26.03.2014

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 s 20(1) of the Australian Law Reform Commission Act 1996 (Cth), 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 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.

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.

12 June 2013

Mark Dreyfus

Attorney-General