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Tuesday, March 24, 2009

Australia's Right to Know

I'm just back from Australia's Right to Know Free Speech Conference and would say that the day was a highly positive discussion of many issues of interest and concern around the topic. (Some speakers' papers are here).

With one notable exception: the discussion about the media and privacy was pathetic, largely because the issue was framed by News Ltd's lawyer Robert Todd from Blake Dawson around a series of straw men such as the effects of publication of photos of children and UK privacy decisions in the courts concerning photographs of JK Rowling and her kids on the street. And a photo of a child running from a napalm bomb in Vietnam in 1968!! The panel discussion that followed was all over the place but hardly on target.

There was a complete failure for example to address the highly relevant and topical issue raised by News Ltd CEO John Hartigan a week or so ago that the current media- privacy framework works well. But there was plenty of special pleading about why a general and non-media specific statutory cause of action for breach of privacy would be the end of the world as we know it, including from the former editor of the Daily Telegraph David Penberthy who sounded on occasion that he might struggle to spell p..r..i..v..a..c..y.

But all power to ABC boss Mark Scott who had earlier departed from the partyline by saying that the media should seriously consider getting on board to work out a clear statement of the law in this area, and for being the only media speaker on the day to mention the need to match media freedoms with high standards of professional responsibility that must accompany press freedoms. (Correction - John Hartigan also referred to this).

Those of you who weren't there might be staggered to learn that the elephant in the room - the incredible judgment by Penberthy's successor Neil Breen to publish those photos- only received a passing reference from Judge Ron Sackville (in a terrific talk about the philosophical underpinnings of freedom of speech) and a sideswipe from John Hartigan that the media shouldn't let a few people out there decide what was in the public interest. Presumably Hartigan thinks that media editors are perfectly placed and instilled with appropriate wisdom to make this decision, and shouldn't be subject to any second guessing or any penalties for getting this wrong even in the most egregious cases.

What should be the main story of the day were the very positive remarks from Minister of State John Faulkner on the Government's Freedom of Information reform proposals, including the release of an exposure draft of an amendment bill that includes many significant changes- greater pro-active disclosure, clearer relevant public interest considerations and exclusions of some hoary old chestnuts around this issue that the public service has run with for years. And complete removal of application fees and reduction of charges generally. We have heard a lot of this before but Minister Faulkner successfully came across today that he is not only well-intentioned but serious. There were plenty of sceptics on the panels and in the audience , and everyone accepts there is a big anti-disclosure culture to change. But first things first and overall the proposals look good. I need to have a closer look at the detail before saying anything more.

There was lively discussion of the Dreyfus report on whistleblower protection but a large gap in understanding between Mark Dreyfus who presented the findings of his committee report as aimed at improving governance, and media voices who argued that this should be about the right to know just about everything possibly untoward that happens within the government system.

Lots of criticism of the Government's proposed shield laws for journalists and the circumstances in which a judge should exercise a discretion to accept the refusal to answer questions about the source of information.

More comments over the next few days.


  1. Thank you Peter for your timely post. While I applaud the Australian media for taking a higher profile and putting resources into reforming outdated FoI laws, their approach to the privacy law reforms and specifically the emerging tort of breach of privacy is pathetic. The ABC is therefore a beacon this regard as they have broken away from the media consensus opposing formal introduction of this tort. It is even more impressive as the ABC has already been stung tio the tune of a few hundred thousand over a case in which they aired a rape victims name. One could have assumed that bitterness may have kept them toeing the media line, but they raised themselves above that. As for Todd - his firms business is courting the big end of the media so his paper very much catered to their interests and biases. Telling people what they want to hear can make one popular! Looking forward to more intalements from you about this conference.

  2. Anonymous3:58 pm

    What's happening with NSW's right to know Premier Rees?

    Hello Premier Rees, are you there? Premier Rees, wake up... I want to know something... helllllllllllllllllllllllo!

  3. You may well ask, but I don't think the Premier has said a word publicly since he welcomed the Ombudsman's report and said Cabinet would look at all proposals.