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Wednesday, August 28, 2013

Attorney General debate leaves integrity on the sidelines, prompts The Oz to pursue privacy 'zealots.'

The notes prepared by Anne Wardell Deputy Editor-In-Chief for Law and Business at CCH seem to be the most comprehensive record available of the debate last week between Attorney General Dreyfus and Shadow, Senator Brandis. No mention, according to this summary, of the transparency/accountability/integrity/open government issues of primary interest here.

The Attorney General listed privacy as one of the next term priorities and separately elaborated in an interview with Chris Merritt in The Australian- Privacy law 'no attack on media'. The bill to require mandatory serious breach notification that failed to get up in the last parliament will be reintroduced if the ALP wins - Merritt queries the cost to business. (As to Opposition policy, who knows?)

And as the headline suggests, Merritt gives prominence to the privacy cause of action issue, managing to extract acknowledgement of uncertainty about what might result from the Attorney's reference to the Australian Law Reform Commission:
 Despite the fact that the ALRC had been asked to design a privacy tort, Mr Dreyfus said it was possible the commission could recommend that such a tort was not needed. "They might," he said. The inquiry's terms of reference did not amount to a commitment to the creation of a privacy tort. "But they do ask for a detailed design of what a statutory cause of action for serious invasions of privacy might look like, for good reason."You cannot have a proper discussion about this until you have got down the detail."
In a related opinion piece Mark Dreyfus not afraid to stand up for free speech Merritt suggests the Attorney shouldn't be held responsible for "Labor's disgraceful record on freedom of speech" because he was new to the job and
"used his first interview as Attorney-General to express personal concern about the risk to freedom of speech from legislation that encourages people to sue each other over invasions of privacy. Until those remarks appeared on the front page of this newspaper, nobody in the Gillard government had expressed the slightest disquiet in public about the deeply flawed plan for a privacy tort that was then in development. It was a plan that seemed designed to remedy a mischief on the other side of the planet."
Of course, there are many who see growing mischief in interferences with privacy in all sorts of local nooks and crannies. However Merritt thinks these 'zealots' may have had their day:
In 2009, when the commission last recommended in favour of a privacy tort, much of the debate had been captured by zealots who seemed to have no understanding of the fundamental rule that privacy - like all other human rights - is not absolute. It needs to be balanced in a way that addresses the intended mischief without inflicting unnecessary damage to other rights such as freedom of speech.
I can't recall anyone who argues the right to privacy is absolute. But it is a universally recognised right.

Three law reform commissions, and most others who have looked conclude there is a gap in the law. Many think it would be best filled by a carefully crafted statutory cause of action that does exactly what Merritt suggests, balancing privacy and other rights.

The only absolutists in this are those who advocate such an exalted position for freedom of speech/freedom of the press. Some reminders from testimony to the Committee examining the Government's media reform legislation in March:

The print media should be left alone to make money: Kerry Stokes Chairman of Seven West Media:
Mr K Stokes : If I chose tomorrow to go out—and I have done it once before in Canberra—and buy a printing press and start a paper—and I have done that before in Canberra too—and find that I live or die commercially on what I do, I shouldn't be regulated on that. Why should I be?

CHAIR: Because the press is not simply a commercial operation. There are public interest issues. That is why.

Mr K Stokes : Senator, the public issue was actually first raised by the Minister for Communications, Charles Davidson, in 1956 when he introduced the Broadcasting Act. The broadcasting was not just a commercial undertaking like print. There was a parliamentary distinction made between the two. The facts of the matter are that it is a business like any other business. If you want to be a radical newspaper, then that is your choice. People probably won't buy you. If you want to be a newspaper that makes money, then you will do what it is that makes money. We are talking about newspapers, not public assets.

Senator LUDLAM: Are you saying you have no public interest obligations apart from just to make money for your shareholders? Mr K Stokes : They are one and the same. 

  Bruce Davidson CEO of AAP advocates absolute freedom of the press:
CHAIR: Did you hear the evidence from Mr Finkelstein and Professor Matthew Ricketson?
Mr Davidson : I heard some of that today, not all of it I am afraid.
CHAIR: What do you say to their argument that there is no absolute freedom of the press?
Mr Davidson : I think in our western democracies most individuals or members of our community would believe that there should be absolute freedom of the press. I heard Mr Finkelstein discuss that issue and I do not agree with his contention that there must be a level of regulation, which I think were his terms. I am quite happy with a level of regulation in terms of the industry ensuring that its codes of conduct and its practices are adhered to and I am quite happy to be held to account for any breaches of those, but I think we need to avoid the potential for interference by government to potentially misuse or distort that regulation.
 The Institute of Public Affairs thinks even self regulation should be optional

 CHAIR: Does the IPA believe that the press should regulate itself in any way?
Mr Berg : We all regulate ourselves in many ways. I am sure that if you talk to journalists and editors they make decisions about what they are going to put in their paper on all sorts of grounds. The press does regulate itself. Should the press have a self-regulatory body? I do not have a big problem with that, and that is really up to the press, in my view.
CHAIR: Would you argue that there is no need for self-regulation?
Mr Berg : I am not sure. It is really up to the press. The whole point about self-regulation is that the individual industry gets to decide whether it wants to or not. That is the definition of a self-regulatory framework.
CHAIR: That is a principle that you would support, that the press can make a determination whether it self-regulates or not?
Mr Berg : Yes.
CHAIR: So it can just say, 'We will do what we like and face any consequences'?

Mr Berg : Yes. Of course that would be within the existing legal framework, which is substantial and extensive....
CHAIR: The Australian can basically ignore the Press Council and just print—
Mr Berg : Yes, that is the definition of a voluntary self-regulatory scheme.
CHAIR: So it is all voluntary; it is really meaningless—the Press Council?
Mr Berg : No, I would not suggest it is meaningless. I think they would have very seriously considered whether to do that.
CHAIR: If the Australian decides it is just going to repeat the same allegations in a different form, it is just ignoring the Press Council, isn't it?
Mr Berg : I think it is defying the Press Council in that case but I also think—
CHAIR: Defying?
Mr Berg : Yes, sure. But I think in many—
CHAIR: That is okay?

Mr Berg : Yes. It is a voluntary self-regulatory system. I think in many cases the Australian will have published retractions and so forth according to Press Council edicts. I am certain that other newspapers do and I have no reason to suggest that the Australian does not either.

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