, I want the foreign objects of technological advancement hindering me and hurting me internally and externally, removed by qualified medical personnel not affiliated with any person involved with the 1984 murders of the seven people in Milperra as previously stated, and to be funded by Defendants. 

I want the Allen & Unwin Pty Ltd directors’ to experience exactly what they have caused me, I want them bankrupt, penniless, with no future, lousy health, and no help, and no support, and tortured for at least 22 uninterrupted years, and a criminal record.

The FCA judgment also referred to -

statements made on websites operated by Ms Francis in which she claimed, amongst other things, that:

• Allen & Unwin, the Walters family, the NSW Government, the Commonwealth Government, the Australian Labor Party and the Liberal Party of Australia are engaged in a criminal partnership by using her photograph and causing the book to be published.

• Allen & Unwin had “totally offended [her] and was allowed to get off without any penalty whatsoever after they breached all the Australian laws of copyright and libel” and that it was “[her] turn to display photographs of the types of people who do this in Australia and are able to pay the Judge enough cold hard rewards to successfully buy their way out of being sued in court using diversionary tactics”. 

Dignity

'A matter of consistency: Dignity and personhood in human rights biolaw' by Thomas Finegan in (2014) 14(1-2) Medical Law International 80 argues

Between 1997 and 2005, four formal international law documents were promulgated involving the intersection of human rights law with bioethics. Underpinning and animating each of these legal texts is an implicit philosophy of human dignity and personhood. This article makes explicit the operative philosophy in each of the documents and questions whether the four texts in question evince an overarching, consistent approach to dignity and personhood. The article proceeds by distinguishing between the two broad and incompatible ways of understanding both of the core categories at issue: intrinsic and extrinsic dignity, and Boethian and Lockean personhood. An exegesis of the legal texts reveals the mutually supportive role intrinsic dignity and Boethian personhood play throughout the four documents. The exegesis highlights the implications this philosophy has for issues involving nascent human life, implications not always overtly stated in the legal texts themselves, though invariably—at a minimum—hinted at by these texts.  ....

A clear analysis of the various human rights biolaw instruments reveals a strong degree of consistency in how the concepts of dignity and personhood are understood throughout. The fact that the human rights biolaw corpus subscribes to an intrinsic view of dignity and a Boethian view of personhood has very clear implications for who, precisely, is to be considered a subject of human rights protection under these instruments (simply put, the bare human being). But it also has implications for ongoing debates within human rights biolaw theory, especially the debate between proponents of ‘‘interest’’ and ‘‘will’’ theories of rights. This particular debate focuses on the scope and purpose of rights, their justification, and also on who exactly is to count as a rights-bearer. For a will theory of rights, rights protect autonomous action and are therefore only directly relevant to agents capable of acting autonomously. Such a theory precludes the recognition of nonautonomous human beings as equal human rights-bearers. An interest theory of rights in the mould of Finnis’ natural law theory, however, sees rights as protective of basic human goods and basic human flourishing. Such a theory is more concerned with the ‘‘best interests’’ of human subjects than with limiting restrictions upon autonomous agency, and as such can accommodate nonautonomous human beings within its human rights framework — ‘‘interests’’ is understood here in an objective rather than subjective sense.

So an interest theory of rights can accommodate developments within human rights biolaw far more easily than will theories could plausibly claim to do, at least in terms of human rights biolaw’s acceptance of unconscious human beings as human rights subjects. But proponents of will theories of rights can, and indeed do, criticize human rights biolaw on a number of grounds. For instance, probably the most sophisticated work on human rights biolaw, Beyleveld and Brownsword’s Human Dignity in Bioethics and Biolaw disparagingly describes human rights biolaw as ‘‘a significant change to the terms of the debate’’ and incompatible with the more traditional corpus of human rights law, one guided, it is claimed, by human dignity in the form of ‘‘dignity as empowerment.’’ This coherintist critique argues for a disjunction between human rights biolaw and more general human rights law in terms of the philosophical foundations of each. That contention is itself contestable though will theorists of rights can also defer to a more metastyle argument, namely that human rights biolaw, to the extent that it offers human rights protection to unconscious human beings and/or appeals to an interest theory of rights, is unjustifiable as a matter of ethical rationality (an issue outside the scope of this article). What the proponent of a will theory of rights cannot do, though, is appeal to human rights biolaw as currently constituted as an example of a human rights legal corpus founded upon a will theory of rights. Human rights biolaw is not neutral on the controversy between will and interest theories of rights—its affirmative response to the human rights status of human beings lacking consciousness indicates that a will theory of rights cannot claim compatibility with it.

