NSW Legislative Council Committee recommends a statutory tort of privacy

March 6, 2016 |

The Standing Committee on Law and Justice has issued its final report relating to the serious invasion of Privacy in New South Wales.  The report is found here.

The recommendations are summarised here and provide:

Recommendation 1
That the NSW Police Force:
a) ensure that its officers receive training in the harms associated with technology- facilitated
stalking, abuse and harassment; and
b) that the training incorporate education about how existing offences and other orders, such as apprehended violence orders, could be used in respect of allegations of that nature.
 
Recommendation 2
That the NSW Government undertake a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 to consider additional potential remedies available to the Local Court to protect the privacy of individuals who have been or are seeking to be safeguarded by apprehended domestic violence orders.
 
Recommendation 3
That the NSW Government introduce a statutory cause of action for serious invasions of privacy.
 
Recommendation 4
That in establishing the statutory cause of action at recommendation 3, the NSW Government base the action on the Australian Law Reform Commission model, detailed in its 2014 report, Serious Invasions of Privacy in the Digital Era.
 
Recommendation 5
That in establishing the statutory cause of action at recommendation 3, the NSW Government should consider incorporating a fault element of intent, recklessness and negligence for governments and corporations, and a fault element of intent and recklessness for natural persons.
 
Recommendation 6
That the NSW Government:
a)broaden the scope of the NSW Privacy Commissioner’s jurisdiction to enable the Commissioner to hear complaints between individuals relating to alleged serious invasions of privacy;
b) empower the NSW Privacy Commissioner to make determinations that involve non -financial forms of redress, including apologies, take down orders and cease and desist orders
c) ensure that the NSW Privacy Commissioner is empowered to refer a complaint on behalf of a complainant to the NSW Civil and Administrative Tribunal for hearing for a statutory cause of action where there is a failure to act on a non-financial form of redress, including apologies, take down orders and cease and desist orders, and
d) ensure that the Office of the NSW Privacy Commissioner is adequately resourced to enable it to fulfil its functions arising from the expanded scope to deal with complaints arising from alleged serious invasions of privacy.
 

Recommendation 7

That the NSW Government confer jurisdiction on the NSW Civil and Administrative Tribunal to enable it to hear claims (in addition to ordinary civil courts) arising out of the statutory cause of action for serious invasions of privacy at recommend

The media release provides:
An Upper House committee has recommended that a statutory cause of action be introduced in New South Wales that would enable people who have suffered a serious invasion of privacy to commence civil action.
The Standing Committee on Law and Justice found that the existing
statutory and common law framework, including the equitable action of breach of confidence, did not provide adequate remedies for serious invasions of privacy,
particularly
to people who
are
victims
of
the distribution
(or threatened
distribution)
of intimate images without the subject’s con
sent
, commonly referred to as ‘revenge
pornography’.
Committee Chair, the Hon Natasha Maclaren
Jones MLC, said: ‘
Privacy is an asset
, which cannot be
recovered o
nce it is lost. The im
pacts of that loss can be devastating. The committee
considers
that
there is a clear need to ensure better protection of privacy, and to provide adequate remedies to people
who experience a serious invasion of privacy.
The committee recommended that New South Wales adopt a model based on that recommended by
the Australian Law Reform Commission in its 2014
‘Serious
Invasions of Privacy in the Digital Era’
report.
‘Participants in our inquiry
expressed frustration at the
lack of decisive action on this issue, despite
several eminent report
s recommending a similar course,’ Mrs Maclaren
Jones said.
The committee
also recommended that the
scope of the
NSW Privacy Commissioner
’s jurisdiction be
expanded to enable
the Commissi
oner
to hear complaints between individuals
relating to alleged
serious invasions of privacy,
and to make determinations for non
financial forms of redress. It also
recommended that NSW Police take steps to ensure its officers receive appropriate training
and
education about the harms of technology
facilitated stalking, abuse and harassment and on the use of
existing offences and apprehended violence orders in respect of this type of conduct.

On a brief read through the privacy protections at recommendation 2 for a apprehended violence order  is welcome. The Recommendations 3 & 4 regarding a privacy action is long overdue. There is no constitutional limitation on NSW legislating for serious invasions by the private sector. The Recommendation 5 regarding the fault elements are quite moderate and reasonable.  The benefit of Recommendations 6 & 7 is it allows for options for a complainant.  He or she could commence an action or make a complaint.  At the moment in Victoria the only real option is to go through the Privacy Commissioner and then onto VCAT.  VCAT has a dismal history in hearing privacy complaints.  Very poor analysis and a lack of understanding.

One Response to “NSW Legislative Council Committee recommends a statutory tort of privacy”

  1. NSW Legislative Council Committee recommends a statutory tort of privacy | Australian Law Blogs

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