2.33 The law should be precise and certain, while being flexible and adaptable to changes in social and technological conditions. This principle underpins all of the ALRC’s recommendations. Many stakeholders stressed the benefits of precision, clarity and certainty.
2.34 The ALRC is mindful that Parliament cannot legislate precisely for all future situations. Courts will need to apply broader principles and weigh competing interests, in the light of all the circumstances of a particular case. Stakeholders pointed out that judges are familiar with deciding the types of issues that will arise in privacy cases, such as the existence and weight of public interests. Where appropriate, the ALRC suggests some guidance on the relevant factors the court might or should consider.
2.35 The ALRC has specifically addressed the desirability of precision and certainty in its recommendations, particularly in relation to the design of a statutory cause of action and in relation to reforming Australia’s fragmented surveillance laws.
ASTRA, Submission 47; ABC, Submission 46; Telstra, Submission 45; C Jansz-Richardson, Submission 24.
For example, B Arnold submitted that ‘Australian jurisprudence regarding confidentiality, defamation and national security has demonstrated that courts are fully capable of identifying public interest and of dealing with tensions in claims regarding public good.’: B Arnold, Submission 28.
See, eg, Ch 8.
See Ch 14.