Coverage on Privacy on 2 December

December 2, 2011 |

The Australian has two pieces regarding privacy;It’s now or never for action on a privacy tort: Kirby and Testing process of silk selection in state of flux.

In It’s now or never for action on a privacy tort: Kirby the article provides:

IF the government does not introduce statutory protections against serious invasions of privacy in the wake of the British phone hacking scandal it will never happen, Michael Kirby has declared.

Mr Kirby, former High Court judge and Australia’s most prominent advocate for strengthened privacy laws, this week urged the Gillard government to “bite the bullet” and finally introduce a privacy tort — a change he first proposed in 1979.

But the eminent jurist, who lamented his own loss of privacy when Liberal senator Bill Heffernan made unsubstantiated allegations against him in 2002 under parliamentary privilege, said a statutory tort protecting privacy would only be used by the “very rich, very determined and very patient”.

“It is not going to be the whole answer,” he said at a privacy conference in Melbourne. “Who has got the money to have a privacy action in the courts when they know, as with defamation actions, they will be fought tooth and nail, especially in the early days?

“Ultimately, you want to be very rich, very determined and very patient to pursue such a case in a court. There won’t be a flood of such cases but there should be a standard against which editors and people working for journalism measure what they do.”

The Minister for Justice and Freedom of Information, Brendan O’Connor, who is considering whether to include a privacy tort in the revised Privacy Act, told a conference of the International Association of Privacy Professionals of Australia and New Zealand that he still had an “open mind” on whether it was needed.

In the face of opposition to changes that would curb freedom of expression from media companies — including News Limited, publisher of The Australian– Mr Connor said any privacy tort would be “designed to ensure it did not prevent the media reporting on matters of public interest”.

Mr Kirby is globally renowned as a champion of privacy. As the head of the Australian Law Reform Commission, he first advocated a limited privacy tort in 1979.

That year he chaired an OECD committee that produced influential guidelines on data protection. After retiring from the bench as Australia’s longest-serving judge, he wrote his biography, titled A Private Life.

Mr Kirby said the OECD guidelines for ensuring privacy in the collection and storage of data relied on the principle of “use limitation”, under which information can only be lawfully used for the stated purpose for which it was collected. That had been made redundant by the advent of internet search engines such as Google.

He told delegates personal experience had hardened his view of the need for stronger privacy laws.

“If you Google me or, more importantly, if you Google my partner, Johan, what comes up is Senator Heffernan’s attack on me. That will follow me to my grave.”

This is despite Senator Heffernan apologising and retracting his allegation that Mr Kirby, a gay man, used government resources to solicit underage prostitutes.

He ridiculed the government’s approach to law reform, which has produced only voluminous reports and issues papers. “In the context of the media hacking and the invasions of privacy of people high and low that has been revealed not only in the United Kingdom but our own country this year — if in that context you can’t get a statutory protection for privacy, you can write it off. It will never happen,” he said. “Why do we give a lot of credence to some of these people in the media saying it should be left alone?

“They are very self-interested. They are a great power in the land and it is not a thing for a good.”

He told The Australian it was unsurprising media companies opposed the reform. He denied his linking of the privacy debate to the News of the World hacking scandal was opportunistic.

“I think it is a matter of learning from experience,” he said. “If you are in control of a major news outlet then obviously you won’t want to have any protection for privacy, but we live in a rule of law society. Normally, important values are protected by the law.”

The other article is Short arm of the law revealed, which provides:

DOUBTS have emerged about whether federal privacy laws are strong enough to give barristers in Victoria the same right to access private information about their applications to become a senior counsel as their NSW colleagues.

In NSW, barrister David Smallbone recently won the right to see what had been said about him by judges, retired judges, barristers and solicitors during the silk selection process.

The Federal Court ruled Mr Smallbone was entitled under the federal Privacy Act to access his personal information held by the NSW Bar Association, but with the names of those who had made comments removed.

In Victoria, barrister John Riordan has sought access to similar information relating to his application to become a silk.

However, in 2004 the Victorian Bar Association handed the responsibility for selecting silks to Supreme Court Chief Justice Marilyn Warren.

Some barristers believe this could put the Victorian silk selection process out of reach of privacy legislation.

A privacy lawyer at one of the nation’s largest firms, who did not wish to be named, said as a Victorian judge Chief Justice Warren was not covered by the federal Privacy Act, which applies to private organisations with an annual turnover of more than $3 million and federal government agencies. It exempts state authorities and instrumentalities.

Victoria’s privacy legislation covers state government organisations and their contractors, but has an exemption for courts, tribunals and judges acting in their judicial or quasi-judicial capacity.

David Vaile, executive director of UNSW’s Cyberspace Law and Policy Centre and vice-chair of the Australian Privacy Foundation, said Chief Justice Warren appeared to be acting not in her judicial capacity, but as a delegate of the Victorian Bar Association.

“They appear to be using the authority and the respect and the independence of the Chief Justice role, but she appears not to be acting in her judicial function, but essentially as their contractor or consultant,” he said.

Mr Vaile, who has worked at the Office of the Federal Privacy Commissioner, said the federal Privacy Act had provisions to prevent federal government agencies from avoiding their privacy obligations by contracting out their functions to other organisations.

However, he said the Privacy Act did not as clearly prevent private organisations from doing the same.

“The whole question about whether you can break the obligations to protect people’s privacy and to give them access to information as a right . . . by exporting, by subcontracting, by outsourcing, is a live one,” Mr Vaile said.

“It’s a great pity because it’s one way that people lose that protection you come to expect.”

Mr Vaile said in determining whether the silk selection process was covered by the Privacy Act it was necessary to look at the agreement between Chief Justice Warren and the bar and to examine how closely the bar dictated the selection process.

He said he hoped members of the bar were not trying deliberately to avoid the Bar Association’s privacy obligations by outsourcing the silk selection process to the Chief Justice.

“It’s not a good look to essentially try and launder documents through the Chief Justice in a way that a government agency wouldn’t be allowed to get away with, but relying on the respect of someone who is otherwise sitting in one of the three wings of government,” he said.

The Victorian silk selection system has been in a state of flux since April, when Chief Justice Warren said she no longer wanted the responsibility of deciding on appointments. However, the Victorian Bar last week issued a statement that indicated the Chief Justice had changed her mind.



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