15.07.2014
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.[222] Several stakeholders supported the availability of declaratory relief in an action for serious invasion of privacy.[223]
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.[224] 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’.[225]
12.173 Declarations are available in a variety of areas of Australian law.[226] 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.[227] 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.[228] Declarations are also available in anti-discrimination law.[229]
12.174 The ALRC, NSWLRC and VLRC previously proposed that courts be able to make declarations.[230]
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.
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[222]
Meagher, Heydon and Leeming, above n 124, [19–180].
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[223]
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.
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[224]
Cairns, above n 187, [1.20].
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[225]
Bass v Permanent Trustee Co Ltd (1999) CLR 198 334, [356] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
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[226]
Meagher, Heydon and Leeming, above n 124, [19–075].
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[227]
‘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.
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[228]
Australian Competition & Consumer Commission v Black on White Pty Ltd [2001] FCA 187.
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[229]
For example, declaratory relief was issued in Eatock v Bolt (No 2) (2011) 284 ALR 114.
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[230]
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).