Proposal 9–1 Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the new Act.
Question 9–1 If state and territory tribunals should also have jurisdiction, which tribunals would be appropriate and why?
9.5 The Terms of Reference require the ALRC to make recommendations concerning jurisdiction and access to justice. The ALRC has taken into account a range of factors including: the need to minimise confusion or inconsistency in the application of legislation across Australian jurisdictions; the range of available remedies; issues of costs of proceedings; relevant constitutional issues; and existing courts and tribunals.
9.6 In considering which forums would be appropriate to hear actions under the new tort, a number of considerations are relevant. First, is the importance of access to justice for a wide range of litigants in a wide range of circumstances. Both plaintiff and defendant interests must be considered. A number of stakeholders expressed concerns that litigation through the courts may be so expensive as to discourage plaintiffs who may be unable to afford legal representation. For example, PIAC submitted that:
Accessibility is a key factor in considering which forum is appropriate to determine matters under a statutory cause of action for serious invasion of privacy. Otherwise, there is a risk that this type of action would become the sole preserve of those wealthy enough to afford to pay for legal representation and to run the risk of incurring an adverse costs order if they are unsuccessful.
9.7 Other stakeholders similarly supported low-cost forums. The ALRC notes the importance of actions for serious invasion of privacy not being prohibitively costly to the wide range of individuals who might seek redress.
9.8 Secondly, decision-makers should be able to order appropriate remedies or relief to plaintiffs. As noted by a number of stakeholders, one of the most effective ways to limit the harm of an invasion of privacy is to prevent the invasion before it occurs, or to limit the effects of the invasion after it has occurred. For these purposes, an injunction will often be the appropriate remedy. Injunctive relief, however, is not available from all courts.
9.9 Lower courts and tribunals are often limited in the amount of damages that they may award. This also affects whether a particular forum is appropriate to hear an action for serious invasion of privacy.
9.10 Thirdly, an action for the new tort will frequently be brought concurrently with other actions. Where an invasion of privacy occurs through the disclosure of private information there may, for example, also be an action for breach of confidence or defamation. If it involves physical intrusion, there may also be a trespass claim. For both the plaintiff and defendant, it is preferable that all the actions arising from a particular incident be dealt with in a single forum, rather than new proceedings being required for each action. Courts may be better placed to allow multiple actions to be heard concurrently. While courts have existing jurisdiction to deal with a wide range of actions, providing powers to tribunals or other bodies to hear all other complaints related to the privacy matter would require the enactment of additional laws.
9.11 In light of these considerations, and as detailed further below, the ALRC has proposed that power to hear actions for serious invasion of privacy under the new federal statute should be vested in the Federal Court, the Federal Circuit Court, and state and territory courts. These state and territory courts would include local courts and magistrates courts where the claim is within their jurisdiction and the remedy sought is within their powers.
9.12 The ALRC has also asked for feedback on which tribunals, if any, would be appropriate forums to hear privacy actions under the new Act. The powers of various tribunals to hear these actions, as well as the possible limitations of these tribunals with respect to the action under the new Act, are discussed in more detail in the following sections.
9.13 The power to vest judicial power in the Federal Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) arises under s 71 of the Australian Constitution. The jurisdictions of the FCA and the FCCA are generally conferred by a wide range of federal Acts such as the Bankruptcy Act 1966 (Cth), the Migration Act 1958 (Cth), the Australian Consumer Law, the Corporations Act 2001 (Cth), the Telecommunications Act 1997 (Cth), and the Privacy Act 1988 (Cth) (Privacy Act). As proposed in Chapter 4, the new tort should be located in a federal statute, and this statute could vest power to hear actions in the FCA and the FCCA.
9.14 Given that many serious invasions of privacy may involve parties in different states or territories, vesting the power to hear privacy actions in courts with jurisdiction across the entire country—such as the FCA and the FCCA—may reduce the costs, time and burdens for plaintiffs.
9.15 Both the FCA and the FCCA have, in addition to jurisdiction granted to them by legislation, ‘associated jurisdiction’ and ‘accrued jurisdiction’ for matters, not otherwise within these courts’ respective jurisdictions, that are related to matters which are within their respective jurisdictions. Thus, for example, while no statue confers jurisdiction on these courts for breach of contract actions, either court is able to hear a claim for breach of contract that is brought alongside, for example, a claim for misleading or deceptive conduct under the Australian Consumer Law. While associated and accrued jurisdiction would potentially mean that matters not currently within the jurisdiction of the FCA or FCCA could be heard by these courts, if brought alongside a privacy action, the ALRC does not consider this to be particularly problematic. Many related matters can already be brought before these courts—actions for defamation and negligence might be brought alongside an action arising under the Privacy Act, for instance.
9.16 However, the ALRC considers that the FCA and the FCCA should not have exclusive jurisdiction to hear actions under the new Act, as in many cases it would be less costly for litigants to use state local courts or district or circuit courts to hear proceedings.
