In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Co... more In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Commission (AHRC) proposed a statutory privacy tort in the form recommended by the Australian Law Reform Commission in 2014. Although both Commissions made their proposals in different contexts, their respective calls respond to the common threat that the rise of modern data-driven technology poses for privacy. The Government response to the ACCC reform proposal announced that the recommendation would be further examined as part of a review of the Privacy Act 1988 (Cth) and related laws. Responding to this renewed attention given to Australian privacy law reform, this article contextualises and evaluates the ACCC and AHRC proposals for a statutory privacy tort in Australia and assesses the prospects of legislative action.
Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power... more Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power to resolve complaints of privacy interferences by making a determination. This paper critically analyses the Commissioner’s use of these remedial powers in the now over thirty published determinations. The paper explains the regulatory context of the determinations power and give an overview of the determinations that can be made. It then addresses the legal framework that applies to monetary remedies under s 52 of the Privacy Act, in particular its relationship to common law remedies. The focus is on the assessment practices in relation to non-economic losses, which are often a complainant’s main concern. It also examines the availability of non-compensatory remedies, such as apologies or orders to review or change existing practices. The paper concludes that, while infrequent, relief under s 52 of the Privacy Act provides an avenue of protecting informational privacy rights through regulatory mechanisms and thereby supplements relief under general law.
ABSTRACT In December 2012, the Australian Federal Parliament passed the Privacy Amendment (Enhanc... more ABSTRACT In December 2012, the Australian Federal Parliament passed the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (CTH). The Amendment Act contains the first (of two) stages of long-anticipated reforms in response to the Australian Law Reform Commission (ALRC) report, For Your Information: Australian Privacy Law and Practice. The government's decision to implement the reforms in two stages has caused delays and led some observers to believe that the government is half-hearted about the reform agenda. The Act introduces the Australian Privacy Principles, creates a new credit reporting regime, contains new provisions for Codes of Conduct, and provides new powers for the Australian Privacy Commissioner. This note provides a critical overview of these changes. It also concludes that law reformers need to remain vigilant to ensure that the reform process does not stop halfway and that the next Australian government commits to completing the task of creating well-balanced and effective protections in Australia.
This case note analyses the first appellate decision in Australia to examine the definition of “p... more This case note analyses the first appellate decision in Australia to examine the definition of “personal information” in the Australian Privacy Act 1988 (Cth).
ABSTRACT In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto... more ABSTRACT In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto partner by distributing video recordings depicting them engaged in sexual intercourse. At first instance, Ms Giller failed in her claim for mental distress damages on the basis of breach of confidence, intentional infliction of injury or an invasion of privacy because there were no Australian precedents allowing such awards. Following recent English authorities, the Victorian Court of Appeal accepted the claim in breach of confidence and awarded Ms. Giller $40,000 for injury to feelings, including$10,000 aggravated damages. The plaintiff’s success in breach of confidence allowed the court to leave open whether Australian law should recognize a common law right to privacy. By majority, the court also denied recovery for intentionally causing emotional distress falling short of psychiatric injury. The fact that mental distress damages are now available under breach of confidence has strengthened the status of this cause of action as a quasi-privacy tort.
The award of every judicial remedy, whether in the nature of declaration, coercion, compensation,... more The award of every judicial remedy, whether in the nature of declaration, coercion, compensation, restitution or punishment, can be said, in general terms, to vindicate the legal rights of the plaintiff. At the same time, remedies awarded in civil actions sometimes serve a more pronounced vindicatory purpose, particularly where the action is to protect important rights and dignitary interests. Despite frequent references to vindication in defamation and trespass cases, there is much uncertainty about the role of vindication in an award of damages. In recent times, a growing interest in the remedial role of vindication can be detected. This article aims to bring greater clarity to use of the word vindication in the law of remedies, to develop a framework for understanding the vindicatory role of remedies and to explore the role that vindication plays in tort damages. To do this, the following questions will be examined. First, what does vindication mean? Secondly, what does it mean to attribute a vindicatory purpose to a remedy? Thirdly, in what way and to what extent do tort damages achieve a vindicatory purpose? Fourthly, are there torts that by their nature require vindication as a distinct remedial purpose?
