Peter A Clarke

Policy development Australian style.  Barnaby Joyce now wants an enforceable tort of privacy.  Or so it seems from the Fairfax piece Barnaby Joyce regrets paid television interview,  the Australian in Barnaby Joyce calls for privacy law overhaul, defends actions after altercation with photographer, on the AM program today  and by ABC in Barnaby Joyce wants privacy laws, denies argument is hypocritical after opposition to abortion clinic safe zones. Presumably that means a statute based cause of action as recommended by the Australian Law Reform Commission.  It is relevant to note that in 2008, when the Australian Law Reform Commission recommended a statutory cause of action for serious invasion of privacy Joyce was a senior member of the opposition front bench and in 2013 when the Australian Law Reform Commission again made a similar recommendation in its report Serious invasions in the Digital era Joyce was a member of Cabinet.  He did not voice any support for such a cause of action during either time.  In 2011 the only open support came from the Greens and Paul Keating.

In 2011 the Home Affairs Minister instigated the second inquiry by the Australian Law reform Commission on the benefit and need for an statutory right of action of serious invasion of privacy.  The need for this second inquiry was always questionable.  The facts had not changed between 2008 and 2011. A tort of serious invasion of privacy could have been enacted at the same time as the Privacy Act was amended in 2011.  There was no legal basis for not taking action then. It was a failure of political will and public policy.  There is a big question mark as to why another inquiry into a serious invasions of privacy was warranted.  A cynical type could point to the fact that in 2011 there was considerable pressure on the government from media outlets converging with the British experience of phone hacking which gave rise to this move.  Throwing a grenade at the media with the not unsubtle implication that a tort was in the offing was politically attractive.  It certainly the media industry and its supporters into melt down in 2011 with the Australian being the most shrill, such as predicting economic costs with a tort of an invasion of privacy ( Tort will impose runaway costs on society) while over at the Fairfax press there was the equally ridiculous arguments against a tort of privacy, such as the assertion to the effect that there was no evidence in support for such a tort, a “nothing- to-see-here” argument ( Little evidence Australia needs a new privacy law by, no surprises, a then senior associate of Minter Ellison, best known as a defendant’s firm in media related litigation.  Seven years on the evidence is thicker on the ground one might suggest).  That the media would resist a tort of serious invasion of privacy is not surprising.  What is more concerning is the way Governments have avoided filling this massive gap in the law, particularly when privacy intrusive technology becomes more ubiquitous and cheaper and the scope of invading privacy becomes  greater.  There is plenty of blame to go around to both sides of politics in the last 10 years.  In fact Federal Governments since the 1980s have carefully avoided legislating adequate privacy and data security protections.  The legislative changes have been grudging and minimal, those filling the regulators shoes have been weak, unimaginative and ineffective and the lack of funding to regulate has been just plain scandalous.

While it is good that Barnaby Joyce has come to the light, it is hardly the best way to start a debate on a complicated issue. As is to be expected when the issue of a privacy tort is discussed, even in inchoate terms, Chris Merritt of the Australian swings into action with either a jeremiad on what it will mean or a skewed report about how it is doomed.  The headline, Barnaby Joyce privacy law call fails to gain traction, leaves little to the imagination and goes for option number 2.  The article itself is thin gruel, the standard Government “protections are adequate”  response from the Attorney General, a reference to an academic not known for his writing on privacy, Joseph Fernandez, Mark Dreyfuss making the not unreasonable point that it was “policy on the run” and Peter Faris saying it a privacy tort would make the media unworkable, upon what basis it is not made clear.  The media works well enough in the UK, Europe, New Zealand and the USA with privacy torts/causes of action of one form or another.  It is an attempt to squash a debate before it takes root. The Government response is at least consistent.  Unfortunately it is quite inaccurate.  There remain significant gaps in protection even with trespass, nuisance, defamation and breach of confidence.  Each cause of action is limited and not privacy focused.  Trespass and nuisance are particularly ill suited to an action to litigate privacy matters, both for the plaintiff and the defendant.  The United Kingdom Supreme Court abandoned the complexities and inconsistencies of breach of confidence and instead recognised a tort of privacy. The Attorney General has completely ignored the recommendations of Australian, Victorian and New South Wales Law Reform Commission Reports which have reviewed the law and best way to protect of privacy.

The Oz article provides:

Attorney-General Christian Porter declined yesterday to take up his plea. Academic Joseph Fernandez believed Mr Joyce was “particularly ill suited” to be calling for privacy protection.

“He has shown himself to be capable of trading commercially in his private affairs; he is quite comfortable with that,” said Dr Fernandez, who is discipline lead for journalism at Curtin ­University.

“It is not for him to decide when to flick the switch on and when to flick it off.”

It was the latest rebuff for Mr Joyce’s attempt to trigger a debate over a privacy “tort”, a statutory mechanism allowing people to sue for damages.

Labor legal affairs spokesman Mark Dreyfus has dismissed it as “policy on the run” and retired barrister Peter Faris QC questioned whether the role of the media would be workable if Mr Joyce’s scheme went ahead.

Mr Joyce made his latest push for a privacy tort on a program broadcast by the Seven Network — the same network that paid $150,000 to Mr Joyce and his partner, Vikki Campion, for an interview covering intimate details of their affair.

He told Seven’s Sunrise program yesterday he was not seeking a privacy tort to protect his privacy but to protect Ms Campion and their son, Sebastian.

However, Mr Porter said the law already provided substantial avenues for individuals to seek redress for interference with their privacy, including the torts for trespass, nuisance, defamation and breach of confidence.

“The government obviously examines approaches taken in comparable international jurisdictions, as well as domestic Law Reform Commission reports, but at this stage believes there are substantial protections,” Mr Porter said.