Mooted ALRC privacy cause of action inquiry not officially dead yet

On and on and on went the questions in Senate Estimates this week from Shadow Attorney Senator Brandis to Professor Croucher, President of the Australian Law Reform Commission, about the reference on a statutory cause of action for breach of privacy, announced in March as part of the media reform package, but before the package fell in a heap. I thought it had disappeared along with the rest. That still may be the case. The short summary from the Q&A:

there has been discussion about terms of reference with the Attorney General's office and the Department in the context of the Commission's future work program; a draft or two was kicking around at some point; the reference may or may not eventuate, at the Attorney's call; and Professor Croucher is confident if it does, that it would involve more than simply a rerun of the same issue considered in detail in the Commission's 2008 report.

You like me might find water torture creeping into your consciousness if you wade through the Hansard extract:

Senator BRANDIS: I want to ask about the proposed privacy tort reform. Professor, you would be aware that on 12 March this year the Attorney-General, Mr Dreyfus, announced that the government was not going to proceed with its earlier announced intention to legislate for a tort of privacy. But, at the same time, the ALRC was asked to produce another report relating to the protection of privacy. Is that right?

Prof. Croucher : I am aware of the announcement. We have not received any terms of reference yet.

Senator BRANDIS: That is what I was getting to. Going back a bit, you produced an extensive report on privacy in 2008—or your agency did—and another report in 2011. Is that right?

Prof. Croucher : We produced an extensive report on privacy some years ago and we have not produced any further reports on privacy, as such. There have been other reports, but not specifically on privacy.

Senator BRANDIS: The 2008 report, the big report, that was the three-volume report, was it not?

Prof. Croucher : That is the one, yes.

Senator BRANDIS: How many years was that in the making, Professor?

Prof. Croucher : The exact period would be set out at the beginning. On recollection—but I would have to confirm this—it was approximately a two-year inquiry.

Senator BRANDIS: Is it your practice within the commission to attribute a cost in terms of hours spent by individual commissioners, and the cost of consultants and so on, to work out how much particular reports cost and can you tell me specifically how much that report cost?

Prof. Croucher : When we make our planning for our work we assign staff—so a commissioner to lead an inquiry and staff. We allow a certain amount for consultation and production of the reports, and all those specific items are budgeted for.

Senator BRANDIS: What was budgeted for that report?

Prof. Croucher : I cannot tell you, offhand, but we could as a matter of record produce that result.

Senator BRANDIS: You could? Thank you.

Prof. Croucher : That was some years ago. We have done a lot of work since then.

Senator BRANDIS: I understand; you will take that on notice. Are you able to, for the purposes of this discussion, give us an approximate figure?

Prof. Croucher : An approximate would not really be—

Senator BRANDIS: Are we talking about several million dollars?

Prof. Croucher : It would be inappropriate for me to do a ballpark like that. I can provide the appropriate figures, should you wish them. As I said, it is based on the allocation of one commissioner to lead an inquiry plus a certain number of legal officers plus the support we give by way of consultation budget and production of the reports themselves.

Senator BRANDIS: All right. Mr Dreyfus, when he announced the shelving of the privacy tort plan, said the 2008 and 2011 consultations showed 'there was little consensus even amongst privacy advocates on how this legal right should be created'. What is the 2011 consultation to which he is referring and does that involve a commission?

Prof. Croucher : That was not by the commission; that was quite a separate process.

Senator BRANDIS: It has nothing to do with you?

Prof. Croucher : No.

Senator BRANDIS: That is fine. Not having received any draft terms of reference, have you been engaged in the discussion at officials level about the terms of reference, or have we heard nothing more about this since Mr Dreyfus made his announcement on 12 March?

Prof. Croucher : As a matter of practice, we have discussions with the department regularly on potential terms of reference. The one to which you refer has been part of that discussion, because it was announced in the public arena, but that would be the normal practice between the commission and the department—to have, in advance, a discussion about our work program, potentially, over coming years.

Senator BRANDIS: Ms Kelly; Mr Fredericks: you are the senior officers at the table. Are you able to assist on this? Has there been any progression at all since Mr Dreyfus's announcement of this further examination of a tort of privacy?

