Privacy breached? Relief is in sight in New South Wales

Privacy law in many jurisdictions, including Australia, is designed primarily to regulate those organisations that collect, hold, process and use personal information. This regulation is in many cases of little use to those who suffer harm from an invasion of privacy perpetrated by individuals such as in the case of online distribution and publishing of private intimate photos "revenge porn", or other non-consensual uses of on-line technologies. 

In the Australian Law Reform Commission (ALRC) report in 2014 "Serious Invasions of Privacy in the Digital Era" the establishment of a statutory cause of action for breach of privacy was considered and recommended. 

Under current criminal law provisions it is very difficult for a victim of cyber-stalking, revenge porn or other serious invasion of privacy in a digital context to obtain any relief and for the perpetrators to be penalised in any way. The media is full of such stories on a regular basis. 

Following the ALRC report, the NSW Standing Committee on Law and Justice conducted an enquiry into remedies for the serious invasion of privacy in NSW and issued a report earlier this month. The report makes seven  recommendations which include the introduction of a statutory cause of action for serious invasions of privacy. 

Additionally, and as a practical matter, it also recommends that the NSW Police Force implement training for its officers in relation to dealing with technology-facilitated stalking, abuse and harassment. There is also a recommendation to review the domestic violence provisions of the Crimes Act to consider additional remedies.

In a leading step for the jurisdiction it further recommends that the NSW Privacy Commissioner's jurisdiction be broadened to allow the Commissioner to hear complaints between individuals relating to alleged serious invasions of privacy, to make determinations which involve non-financial forms of redress including apologies, cease and desist orders and take down notices. The Commissioner will be able to refer a complaint to the NSW Civil and Administrative Tribunal if the Commissioner's orders are not complied with and the Tribunal will be conferred with jurisdiction to handle such claims. 

These are significant and ground-breaking recommendations which are yet to receive a formal response from the New South Wales government. Even in the absence of a formal response it is obvious that community expectations about protection from technology-facilitated invasions of privacy need upgrading.

While many commentators note that the notion of "privacy" is shifting in a technological age when people upload many of their personal details, there is still a role for matters which are of a private and personal nature and cause real harm when made public. This is considered by both the ARLC report and the Standing Committee report. We look forward to the NSW Government response.

Government Lawyers half day conference - 17 March 2016 - Change of venue
Please note, we have moved this event to the Trade & Investment Centre, Level 47, MLC Centre, 19 Martin Place, Sydney. Please click  here for more details.

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In the media

10 year state wide ban for former licensee
The former licensee of Port Macquarie's Down under Nightclub has been given a 10 year state wide industry ban for repeatedly allowing intoxication and other offences. The penalty has been handed down by the Independent Liquor & Gaming Authority following a disciplinary complaint lodged by Liquor & Gaming NSW (10 March 2016). 10 year statewide ban for former north coast nightclub licensee

Strathfield cafe liquor licence suspended for serving alcohol to under 18s
Liquor & Gaming NSW Director of Compliance and Enforcement Anthony Keon said holding a liquor licence carries a high level of responsibility, especially in relation to the sale and supply of alcohol to minors (10 March 2016). Strathfield cafe liquor licence suspended for selling alcohol to under 18s

ICAC finds TAFE NSW ICT manager corruptly reaped $1.76 million
The ICAC has found that former TAFE NSW South Western Sydney Institute (SWSI) acting information and communications technology services manager Ronald Cordoba engaged in serious corrupt conduct by improperly exercising his public official functions to obtain more than $1.76 million from the SWSI and one of its contractors for his own business (04 March 2016).  ICAC finds TAFE NSW ICT manager corruptly reaped $1.76 million

New judges appointed to the NSW Supreme Court
Two new judges have been appointed to the Supreme Court. Ms Adams's appointment will take effect on and from 5 April 2016, and Mr Payne's appointment will take effect on and from 30 March 2016 (04 March 2016). New judges appointed to the Supreme Court

​Performance targets to improve prison system in NSW
Public prisons will be required to meet and report on performance targets for the first time, as part of reforms designed to lift standards, reduce reoffending and improve community safety (03 March 2016). Performance targets to improve prison system

NSW Privacy Commissioner applauds the findings of the Standing Committee on Law and Justice Inquiry into Serious Invasions of Privacy in NSW
The Standing Committee on Law and Justice Inquiry into Serious Invasions of Privacy in NSW today recommended that NSW introduce a statutory cause of action for serious invasions of privacy. The Committee recommends a significant expansion of the powers of the NSW Privacy Commissioner to address claims of serious invasions of privacy (03 March 2016).  More...

