A statutory right to privacy 12 months on

July 22, 2012 |

Calls for a statutory right to privacy had been made periodically for at least 10 years in one report or another of law reform commissions.  Much longer if calls by academics, activists or just those interested in the area are taken into account. The 2008 Australian Law Reform Commission is the latest and loudest call for such a right.  Around this time last year it looked like the issue wasn’t just going to be kicked down the road.  The Federal Government looked like it was seriously going to both look at and implement some form of a  statutory right to privacy.   AM reported a new found interest in the issue.  It stated:

TONY EASTLEY: At home the Federal Government says the UK phone hacking scandal has prompted it to bring forward consideration of tougher privacy laws in Australia.
The Government says it will soon release a discussion paper on introducing laws to give people the right to sue for serious privacy breaches.
It was one of the recommendations from an extensive report into Australia’s privacy regime released three years ago.
The Government says it’ll help to address growing public concern over the News International scandal. But the Opposition says the two shouldn’t be linked.
Naomi Woodley reports from Canberra.

NAOMI WOODLEY: In 2008 the Australian Law Reform Commission made almost 300 recommendations in an extensive report on Australia’s privacy laws and practice.When the Government began addressing the recommendations it deferred action on the call for a specific right to privacy. But the Justice and Privacy Minister Brendan O’Connor says the News International scandal in the UK has now prompted the Government to bring forward a debate on the issue. It will release a discussion paper shortly.

BRENDAN O’CONNOR: All we’ve done in this instance is bring those matters forward because we think there needs to be now a proper debate about whether we’ve struck the right balance between two very important ideals – the freedom of expression and freedom of the press on one hand and the right for a private life, the right to privacy.

NAOMI WOODLEY: But the Government already has telephone intercept laws in place if phone hacking was going on in Australia and there’s no evidence that it has been. There are laws to deal with it. So isn’t it a bit dangerous to link this to the News of the World scandal in the UK?

BRENDAN O’CONNOR: Well I think it’s created a public expectation that the Government consider these matters. And we’re not suggesting that the gross invasions of privacy that have occurred in the United Kingdom in this recent scandal are happening here. And yes we do have some criminal sanctions in place in order to penalise organisations or people who invade people’s privacy in that manner. But there is no general right to privacy in this country.

NAOMI WOODLEY: The Opposition’s communications spokesman Malcolm Turnbull says a debate about a statutory right to privacy is needed but it shouldn’t be linked to events in the UK.

MALCOLM TURNBULL: We really do need to make sure that any discussion doesn’t just become a sort of antipodean re-run of the News of the World inquiries in the UK. This has got, if we’re going to look at privacy we should look right across all media and have an honest debate. How much privacy do we believe we are entitled to and to what extent should that limit the right of the media to free speech and freedom of the media?

NAOMI WOODLEY: News Limited has already announced its doing an audit of its Australian reporting to ensure no improper methods have been used. The chair of the Press Council Julian Disney says two former Supreme Court judges have now been appointed to independently assess that audit.

JULIAN DISNEY: Firstly they’ll be consulted in the way in which News Limited intends to conduct the review. And they’ll have an opportunity to comment on an ongoing basis as to whether they think the methods being pursued are adequate.
And then of particular importance they will be able to comment on whether they think appropriate action has been taken by News Limited in response to anything that’s found out.

TONY EASTLEY: The chairman of the Press Council Julian Disney ending Naomi Woodley’s report.

The Australian newspaper (a staunch opponent of privacy law reform) reported on Minister O’Connor’s intention to consider and bring forward a decision on whether a right to privacy should be enshrined in law.  Minister O’Connor fronted Insiders and spoke on the subject (amongst others), in guardedly activist tones.  The transcript of the interview:

BARRIE CASSIDY, PRESENTER: We’ll go our studio guest, the Minister for Home Affairs and Justice, Brendan O’Connor.

And while he joins us let’s get Tony Abbott’s take on the media changes the Government is flagging.

