Determinations Under the Privacy Act 1988 (Cth) as a Privacy Remedy

JNE Varuhas and NA Moreham (eds), Remedies for Breach of Privacy (Oxford, Hart Publishing, 2018)

Monash University Faculty of Law Legal Studies Research Paper No. 3189397

32 Pages Posted: 19 Jun 2018 Last revised: 9 Aug 2018

See all articles by Normann Witzleb

Normann Witzleb

Monash University - Faculty of Law

Date Written: January 15, 2018

Abstract

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.

Keywords: data protection; privacy; data privacy; remedies

JEL Classification: K29, K39

Suggested Citation

Witzleb, Normann, Determinations Under the Privacy Act 1988 (Cth) as a Privacy Remedy (January 15, 2018). JNE Varuhas and NA Moreham (eds), Remedies for Breach of Privacy (Oxford, Hart Publishing, 2018); Monash University Faculty of Law Legal Studies Research Paper No. 3189397. Available at SSRN: https://ssrn.com/abstract=3189397

Normann Witzleb (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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