Mr Fredericks : I do not think I can add to what has already been said. It is true that there has been, in the ordinary course, high level discussion with the ALRC about its work program. That is a consistent thing that we as a department do. As to the specificity around this particular potential inquiry, I cannot add anything further.

Senator BRANDIS: Professor Croucher has said she has seen no draft terms of reference. Are draft terms of reference being—

Prof. Croucher : I did not say that. I said that in the usual course we have discussions about potential inquiries. Sometimes they involve drafts. Many drafts may float around. But they are very preliminary discussions. There have been no final terms of reference.

Senator BRANDIS: That is fine, but I understood you to say that you have seen no draft terms of reference in relation to this particular matter. Is that right?

Prof. Croucher : No, I did not say that.

Senator BRANDIS: So, have you seen draft terms of reference?

Prof. Croucher : Yes, I have seen draft terms of reference, but I would see draft terms of reference about many inquiries that never eventuate.

Senator BRANDIS: That is fine. I must have misunderstood you. Concentrating for the moment on the tort of privacy, you have seen draft terms of reference?

Prof. Croucher : Yes, I have seen a draft.

Senator BRANDIS: When did you receive them?

Prof. Croucher : I cannot pin that down, but it would have been post the public announcement of some discussion.

Senator BRANDIS: Well, that was 12 March.

Prof. Croucher : Given that we have just concluded an inquiry, the report of which will be launched tomorrow here, we have been in discussion about a range of potential inquiries. And as that one had been announced, obviously that is one that is part of the discussion.

Senator BRANDIS: Sure, but that is the only one that I am asking you about for the time being, so just concentrate on that one, please. From whom were the draft terms of reference received?

Prof. Croucher : Draft terms in the usual course, whether it is specifically that one or any others—

Senator BRANDIS: Please, I am only asking you about this issue, so can you focus specifically on this issue, rather than tell me about the general practice? From whom were the draft terms of reference received?—from the department, or from somewhere else?

Prof. Croucher : From the department, but also from the Attorney's office.

Senator BRANDIS: Was there more than one set of draft terms of reference?

Prof. Croucher : There is an iterative process through which, as the president of the commission, my comments are sought. As to whether that is one or two, I would say there is ongoing discussion about terms of reference for that and other inquiries that may potentially be given to us by the Attorney as the Attorney decides.

Senator BRANDIS: Well, let's focus, as I said, on this one. So, you received draft terms of reference from the department. And is it your evidence that you received draft terms of reference from the Attorney's office as well. Is that what you are saying?

Prof. Croucher : I have had conversations iteratively about potential terms of reference that have involved both the department and the Attorney's office, as is consistent with the practice with all terms of reference.

Senator BRANDIS: But when you say you have received draft terms of reference, I am assuming that that means you have received a document, albeit a draft document. I understand the nature of an iterative process. But you have received a document from the Attorney's office. Is that right?

Prof. Croucher : Yes.

Senator BRANDIS: And a document from the department?

Prof. Croucher : Well, an iterative document, whether it is one document or two documents.

Senator BRANDIS: Well, how many have you received?

Prof. Croucher : There have been discussions about the terms of reference.

Senator BRANDIS: No, I am not asking about the discussions; I am asking about the documents. How many documents have you received?

Prof. Croucher : Discussions have been about the draft terms of reference. So it is an ongoing draft.

Senator BRANDIS: Okay, so, how many iterations have there been?

Prof. Croucher : There has certainly been an iteration involved with the department, and in iteration—as in a discussion—on a draft document. But these things—

Senator BRANDIS: From the Attorney's office?

Prof. Croucher : Yes.

Senator BRANDIS: So, we have two draft documents which have been sent to you, and those two draft documents have been the subject of discussions. Has there been another physical iteration of a second or subsequent draft of either of those two documents?

Prof. Croucher : Not to my recollection. It is an ongoing process, which I think is a very good one, and I welcome such discussions with the Attorney.

Senator BRANDIS: So we have had one set of draft terms of reference from the department and one set of draft terms of reference from the Attorney's office, and you have had discussions on the basis of each of those documents.

