Serious Invasions of Privacy in the Digital Era (ALRC Report 123)
Earlier this month the NSW Legislative Council Standing Committee on Law and Justice released its report, Remedies for the serious invasion of privacy in NSW, which recommended the establishment of a statutory cause of action for serious invasions of privacy and (at Rec 6) ‘that the Commonwealth government give further consideration to the Australian Law Reform Commission’s recommendations regarding a statutory cause of action for serious invasion of privacy’.
On 15 March, the South Australian Law Reform Institute released a final report which also recommended the enactment of ‘a limited cause of action for serious invasions of personal privacy’ (Rec 1). The Institute recommended that the statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment, and that guidance should be taken from the list of factors recommended in the ALRC Report 123 (Rec 4). At Rec 10, the Institute recommended that a public interest test should be an element of the proposed cause of action and that the statute should set out a list of non-exhaustive examples for the court to consider, the list being made with regard to those set out in the ALRC Report 123 report.
Copyright and the Digital Economy (ALRC Report 122)
On 22 December 2015 the Department of Communications released an Exposure Draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016. Among the proposed amendments concerning disability access to copyright materials was a proposal for a stand-alone fair dealing exception for individuals for the purpose of access by persons with a disability (proposed s 113E). If enacted, this will represent partial implementation of ALRC recommendations in ALRC Report 122 (see Recs 6.1, 16.1 and 14.4).
The Exposure Draft also proposes amendments to the existing preservation copying provisions, intended to provide ‘simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material’. These are in accord with ALRC recommendations (see recs 5.3, 6.1 and 12-1 in particular).
The proposed amendments to the statutory licences for the educational sector accord with a number of aspects of the ALRC’s recommendations. For example, there is clarification that the statutory licences are not compulsory (see proposed s 113T(1) and rec 8.2) and proposed streamlining of the provisions (see proposed s 113P and rec 8.4).
The My Health Records Act 2012 (Cth)—Australia’s eHealth legislation—was amended in late 2015 to shift the duty of representative decision-makers from a ‘best interests’ test to a duty to give effect to ‘the will and preferences’ of the individual. The Explanatory Memorandum to the amending legislation stated that this change ‘realises the principle that people with disability have an equal right to make decisions and to have those decisions respected’ and is consistent with recommendations of ALRC Report 124.
The Terms of Reference for the NSWLRC’s review of the Guardianship Act 1987 (NSW) require the NSWLRC to have regard to the findings of ALRC Report 124—as do the Terms of Reference for the ALRC’s own Elder Abuse inquiry.