Submission from the Australian Press Council ("the Council") to the federal Attorney-General, responding to the Information Paper, The Government's proposed legislation for the protection of privacy in the private sector, September 1999.

13 October 1999

1. Executive Summary

The Council questions the need for such an expedited introduction of the legislation and the apparent lack of public consultation. It recommends that the legislation not proceed until after a proper public debate of its need (para 2).

If the legislation is proceeded with at this time, the Council draws the Attorney's attention to:

• the concerns with the New Zealand legislation which his department has held up as a model, particularly the insufficiency of its public interest defence (para 3);
  
  
• the need for a better definition of proposed exemption of the press from the operation of the legislation (para 4); and
  
  
• the requirement that, in the absence of a constitutional or legislated Bill of Rights, the legislation should recognise the importance of the principle of freedom of communication and incorporate it in the legislation (para 5).

2. Introduction of the legislation

The Council would first like to express its concern that the paper on the protection of privacy in the private sector was drawn to its attention only in mid-September. The Council considered it at its first available opportunity after that, 30 September 1999. An officer of the Attorney-General's Department informed the meeting that a response had to be provided within the next 2 weeks. The only reason provided for this urgency was that the Commonwealth government wished to introduce legislation before the end of year parliamentary recess to forestall action from the States. The Council cannot help but draw a comparison between this enthusiasm for action on a topic that has had little public exposure or discussion and the lack of activity on the reform of defamation law, a subject that the community generally accepts to be in need of review.

The Council is not aware of the extent of public consultation on the content of the proposed legislation nor does it know what industry or other representatives have had input into the topic. The Council considers that a proposal for legislation as significant as this should only proceed after wide and informed public debate. There appears to be little evidence that this has occurred to date. It recommends that the legislation not proceed until there has been that debate and the case for its introduction clearly made out.

3. New Zealand experience of privacy legislation

The Council was informed at its meeting on 30 September that it was proposed to except the reporting of news from the operation of the privacy legislation. It was thought that this should remove any concerns that the press might have that the legislation would impinge on the freedom of the press. It was said that the exception was intended to be based on the provision which is contained in the New Zealand Privacy Act and that this exception was considered to have worked satisfactorily in that country. This latter conclusion can only have been reached without consultation with the New Zealand press. In fact, the press in New Zealand is highly critical of the impact of the Privacy Act on its activities and on the freedom of the press.

Attached to the submission was a copy of Privacy: A Need for Balance , a significant booklet published in 1998 by the Newspaper Publishers Association of New Zealand and the Commonwealth Press Union (New Zealand Section). The fact that these bodies felt constrained to prepare such a document indicates the depth of the concern of the press in that country over the effect of privacy legislation. The following is an outline in summary form of major concerns of the press made in the booklet and in other public documents.

• The loss of access to information is society's loss not that of the press as the freedom of the press is based on the interest of the public in not having limits placed on the information with which it is provided.
  
  
• The move to privatisation of government activity has resulted in a loss of access to information that was formerly available through such mechanisms as freedom of information and parliamentary oversight. The extension of privacy legislation to the private sector exacerbates this restriction on the availability of information relating to matters of genuine public interest.
  
  
• Privacy legislation is enforced by a commissioner whose task is to regulate access to information. Balance should be provided by the appointment of an information commissioner whose task is to ensure that appropriate access is provided to public and private information for the benefit of the public.
  
  
• The defence of revelation of information in the public interest (such as the disclosure of commission of offences or practices deleterious to the public interest) is insufficiently spelled out. Lord Wakeham of the UK Press Complaints Commission described the absence of a clear right to publish material in the public interest as a "scoundrel's charter".
  
  
• The effect of the constraints on revealing information has had a "chilling effect" on the ability of the press to obtain information in that persons and organisations (including governments) are now induced not to disclose material that they would previously have made available lest the privacy regime be breached. This is so whether the legislation is applicable or not. The existence of the legislation creates a mindset of caution that results in it being safer to refuse than to reveal.
  
