The Australian on privacy law, both right.. and wrong

Nick Leys in The Australian (subscription) today "New privacy laws a long way off":

CANBERRA is no closer to implementing privacy legislation, despite calls for it by government whip Joel Fitzgibbon following criticisms of the media's handling of the Craig Thomson affair.
Mr Fitzgibbon said yesterday that reports by Nine's A Current Affair and the Today Tonight interview on Seven with the prostitute at the centre of claims against Mr Thomson were "extraordinary" and "not the path for journalism" in Australia. "The sort of Fleet Street approach will be rejected by the community," he said, calling for greater media regulation on two fronts.
"(They are) the establishment of a tort of privacy, and greater government regulations of the media," Mr Fitzgibbon told ABC radio. "This gives weight to the government pursuing those initiatives."
But despite lengthy consideration of such a tort and strident criticism within legal circles, a spokeswoman for Attorney-General Nicola Roxon said there was no timeline for such legislation.

(Sorry about the photo Nick, cute but not your best-speak to your webmaster.)

Nick's definition of "new privacy laws" doesn't obviously extend to the Privacy Amendment (Enhancing Privacy Protection) Bill introduced with flourish by the Attorney General recently (after a glacial development process) and now before the House  Committee on Social Policy and Legal Affairs. He's right that new laws, this and other aspects such as the media exemption yet to get any attention, are still a "long way off."

But on the privacy issue that pre-occupies journalists at The Australian, Nick is off the mark in claiming that "strident criticism within legal circles" is a reasonable summary of reaction to the issues paper on a cause of action for a serious and unwarranted breach.

Here was my take in February:

Almost all legal experts who lodged a submission in response to the government's Issues Paper published last year accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:

The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.

The Law Council of Australia has shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in this case. Two members, the Law Society of NSW and the Law Institute of Victoria are now publicly in favour of legislation.There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center, state privacy law regulators. All accept the tricky part is to get the balance right-and there are plenty of ideas about that including whether to set the bar low or high, and whether to frame freedom of expression as an element of the cause of action or as a defence.

In media ranks the ABC and the MEAA don't have a view one way or another on the need for legislation..(but) other media organisations including those who have the muskets at the ready in house (Comment: with The Australian and other News publications in the front line) and big business-the banks, finance companies, the advertising industry-are strongly against.