Australian article on the new Attorney General, Mark Dreyfus, about freedom of speech and a tort of privacy..

February 4, 2013 |

 That The Australian has a fear, dread and loathing of any form of a statutory right to privacy is no secret.  The Legal Affairs section  has occasional, bordering on regular, pieces by a range of commentators who run the usual complaints about such a tort.  Today the angle (on page one and five) is an interview with the new Attorney General under the banner Dreyfus sees free speech risk in privacy law (behind the pay wall).  From this exchange the august paper, through its Legal Affairs editor Chris Merritt (a consistent and longstanding critic of a statutory right to privacy), takes some comfort that such a tort may not be in the offing.

 It provides (with some notations):

Incoming attorney-general Mark  Dreyfus has expressed personal concern about the risk to freedom of speech from legislation that encourages people to sue each other for invasions of privacy.

Mr Dreyfus, who is replacing Nicola Roxon as the nation’s first law officer, said countries that had created  a  statutory  method  of suing for privacy had failed to achieve the right balance with freedom of speech. “Legislation in an effective way to protect privacy while at the same time not unduly affecting freedom of speech has proved to be a very difficult task,”

On its face this reportage the Attorney General seems to be less than supportive about a statutory tort of privacy.  It is frustrating that there is no reference as to which jurisdictions which have a statutory “method of suing for privacy” have failed to achieve the right balance with freedom of speech.

Mr Dreyfus said “In jurisdictions where they have had legislation I don’t think they have got the balance exactly right yet.” Mr Dreyfus’s remarks, in an interview with The Australian, provide the second indication within a week that the government could be seeking to address concerns about its approach to free speech.

This of course does not preclude the Government from introducing the statutory right to privacy and claiming it gets the balance right. If he is referring to legislation in continental Europe he is probably correct in his concerns, at least from a common law perspective. The UK does not have a statutory right to privacy but Article 8 and 10 does in effect constitute the legislative base for the tort of misuse of private information.  Whether the balance is right or wrong is a matter of conjecture.  The privacy jurisprudence has moved at a pace in the last decade without overt signs that it stiffles freedom of speech. In the USA there are some Federal protections (through the Fourteenth Amendment and some legislative protections enforced by the FTC) as well as state based statutes protecting privacy but freedom of speech is paramount.

They come at a time when the government  is  considering  a range of other measures on free speech, including:

  • The future of criminal sanctions on public servants who reveal government ineptitude and wrongdoing to the media.
  • Proposals to create a statutory regulator to police media content.
  • The  future  of  federal  “hate speech” laws that impose legal liability for statements that offend and insult people because of race.

Mr Dreyfus said yesterday he would not reveal the government’s position on the push for a privacy “tort” – or statutory cause of action -until after he had received a briefing from the Attorney-General’s  Department.

That is the only sensible action.  Of course even if the Attorney General was not an enthusiast for such  a privacy tort would be beside the point if that was the Government policy.  But a Minister who does not fully embrace a policy iniative can be a dead weight on promoting it. 

But his “present, personal view” was that while there were concerns about invasions of privacy it was very difficult to legislate to enable privacy litigation without adversely affecting freedom of speech.

Again the dichotomy is false. Privacy does not exist or co exist solely in the space occupied by the media and even where both interests intersection it will not always be in conflict with freedom of speech.  Privacy infringement can be undertaken by neighbour against neighbour, by prying government officials, people in whom trust is placed to keep information or documents confidential or any number of other circumstances where none of the participants is part of the media.  Even where there is a privacy litigation involving the media  the balance may, and will often, tilt in favour of freedom of expression.

He believed  this  difficulty probably explained why the government had not yet produced a legislative response to proposals for a privacy tort that were out­ lined in a government issues paper nearly 18 months ago.

That may be the case but it is not the smartest sentence uttered by the responsible minister in the first day of the job. There may be other issues involved in the delay, such as a full legislative calender.  If that is the case it may be a cause for critisism of the Government; along the lines of make a decision one way or another.

Mr   Dreyfus,   56,   a   widely experienced Melbourne silk who entered parliament in  2007, is taking office just days after concerns abom the threat to free speech led Ms Roxon to abandon some of her proposals for federal anti-discrimination law.

 That change eliminated the risk that a planned consolidation of anti-discrimination law was about to pose legal liability for speech that offends, insults or intimidates-people because of their sex, sexual orientation disability, religion, age, ·medical history and nationality .

Mr Dreyfus, who will now take carriage   of   the ·consolidation project, has drawn a line on ex­ tending the backdown to federal laws against racial vilification which have long penalised speech that people find offensive and insulting because of their race These provisions were used in th Federal Court against columnist Andrew Bolt, who was sued ·over articles  he  wrote  about light-skinned Aborigines.

“I don’t see any need to change the long-established provisions -the hate-speech provisions of the Racial Discrimination Act ” Mr Dreyfus said.  ‘”But I do think the intention of the government should be made clear at all times- which is not to expand the range or reach of the anti-discrimination legislation as a whole” beyond the stated grounds.                       .

He said the government had no intention of removing the “hate -speech” provisions of the Racial Discrimination Act.

But he would be monitoring the debate closely to ensure that the final scheme fulfilled the government’s goal of not expanding the reach of federal anti­ discrimination law.

Despite leading a 2009 House of Representatives committee that had recommended retaining criminal sanctions for most unauthorised leaks, Mr Dreyfus would not be drawn yesterday on the government’s long-delayed legislative response to his committee’s report.

But before the last election he distanced himself from his committee’s recommendation and told a conference that criminal penalties for leaks by public servants “do not match the kind of society that we have . ..they don’t match the ease of communication and  the  availability  of information that we have in the electronic and digital age we are living in”.

When asked if he would be bring a fresh approach to the office of Attorney-General,  Mr Dreyfus praised Ms Roxon as “a great Attornev General”.

 “But I have my own views and I may well come to different conclusions on some matters from Ntcola Roxon and that is only to be expected,” he said.

As a leading silk with wide experience in the corporate and community sector, Mr Dreyfus said he had had plenty of time to consider what kind of legal changes . he would like to Implement if he ever became Attorney-General. “But I am not” prepared to give you a list today,” he said “I am being brought in with 7/2 months to run before the election with a government that has carried out a great “deal of law reform already. “I am going to make an assessment of what are the balance of reforms that should be worked on during the remainder of this term and what we should move- on in our next term.”

 The article leaves the clear impression that a statutory right of privacy is a non starter in the balance of this Parliament.  That said much of that is based on select comments taken from a personal perspective.  And one should always bear in mind that whatever rainy weather is predicted for a statutory right to privacy will be taken as a certaintity by The Australian.  It relies on very little substance to predict the end of a proposal it dislikes.  So the weight one can put on such a prediction is not great. But there is a basis for some concern.

But if there is no attempt to introduce a statutory right of privacy by this Government in this Parliament and there was a change of government then such a tort may not be in prospect for another 5 plus years, on past history of government longetivity.  The opposition has shown no enthusiasm for the concept. It has not helped that this is the third Minister who has had carriage on this issue in the last 3 years; O’Connor, Roxon and now Dreyfus.

The window of opportunity is narrow and closing fast.  The odds for a statutory right of priavcy this year are lengthening.



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