Recommendation 14–7 Surveillance legislation should provide that a court may order remedial relief, including compensation, for a person subjected to unlawful surveillance.
14.85 The ALRC recommends that surveillance legislation allow a court to make a compensation order or provide remedial relief to an individual who has been the subject of unlawful surveillance. This proposal was supported by several stakeholders.
14.86 A similar mechanism for compensation can be found in s 107A of the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act). Under this section, an aggrieved individual may apply to the court for remedial relief if a defendant is convicted of intercepting or communicating the contents of a communication. If surveillance legislation were enacted by the Commonwealth, there would be merit in both surveillance legislation and the TIA Act providing similar options for compensation and redress.
14.87 Criminal law generally punishes the offender without necessarily providing redress to the victim. While an individual who has been subjected to unlawful surveillance may gain some satisfaction from seeing the offender fined, and while the fine may dissuade the offender and others from conducting further unlawful surveillance in the future, the victim will generally not receive any compensation or other personal remedy.
14.88 Guardian News and Media Limited and Guardian Australia did not support this proposal, arguing that a tort for serious invasions of privacy would be the more appropriate mechanism for a victim of surveillance to obtain compensation. However, in order to obtain compensation in this way, the individual would be required to undertake civil proceedings in addition to seeking a prosecution under surveillance legislation. The ALRC recommendation would provide a quicker, cheaper and easier means of redress where an offence has occurred.
14.89 All states and territories have established victims’ compensation schemes that provide for compensation to be paid to victims of crimes. Unlike an order for compensation to be paid by an offender, a victims’ compensation scheme does not depend on an offender’s ability for compensation to be paid. However, victims’ compensation schemes are generally only available for serious physical crimes such as assault, robbery, or sexual assault, and surveillance is therefore unlikely to give rise to compensation under these schemes.
T Butler, Submission 114; Australian Privacy Foundation, Submission 110; Office of the Victorian Privacy Commissioner, Submission 108; Australian Sex Party, Submission 92; S Higgins, Submission 82; D Butler, Submission 10.
The remedies available under this section include, but are not limited to: a declaration that the interception or communication was unlawful; an order for payment of damages; an order, similar to or including, an injunction; and an order that the defendant pay the aggrieved person an amount not exceeding any income derived by the defendant as a result of the interception or communication: Telecommunications (Interception and Access) Act 1979 (Cth) s 107A(7).
Guardian News and Media Limited and Guardian Australia, Submission 80.
For a general discussion of these schemes, see Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, ALRC Report No 114, NSWLRC Report 128 (October 2010) ch 4. The ABC noted the existence of these schemes in its submission to the Discussion Paper: ABC, Submission 93.
Victims Rights and Support Act 2013 (NSW) s 5; Victims of Crime Assistance Act 1996 (Vic) ss 7–13.