In today’s Age, Melbourne Water apologises for spying on pipeline protest farmer, there is a very interesting article about Melbourne Water breaching a protester’s privacy.  It states:

A year-long legal battle ended yesterday when the water authority agreed to publish an apology to 63-year-old Yea farmer Jan Beer, a lead campaigner against the north-south pipeline. The apology will be published on its website and in two regional Victorian newspapers next month.

The apology says in part: ”Melbourne Water acknowledges that the collection of her personal information has caused Mrs Beer to feel that she was being continually monitored Read the rest of this entry »

The High Court undertook a detailed consideration of trusts in Byrnes v Kendle.  While the court unanimously upheld the appeal there are 3 separate recisions for decision; French CJ, Gummow and Haynes and Heydon and Crennan.

Facts

The facts are best summarised at paragraphs [1] – [5] of French CJ’s decision.  Martin Byrnes and his mother Joan Byrnes (“Mrs Brynes”) alleged breach of trust by her estranged husband Clifford Kendle (“Kendle”) regarding the collection of ranks from an occupant of a property owned by him in which she had a half share. Legal title to the property was held by Kendle. In 1997 he signed an acknowledgement of trust declaring that he held a half interest in the property as tenant in common upon trust for Mrs Byrnes.  Kendle let the property to his son from 2002 – 2007. The weekly rental was $125. Kendle collected a total of $250 during this period and took no steps to collect any arrears.

The primary judge dismissed the plaintiff’s claim as to the breach of trust. He found that Kendle was not a trustee because he lacked intention to create a trust, relying upon the High Court’s decision in Commissioner of Stamp Duty v Jolliffe. The Full Court of the Supreme Court of South Australia found that Kendle was not subject to the duty that would normally be imposed on the trustee to rent the trust property.

Decision

Construction of trust

Each reason for decision took issue with Jolliffe. French CJ Read the rest of this entry »

The coverage continues in both the major publications but also some of the more boutique outlets.  In the Media section of the Australian, there is Do not repeat the mistakes of overseas laws, warns Nick Xenophon

INDEPENDENT senator Nick Xenophon has called for any inquiry into privacy and the media to examine the operation of laws overseas that in some cases have prevented the exposure of misconduct by rich and powerful figures.

The South Australian said French laws had prevented disclosures about misconduct by senior figures and it was important that privacy laws were not used as a shield behind which the rich and powerful could hide.

Senator Xenophon’s comments come as the government has promised a new discussion paper on privacy laws and the Greens demanded a wide-ranging inquiry into the media.

It follows Rupert Murdoch’s closure of his British tabloid the News of the World last month due to the phone hacking scandal.

Julia Gillard responded by saying Australians would have “hard questions” to ask News Corporation’s local subsidiary, News Limited, which publishes The Australian. She did not elaborate.

The new discussion paper follows a 2008 recommendation by the Australian Law Reform Commission for a legal right to privacy.

But opposition justice spokesman George Brandis said the ALRC report recommended the exemption from the Privacy Act for journalists should not only remain but be extended.

“Nowhere in the discussion of journalistic practices did the ALRC cite instances of abuse which warranted greater restrictions on press freedom in the name of privacy,” he said. “On the contrary, by recommending the broadening of the exemptions of journalists from the operation of the Privacy Act, it implicitly concluded the opposite.”

Senator Brandis also criticised the government’s formal response to the report in 2009, which failed to address any of the ALRC’s four recommendations relating to journalism.

Australian Press Council figures show breaches of privacy made up less than 6 per cent of the complaints received in the past year. Of the 520 complaints it received, less than 30 concerned breach of privacy. Most were dismissed or mediated between the parties.

Since 1993, more than 800 complaints alleging a privacy breach have been made, but the council upheld only 45 for a whole or partial breach of an individual’s privacy by a member.

The privacy debate has unleashed a row over whether political parties should remain exempt from privacy laws, enabling them to collect information about voters that they keep on party databases.

Senator Xenophon said voters should have an “opt-out clause” under which they could refuse to allow information to be collected by political parties.

In the Australian ,Tort will impose runaway costs on society, Chris Merritt has another go at a privacy tort. It should be noted that there is no discussion paper yet, no exposure draft of any bill.

BRAND new torts do not come along every day. And when they do, their creators are guaranteed a place in the legal history books.

