The emerging debate on privacy, sparked by the release this week of the Australian Law Reform Commission’s report on the subject, could have been avoided if we had in place a bill or charter of rights. It is beyond argument that currently the Australian law — despite what some media lawyers such as The Age’s legal adviser Peter Bartlett says — does not adequately protect the right of all individuals in our society to privacy. This is in stark contrast to two countries that have a charter or bill of rights — Canada and the UK.
One of the major reasons British F1 aficionado Max Mosley was successful in his recent legal action against News of the World, which published lurid details of a private s-x party that Mosley held earlier this year, was because the court was able to rely on the right to privacy enshrined in the European Convention on Fundamental Rights and Freedoms.
The Convention says that “Everyone has the right to respect for his private and family life, his home and his correspondence,” and says that the right to freedom of expression is qualified by the need to protect “the reputation or rights of others, for preventing the disclosure of information received in confidence.”
As Justice David Eady said in his ruling on July 24, Mosley had a reasonable expectation to privacy which was breached by News of the World.
In Canada, that country’s Charter of Rights and Freedoms provides that every person is entitled to a reasonable expectation to privacy, and the courts regularly deal with cases where individuals seek to enforce their Charter right to privacy where the media and other organs infringe that right.
But Mr Mosley and others in his position might not have the same protection in Australia. The High Court in a 2001 case involving a meat company in Tasmania that was targeted by animal rights protestors, dealt with the right to privacy and described the law as emerging but not yet defined. Last year Victorian County Court judge Felicity Hampel recognised the right to privacy in the case of a rape victim whose name was published in the media. But other courts around the nation have knocked back the idea of a right to privacy.
The ALRC’s report and the Rudd government’s commitment to introducing privacy legislation are to be welcomed, but it is another illustration of piecemeal reform in the area of human rights in Australia.
Australians deserve to know that their fundamental rights and freedoms are fully and comprehensively protected in a charter or bill of rights. They should not have to wait years for politicians and courts and law reform bodies to play catch up with other countries that already provie that certainty.
At the risk of wanting an argument more than a hot dinner …. as queasy as I am about pestilient paps and press nosing through rubbish bins and personal/s+x life of even public figures, and opportunistically abusing their power in their endless vendettas … I just wonder about a rich guy’s preferred fantasy in a country with the BNP, and racialist foreign/war policy being a hot topic of debate.
What if a top sports administrator in Australia started having Baath Party orgies here pretending to be Soeharto or Saddam? Or Burmese Junta ones? Do we need to know? Does that tip the voyeurist and the lurid over into the public interest sphere?
I just did a bit of googling and it seems the court decision specifically rejected the allegation by News of the World that his romp involved Nazi overtones. Given his germanic looks it was a plausible sensational lie to make. One wonders this was fatal to the newspaper’s case. But in different circumstances a public figure’s private life might become public interest as suggested above – like Reba Meagher allegedly wasting the public’s money on a govt driver on call all night:
I can imagine the private and public interest becomes hopelessly mixed at times. As for the use of privacy to censor public interest in animal rights – that legal decision still strikes me as wrong and perverse. Trespass for sure, maybe (not conceding) tortious interference in contractual/commercial relations. But privacy in an industrial abattoir setting? That’s a joke.