Schriftenreihe der Juristischen Fakultät der Europa-Universität Viadrina Frankfurt, Oder, 1999
Martiny: Europaisches Privatrecht - unerreichbar oder greifbar?.-Pechstein: Europaisches Zivilges... more Martiny: Europaisches Privatrecht - unerreichbar oder greifbar?.-Pechstein: Europaisches Zivilgesetzbuch und Rechtssetzungsbefugnisse der EG.-Schwartze: Die Europaisierung des Privatrechts am Beispiel des Kaufrechts.-Leible: Die Rolle der Rechtsprechung des Europaischen Gerichtshofes bei der europaischen Privatrechtsentwicklung.-Kepinski: Probleme bei der Kodifizierung des nationalen Privatrechts am Beispiel des polnischen Zivilgesetzbuches.-Eger: Harmonisierung von Rechtsregeln versus Institutionenwettbewerb in Europa.- Drobnig: Europaisches Zivilgesetzbuch - Grunde und Grundgedanken.-Remien: Europaisches Zivilgesetzbuch - Einheitsrecht mit nationaler Abanderungsbefugnis.- Lurger: Die Vereinheitlichung des Vertragsrechts in der Europaischen Union.- Drobnig: Voruberlegungen zu einem europaischen "Sachenrecht".- Martiny: Die moglichkeit der Vereinheitlichung des Familienrechts innerhalb der Europaischen Union.-Witzleb: Perspektiven der europaischen Zivilrechtsvereinheitlichung.
In 2006, the Law School at the University of Western Australia embarked on a Curriculum Review of... more In 2006, the Law School at the University of Western Australia embarked on a Curriculum Review of its LLB degree. Central elements of the Review were the identification of graduate outcomes and the mapping and integration of those outcomes appropriately and progressively across the degree. This paper considers the process of undertaking this aspect of the Curriculum Review and describes
In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Co... more In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Commission (AHRC) proposed a statutory privacy tort in the form recommended by the Australian Law Reform Commission in 2014. Although both Commissions made their proposals in different contexts, their respective calls respond to the common threat that the rise of modern data-driven technology poses for privacy. The Government response to the ACCC reform proposal announced that the recommendation would be further examined as part of a review of the Privacy Act 1988 (Cth) and related laws. Responding to this renewed attention given to Australian privacy law reform, this article contextualises and evaluates the ACCC and AHRC proposals for a statutory privacy tort in Australia and assesses the prospects of legislative action.
Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power... more Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power to resolve complaints of privacy interferences by making a determination. This paper critically analyses the Commissioner’s use of these remedial powers in the now over thirty published determinations. The paper explains the regulatory context of the determinations power and give an overview of the determinations that can be made. It then addresses the legal framework that applies to monetary remedies under s 52 of the Privacy Act, in particular its relationship to common law remedies. The focus is on the assessment practices in relation to non-economic losses, which are often a complainant’s main concern. It also examines the availability of non-compensatory remedies, such as apologies or orders to review or change existing practices. The paper concludes that, while infrequent, relief under s 52 of the Privacy Act provides an avenue of protecting informational privacy rights through regulatory mechanisms and thereby supplements relief under general law.
ABSTRACT In December 2012, the Australian Federal Parliament passed the Privacy Amendment (Enhanc... more ABSTRACT In December 2012, the Australian Federal Parliament passed the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (CTH). The Amendment Act contains the first (of two) stages of long-anticipated reforms in response to the Australian Law Reform Commission (ALRC) report, For Your Information: Australian Privacy Law and Practice. The government's decision to implement the reforms in two stages has caused delays and led some observers to believe that the government is half-hearted about the reform agenda. The Act introduces the Australian Privacy Principles, creates a new credit reporting regime, contains new provisions for Codes of Conduct, and provides new powers for the Australian Privacy Commissioner. This note provides a critical overview of these changes. It also concludes that law reformers need to remain vigilant to ensure that the reform process does not stop halfway and that the next Australian government commits to completing the task of creating well-balanced and effective protections in Australia.
This case note analyses the first appellate decision in Australia to examine the definition of “p... more This case note analyses the first appellate decision in Australia to examine the definition of “personal information” in the Australian Privacy Act 1988 (Cth).
ABSTRACT In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto... more ABSTRACT In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto partner by distributing video recordings depicting them engaged in sexual intercourse. At first instance, Ms Giller failed in her claim for mental distress damages on the basis of breach of confidence, intentional infliction of injury or an invasion of privacy because there were no Australian precedents allowing such awards. Following recent English authorities, the Victorian Court of Appeal accepted the claim in breach of confidence and awarded Ms. Giller $40,000 for injury to feelings, including$10,000 aggravated damages. The plaintiff’s success in breach of confidence allowed the court to leave open whether Australian law should recognize a common law right to privacy. By majority, the court also denied recovery for intentionally causing emotional distress falling short of psychiatric injury. The fact that mental distress damages are now available under breach of confidence has strengthened the status of this cause of action as a quasi-privacy tort.