'What Do Philosophers Have Against Dignity?' by Jeremy Waldron argues

Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept – denoting a particular sort of moral/legal status that all humans have.

Privacy Invasions

Belatedly getting around to blogging recommendations from the Australian Law Reform Commission's 332 page report [PDF] on  Serious Invasions of Privacy in the Digital Era  (ie the 'privacy tort inquiry').

The ALRC was directed, prior to the latest national election, to 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:

a. legal thresholds

b. the effect of the implied freedom of political communication

c. jurisdiction

d. fault elements

e. proof of damages

f. defences

g. exemptions

h. whether there should be a maximum award of damages

i. whether there should be a limitation period 

j. whether the cause of action should be restricted to natural and living persons

k. whether any common law causes of action should be abolished

l. access to justice

m. the availability of other court ordered remedies.

4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

It was to have regard to:

• the extent and application of existing privacy statutes

• the rapid growth in capabilities and use of information, surveillance and communication technologies

• community perceptions of privacy

• relevant international standards and the desirability of consistency in laws affecting national and transnational dataflows

and take into account the ALRC 2008 For Your Information  Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and relevant Commonwealth, State, Territory legislation, international law and case law.

 The recommendations are

R4–1 If a statutory cause of action for serious invasion of privacy is to be enacted, it should be enacted by the Commonwealth, in a Commonwealth Act (the Act).

R4–2 The cause of action should be described in the Act as an action in tort.

Two Types of Invasion

R5–1 The Act should provide that the plaintiff must prove that his or her privacy was invaded in one of the following ways:

(a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or

(b) misuse of private information, such as by collecting or disclosing private information about the plaintiff. 

R5–2 The Act should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true.

Reasonable Expectation of Privacy

R6–1 The new tort should be actionable only where a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all of the circumstances.

R6–2 The Act should provide that, in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances, the court may consider, among other things:

(a) the nature of the private information, including whether it relates to intimate or family matters, health or medical matters, or financial matters;

(b) the means used to obtain the private information or to intrude upon seclusion, including the use of any device or technology;

(c) the place where the intrusion occurred, such as in the plaintiff’s home;

(d) the purpose of the misuse, disclosure or intrusion;

(e) how the private information was held or communicated, such as in private correspondence or a personal diary;

(f) whether and to what extent the private information was already in the public domain;

(g) the relevant attributes of the plaintiff, including the plaintiff’s age, occupation and cultural background; and

(h) the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy.

Fault

R7–1 The new tort should be confined to intentional or reckless invasions of privacy. It should not extend to negligent invasions of privacy, and should not attract strict liability.

R7–2 The Act should provide that an apology made by the defendant does not constitute an admission of fault or liability and is not relevant to the determination of fault or liability.

Seriousness and Proof of Damage

R8–1 The Act should provide that a plaintiff has an action under the new tort only where the invasion of privacy was ‘serious’, having regard, among other things, to:

(a) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and

(b) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff

R8–2 The plaintiff should not be required to prove actual damage to have an action under the new tort.

Balancing Privacy with Other Interests

R9–1 The Act should provide that, for the plaintiff to have a cause of action, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest. A separate public interest defence would therefore be unnecessary.

R9–2 The Act should include the following list of countervailing public interest matters which a court may consider, along with any other relevant public interest matter:

(a) freedom of expression, including political communication and artistic expression;  

(b) freedom of the media, particularly to responsibly investigate and report matters of public concern and importance;

(c) the proper administration of government;

(d) open justice;

(e) public health and safety;

(f) national security; and

(g) the prevention and detection of crime and fraud.

R9–3 The Act should provide that the defendant has the burden of adducing evidence that suggests there is a countervailing public interest for the court to consider. The Act should also provide that the plaintiff has the legal onus to satisfy the court that the public interest in privacy outweighs any countervailing public interest that is raised in the proceedings.

Forums, Limitations and Other Matters

R10–1 Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the Act. Consideration should also be given to giving jurisdiction to appropriate state and territory tribunals.

R10–2 The new tort should only be actionable by natural persons. Recommendation 10–3 A cause of action for serious invasion of privacy should not survive for the benefit of the plaintiff’s estate or against the defendant’s estate.

R10–4 A person should not be able to bring an action under the new tort after the earlier of:

(a) one year from the date on which the plaintiff became aware of the invasion of privacy; or

(b) three years from the date on which the invasion of privacy occurred.

