The Hon. Robert McClelland MP

Attorney-General

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

18 November 2011

Dear Attorney-General,

I am writing in response to the issues paper: “A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy” released by the department of Prime Minister and Cabinet in September 2011.

We have liaised with DPM&C about our response, but I gather this matter has been transferred to your portfolio.

The Media, Entertainment & Arts Alliance (the Alliance) welcomes the opportunity to tender our views on this issue.

The issue of self-regulation of journalists and news organisations is presently being considered by an Independent Media Inquiry presided over by former federal judge, Ray Finkelstein. In this regard the Alliance notes that members are bound by clause 11 of the Media Alliance Journalist Code of Ethics reads: “Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude.” This is augmented by the various codes of conduct adopted by news organisations and also required of their members by the Australian Press Council and the Australian Communications and Media Authority. We have submitted written and oral evidence to the inquiry putting the following position:

·  The present system of self-regulation of the news media should continue through a reformed Media Council which would hear complaints against all news media regardless of the platform on which they are publishing or broadcasting;

·  In order to be eligible to join the Media Council, organisations must have their own complaints mechanism which must be transparent and subject to audit by the Council.

·  Complaints would be directed to the media organisations concerned in the first instance and only referred to the Media Council in exceptional circumstances or in cases where an adjudication is not accepted by either side.

However in the continuing civic conversation on the development of a tort of privacy or the introduction of a Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, the Alliance believes that consideration must be taken into account of a series of fundamental principles. These principles should inform and guide any formulation, if there is to be any formulation at law or in legislation, of a right to a serious invasion of privacy.

These principles are as follows:

1. A statutory or common law right to privacy must be balanced by a concomitant right to freedom of expression or speech. The form in which this concomitant right should take should be as strong as or equal to the form a right to privacy takes.

This could take the form of a common law right, a stand-alone statutory right in sui generis legislation or within a privacy statute, a bill of rights or a constitutional amendment. It must not be mere passing reference, must be similarly enshrined and a fundamental competing interest;

2. A right to privacy must be restricted to natural persons and not be extended to corporations, companies, other commercial entities, churches or other legal fictions;

3. The test for a breach of privacy must be one that is set high. A serious invasion of privacy should include:

·  the circumstances should be such that there was a reasonable expectation of privacy;

·  that the invasion of the expected privacy be highly offensive to a person of ordinary sensibilities;

4. Ameliorating circumstances include:

·  the interest of the public in allowing and protecting freedom of expression;

·  the interest of the public to be informed about matters of public concern;

·  qualified privilege with respect to the fair reporting in the course of the normal expectations of a journalist’s work defined by the code of ethics;

·  absolute privilege;

·  the information was already in the public domain ie any right to privacy should be contained to the first publication of material;

·  rebuttal of an untruth;

7. An alternative disputes resolution process should be available, administered by an independent body in order to increase access to the general public and avoid expensive court action;

8. Effective protections for victims of aggressive papparazzi and stalking.

Yours sincerely

Christopher Warren

Federal Secretary

Media, Entertainment & Arts Alliance