Perhaps true.  But so what.  There are some enforceable causes of action which arise Read the rest of this entry »

The Civil Dispute Resolution Act is now in effect.  The press release provides:

Attorney-General Robert McClelland said changes to Australia’s legal system which commence today will result in more people resolving disputes before going to court, saving money, time and stress.

Mr McClelland said the reforms commencing today as part of the Civil Dispute Resolution Act 2011 will fundamentally change the way people resolve issues in the federal courts.

“Australia’s legal system is changing Read the rest of this entry »

In the Age Michael Pearce, the immediate past president of Liberty Victoria, has an opinion piece Legislate the right to privacy saying:

When new technologies threaten our personal space and invade our privacy, we need the right to sue.

THE Federal Government should be applauded for giving serious consideration to the recommendation of the Australian Law Reform Commission three years ago that Parliament legislate for a right to sue for damages for serious invasion of privacy.

Media companies have sprung to oppose the recommendations. But their arguments are unconvincing.

The reasons why Parliament should legislate are more fundamental than the need to respond to the passing wrongdoing of a rogue media company, even if it does control about two-thirds of metropolitan newspaper circulation in this country.

It is not particularly helpful to label News Limited a “rogue company”.  That is as distracting as the irrelevant nitpicking that some of the opponents have been engaging in.  So what if a media company controls two thirds of newspaper circulation.  Monopolies and cartels have been a continuous problem in media ownership as well as many other aspects of the Australian economy.  It is not the issue.

Parliament should act because technological change is eroding privacy to such a degree and so rapidly that, without some legal protection, very little privacy will be left to us before long.

Good point Read the rest of this entry »

It is vital that there be a sensible debate on a right to privacy, for against or in between.  There is very mixed coverage of the privacy issue today.

Peter Van Onsolen’s Political parties face hard questions on how they use our personal data in the Australian is good and highlights a clear anomaly in the privacy laws. It is a good article relating to the exemptions political parties have from the Privacy Act.  It’s relationship with a statutory duty of privacy is at best tenuous.  But it is a legitimate issue.

The report Reform push ‘not based on complaints about media’ makes clear that any statutory right to privacy is not media focused. It says in part:

A SENIOR officer at the Australian Law Reform Commission has insisted its call for a legal right to privacy was not based on any “groundswell” of complaints about the media

So what?  Sometimes law reform arises out of an incident which highlights a discrepancy or gap in the law, sometimes it is a groundswell and other times there is a general review and an amendment is proposed.

The NSW acting Privacy Commissioner John McAteer has also warned the focus of the debate about privacy should not be solely on the media in the wake of the News of the World phone hacking scandal in Britain.

Excellent point and one that is obvious on its face.

While Mr O’Connor and Julia Gillard discussed the issue within the context of the events in Britain, ALRC senior legal officer Bruce Alston, who worked on the report, told The Australian yesterday the recommendation to establish a legal right to privacy was not just about the media.

“In recommending a statutory cause of action for an invasion of privacy, we were not responding to any groundswell of complaints against the media,” he said.

“And, in fact, we took pains to emphasis the media were not a particular target for the recommended course of action for a serious invasion of privacy.”

Mr McAteer cautioned against any discussion on privacy being solely focused on the media and said the “true importance of the debate” was that it had highlighted gaps in the law.

“The current debate has focused largely on allegations of breaches of individuals’ privacy by the media, and ensuing comments that such laws might ‘gag’ or limit the freedom of the press,” he said.

“However, the Law Reform Commission’s recommendations were not limited to actions against the media.”

Mr McAteer said that invasion of privacy tended to occur in instances such as neighbours spying on neighbours or people setting up surveillance cameras on buildings that overlooked public places.

He said privacy breaches often related to matters between citizens and government or customers and businesses.

“Most of the privacy-related complaints arise from an existing relationship between a complainant and the body they are dealing with, whether it be government or private sector,” Mr McAteer said.

A very sensible injection Read the rest of this entry »

The Attorney General Robert McClelland announced appointments to the National Alternative Dispute Resolution Advisory Council (NADRAC). The announcment provides:

“It’s with great pleasure I announce the appointment of Mr Jeremy Gormly SC as NADRAC’s Chair,” Mr McClelland said.

“Mr Gormly has extensive experience in Government disputes and inquiries, as well as in the practice of mediation generally.

“In 2009, Mr Gormly successfully mediated in the resolution of claims arising from the 1964 Melbourne-Voyager collision, which had a number of cases outstanding for many years.