Prof. Croucher : I would say it is one set that has developed iteratively.

Senator BRANDIS: Well, unless it is an identical document, then it must be more than one iteration, mustn't it?

Prof. Croucher : You can count as many of those as you like, Senator, but I would regard it, from my point of view, as being that my input has been sought by way of advice with respect to the development of potential terms of reference around the subject to which you refer.

Senator BRANDIS: I understand that this is an iterative process that has not reached its point of conclusion, so that we are only talking about where things stand as of now, but do the draft terms of reference specifically include Commonwealth legislation for a tort of privacy?

Prof. Croucher : That was announced publicly, so yes.

Senator BRANDIS: We are not just talking broadly about privacy issues. One of the specific terms of reference is a statutory tort of privacy.

Prof. Croucher : Yes, as was publicly announced. But, if I may: terms of reference develop very much through that discussion process. So, from my point of view, until those terms of reference come forth from the Attorney's office, they can change very much in the process until they are settled.

Senator BRANDIS: Was it explained to you why, the ALRC having produced this very large report in 2008 on privacy, including the tort of privacy—which as I recall it was a report of more than 1,000 pages in length—it was thought necessary to do this again, a mere five years later?

Senator Ludwig: That would be asking an opinion. You could ask the government that, and I would reply that it is a matter for Mr Dreyfus to form a view as to whether he wanted to make a reference to the ALRC, including that detail.

Senator BRANDIS: I understand. Let me approach this slightly differently. Is it your view, or the ALRC's view, that, all this work having been done in the fairly recent past, there is sufficiently significant new work to be done in this area to warrant yet another inquiry?

Prof. Croucher : I would expect that any Attorney would not simply return to the ALRC work that the ALRC had done before and that any inquiry the ALRC was given would be to look at things in a broader sense.

Senator BRANDIS: What do you mean by 'a broader sense'? A broader sense than what?

Prof. Croucher : As we are an independent agency, it is appropriate for the Attorney to ask us to do things. I would hope that such requests expressed in the form of terms of reference are not simply to give us back work that we have done before.

Senator BRANDIS: Well, is this such a case?

Prof. Croucher : Until such time as terms of reference are settled, there is no answer to that question.

Senator BRANDIS: Well, you know what you have at the moment. You have told us about all these iterations and all these discussions.

Senator Ludwig: That is a very good try, Senator Brandis. The Attorney-General will announce the terms of reference in due course. They will then be plain for everyone to see. Up to this point they are iterative and not finalised, so there are no terms of reference.

Senator BRANDIS: We know there are no terms of reference. The entire discussion has been about the draft terms of reference, and that is what I am asking about. On the basis of your knowledge of the draft terms of reference, is that the case?

Senator Ludwig: Until the terms of reference are provided, to the extent that there are drafts, they are iterative drafts and certainly not finalised. And the detail will be made plain when the Attorney-General announces it.

Senator BRANDIS: Professor Croucher, what is your sense of what is being asked of you? You are an active participant in these discussions. You have told us about that.

Prof. Croucher : Yes, and I welcome the fact that I am.

Senator BRANDIS: What do you understand is being asked of you?

Prof. Croucher : As I just said, insofar as the commission is asked to do things, I would expect an Attorney to not simply flick back to us matters that we have considered before, and that any Attorney—including the present Attorney, with respect to these terms of reference—would take on board that views of the commission as an independent agency and that they would be taken into account in the drafting, the settling, of the terms of reference that eventually the Attorney decides to give us.

Senator BRANDIS: I am sure that is perfectly sensible and reasonable, but it is not responsive to what I asked you. What do you understand is being asked of you?

Prof. Croucher : It really is not appropriate for me to give an answer to that until such time as the terms of reference have been settled. It is entirely premature. I have expressed my view, as the head of the body, what I consider the body's response would be to drafts, and I would hope that that view is carried forward into the final terms of reference as they Attorney decides to give them to us—if indeed the decision is made to give us terms of reference on that subject, which is entirely a matter for the Attorney and not for me.