State and territory courts
9.17 State and territory courts include Supreme Courts, District or County courts, and Local or Magistrates Courts. The new Act, as a Commonwealth law, could vest federal jurisdiction in state and territory courts to hear the new cause of action.
9.18 Different powers are available to the different levels of state and territory courts. The Supreme Courts of the states and territories have general, unlimited jurisdiction.
9.19 District and County Courts (and the Magistrates Court of the ACT) generally have similar powers to Supreme Courts, including powers to grant injunctions and equitable remedies. However, the jurisdiction of District and County Courts is typically limited to certain values. For example, the County Court of Victoria may only hear claims up to $200,000; the District Courts of Queensland and Western Australia, may only hear claims up to $250,000; and the District Court of NSW may only hear claims up to $750,000.
9.20 The powers of Local and Magistrates Courts with respect to civil actions are often restricted in certain ways. For example, the Local Court of NSW does not have jurisdiction to hear defamation proceedings; and the Magistrates Court of South Australia has powers limited to certain procedural functions, adjourning proceedings, certain statutory matter, and ‘minor civil actions’. Local and Magistrates Courts may have equitable jurisdiction and so may be able to hear breach of confidence actions, although this jurisdiction may be limited to cases where any relief claimed is an amount of money under a certain limit. Local and Magistrates Courts typically do not have the power to grant an injunction.
9.21 While the jurisdictions of the Local, Magistrates, District and County Courts of the states and territories may in some cases have restrictions that limit their effectiveness in dealing with some privacy actions, the ALRC does not consider that there is any reason to expressly exclude these courts as possible forums for privacy actions. There would also be considerable benefit in terms of providing wider access to justice in privacy claims if these courts could hear some privacy actions.
Cost management in courts
9.22 While proceedings in courts may result in substantial costs for parties, there are mechanisms available to minimise these costs. Courts are variously empowered to direct parties to mediation, conciliation and arbitration, which are designed to offer cheaper and faster dispute resolution than litigation. Courts also have the power to waive fees and, in certain cases, fees are not payable. While these mechanisms will not remove the costs for all litigants, they do temper the costs associated with court proceedings in some cases.
9.23 The ALRC has asked a question in this Discussion Paper concerning possible additions to the powers of courts to grant costs orders.
9.24 Several states and territories have created tribunals that are able to hear civil matters, and which may be suitable forums for hearing privacy actions under the new Act. These tribunals include the ACT Civil and Administrative Tribunal (ACAT); the NSW Civil and Administrative Tribunal (NCAT); the Queensland Civil and Administrative Tribunal (QCAT); the State Administrative Tribunal of Western Australia (SAT); and the Victorian Civil and Administrative Tribunal (VCAT). These tribunals have a range of powers including, in some cases, powers to grant injunctions.
9.25 The usefulness of these tribunals has been noted before—for example, the Victorian Law Reform Commission recommended that jurisdiction for privacy actions should be vested exclusively in the VCAT:
VCAT is designed to be more accessible than the courts. It seeks to be a speedy, low-cost tribunal where legal costs do not outweigh the issues at stake. The experience in other jurisdictions demonstrates that any damages awards in cases of this nature are likely to be relatively small. The sums of money involved do not justify the level of legal costs usually associated with civil litigation in the courts.
9.26 However, the power of the federal Parliament to vest federal jurisdiction in state courts under s 77(iii) of the Constitution may not extend to vesting jurisdiction in the ACAT, NCAT, QCAT, SAT and VCAT, unless these tribunals are determined to be ‘courts’, for constitutional purposes.
9.27 While the ALRC considers that these tribunals may offer a useful forum for hearing privacy actions, no specific proposal is made at this stage for granting jurisdiction to a tribunal. However, the ALRC is interested in submissions from stakeholders on which civil tribunals might be appropriate.
9.28 Although federal tribunals exist, these federal tribunals do not appear to be suitable for hearing privacy actions under the new Act. Federal tribunals are limited to administrative jurisdiction. They cannot, under the Constitution, be granted judicial powers. Moreover, the majority of these tribunals have specific areas of focus, which do not include privacy—for example, the Australian Competition Tribunal; the Copyright Tribunal of Australia; and the Migration and Refugee Review Tribunals.
9.29 The Administrative Appeals Tribunal (AAT) was suggested as a possible forum for privacy actions by some stakeholders. However, although the AAT has a wide range of functions and powers, including functions under the Privacy Act, the functions and powers are related to the review of decisions made by administrative bodies. Some invasions of privacy may give rise to both a complaint under the Privacy Act and an action under the statutory cause of action for serious invasion of privacy. However, a claim based on the statutory cause of action for serious invasion of privacy, by itself, would not usually arise out of a decision by an administrative body. The AAT would therefore not be an appropriate forum to determine liability, although the existence of a civil cause of action would not prevent the plaintiff otherwise challenging a decision by an administrative body.