TONY ABBOTT, OPPOSITION LEADER (at press conference): Politicians don’t always like the coverage that they get. But if you’re in public life you’ve got to take the rough with the smooth. And a vigorous, critical media is an important part of a healthy democracy. And I think the Prime Minister should accept that.There are two separate issues here. There’s the Prime Minister’s quite unjustified attempt to say that News Limited in Australia has similar issues to News Corp in the United Kingdom. And then there’s the question of privacy. Now I’m happy to look at proposals for greater privacy protection. But what I will never support is any attempt to try to bluff the media out of doing its job which is to hold bad governments to account.

BARRIE CASSIDY: Brendan O’Connor, welcome.

BRENDAN O’CONNOR, HOME AFFAIRS MINISTER: Good morning.

BARRIE CASSIDY: The fresh look at the privacy issue arises from a three-year-old report. Somebody has a good memory.

BRENDAN O’CONNOR: Well the Australian Law Reform Commission report is a very comprehensive report, 2,700 pages. But it goes to a whole number of areas in our society and one of which of course is whether we have a statutory, whether we need a statutory right of privacy in this country. And I think given the scandal overseas and some mass breaches of privacy in Australia there are some questions as to whether we have sufficient protection afforded to ordinary citizens in this country. And for that reason I’ve brought that recommendation forward.

BARRIE CASSIDY: But you talk about the scandal overseas. It’s already illegal to hack into telephones. You don’t need to change that.

BRENDAN O’CONNOR: Well that’s right. There are criminal sanctions against certain behaviour in this country.

BARRIE CASSIDY: So why then is the experience in the UK relevant to this?

BRENDAN O’CONNOR: Well the Law Reform Commission has said well do people have sufficient protection when their privacy is seriously invaded? And do they have redress if indeed their privacy is invaded in such a manner? And I think these are very important questions for us to consider. And I do see them in the context of striking the right balance between freedom of expression on one hand and the right to privacy on the other. These are two ideals the Government supports. We just need to know whether we’ve got the balance right.

BARRIE CASSIDY: But give us a sense of what really concerns you about the way the media operates in Australia.

BRENDAN O’CONNOR: Well it’s not just about the media. As I’ve tried to make clear in relation to the tort of privacy it’s about whether a person has afforded proper protection. So for example it could be just a case where a man who’s a former boyfriend of a woman sends sexually explicit material to her family and to her employer and invades her privacy in such a manner that she deserves redress. Do we have sufficient laws in place? The Law Reform Commission says that’s not sufficient to date and I think we should examine that. In relation to the media, the media do have a responsibility to make sure that they have regard to a person’s privacy. I mean we saw gross violations overseas. But I have said very clearly that if it’s in the public interest then I don’t expect people to be able to invoke that right to privacy. So if the personal information goes to matters of a public interest then it would override that right.

BARRIE CASSIDY: Yeah but are you saying though that the media in Australia are too intrusive, even occasionally?

BRENDAN O’CONNOR: Well I think there are examples where there’s been serious invasion. I think what happens is you see material that might be titillating. And we’re all complicit because we’ll read the information. But it might be titillating one day, forgotten the next. But for the person whose information has been disclosed and used as fodder for the media, that has ruined their life. And I think we have to take those things into consideration.

BARRIE CASSIDY: Then it comes down to a question of definition. And you’re walking that fine line between freedom of speech and the right to privacy.

BRENDAN O’CONNOR: Well as it should be the case. And that’s why courts would determine on the facts whether in fact the right to disclose is, prevails upon the right to privacy. These are competing ideals as I say. But neither of these ideals are absolute. There are qualifications for both.

BARRIE CASSIDY: But you are picking on this at a time when clearly you’re surfing in off what’s going on in the UK. So even if it’s not opportunistic it’s certainly tactical to do it now.

BRENDAN O’CONNOR: Well it’s timely; no less timely than Mr Hartigan putting in place protocols to respond to the concerns that he has about what the scandals overseas mean to his organisation here.

I think…

BARRIE CASSIDY: But that doesn’t represent in any sense guilt on his part or even a suspicion of guilt.