Senator BRANDIS: Well, it seems to me, if I may say so with respect—and you have rightly pointed out that the Attorney cannot direct you; he can suggest things—given that the ALRC has recently spent millions of dollars of taxpayers' money producing a vast report on privacy that is longer than War and Peace and a very, very considerable work of scholarship, if I may say so, it is reasonable for the Senate and indeed the public to know what you understand is being asked of you, given that the Attorney-General has just asked you to look at the issue again.

Prof. Croucher : Until the terms of reference are settled, I am not being asked anything, and neither are the Australian public or the taxpayers' dollars to which you refer being asked to be committed in any way, shape or form.

Senator BRANDIS: Does not the time taken by you and your officers in having these iterative discussion cost the taxpayer money?

Prof. Croucher : In so far as my intellectual contributions have value, I suppose the answer to that is yes. But the work program is a matter that you would cost in for any department or any agency involved in looking at its work programs. That is part of my responsibility as the head of the agency.

Senator BRANDIS: You have told us that you would not expect to be asked to re-do what you have just done, which seems perfectly fair to me. So you must be being asked to do something different. I am asking what you understand you are being asked to do. We know that this is not finalised, but, as at the end of May, what is your current understanding of the difference between what you are being asked to do now and what the ALRC did five years ago?

Senator Ludwig: The professor is not being asked to do anything at this point, because there is no ALRC reference. So, to the extent that people can consult, the ALRC is being consulted, as I understand it. And that seems perfectly open to the Attorney-General at this stage, and nothing has been finalised; therefore, there is nothing to say as to what the ALRC is requested to do.

Senator BRANDIS: Well, I am mindful of the time, so obviously I am not going to get a straight answer. Have you had a conversation with the Attorney-General about this, Professor Croucher?

Prof. Croucher : I have had a conversation with the Attorney-General about possible work program.

Senator BRANDIS: Did that include this?

Prof. Croucher : I had a conversation with someone in his office as a prelude, but whether with the Attorney specifically I cannot recall. It was a general conversation about the work program. There is a range of options that the Attorney is interested in pursuing with us, so I could not say as a matter of fact that I spoke to him about that subject.

Senator BRANDIS: So, you have had a conversation—just one—with the Attorney-General about the ALRC's work program. Is that right?

Prof. Croucher : Yes.

Senator BRANDIS: And you are not sure whether that included a reference to this particular matter.

Prof. Croucher : Not specifically. I took the call from a hospital room, so I was somewhat distracted at the time. I cannot say as a matter of fact whether that was in it. The work program was in the half-hour discussion I had with the Attorney.

Senator BRANDIS: That is fine. I am not trying to trick you. I just want to know what the best of your recollection is. But you also recall having a conversation with a staffer in the Attorney-General's office specifically about this?

Prof. Croucher : That is correct.

Senator BRANDIS: Just one conversation?

Prof. Croucher : One conversation is what I recall. I was to meet the Attorney, but he was not available, so I had a discussion with a staffer.

Senator BRANDIS: When was that?

Prof. Croucher : I could pin it down by diary reference.

Senator BRANDIS: Can you take that on notice and let me know?

Prof. Croucher : I certainly can.

Senator BRANDIS: One last question: do you have an expectation—and if so, what is it?—of when the terms of reference will be finalised?

Prof. Croucher : I look forward to the finalising of the terms of reference for any inquiry as soon as possible. We launch the report—

Senator BRANDIS: Do you have a target date by which you expect these terms of reference to have been finalised?

Senator Ludwig: That would be a matter for the Attorney-General, again.

Senator BRANDIS: No, it is not, as a matter of fact.

Prof. Croucher : I look forward to receiving something imminently. I am ready to lead another inquiry as of the launch of our age barriers report tomorrow, but that is a matter for the Attorney. I do not have control over that.

Senator BRANDIS: So, other than saying the sooner you get finalised terms of reference, the better, you have been given no indication as to when, even approximately, it is likely that the final terms of reference will be available?

Prof. Croucher : No. There are a number of terms of reference that have been in the course of discussion and, whichever we receive, I look forward to undertaking the work.