Civil Remedies for Serious Invasions of Privacy Bill 2016 (NSW): Statutory Cause of Action Proposed

After a Notice of Motion in the Legislative Assembly of NSW on 1 June 2016, on 13 October 2016, the Civil Remedies for Serious Invasions of Privacy Bill 2016 (the Bill) was finally introduced into the NSW Parliament. The Bill aims to implement the legislative recommendations of a report of the Legislative Council Standing Committee on Law and Justice and, among other amendments, suggests the creation of a statutory cause of action for serious invasions of privacy in NSW.

Background to the Report

The Inquiry into remedies for the serious invasion of privacy in New South Wales was established on 24 June 2015 to inquire into and report on remedies for the serious invasion of privacy in New South Wales under the following specific terms of reference:

The report, titled "Remedies for the Serious Invasion of Privacy in New South Wales", was published on 3 March 2016 and contained 7 recommendations for remedies for the serious invasion of privacy. These included:

• Recommendation 1: More training for the NSW Police Force in regards to harms associated with technology-facilitated stalking, abuse and harassment; and how the current framework could be used in respect of those sorts of crimes;
• Recommendation 2: A statutory review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) especially in relation to apprehended domestic violence orders;
• Recommendation 3: That the NSW Government introduce a statutory cause of action for serious invasions of privacy
• Recommendation 4: That in establishing the cause of action described above, the NSW Government base this on the ALRC's prior recommendations;
• Recommendation 5: That in establishing a statutory cause of action, the NSW Government should have regard to establishing a fault element of intent, recklessness and negligence for governments and corporations, and a fault element of intent and recklessness for natural persons;
• Recommendation 6: That the NSW Government broaden the scope and powers of the NSW Privacy Commissioner; and
• Recommendation 7: That the NSW Government confer jurisdiction on the NSW Civil and Administrative Tribunal to enable it to hear claims (in addition to ordinary civil courts) arising out of the statutory cause of action for serious invasions of privacy.

All these recommendations were adopted with bipartisan unanimous support by the Government and Opposition parties. This Bill, despite being a private member's bill, bases its amendments on Recommendations 3, 4, 5 and 6 from the Report.

Amendments in the Bill

The Bill is divided into Parts, the significant ones being:

• Part 2, which creates rights to proceed against a person in the Supreme Court or the District Court for a serious invasion of privacy, based on a statutory cause of action created by the proposed Act;
• Part 3, which creates rights to proceed against a person in NCAT for a serious invasion of privacy, based on rights analogous to the statutory cause of action in Part 2; and
• Part 4, which enables a person to make a complaint to the Privacy Commissioner about a serious invasion of privacy.

Statutory Cause of Action for Invasion of Privacy

The first element in the Bill is the introduction of a statutory cause of action for a serious breach of privacy. This focuses on two categories of invasion of privacy:

• Misuse of private information; and
• Intrusion upon seclusion. 

According to the Second Reading Speech:

According to Narelle Smythe, from Clayton UTZ, despite the Government responding to the report, there has been no government bill draft as yet released and the issues to be addressed in drafting such legislation could also include:

• the "serious" threshold, which the ALRC proposed be the subject of specific guidance in the legislation;
• the probable increase in claims due to there being no need for a claimant to prove damage;
• the assessment of any damages payable for a breach; and
• corporations' exposure to liability for negligent breaches, as well as intentional or reckless breaches.

The Bill is currently awaiting second reading debate in the Legislative Assembly in NSW.

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Civil Remedies for Serious Invasions of Privacy Bill 2016 [NSW] and secondary materials as reproduced in TimeBase LawOne

Remedies for the serious invasion of privacy in New South Wales - Committee Report

Clayton UTZ Article