On 3 March 2016 the NSW Standing Committee on Law and Justice released its Report No. 57 ‘Remedies for the serious invasion of privacy in NSW’. The Report has recommended that the NSW Government introduce a statutory cause of action for serious invasions of privacy.

Specifically, the Report recommends that:

  • the action be based on the Australian Law Reform Commission Model detailed in its 2014 report ‘Serious Invasions of Privacy in the Digital Era’ (ALRC Report);
  • the Government consider incorporating a fault element of intent, recklessness and negligence for governments and corporations and a fault element for natural persons;
  • the Government confer jurisdiction on the NSW Civil and Administrative Tribunal to hear such claims (in addition to other civil courts).

The Report also recommends that the powers of the NSW Privacy Commissioner be broadened to empower it to:

  • hear complaints between individuals relating to alleged serious invasions of privacy;
  • make determinations that involve non-financial forms of redress (such as apologies, take down orders and cease and desist orders); and
  •  refer a complaint on behalf of a complainant to the NSW Civil and Administrative Tribunal for hearing where there is non-compliance with such non-financial redress orders.

The ALRC Report model, embraced by the NSW Committee’s recommendations, proposes the introduction of causes of action for misuse of personal information and ‘intrusion upon seclusion’ to apply to serious breaches. It proposes various thresholds to establish the breach of privacy as well as possible defences to such breaches.

The Committee required the Government to provide a response by 5 September 2016.

For more information on this topic see our previous blog ‘A new Cyber-Tort for Australia’

Click here for a copy of the NSW Standing Committee on Law and Justice Report No. 57 ‘Remedies for the serious invasion of privacy in NSW’.

Click here for the ALRC Report ‘Serious Invasions of Privacy in the Digital Era’.