Recommendation 12–12 The Act should provide that courts may make a declaration.
12.171 The availability of declaratory relief will provide plaintiffs with a sense of certainty and may avoid lengthy and costly court proceedings. Several stakeholders supported the availability of declaratory relief in an action for serious invasion of privacy.
12.172 In a declaration in an action for serious invasion of privacy a court may state the nature of the interests, rights or duties of the applicant to an action. A declaration may provide both parties to a proceeding with clarity as to their obligations and rights to avoid litigation. A declaration may establish that a plaintiff has enforceable rights which may be upheld at a later date if the wrong continues. Similarly, a declaration may declare that future conduct by a defendant (or possible defendant) will not be a ‘breach of contract or law’.
12.173 Declarations are available in a variety of areas of Australian law. Section 21 of the Federal Court Act 1976 (Cth) provides that the court may make a declaration on the legality of another party’s conduct. The Australian Competition and Consumer Commission has sought declarations under this provision in numerous cases to determine whether a party has violated Australian consumer law. Declarations are also available in anti-discrimination law.
12.174 The ALRC, NSWLRC and VLRC previously proposed that courts be able to make declarations.
12.175 ASTRA opposed the availability of declarations, arguing that the ACMA’s existing powers provide it with the power to require a licensee to acknowledge a finding of the ACMA on the licensee’s website. Section 205W of the Broadcasting Services Act 1992 (Cth) provides the ACMA with the power to accept undertakings from broadcasters on a range of matters.
12.176 However, the ALRC considers that the availability of declaratory relief could have a significant impact on the conduct of a defendant, given the risk of monetary remedies if legal rights which have been the subject of a judicial pronouncement are contravened.
Meagher, Heydon and Leeming, above n 124, [19–180].
T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Australian Sex Party, Submission 92; J Chard, Submission 88; S Higgins, Submission 82; Public Interest Advocacy Centre, Submission 30; N Witzleb, Submission 29.
Cairns, above n 187, [1.20].
Bass v Permanent Trustee Co Ltd (1999) CLR 198 334,  (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
Meagher, Heydon and Leeming, above n 124, [19–075].
‘The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed’: Federal Court of Australia Act 1976 (Cth) s 21.
Australian Competition & Consumer Commission v Black on White Pty Ltd  FCA 187.
For example, declaratory relief was issued in Eatock v Bolt (No 2) (2011) 284 ALR 114.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) rec 74–5(g); NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) NSWLRC Draft Bill, cl 76(1)(c); Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) rec 29(c).