MARK DREYFUS MP

THE HON MARK DREYFUS QC MP
Attorney-General
Minister for Emergency Management
Special Minister of State
Minister for the Public Service and Integrity

MEDIA RELEASE
PROTECTING PRIVACY IN THE DIGITAL ERA

The Attorney-General Mark Dreyfus QC has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital era.

The inquiry will address both prevention and remedies for serious invasions of privacy.

As I noted in March this year, further work needs to be done on whether to create a right to sue for breach of privacy, Mr Dreyfus said.

I am asking the Australian Law Reform Commission to consider this issue in light of changing conceptions of community privacy and rapid growth in information technology capabilities.

The Government strongly believes in protecting the privacy of individuals, but this must be balanced against the Australian public's right to freedom of communication and expression.

New technologies and modes of communication that provide new opportunities to connect, collaborate and create also pose new privacy challenges.

Our privacy laws need to address future challenges and ensure people can take action against a person or organisation that seriously violates their privacy, Mr Dreyfus said.

Earlier consultations by the Australian Law Reform Commission in 2008, and responses to the Governments 2011 discussion paper, showed little consensus on how a legal right to sue for breach of privacy should be created, or whether it should be created at all.

A range of issues were raised, including whether a tort could create a more litigious culture, how it could impact on free speech and how the implied right to political communication could be balanced with an individuals right to sue.

I have asked the Australian Law Reform to ensure that the importance of freedom of expression and other rights and interests are appropriately balanced, Mr Dreyfus said.

The Government will carefully consider the findings of the Australian Law Reform Commission before making a final decision.

The terms of reference are attached.

WEDNESDAY, 12 JUNE 2013

Terms of Reference

SERIOUS INVASIONS OF PRIVACY IN THE DIGITAL ERA

I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:

• the extent and application of existing privacy statutes
• the rapid growth in capabilities and use of information, surveillance and communication technologies
• community perceptions of privacy
• relevant international standards and the desirability of consistency in laws affecting national and transnational dataflows.

REFER to the Australian Law Reform Commission for inquiry and report, pursuant to s20(1) of the Australian Law Reform Commission Act 1996, the issue of prevention of and remedies for serious invasions of privacy in the digital era.

Scope of the reference

The ALRC should make recommendations regarding:

1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.
2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:
   1. legal thresholds
   2. the effect of the implied freedom of political communication
   3. jurisdiction
   4. fault elements
   5. proof of damages
   6. defences
   7. exemptions
   8. whether there should be a maximum award of damages
   9. whether there should be a limitation period
   10. whether the cause of action should be restricted to natural and living persons
   11. whether any common law causes of action should be abolished
   12. access to justice
   13. the availability of other court ordered remedies.
4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

The Commission should take into account the For Your Information ALRC Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 and relevant Commonwealth, State, Territory legislation, international law and case law.

Consultation

In undertaking this reference, the Commission will identify and consult relevant stakeholders including the Office of the Australian Information Commissioner, and relevant State and Territory bodies.

Time frame

The ALRC will provide its final report to the Attorney:-General by June 2014.

Dated 12th June 2013

Mark Dreyfus
Attorney-General