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Wednesday, February 06, 2013

The Australian muscles up for another year opposing privacy cause of action

In The Australian on Monday Legal Affairs Editor Chris Merritt and the sub-editors who came up with this headline "Mark Dreyfus sees free speech risk in privacy law" from an interview with the incoming Attorney General, returned once again to a campaign News Ltd and The Australian in particular have been running against privacy for five years. In the print edition it made front page

Yet as far as I can see Mr Dreyfus was making the same point as anyone else who has looked at this: getting the balance right in framing a cause of action for breach of privacy is difficult. This is what he said: 
"Legislating in an effective way to protect privacy while at the same time not unduly affecting freedom of speech has proved to be a very difficult task," Mr Dreyfus said. "In jurisdictions where they have had legislation I don't think they have got the balance exactly right yet.".....
Mr Dreyfus said yesterday he would not reveal the government's position on the push for a privacy "tort" - or statutory cause of action - until after he had received a briefing from the Attorney-General's Department. But his "present, personal view" was that while there were concerns about invasions of privacy it was very difficult to legislate to enable privacy litigation without adversely affecting freedom of speech. He believed this difficulty probably explained why the government had not yet produced a legislative response to proposals for a privacy tort that were outlined in a government issues paper nearly 18 months ago.
Merritt on this occasion and The Australian otherwise rarely report that many who have turned their minds to the issue think it is doable and worth doing. And that the reasons for providing a statutory remedy for an unwarranted serious invasion of privacy go far beyond  media preoccupation with its own interests.

Three law reform commissions recommended a statutory cause of action.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published in 2011 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 shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in response to the issues paper. Two members, the Law Society of NSW and the Law Institute of Victoria favour legislation in their submissions. There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center and state privacy law regulators.

Everyone accepts the tricky part is to get the balance right, so Mr Dreyfus is in good company. There are plenty of ideas about that including whether to set the bar low or high, and how to adequately protect freedom of expression which is not absolute and whether to frame this as an element of the cause of action or as a defence. And international precedents and lessons from experience are available from the US, the EU, and four Canadian provinces to mention a few.

While crying freedom of speech is a right above all else there has been scant acknowledgement in The Australian over the years that privacy - despite the difficulties in definition and arising from the changing world around us - is a right under the International Covenant on Civil and Political Rights (Article 17) to which Australia is a signatory with an obligation to protect as well. 

On the likelihood of government action, I'm a realist, now 14 September is firmly in the frame. As Mr Dreyfus said
"I am being brought in with 7 1/2 months to run before the election with a government that has carried out a great deal of law reform already. "I am going to make an assessment of what are the balance of reforms that should be worked on during the remainder of this term and what we should move on in our next term."
(The Rudd and Gillard governments have been sitting on this for five years.)

Most of the article was about the consolidation of anti-discrimination legislation - which didn't feature in the headline - plus these comments by Mr Dreyfus about whistleblower protection and the draconian s 70 of the Crimes Act:
Despite leading a 2009 House of Representatives committee that had recommended retaining criminal sanctions for most unauthorised leaks, Mr Dreyfus would not be drawn yesterday on the government's long-delayed legislative response to his committee's report. But before the last election he distanced himself from his committee's recommendation and told a conference that criminal penalties for leaks by public servants "do not match the kind of society that we have . . . they don't match the ease of communication and the availability of information that we have in the electronic and digital age we are living in".

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