“I am confident Mr Gormly will Read the rest of this entry »

The weekend coverage of the Privacy debate followed a predicted predictable line, with a few rays of hope and sunshine.  As Insiders host Barry Cassidy said yesterday, you will not find too many journalists supporting a tort of privacy.  And how!

In the Australian Chris Merritt slipped into his traditional bellicose stride when dealing with the whiff of any new rights in the offing. He warmed up with Undoing free speech a sop to placate Bob on Friday.  It is more assertion than argument.

THE federal government seems intent on allowing the Greens to destroy Labor’s credentials on free speech.

After permitting the Greens to vandalise the federal shield law for journalists’ sources, the government has decided to embrace the thinking of the Greens on privacy law.

A wild simplification. The interest in greater protections of privacy goes well beyond a political party.  And the interest in this area has been longstanding.

This will have the effect of reversing privacy law reforms that were enacted by Labor state governments just six years ago.

Which ones?

It will also leave federal Labor even further removed from the grand plans for transparency and accountability that were contained in the party’s 2007 election platform.

Pure and utter assertion and just plain wrong.  Having a statutory tort of privacy is Read the rest of this entry »

There is a certain predictability in the reportage when there is genuine agitation of a reform to Privacy laws. Or more accurately giving individuals a cause of action for breach of privacy.  I have been interested in this field since the 1990s.

A tried and true starting point is to claim, via a media expert not a journalist, that the laws are adequate at the moment so why do we need to have yet another form of regulation (which it is not) imposed from above.  And the Age obliges in its piece by Sandip Mukerjea a senior associate at Minter Ellison, in Little evidence Australia needs a new privacy law.  He says, amongst other things

The News of the World saga presents the best and most topical example of this. Were Australian journalists to engage in the type of conduct that is the subject of the British police investigations – and there is not a skerrick of evidence to suggest they have, underscoring doubts over the need for privacy reform – they would almost certainly be guilty of offences under the Telecommunications (Interception and Access) Act and the Commonwealth Criminal Code. The former makes it illegal to access stored communications such as voicemail and email without consent; the latter makes it illegal to pretend to be someone else for the purpose of committing an offence.

As well as criminal liability, the offender is liable under the legislation to be sued for damages by the aggrieved person in relation to any unauthorised accessing of voicemail or email. No tort of privacy required.

As far as it goes that is a fair comment. But so what! The News of the World scandal might have been a prompt for the Government to get the ALRC recommendations out of the bottom draw and do something about it but that does not mean there is a need to provide some form of protection.  And yes hacking a phone in Australia would be a criminal offence. But the suit for damages under legislation is limited and would it afford the victim a chance to commence an action and get some measure of justice for the use of that information for other purposes in a civil court.  Doubtful as the law currently stands.  So yes, the tort of privacy is required.  As a matter of logic why can not a tort of privacy exist concurrently and give the victim the option to exercise a right under one or the other.

Outside the phone hacking context, recent UK cases involving public figures such as Naomi Campbell, Max Mosley and Ryan Giggs have led many to question whether UK privacy law, armed with the right to privacy in the European Convention on Human Rights, has leapt ahead of Australia’s comparatively bland ”breach of confidence” laws. But before our MPs race to deliver second-reading speeches for an Australian privacy provision, consideration ought be given to whether the results of those cases would be any different in Australia.

The High Court has said information pertaining to health and personal and sexual relationships is the sort of information Australia’s existing breach-of-confidence laws should protect. Thus, in recent Victorian cases, the media have been prohibited from publishing confidential drug test results of footballers, and a husband was ordered to pay damages to his ex-wife for distributing a video depicting them engaged in consensual sex. Again, no privacy provision required.

The problem with a breach of confidence action is that it Read the rest of this entry »

In today’s Age, Australian and on AM Justice Minister Brendan O’Connor foreshadowed having a serious discussion about introducing a law of privacy.  It is a very tentative first step, the release of a discussion paper later this year.  The Age provides:

The Gillard government will today move towards new laws that would allow Australians to sue for damages in the event of a serious invasion of their privacy.

Ahead of today’s announcement, federal Privacy Minister Brendan O’Connor told The Age the government was ”very serious about having this discussion” following the UK scandal. He said he was confident any change would preserve reasonable media freedom. ”There are two ideals we uphold as a government – freedom of speech, and people’s right to have a private life,” Mr O’Connor said.