The award of every judicial remedy, whether in the nature of declaration, coercion, compensation,... more The award of every judicial remedy, whether in the nature of declaration, coercion, compensation, restitution or punishment, can be said, in general terms, to vindicate the legal rights of the plaintiff. At the same time, remedies awarded in civil actions sometimes serve a more pronounced vindicatory purpose, particularly where the action is to protect important rights and dignitary interests. Despite frequent references to vindication in defamation and trespass cases, there is much uncertainty about the role of vindication in an award of damages. In recent times, a growing interest in the remedial role of vindication can be detected. This article aims to bring greater clarity to use of the word vindication in the law of remedies, to develop a framework for understanding the vindicatory role of remedies and to explore the role that vindication plays in tort damages. To do this, the following questions will be examined. First, what does vindication mean? Secondly, what does it mean to attribute a vindicatory purpose to a remedy? Thirdly, in what way and to what extent do tort damages achieve a vindicatory purpose? Fourthly, are there torts that by their nature require vindication as a distinct remedial purpose?
Schriftenreihe der Juristischen Fakultät der Europa-Universität Viadrina Frankfurt, Oder, 1999
Martiny: Europaisches Privatrecht - unerreichbar oder greifbar?.-Pechstein: Europaisches Zivilges... more Martiny: Europaisches Privatrecht - unerreichbar oder greifbar?.-Pechstein: Europaisches Zivilgesetzbuch und Rechtssetzungsbefugnisse der EG.-Schwartze: Die Europaisierung des Privatrechts am Beispiel des Kaufrechts.-Leible: Die Rolle der Rechtsprechung des Europaischen Gerichtshofes bei der europaischen Privatrechtsentwicklung.-Kepinski: Probleme bei der Kodifizierung des nationalen Privatrechts am Beispiel des polnischen Zivilgesetzbuches.-Eger: Harmonisierung von Rechtsregeln versus Institutionenwettbewerb in Europa.- Drobnig: Europaisches Zivilgesetzbuch - Grunde und Grundgedanken.-Remien: Europaisches Zivilgesetzbuch - Einheitsrecht mit nationaler Abanderungsbefugnis.- Lurger: Die Vereinheitlichung des Vertragsrechts in der Europaischen Union.- Drobnig: Voruberlegungen zu einem europaischen "Sachenrecht".- Martiny: Die moglichkeit der Vereinheitlichung des Familienrechts innerhalb der Europaischen Union.-Witzleb: Perspektiven der europaischen Zivilrechtsvereinheitlichung.
In 2006, the Law School at the University of Western Australia embarked on a Curriculum Review of... more In 2006, the Law School at the University of Western Australia embarked on a Curriculum Review of its LLB degree. Central elements of the Review were the identification of graduate outcomes and the mapping and integration of those outcomes appropriately and progressively across the degree. This paper considers the process of undertaking this aspect of the Curriculum Review and describes
In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Co... more In 2019, the Australian Competition and Consumer Commission (ACCC) and Australian Human Rights Commission (AHRC) proposed a statutory privacy tort in the form recommended by the Australian Law Reform Commission in 2014. Although both Commissions made their proposals in different contexts, their respective calls respond to the common threat that the rise of modern data-driven technology poses for privacy. The Government response to the ACCC reform proposal announced that the recommendation would be further examined as part of a review of the Privacy Act 1988 (Cth) and related laws. Responding to this renewed attention given to Australian privacy law reform, this article contextualises and evaluates the ACCC and AHRC proposals for a statutory privacy tort in Australia and assesses the prospects of legislative action.
The University of New South Wales Law Journal, Jul 31, 2020
This article examines how public law should be revitalised in light of the increasing use of tech... more This article examines how public law should be revitalised in light of the increasing use of technology in government decision-making. As the recent controversy concerning the implementation of an automated debt recovery system by the Department of Social Services illustrates, the automation of government decision-making engages fundamental legal principles such as transparency, procedural fairness and reviewability. The use of technology in administrative decision-making in Australia therefore raises a number of critical, and interlocking, questions: Is Australian public law fit for purpose to protect individual rights in automated governmental decision-making? If not, what reforms are necessary and how should they be instituted? This article will consider these issues in relation to three specific areas of public law: privacy law, freedom of information, and judicial review. In doing so, it sets out concrete recommendations for the revitalisation of Australian public law so that it may become more value-compliant and consistent with emerging international best practice standards.
Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power... more Under section 52 of the Privacy Act 1988 (Cth), the Australian Privacy Commissioner has the power to resolve complaints of privacy interferences by making a determination. This paper critically analyses the Commissioner���s use of these remedial powers in the now over thirty published determinations. The paper explains the regulatory context of the determinations power and give an overview of the determinations that can be made. It then addresses the legal framework that applies to monetary remedies under s 52 of the Privacy Act, in particular its relationship to common law remedies and compensation for economic losses. The focus is on the assessment practices in relation to non-economic losses, which are often of a complainant’s main concern. It also examines the availability of non-compensatory remedies, such as apologies or orders to review or change existing practices. The paper concludes that, while infrequent, relief under s 52 of the Privacy Act provides an avenue of protecting informational privacy rights through regulatory mechanisms and thereby supplements relief under general law.
Canadian Journal of Comparative and Contemporary Law, 2018
The definition of “personal information” or “personal data” is foundational to the application o... more The definition of “personal information” or “personal data” is foundational to the application of data protection laws. One aspect of these definitions is that the information must be linked to an identifiable individual, which is incorporated in the requirement that the information must be “about” or “relating to” an individual. This article examines this requirement in light of recent judicial and legislative developments in Australia, Canada and the European Union. In particular, it contrasts the decisions rendered by the Federal Court of Australia in Privacy Commissioner v Telstra Corporation Ltd and by the European Court of Justice decisions in Scarlet Extended and Patrick Breyer v Bundesrepublik Deutschland as well as the new General Data Protection Regulation with Canadian law. This article also compares how the three jurisdictions deal with the vexed issue of IP addresses as personal information where the connection between the IP address and a particular individual often raises particular problems.
(2014) 37 University of New South Wales Law Journal 748-783, Sep 16, 2014
This article explores how Internet surveillance in the name of counter-terrorism challenges priva... more This article explores how Internet surveillance in the name of counter-terrorism challenges privacy. In the Part II, the article analyses the international dimension of counter-terrorism measures and the conceptualisation of data protection and privacy in the European Union, the United States of America and Australia. Part III compares the different concepts of data protection and privacy, and explores the prospects of an international legal framework for the protection of privacy. Part IV concludes that work on international data protection and privacy standards, while urgently needed, remains a long-term vision with particular uncertain prospects as far as anti-terrorism and national security measures are concerned.
In Campbell v MGN Ltd, the House of Lords endorsed an expansive interpretation of the breach of c... more In Campbell v MGN Ltd, the House of Lords endorsed an expansive interpretation of the breach of confidence action to protect privacy interests. The scope and content of this transformed cause of action have already been subject to considerable judicial consideration and academic discussion. This paper focuses on the remedial consequences of privacy breaches. It undertakes an analysis of the principles which govern awards for pecuniary and non-pecuniary loss, the availability of gain-based relief, in particular an account of profits, and exemplary damages.Even in its traditional scope, the monetary remedies for breach of confidence raise complex issues, mainly resulting from the fact that this doctrine draws on multiple jurisdictional sources such as equity, contract and property law. The difficulties of determining the appropriate remedial principles are now compounded by the fact that English law also aims to integrate its obligation to protect the right to privacy under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into the conceptual framework of the breach of confidence action.The analysis provided in this paper supports the contention that not only the scope of the cause of action but also important remedial issues are likely to remain in doubt until the wrong of ‘misuse of private information’ is freed from the constraints of the traditional action for breach of confidence. A separate tort would be able to deal more coherently and comprehensively with all wrongs commonly regarded as privacy breaches.
A court exercising equitable jurisdiction can deny specific relief if the order is likely to lack... more A court exercising equitable jurisdiction can deny specific relief if the order is likely to lack practical effect. This article examines the application of the doctrine of futility to injunctive relief. It will first consider the validity of futility arguments in Australian and UK domestic litigation and then analyse international litigation, where futility is often coupled with jurisdictional questions. The article will argue that the success of futility arguments depends on the likelihood that the order will lack practical utility for the plaintiff as well as the strength of other discretionary considerations. In international litigation, concerns about comity can combine with futility to make it appropriate to deny the exercise of the court’s jurisdiction. The recent Japanese Whaling Case demonstrates that futility concerns are also relevant in the case of statutory injunctions. In that context, the question of futility is linked intimately with the objects of the statute in question. A court should not refuse to exercise its jurisdiction on the basis of alleged futility where the mere granting of an injunction promotes the objects of the statute even if the likelihood of enforcement is small.
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