The privacy law review currently underway in Canberra is Tolstoy meets DeMille. An epic saga. So far, the two-year review has spawned an issues paper, a discussion paper and an avalanche of submissions. It’s prompted a new act of parliament and a proposed Online Privacy Code. And the review isn’t done. Last week, the Attorney-General’s Department released its Privacy Act Review Report, which weighs in at a hefty 320 pages.
The epic scope is no surprise, because privacy is an epic issue. Indeed, it’s a defining issue of our time, as the law struggles in the face of brazen hackers and unscrupulous companies. Not that the outlook is hopeless. As I argued in my 2020 book Net Privacy, what we need is a combination of specific provisions and more general protections.
Consider, for instance, the journalism exemption (specific) and a statutory tort (general). The journalism exemption means that journalists are not subject to the Privacy Act, and several submissions into the Privacy Act Review have suggested that this exemption should be removed. However, last week’s report recommended that it should be retained, with some provisos. Specifically, the report made Proposal 9.1: ‘To benefit from the journalism exemption a media organisation must be subject to: (a) privacy standards overseen by a recognised oversight body (the ACMA, APC or IMC), or (b) standards that adequately deal with privacy.’
Effectively, that would mean privacy standards for news media will be determined by the standards enforced by the Australian Communications and Media Authority, the Australian Press Council and the Independent Media Council, as they are now. Is that good enough? Hardly. Patchy and ineffectual, Australia’s news media oversight is in serious need of harmonisation and reform. And even the best news media oversight schemes will struggle to effectively police journalistic incursions into privacy, unless ...
In Australia, individuals have little avenue for redress when they suffer serious invasions of privacy. This has prompted a proposal for the introduction of a statutory tort, supported by the Australian Law Reform Commission in 2014, by the Digital Platforms Inquiry Final Report in 2019, and now by the Attorney-General’s Department in last week’s report, in Proposal 27.1: ‘A statutory tort for serious invasions of privacy ... is also proposed for adoption in federal legislation to address the current gap in mechanisms available to Australians to seek compensation in the courts for breaches of privacy which fall outside the Act.’ I couldn’t agree more. A general protection is needed.
The Privacy Act Review Report is now seeking submissions into its 116 proposals until March 31. If you want a say into how we should strike the appropriate balance between privacy and the public’s right to know, now’s the time to speak up.
Sacha Molitorisz, Senior Lecturer, UTS Law