Certainly previous statutes and this one empower the OPC to be an investigatory body. It's given resources to determine whether or not a violation of privacy has been committed by a commercial actor. Essentially, by allowing a private right of action without the Privacy Commissioner having found a violation, you are essentially asking the courts to do that. Courts are good at many, many things, but what we've tried to do in the scheme of this entire set-up is to preserve for the courts that which is truly necessary, so we give the Privacy Commissioner all of the due deference regarding interpretation of the act and findings of violation, as well as all of the investigatory powers and the ability to make orders; we preserve for the tribunal the administrative monetary penalty setting, and then we preserve for the courts only those parts in which there's literally a failure of the law, where people have misunderstood the law in its entirety, not where there's a finding of fact but actually on an appeal basis.
What this essentially does is to say that you can go down that track; you can go to the OPC, but you can also go to the court, and if you go to the court without having gone to the OPC, the court is now going to be charged with the test of determining whether or not this is a finding of violation.
That means you're essentially giving it an investigatory role, which is not what's envisioned in this scheme; nor is it necessarily what the court is set up or resourced to do. Moreover, it actually creates the possibility for duelling investigatory findings potentially, because notwithstanding the fact that one would like consistent outcomes every single time, the reality is that, particularly when we have an office of subject matter expertise in the Privacy Commissioner, we have a body that's actually set up to know how the act is supposed to apply.