27.03.2014
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.
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[107]
Meagher, Heydon and Leeming, above n 65, [19–180].
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[108]
N Witzleb, Submission 29; Public Interest Advocacy Centre, Submission 30.
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[109]
Cairns, above n 82, [1.20].
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[110]
Bass v Permanent Trustee Co Ltd (1999) CLR 198 334, [356] (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, [356] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
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[111]
Meagher, Heydon and Leeming, above n 65, [19–075].
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[112]
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).
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[113]
Australian Competition & Consumer Commission v Black on White Pty Ltd [2001] [2001] FCA 187 (6 March 2001).
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[114]
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).