Proposal 13–5 Surveillance device laws should provide that a court may make orders to compensate or otherwise provide remedial relief to a victim of unlawful surveillance.
13.53 Privacy protections afforded to individuals by the criminal law are limited in that the criminal law punishes the offender without necessarily providing redress to the victim. While an individual who has been subjected to unlawful surveillance may gain some satisfaction from seeing the offender fined, and while the fine may dissuade the offender from conducting further unlawful surveillance in the future, the victim will generally not receive any compensation or other personal remedy.
13.54 If uniform surveillance device laws are introduced through reforms to existing state and territory legislation, a provision allowing for compensation to victims would operate alongside compensation provisions already provided for by existing state and territory legislation. However, providing for compensation within the uniform surveillance device laws would ensure that uniform compensation mechanisms existed for victims of unlawful surveillance.
13.55 All states and territories have established victims’ compensation schemes that provide for compensation to be paid to victims of crimes. Unlike an order for compensation to be paid by an offender, a victims’ compensation scheme does not depend on an offender’s ability to pay the compensation. However, victims’ compensation schemes are generally available only for serious physical crimes such as assault, robbery, or sexual assault, and surveillance is therefore unlikely to give rise to compensation under these schemes.
13.56 The ALRC proposes that the surveillance device laws of the states and territories—whether made uniform or not—should allow courts to order compensation be paid to individuals who are victims of unlawful surveillance. Such a change to surveillance device laws was suggested by Professor Des Butler, who submitted that the laws ‘should in addition make provision for recovery of compensation or other remedies such as injunction by any aggrieved person’.
13.57 Mechanisms for compensation can be found in other, analogous, criminal laws. Remedial relief is available, for example, under s 107A of the Telecommunications (Interception and Access) Act 1997 (Cth). Under this section, an aggrieved individual may apply to the court for remedial relief if a defendant is convicted of intercepting or communicating the contents of a communication.
Courts may order compensation for loss, injury or damage under, for example, Crimes (Sentencing) Act 2005 (ACT) s 18; Criminal Law (Sentencing) Act 1988 (SA) s 53; Sentencing Act 1991 (Vic) s 85B; Victims Rights and Support Act 2013 (NSW) ss 91–103.
For a general discussion of these schemes, see Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, ALRC Report No 114, NSWLRC Report 128 (October 2010) ch 4.
Victims Rights and Support Act 2013 (NSW) s 5; Victims of Crime Assistance Act 1996 (Vic) ss 7–13.
D Butler, Submission 10.
The remedies available under this section include, but are not limited to: a declaration that the interception or communication was unlawful; an order for payment of damages; an order, similar to or including, an injunction; and an order that the defendant pay the aggrieved person an amount not exceeding any income derived by the defendant as a result of the interception or communication: Telecommunications (Interception and Access) Act 1979 (Cth) s 107A(7).