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.".....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.
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.
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.
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."
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".