Proposal 11–13 The new Act should provide that courts may make a declaration, in an action for serious invasion of privacy.

11.80 The availability of declaratory relief will provide applicants with a sense of certainty and may avoid lengthy and costly court proceedings.[107] Several stakeholders submitted that declaratory relief should be availabile.[108]

11.81 A declaration in an action for serious invasion of privacy will take the form of a non-coercive order by a court that states the nature of the interests, rights or duties of the applicant to an action.[109] Their availability will provide both parties to a proceeding with clarity as to their obligations and rights in order to avoid future 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’.[110]

11.82 Declarations are available in a variety of areas of Australian law.[111] 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.[112] The ACCC has sought declarations under this provision in numerous cases in order to determine whether a party has violated Australian consumer law.[113]

11.83 The ALRC, NSWLRC and VLRC previously proposed that courts be able to make declarations.[114]

11.84 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) provide the ACMA with the power to accept undertakings from broadcasters on a range of matters. However, the availability of declaratory relief will have a significant normative impact on the future conduct of a defendant, given the risk of monetary remedies if legal rights which have been the subject of a judicial pronouncement are contravened.

11.85 The operation of a declaration will not affect the availability of other remedies, if a court exercises their discretion to award other appropriate remedies.