2.23 A key concern in relation to the introduction of a statutory cause of action for serious invasion of privacy is uncertainty as to how the various provisions of a statute would be interpreted and applied by courts in the future. Some stakeholders stressed the benefits of precision, clarity and certainty.
2.24 The ALRC agrees that, where possible, the law should be precise and certain, but also flexible and able to adapt to changes in social and technological conditions. The ALRC is also mindful, however, that Parliament cannot legislate precisely for all the different situations that may arise in the future and that certain issues must be left to the courts to determine in the light of all the circumstances of a particular case. Stakeholders pointed out that judges are used to deciding the types of issues that will arise in privacy cases, such as the existence and weight of public interest. Where appropriate, the ALRC suggests some guidance on the relevant factors the court might or should consider.
2.25 The ALRC has specifically addressed the desirability of precision and certainty in its detailed legal design of the proposed statutory cause of action, but the principle underpins all of the ALRC’s recommendations.
Telstra, Submission 45; C Jansz-Richardson, Submission 24.
For example, B Arnold submitted that ‘Australian jurisprudence regarding confidentiality, defamation and national security has demonstrated that courts are fully capable of identifying public interest and of dealing with tensions in claims regarding public good’: B Arnold, Submission 28.
See, for example, Ch 8.