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.