Coverage on the Attorney General and privacy in the Australian on Friday 16 December 2011

December 17, 2011 |

In yesterday’s Legal Affairs section of the Australian Chris Merritt has raised alarm, here, about the new Attorney General’s predilication for activism and the statutory right of privacy.

He says:

ONE of the most overlooked elements of this week’s Gillard cabinet reshuffle looks set to put Nicola Roxon back in her comfort zone: leading a crusade.

Before the reshuffle, responsibility for the government’s proposed privacy tort rested with Brendan O’Connor, who was outside cabinet when he was Justice Minister. Jason Clare now holds that position, but he is not responsible for privacy.

That went to Roxon when she replaced Robert McClelland as Attorney-General. And that brought this policy area to cabinet. This suggests that Julia Gillard believes privacy is about to take on greater political significance.

In politics it is always very dangerous to read tea leaves as Chris does here.  There is even less profit in trying to discern the reasons for changes in administrative arrangements.  Privacy has found itself in many different portfolios over the years.  Administrative arrangements change for a range of reasons.  Frankly Privacy should be an Attorney General’s responsibility.

So don’t be surprised if Roxon launches a crusade to persuade voters that suing each other is the best way to protect their privacy.

The way of it in government is that while some Ministers are very enthusiastic about some issues and less about others Government policy is collegiate and no minister runs his or her agenda without marching instructions from Cabinet.

It won’t be easy. The debate triggered by O’Connor’s issues paper on a privacy tort has revealed that litigation is unlikely to do much to protect the privacy of those who cannot afford to litigate.

That cost is a barrier to enforcement is a problem as old as the law.  No win no fee arrangements is one way of dealing with this problem.  Another way would be to permit the Privacy Commissioner commence action much as the ACCC does when it discovers a breach of the Consumer Laws or ASIC does when discovering malfeasance by directors or shareholders.  Public interest litigation has a role which can, if properly legislated, protect privacy rights.

Privacy Commissioner Tim Pilgrim holds this view and wants all privacy grievances sent to his office for conciliation, and only allowed into court in limited circumstances.

Yes that is correct.  It is also a minority view when compared to the range of other submissions.

The Rule of Law Institute and leading telecommunications lawyers Peter Leonard and Michael Burnett go a lot further. They believe it is simply too dangerous to unleash a new wave of litigation that could restrict the free flow of information.

There is a lot of “coulds” and “mays” in the Rule of Law’s submissions and in the naysayers of such a right.  It is a significant issue and requires proper and clearly enunciated defences.  But having a statutory right of privacy in itself is not a chill on free speech.  A right of privacy has not had that effect in New Zealand, the UK or the USA.

Roxon is perfectly placed to take carriage of such a difficult sales job. As a lawyer, her background is impeccable.

She was an associate to former High Court judge Mary Gaudron and worked for plaintiff law firm Maurice Blackburn.

Maurice Blackburn’s submission is in favour but hardly radical. It is in line with other submissions.

The fact that her old firm is among those urging the government to push ahead with a new tort should have absolutely no bearing on the way the new Attorney-General handles things.



Leave a Reply