R10–5 In exceptional circumstances, the court may extend this limitation period, but the period should expire no later than six years from the date on which the invasion occurred.

R10–6 Consideration should be given to extending the limitation period where the plaintiff was under 18 years of age when the invasion of privacy occurred.

R10–7 Consideration should be given to enacting a ‘first publication rule’, also known as a ‘single publication rule’. This would limit the circumstances in which a person may bring an action in relation to the publication of private information, when that same private information had already been published in the past. 

Defences and Exemptions

R11–1 The Act should provide for a defence that the defendant’s conduct was required or authorised by law.

R11–2 The Act should provide a defence for conduct incidental to the exercise of a lawful right of defence of persons or property, where that conduct was proportionate, necessary and reasonable.

R11–3 The Act should provide for a defence of necessity.

R11–4 The Act should provide for a defence of consent.

R11–5 The Act should provide for a defence of absolute privilege.

R11–6 The Act should provide for a defence of publication of public documents.

R11–7 The Act should provide for a defence of fair report of proceedings of public concern.

R11–8 The Act should provide for an exemption for children and young persons. 12.

Remedies and Costs

R12–1 The Act should provide that courts may award damages, including damages for emotional distress.

R12–2 The Act should set out the following non-exhaustive list of factors that a court may consider when determining the amount of damages:

(a) whether the defendant had made an appropriate apology to the plaintiff;

(b) whether the defendant had published a correction;

(c) whether the plaintiff had already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;

(d) whether either party took reasonable steps to settle the dispute without litigation; and

(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, had subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.

R12–3 The Act should provide that the court may not award a separate sum as aggravated damages.

R12–4 The Act should provide that a court may award exemplary damages in exceptional circumstances.

R12–5 The Act should provide for a cap on damages. The cap should apply to the sum of both damages for non-economic loss and any exemplary damages. This cap should not exceed the cap on damages for non-economic loss in defamation.

R12–6 The Act should provide that a court may award an account of profits.

R12–7 The Act should provide that the court may at any stage of proceedings grant an interlocutory or other injunction to restrain the threatened or apprehended invasion of privacy, where it appears to the court to be just or convenient and on such terms as the court thinks fit.

R12–8 The Act should provide that, when considering whether to grant injunctive relief before trial to restrain publication of private information, a court must have particular regard to freedom of expression and any other matters of public interest.

R12–9 The Act should provide that courts may order the delivery up and destruction or removal of material.

R12–10 The Act should provide that courts may, where false private information has been published, order the publication of a correction.

R12–11 The Act should provide that courts may order the defendant to apologise.

R12–12 The Act should provide that courts may make a declaration.

Breach of Confidence Actions for Misuse of Private Information

R13–1 If a statutory cause of action for serious invasion of privacy is not enacted, appropriate federal, state, and territory legislation should be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress.

Surveillance Devices

R14–1 The Commonwealth Government should enact surveillance legislation to replace existing state and territory surveillance device laws.

R14–2 Surveillance legislation should be technology neutral. It should regulate surveillance through the use of listening devices, optical devices, tracking devices, data surveillance devices, and other devices and systems.

R14–3 The Commonwealth Government should consider consolidating telecommunications surveillance laws with the new Commonwealth surveillance legislation.

R14–4 Surveillance legislation should not contain a defence or exception for participant monitoring.

R14–5 Surveillance legislation should provide a defence for responsible journalism relating to matters of public concern and importance.

R14–6 Workplace surveillance laws should be made uniform throughout Australia.

R14–7 Surveillance legislation should provide that a court may order remedial relief, including compensation, for a person subjected to unlawful surveillance.

R14–8 State and territory governments should give jurisdiction to appropriate courts and tribunals to hear complaints about the installation and use of surveillance devices that can monitor neighbours on residential property.

Harassment

R15–1 If a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation creating a tort of harassment.

New Regulatory Mechanisms

R16–1 The Commonwealth Government should consider extending the Privacy Commissioner’s powers so that the Commissioner may investigate complaints about serious invasions of privacy and make appropriate declarations. Such declarations would require referral to a court for enforcement.

R16–2 The following functions should be conferred on the Privacy Commissioner:

(a) to assist a court as amicus curiae, where the Commissioner considers it appropriate, and with the leave of the court; and

(b) to intervene in court proceedings, where the Commissioner considers it appropriate, and with the leave of the court.