Proposal 9–5 The new Act should provide that, in determining any remedy, the court may take into account:
(a) whether or not a party took reasonable steps to resolve the dispute without litigation; and
(b) the outcome of any alternative dispute resolution process.
9.70 Complaints about serious invasions of privacy may be made to statutory bodies. These include, in particular, to the Office of the Australian Information Commissioner (the OAIC), the Australian Communications and Media Authority (the ACMA), state and territory privacy commissioners and ombudsmen. Various industry bodies also provide alternative dispute resolution processes.
9.71 These alternative dispute resolution (ADR) processes offer several advantages over judicial proceedings. In particular, they may be cheaper and faster than judicial proceedings, and they may be less emotionally burdensome on the parties involved. The use of ADR may also reduce the case load of courts, which is desirable for the efficient administration of justice.
9.72 If a statutory cause of action for serious invasion of privacy is enacted, the availability of these existing dispute resolution processes should be recognised. Some possibilities include requiring a complainant to pursue some other form of dispute resolution before commencing judicial proceedings, prohibiting judicial proceedings if ADR has been undertaken, or prohibiting ADR if judicial proceedings have been undertaken.
9.73 For reasons set out below, the ALRC has concluded that a complainant should not be required to pursue ADR before initiating judicial proceedings. Nor should they be barred from initiating judicial proceedings where ADR has previously been pursued. The ADR and judicial processes should remain independent, although the fact that an individual has pursued one process might be taken into account in another process.
No requirement to pursue ADR
9.74 That the use of some form of ADR should be encouraged is widely acknowledged. However, stakeholders took different views on whether or not ADR prior to judicial proceedings should be mandatory. Several stakeholders supported mandatory ADR, and a number supported only voluntary ADR.
9.75 There would be several difficulties in requiring plaintiffs to pursue ADR before initiating judicial proceedings. Although there is a range of ADR options available, the various options are often limited to specific types of matters. For instance, the OAIC may investigate complaints relating to data protection under the Privacy Act; state and territory commissioners and ombudsmen may investigate complaints relating to state and territory agencies; and the ACMA may investigate complaints relating to media and communications organisations. There is at present no single ADR forum that is empowered to deal with all types of complaints that might lead to proceedings under a statutory cause of action for serious invasion of privacy. A requirement that potential plaintiffs pursue ADR before initiating judicial proceedings may therefore be too onerous, requiring them to research a complex and fragmented landscape to determine which ADR option would apply in their case.
9.76 Moreover, barring potential plaintiffs from initiating ADR without first pursuing non-judicial proceedings would present a significant restriction on the potential plaintiffs’ access to justice. This would be particularly problematic where the individual wished to seek an injunction, or where the defendant would be unlikely to engage in ADR in good faith—in either case, the plaintiff would be faced with additional time and financial costs with little chance of obtaining appropriate redress.
9.77 Mandatory ADR may also be inappropriate in cases where one party poses a serious threat, including a serious psychological or emotional threat, to the other party. Several stakeholders argued that this would be a particular problem in many privacy cases involving domestic violence.
9.78 Rather than a general requirement that potential plaintiffs pursue ADR processes before initiating judicial proceedings, it is preferable to use existing court powers to refer matters to dispute resolution where appropriate (and other existing provisions relating to dispute resolution in court rules). This would allow the courts to take into account the urgency of a matter, the relationship between the parties, and any other factors relevant to whether such an order should be made. However, possible administrative dispute resolution providers, such as the OAIC and the ACMA, may require specific powers in order to receive court-referred disputes. As the OAIC noted, under the current Privacy Act,
It would not be appropriate for the OAIC to take on an alternative dispute resolution role in the absence of a complaints model being adopted. For example, the OAIC suggests it would not be workable for a court to refer matters to the OAIC for conciliation. In particular, this is because the OAIC relies to some extent on the investigative powers in Part V of the Privacy Act in order to successfully conduct its conciliations, and those investigative powers would not be triggered in such circumstances.
No bar on judicial proceedings after ADR
9.79 The ALRC has not proposed that a complainant who has received a determination from an ADR process should be barred from initiating judicial proceedings about the same matter.
9.80 While it may be undesirable to have individuals ‘double-dipping’ by receiving successful outcomes from a non-judicial process as well as judicial proceedings, a statutory bar on judicial proceedings after a non-judicial process would present a serious limitation on access to justice and discourage the use of non-judicial processes.
9.81 The risks of a complainant double-dipping would likely be minimal. An unsuccessful ADR process would generally be a strong indicator that an action under the statutory cause of action would be unsuccessful as well.
Courts empowered to take account of non-judicial proceedings
9.82 In order to encourage the use of ADR and to ensure that inappropriate double-dipping is kept to a minimum, courts should be empowered, when determining any remedies under the statutory cause of action for serious invasion of privacy, to take into account: (i) whether or not parties to proceedings have undertaken ADR in good faith; and (ii) the outcome of that non-judicial process, including the award of any monetary remedy.
Optus, Submission 41; Australian Bankers’ Association, Submission 27 47; Law Institute of Victoria, Submission 22; Office of the Information Commissioner, Queensland, Submission 20.
SBS, Submission 59; Women’s Legal Services NSW, Submission 57; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48; Electronic Frontiers Australia, Submission 44; Australian Privacy Foundation, Submission 39; Public Interest Advocacy Centre, Submission 30; B Arnold, Submission 28; C Jansz-Richardson, Submission 24; T Gardner, Submission 3.
Women’s Legal Services NSW, Submission 57; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48; Women’s Legal Centre (ACT & Region) Inc., Submission 19.
See, eg, Civil Procedure Act 2005 (NSW) pts 4, 5; Civil Procedure Act 2010 (Vic) ch 5; Federal Court of Australia Act 1976 (Cth) s 53A.
Office of the Australian Information Commissioner, Submission 66.