NSW A-G Announces Courts Consultation Committee
‎NSW Attorney-General Gabrielle Upton has announced the creation of a new committee to advise her about the NSW judicial system.  The "Courts Consultation Committee" will be chaired by the Chief Justice of the NSW Supreme Court, Tom Bathurst AC, and will meet regularly to discuss "a range of matters, including workload, time frames to deal with cases, budgeting and court security"(03 March 2016). NSW A-G Announces Courts Consultation Committee

In practice and courts

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 9 March 2016.  Prosecution outcomes and briefs with the DPP

ICAC: Operation Ricco witness list
Updated witness list for weeks 2 and 3 of the Operation Ricco public inquiry. Please note that witness lists are subject to change. The inquiry will next sit on Friday 11 March 2016.  Operation Ricco witness list

NCAT notifications

1/03/2016 - New liquor and gaming review jurisdiction for NCAT​
01/03/2016 - NCAT Legal Bulletin Issue 4 of 2015​

This month in committees

Upcoming hearings
 Review of the Report of the Inspector of the NSW Independent Commission Against Corruption regarding Operation 'Hale' (Mon 14).
Inquiry into elder abuse in New South Wales (Fri 18)
Review of the Report of the Inspector of the NSW Independent Commission Against Corruption regarding Operation 'Hale' (Fri 18).
Reparations for the Stolen Generations in New South Wales (Tue 22)

Inquiries receiving submissions

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 31 March.

Reports

Inquiry into Remedies for the serious invasion of privacy in New South Wales (report due) (Thu 03)
 Remedies for the serious invasion of privacy in New South Wales (report published) (Thu 03).
Legislation Review Digest No 3 of 2016 (Tue 08).
Review of the 2013-14 Annual Reports of the Independent Commission Against Corruption and of the Inspector of the Independent Commission Against Corruption (report published) (Tue 08).

Cases

Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59
APPEAL - CCTV footage of incident at shopping centre – whether footage should be disclosed by providing a copy or by inspection – whether there is an overriding public interest against disclosure of the information in the way requested – procedural fairness – relevance of doctrines of freedom of political communication and restraint on publication.  More...

Adams v Department of Family and Community Services [2016] NSWCATAD 46
GIPA Act – Government Information – Access – Ability of Tribunal to enquire – Section 29 Certificate CARE Act – Whether respondent has discharged onus in respect of schedule 1 GIPA Act – Care proceedings. More...

Makarov v Attorney General of New South Wales [2016] NSWCA 35
ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) for inquiry into applicant's convictions – Supreme Court Act 1970 (NSW), s 69 – declaration sought that trial judge made error of law in finding that no sense of unease or disquiet arises in respect of applicant's convictions – whether trial judge erred by not applying the appropriate test for an application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) – no error of law found – application dismissed.  More...

Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49
ADMINISTRATIVE REVIEW - government information - unreasonable and substantial diversion of resources - whether searches undertaken were sufficient - jurisdiction - failed to exercise in good faith - function conferred on officer - the approach to be taken to section 112 issues.  More...

Watts v Department of Planning and Environment [2016] NSWCATAD 42
Government Information –Cabinet information - Public Interest considerations in favour of disclosure – Public interest considerations against disclosure – Weight of evidence – Deliberative process – Prejudice – Transparency of decision making process – Absence of evidence.  More...

Legislation

NSW

Proclamations commencing Acts
Gaming Machines Amendment (Centralised Monitoring System) Act 2015 No 70 (2016-118) — published LW 11 March 2016

Regulations and other miscellaneous instruments
Gaming Machines Amendment (Centralised Monitoring System) Regulation 2016 (2016-119) — published LW 11 March 2016

Bills Introduced Non-Government – 10 March 2016
 Mining and Petroleum Industry Political Donations Legislation Amendment (Corruption Risk Reduction) Bill 2016

Bills passed by both Houses of Parliament – 09 March 2016
 Limitation Amendment (Child Abuse) Bill 2016

Regulations and other miscellaneous instruments
Evidence (Audio and Audio Visual Links) Amendment (Bail Exemptions) Regulation 2016 (2016-112) — published LW 4 March 2016

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