BRENDAN O’CONNOR: No absolutely not. But what there is as a result of the quite scandalous gross invasions of privacy overseas is a concern I believe in the community that we need to make sure we have sufficient protection afforded to ordinary citizens.  Now I’ve seen references to the rich and powerful. I’m talking about people who deserve proper protection. And I think the Law Reform Commission has made clear that they don’t believe there is such protection and the Government wants to look at it.

BARRIE CASSIDY: And it’s the timing of the thing though when Senator Stephen Conroy is going on about his annoyance with News Limited constantly. Is he freelancing or is this a concern that runs through Government?

BRENDAN O’CONNOR: Well look you know editors of newspapers will have a go at ministers and ministers might have a go back. These things happen. I mean these are unrelated to the, I didn’t sort of invent the Law Reform Commission’s report or contrive the recommendations. They were going to be attended to either this year or next. I’ve brought them forward because I do believe as a result of the worldwide interest in the scandals where you’ve seen gross invasion of – I mean to think that you could hack into a murdered child’s phone to get information for a story seems to me quite disturbing. Now…

BARRIE CASSIDY: But that’s illegal. It’s illegal. You don’t need to change the laws to deal with that.

BRENDAN O’CONNOR: It’s illegal. But what does the parent – if there was something like that happen in this country, what would the family members of that child be able to do in terms of civil redress? Now I’m not suggesting there wouldn’t be criminal sanctions but what civil rights would they have? What redress remedy would they have to that invasion, that gross invasion of privacy? Now I’m not suggesting it happens here. But I do think there are invasions of privacy. And with the technological change and the way in which information flows there are questions about whether we have sufficient laws to protect ordinary Australians.

BARRIE CASSIDY: Okay. With your home affairs cap on now and the Malaysian agreement, are you able to confirm that those people sent to Malaysia will have special access to jobs?

BRENDAN O’CONNOR: Well Minister Bowen has made clear that he’s at the final stages of reaching an agreement that was of course announced on the 7th of May. He’s also made clear that he’s had extensive discussions, as has minister Hishammuddin the home affairs minister of Malaysia, with the UNHCR. That’s a very important element of this agreement. I mean this is an historic and innovative approach to I think undermining the people smugglers’ model. And I believe that look, the details have to be ultimately announced by the ministers once the agreement is struck. But the UNHCR has been involved and I think that in itself…

BARRIE CASSIDY: They’ve agreed to sign up to it?

BRENDAN O’CONNOR: Well I’m saying to you that it’s been very close engagement. And as we know both prime ministers on the 7th of May said that those people we would send to Malaysia would be treated with dignity. And indeed I’m sure there’s more detail that will come with an announcement by Minister Bowen and minister Hishammuddin whenever that is.

BARRIE CASSIDY: If they do get a special deal though as compared with those who are in the queue already, do you see that this might pose particular problems, that people might say well at least we’ll get something if we make the run to Australia, at least we’ll get a special deal ahead of those already in Malaysia?

BRENDAN O’CONNOR: Well we want to treat people fairly. But we do know that this is an innovative approach as I say. And we believe it will undermine the people smugglers’ model which is effectively saying if you get this on this vessel we’ll get you to Australia and you’ll be settled there. Now we know, we’ve seen people get on unseaworthy vessels on perilous journeys in some cases leading to maritime disasters. We need to stop this approach. And we believe that this approach is the most effective. And indeed since even the announcement on the 7th of May you’ve seen a very significant decline in irregular arrivals in that period. Five hundred or so people have arrived compared to with what would have been 1,700 in the same period last year. So we’re already seeing I think impacts as a result of the announcement on the 7th.

BARRIE CASSIDY: But still 500 have arrived. What’s the status now for those 500, because presumably they won’t be included under whatever agreement is announced tomorrow?

BRENDAN O’CONNOR: Well Minister Bowen has made it clear that those people that arrived after that date would not, should not assume they’ll be settled here. Again the Minister will have more to say on that.

