Attorney General announces terms of reference for protecting privacy in the Digital Age

June 12, 2013 |

Today the Attorney General issued a press release announcing a referral to the Australia Law Reform Commision on the protection of privacy.  More accurately, whether to have a statutory right of privacy.

It provides:

PROTECTING PRIVACY IN THE DIGITAL ERA

 The Attorney-General Mark Dreyfus QC 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.

 “As I noted in March this year, further work needs to be done on whether to create a right to sue for breach of privacy,” Mr Dreyfus said.

 “I am asking the Australian Law Reform Commission to consider this issue in light of changing conceptions of community privacy and rapid growth in information technology capabilities.

 “The Government strongly believes in protecting the privacy of individuals, but this must be balanced against the Australian public’s right to freedom of communication and expression.”

 New technologies and modes of communication that provide new opportunities to connect, collaborate and create also pose new privacy challenges. 

 “Our privacy laws need to address future challenges and ensure people can take action against a person or organisation that seriously violates their privacy,” Mr Dreyfus said.

 Earlier consultations by the Australian Law Reform Commission in 2008, and responses to the Government’s 2011 discussion paper, showed little consensus on how a legal right to sue for breach of privacy should be created, or whether it should be created at all.

 A range of issues were raised, including whether a tort could create a more litigious culture, how it could impact on free speech and how the implied right to political communication could be balanced with an individual’s right to sue.

 “I have asked the Australian Law Reform to ensure that the importance of freedom of expression and other rights and interests are appropriately balanced,” Mr Dreyfus said.

 The Government will carefully consider the findings of the Australian Law Reform Commission before making a final decision.

It is difficult to see how a further enquiry will lead to any form of consensus in the true meaning of the word, agreement or unity of opinion (OED).  There has been a strong current of support for reform in the nature of a statutory right of privacy from  a range of interest groups, legal academics, members of the public and law reform bodies.  The various models proposed, by the ALRC, the NSWLRC and the VLRC contain strong similarities.  Similarly there has been consistent opposition from some legal academics, significant parts of the traditional media and some commentators.  Neither grouping is likely to alter their collective positions.  Irrespective how much discussion takes place.

As with much legislative reform involving the grant, or removal, of a right it is for Government to formulate a policy position, explain it to the citizenry, craft and pass legislation and implement it.  The electorate will make a decision on that at the next poll.  That is the essence of representative democracy.  Major legal reform is rarely achieved through consensus.  The Trade Practices Act met opposition when proposed and legislated.  The Family Law Act was so strongly opposed that the Federal Government was required to have a joint sitting to pass it.  It still attracts the occasional jeremiad.  The changes to personal injury rights in the wake of the collapse of HIH was opposed by a range of interest groups. There are many entrenched positions in this debate, positions which have solidified with time.

It will be interesting to see what new material the ALRC could consider given its extensive report For Your Information: Australian Privacy Law and Practice (ALRC Report 108).  While 5 years have passed changes to technology have not been so significant as to warrant disturbing any of its analysis or altering any of its findings, which included legislating a statutory right of privacy.

 

The terms of refernece provides

Terms of Reference

SERIOUS INVASIONS OF PRIVACY IN THE DIGITAL ERA

I, Mark Dreyfus QC MP, Attorney-General of Australia, having 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.

 REFER to the Australian Law Reform Commission for inquiry and report, pursuant to s20(1) of the Australian Law Reform Commission Act 1996, the issue of prevention of and remedies for serious invasions of privacy in the digital era.

 Scope of the reference

 The ALRC should make recommendations regarding:

  1. Innovative ways in which law may reduce serious invasions of privacy in th 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           whether the cause of action should be restricted to natural and living persons

(j)       whether any common law causes of action should be abolished access to justice

(k)    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.

 

Consultation

 In undertaking this reference, the Commission will identify and consult relevant stakeholders including the Office of the Australian Information Commissioner, and relevant State and Territory bodies.

 

Timeframe

 The ALRC will provide its final report to the Attorney:-General by June 2014.

All of the above issues were addressed in Chapter 74, Protecting a Right to Personal Privacy.

Ultimately a Government, of whatever persuasion, will have to make a decision on whether to have a statutory right to privacy.  That is the key.  There have been many barrels of ink spilled on how such a tort can be framed, the defences, the limitations period, to whom it would apply, damages and costs.  That process will need to be carefully thought through but it is but secondary to making the initial decision.

 

 

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