Principle 7: Privacy laws should be coherent and consistent

2.36 Coherence in the law and consistency with other Australian laws or regulatory regimes should be an important guiding force in any new privacy protection at law. In making recommendations in this Report, the ALRC aims to promote uniformity or consistency in the law throughout Australian jurisdictions.

2.37 Laws that are unnecessarily complex, fragmented and inconsistent impose an unnecessary regulatory burden on business. They also harm privacy. The ALRC heard concerns about differences in privacy-related laws—such as surveillance device laws—between the various states and territories.[62] These differences can cause uncertainty and confusion, and make the law less effective.

2.38 Inconsistent laws not only provide poor protection for privacy, but also inadequately protect countervailing interests—such as freedom of the media. Victims of unauthorised surveillance are poorly protected if they are unable to determine if a breach of a statute has occurred. The important activities of others, such as media entities and other businesses, which operate nationally, may be overly restricted if it is unclear when and where they might be breaching a law.[63]

2.39 The need for coherence and consistency also underlies the desirability of avoiding unnecessary overlap between legal regimes. Stakeholders said that any proposed remedial regime should not overlap or be inconsistent with the various regulatory schemes and statutory prohibitions that already affect them.[64] This was a particular concern given the amendments to the Privacy Act 1988 (Cth)that came into force in March 2014.

2.40 However, regulation, the criminal law and the civil law can serve different purposes, even if they overlap in some ways. For example, a criminal law may aim to punish the perpetrator and deter similar conduct, while a civil cause of action may aim to give victims a remedy.

2.41 Furthermore, although there are many regulatory regimes, criminal laws and civil obligations and remedies that help protect people from breaches or invasions of privacy, there are also a number of notable gaps in these laws. This Report aims to fill some of these gaps.

2.42 Finally, legal reforms affecting civil liability for invasions of privacy should be consistent with legislative policy as it affects civil liability for wrongs to others generally,[65] and with other common law principles, unless there is an express and clear intent to override or distinguish them.