BARRIE CASSIDY: Well he used stronger language than that. He said they wouldn’t be settled here.

BRENDAN O’CONNOR: Yeah and he’ll have more to say about that. But what we are doing is making sure we put in place I think a very important, sustainable solution to this complex regional problem. And having this approach I think we’ll see a continued decline because in the end the people smugglers who seek to reap profit from human misery will not be able to sell the message they’re currently selling.

BARRIE CASSIDY: Kevin Rudd said from Bali yesterday that there had been some significant progress in terms of Papua New Guinea being used as a third country. Can you update us on that?

BRENDAN O’CONNOR: Well only to say that I know that PNG has an interest in reaching agreement with Australia but they’re some time off. We know that they’ve gone through their own troubles. They’ve had a very ill prime minister. And of course there’s now been changes within government which I think has put things back a little. But we’ll continue to discuss with PNG the option of a centre there. We think it’s a very important part of the overall package. And I also wanted to indicate, I should have earlier, that the Malaysian arrangement of course would allow for 4,000 refugees to come here. And that’s why again we say that there’s a good message but it also allows for a humanitarian dimension which I think was lacking in earlier agreements by earlier governments.

BARRIE CASSIDY: Now you spent some time this week discussing the new R18 classification for violent video games. We read this morning that the person accused of the massacre in Norway actually looked at these games, has a collection of these sorts of violent games. Should people be allowed to view them at all?

BRENDAN O’CONNOR: Well just firstly on the R18 classification, I mean this is an historic agreement. It’s been on the agenda of attorneys general for nine years. But I have to make clear that this is going to ensure that we don’t allow violent games played by 15 year olds. At the moment the most popular adult themed games that are played only lawfully by adults around the world are played by 15 year olds here. That will change as a result of the introduction of the R18. And we’ll still keep out violent, very violent, sexually violent games. They’ll be prohibited from access lawfully in this country. But look because there’s a madman who’s done such atrocities in Norway I don’t think means that we’re going to close down film or the engagement with games. I think it really points to of course a person who’s clearly there’s something wrong with this person to sort of cause such devastation in Norway. But I’m not sure that the argument goes that as a result of watching a game you turn into that type of person. I think there’s something clearly intrinsically wrong with him.

BARRIE CASSIDY: Because of course what you’re doing is designed to deny access to children. But maybe it’s unhinged adults that are really the problem, when they’re using this stuff.

BRENDAN O’CONNOR: And that’s why as I say, look just in relation to film or video games we have a refused classification. And I’m not looking to remove the most violent elements from that refused classification. We’re going to make sure there’s proper protection. And there will be material that cannot be accessed by adults. But most importantly the 50 most popular adult games currently played by 15 year olds here won’t be played by them once we’ve reclassified them.

BARRIE CASSIDY: Thank you for your time this morning. Appreciate it.

BRENDAN O’CONNOR: Thanks Barrie.

On the back of this media the Government released a discussion paper on 23 September 2011.  The time for submissions comes and goes and 70 submissions are received (see here).  Since 30 November 2011 the level of activity has dropped off to, well er, nothing. Nada. Tumbleweeds now blow down the middle of the Attorney General’s privacy page.  Not that nothing has happened overall.  Brendan O’Connor no longer has carriage for privacy matters.  The responsible minister is now the Attorney General, Nicola Roxon. She has introduced a bill to amend existing sections of the Privacy Act and replace IPPs and NPPs with Australian Privacy Principles.  Nothing about a statutory right to privacy.  The response to the proposed amendments has been a collective shrug at best and, more often, old fashioned unvarnished disappointment. It needs to be remembered that consideration of a statutory right of privacy, with a discussion paper etc, was brought on before the amendments to the bill because of the perceived need for early consideration.  That issue lies mouldering away in someone’s drawer in the Attorney General’s Department.  It seems the air is slowly but steadily leaking out of the tyres carrying privacy reform along.  This is a great pity from both a legal as well as a public policy perspective.  Invasive technology and daily intrusions into our lives means our personal space diminishes and our need for legal redress is all the more important.

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