The role of government regulatory bodies
9.30 In addition to courts and tribunals, complaints about serious invasions of privacy might be brought through administrative bodies. The Australian Information Commissioner, in particular, has power to receive complaints from individuals who consider that a government agency or private organisation has engaged in conduct amounting to an ‘interference with the privacy of an individual’ by breaching the APPs. The Commissioner is empowered to make a determination, including a range of declarations, such as a declaration that the respondent pay the complainant an amount by way of compensation, or that the respondent take a specified action to redress any loss or damage suffered by the complainant. Similar powers are granted to state and territory information privacy commissioners. 
9.31 While these complaints mechanisms provide a cheaper and potentially faster dispute resolution system than courts, the ALRC does not consider that these regulatory bodies are appropriate forums to hear complaints under the statutory cause of action for serious invasion of privacy. In the absence of significant reform, the remits of these administrative bodies are typically restricted to information privacy, and to particular entities such as government agencies or large businesses. Furthermore, the possible remedies available under these complaints mechanisms are generally more limited than those available through a court, and a complainant is typically required to seek a court order to enforce a determination arising from a complaint.
9.32 However, administrative dispute resolution processes continue to play a useful role in providing cheaper, faster, and otherwise less burdensome avenues for dispute resolution.
Public Interest Advocacy Centre, Submission 30.
Women’s Legal Services NSW, Submission 57; Arts Law Centre of Australia, Submission 43; Public Interest Advocacy Centre, Submission 30.
Women’s Legal Services NSW, Submission 57; Arts Law Centre of Australia, Submission 43.
National Children and Youth Law Centre, Submission 61; Google, Submission 54; Australian Privacy Foundation, Submission 39; B Arnold, Submission 28.
Competition and Consumer Act 2010 (Cth) sch 2.
Federal Court of Australia Act 1976 (Cth) s 32; Federal Circuit Court of Australia Act 1999 (Cth) s 18.
Stack v Coastal Securities (No 9) (1983) 154 CLR 261.
See, eg, Dale v Veda Advantage Information Services and Solution Limited  FCA 305 (1 April 2009).
The power to grant exclusive jurisdiction to federal courts is provided to the Commonwealth under s 77(ii) of the Constitution. For an example of exclusive jurisdiction of the Federal Court, see Competition and Consumer Act 2010 (Cth) s 86.
This vesting of jurisdiction is possible under ss 71 and 77(iii) of the Constitution and s 39 of the Judiciary Act 1903 (Cth) (in the cases of states), and s 122 of the Constitution (in the case of territories). James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed) 57. A state or territory court will only have the power to exercise federal jurisdiction in line with ss 35 and 122 of the Australian Constitution where that jurisdiction power derives from a Commonwealth Act, not a state or territory act.
See, eg, Supreme Court Act 1970 (NSW) s 23; Constitution Act 1975 (Vic) s 85(1).
District Court Act 1973 (NSW) ss 44, 46; District Court of Queensland Act 1967 (Qld) ss 68, 69; District Court Act 1991 (SA) s 8; County Court Act 1958 (Vic) ss 37, 49; District Court Act 1969 (WA) ss 50, 55; Magistrates Court Act 1930 (ACT) ss 257, 258.
County Court Act 1958 (Vic) s 3, 37; District Court of Queensland Act 1967 (Qld) s 68; District Court Act 1969 (WA) s 50; District Court Act 1973 (NSW) s 44.
Local Court Act 2007 (NSW) s 33.
Magistrates Court Act 1991 (SA) ss 8, 10, 15.
See, eg, Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6.
See, eg, the following provisions for the power to order mediation: Federal Court of Australia Act 1976 (Cth) s 53; Civil Procedure Act 2005 (NSW) s 26; Civil Procedure Act 2010 (Vic) s 48(2)(c); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 50.07.
Civil Procedure Regulation 2012 No 393 (NSW) reg 11.
See Question 11–1.
ACT Civil and Administrative Tribunal Act 2008 (ACT) s 22; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 123; State Administrative Tribunal Act 2004 (WA) s 90 (interim injunctions only).
Victorian Law Reform Commission, Surveillance in Public Places, Report No 2010) [7.226].
Victorian Civil and Administrative Tribunal Act 1998 (Vic); NSW Civil and Administrative Tribunal Act 2013 (NSW); Queensland Civil and Administrative Tribunal Act 2009 (Qld); South Australian Civil and Administrative Tribunal Act 2013 (SA).
R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48; Public Interest Advocacy Centre, Submission 30.
Privacy Act 1988 (Cth) s 40.
Ibid s 52(1A).
Privacy and Personal Information Protection Act 1998 (NSW); Information Privacy Act 2009 (Qld); Premier and Cabinet Circular No 12 (SA); Personal Information Protection Act 2004 (Tas); Information Privacy Act 2000 (Vic); Information Act (NT).