1.48 In addition to designing the statutory cause of action, the ALRC was asked to make recommendations about other legal remedies and innovative ways in which the law could prevent or redress serious invasions of privacy. This is considered in Part 3 of the Report.
Breach of confidence
1.49 Chapter 13 recommends that, if a statutory cause of action for serious invasion of privacy is not enacted, the equitable action for breach of confidence be strengthened by legislation enabling courts to award compensation for emotional distress. As noted in Chapter 3, compensation for emotional distress, falling short of a recognised psychiatric illness, is generally not available for breach of confidence. If a statutory cause of action for serious invasion of privacy is not enacted, enabling courts to award compensation for emotional distress in such cases would provide an important mechanism for redress.
1.50 Chapter 14 concerns legislation regulating the use of surveillance devices. Existing state and territory laws provide important protection of privacy and related rights—such as freedom of speech—however there is significant inconsistency in the law between jurisdictions. This inconsistency can make the laws less effective, undermining privacy, and it can also be costly for businesses that operate nationally. The ALRC considers that surveillance device laws should be the same throughout Australia, and recommends that Commonwealth legislation be enacted to replace existing state and territory laws.
1.51 Surveillance legislation should also be technology neutral, so that the law can apply to new devices, such as unmanned aerial vehicles (drones), as well as to surveillance technologies which are not ‘devices’ in the traditional sense, such as software or networks of devices. The ALRC also questions the value of the existing distinction built into the law between surveillance using a device and surveillance using a communications network.
1.52 A ‘responsible journalism’ defence to surveillance laws is also recommended, to protect journalists and media groups who make appropriate use of a surveillance device for journalism in the public interest.
1.53 Chapter 15 recommends that, if a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation providing for a statutory tort of harassment. A tort of harassment, based on similar laws in other jurisdictions, would provide protection and redress for individuals who experience some of the most serious invasions of privacy. The ALRC also highlights some gaps in state, territory and Commonwealth criminal offences for harassment.
1.54 Chapter 16 considers limited reforms to the existing regulatory mechanisms for protecting privacy. In particular, the ALRC recommends that the existing powers of the Privacy Commissioner to investigate breaches of the Privacy Act 1988 (Cth) be extended to allow investigations of complaints about serious invasions of privacy more generally. This would provide a low-cost avenue for individuals to make complaints about serious invasions of privacy. The ALRC also recommends that the Commissioner be given the additional functions of amicus curiae or intervener in relevant court proceedings.