The NSW Legislative Council Standing Committee on Law and Justice released its Final Report into 'Remedies for the Serious Invasions of Privacy in New South Wales' on 3 March 2016. Established in response to increasing community concern surrounding the intrusion of technology into people's lives, the committee considered whether the existing legal framework in NSW provides adequate remedies for serious invasions of privacy, particularly for the victims of 'revenge pornography'.

In what must seem like recurring déjà vu for those following the privacy debate, the Report recommends the NSW Government introduce a statutory cause of action for serious invasions of privacy, following similar recommendations made by other legal bodies across Australia. The Report recommends adopting a model based on that proposed by the Australian Law Reform Commission (ALRC), in its 2014 Final Report into 'Serious Invasions of Privacy in the Digital Era' (see our earlier blog discussing the recommendations of that Report here).

The key recommendations presented to the NSW Government include:

A statutory cause of action for serious breaches of privacy

  • introduction of a statutory cause of action based upon the model recommended by the ALRC in 2014; 
  • the incorporation of a fault element of intent, recklessness and negligence for governments and corporations; and a fault element of intent and recklessness for individuals; and
  • the conferral of power on the NSW Civil and Administrative Tribunal to hear claims arising out of the statutory cause of action.

Other recommendations

  • the introduction of training for members of the NSW Police Force, to ensure officers understand and respond appropriately to incidents associated with 'technology-facilitated' stalking, abuse and harassment;
  • an expansion of the scope of the NSW Privacy Commissioner's jurisdiction, including its ability to hear privacy disputes between individuals and to make determinations for non-financial forms of redress; and the
  • NSW Government undertake a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 to determine whether additional remedies may be appropriate to ensure the privacy of those seeking the protection of domestic violence orders.

Implications

Many participants in the inquiry expressed frustration at the lack of decisive action among legislators on this issue and will be hoping the NSW Government adopts these recommendations and ends the uncertainty surrounding privacy protections. However, NSW moving alone on this issue could lead to a patchwork of privacy laws across the country, creating further uncertainty and confusion for the many companies and businesses in the TMT sector who operate across borders.

The NSW Government is due to respond by 5 September 2016, leaving six months for the Baird Government to consider whether it will implement the recommendations. Should the recommendations be adopted, the Federal Government may face increased pressure to respond with its own legislation.