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. Several stakeholders submitted that declaratory relief should be availabile.
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. 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’.
11.82 Declarations are available in a variety of areas of Australian law. 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. The ACCC has sought declarations under this provision in numerous cases in order to determine whether a party has violated Australian consumer law.
11.83 The ALRC, NSWLRC and VLRC previously proposed that courts be able to make declarations.
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.
Meagher, Heydon and Leeming, above n 65, [19–180].
N Witzleb, Submission 29; Public Interest Advocacy Centre, Submission 30.
Cairns, above n 82, [1.20].
Bass v Permanent Trustee Co Ltd (1999) CLR 198 334,  (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334,  (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
Meagher, Heydon and Leeming, above n 65, [19–075].
Federal Court of Australia Act 1976 (Cth) s 21. ‘The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed’: s 21(1).
Australian Competition & Consumer Commission v Black on White Pty Ltd   FCA 187 (6 March 2001).
ALRC, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) Rec 74–5(g); NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) NSWRC Draft Bill, cl 76(1)(c); Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) Rec 29(c).