  
• The problems referred to have arisen in part from the vague language used in the privacy principles which take the form of broad statements rather than legislative proscriptions. This has made the principles difficult to apply in practice.
  
  
• The news gathering exemption does not help if a body that holds information is bound by the legislation and therefore denies access to the information. This is made worse if the body uses the legislation as an excuse not to disclose information. The significance of media reporting is its immediacy. The press needs information promptly. It usually cannot await the delay associated with an appeal process.
  
  
• The privacy commissioner in investigating complaints has sought to compel journalists to reveal their sources of information. There is nothing in the legislation that constrains such action. It was only after intervention by the New Zealand Press Council that this demand was abandoned.

These are but some of the criticisms of the New Zealand legislation that are discussed in detail in the enclosed documents. It seems to the Council that they are matters to which it is essential that careful regard be had before the proposed legislation is put before the parliament. They appear to be apposite to the proposals contained in the paper for the adoption of similar legislation in Australia.

In particular, arising out of the New Zealand experience, the Council calls for the inclusion in any legislation of an express public interest defence to avoid the legislation being used to hide corruption and the commision of offences.

4. Exception of press from legislation

If legislation is to proceed, the Council sees it as essential that it not apply to the press (as distinct from the management) activities of the newspaper industry. It will therefore be necessary as is noted in the information paper that an appropriate exception be included in the Act. However, the Council would be concerned if the wording used in the NZ legislation to exempt news activity from the operation of its privacy legislation were followed in Australia. The New Zealand press has observed that the words used are capable of widely differing interpretation. A most cursory reading of the Act confirms this.

Australian courts rely heavily on dictionary definitions when having to give meaning to words in legislation. The Oxford English Dictionary, 2nd ed, vol X defines "news" as "the report or account of recent events or occurrences, brought or coming to one as new information; new occurrences as the source of report or talk". The Macquarie Dictionary (2nd ed) gives a somewhat broader range of activities:

1. a report of any recent event, situation, etc;
2. the report of events published in a newspaper, journal, radio, television or any other medium;
3. information, events, etc, considered suitable for reporting.

The emphasis in most of these definitions on recency means that "news" would seem not to cover all of the general backgrounders, colour pieces, opinion columns, historical analyses, reviews and "entertainment" content of newspapers. For example, Cabinet documents released after 30 years need to be covered by the definition of "news". A reliance on many of the dictionary definitions of "news" would not be sufficient to include the content of much of what is published in magazines.

If the legislation is to proceed, the Press Council recommends that the second of the Macquarie Dictionary definitions be adapted as the basis for exempting the press from the operation of the Act. What should be said is that anything published in a newspaper, etc, is exempted from the operation of the Act. It seems to the Council to be necessary to move away from the concept of immediacy of the events being published to embrace the full range of press activities. It would only be by so doing that the public's right to access to information could be guaranteed.

5. Freedom of communication

Another significant issue that in the Council's view is overlooked in the information paper is the absence in Australia of any guarantee of freedom of communication. In New Zealand there is a Bill of Rights that includes recognition of this principle. Section 14 of the New Zealand Bill of Rights Act 1990 reads:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

While the Bill of Rights Act is not a constitutional document and is therefore subject to modification by later legislation, the fact of the statement of the principle provides some recognition of its importance as a balancing factor when considering constraints on public access to information. It also reinforces the point made previously that a public officer is appointed to enforce privacy issues but there is no balancing appointment of an information commissioner.

The Press Council accepts that constitutional recognition of the principle of freedom of communication in Australia (the absence of which can be contrasted with the position in comparable democracies such as Canada and the USA) is a discrete issue that requires a time frame quite separate from the introduction of primary legislation. Similarly the alternative approach of the passage of a statutory Bill of Rights, as in New Zealand, is not a viable possibility at present. However, the Council strongly recommends that any privacy legislation should include a statement that the administration of the Act should recognise the importance of the principle of freedom of communication and that this principle should be taken into account when decisions relating to claimed breaches of privacy are being made.

5. Conclusion

The Council accordingly concludes that the New Zealand experience points against the enactment of privacy legislation in the private sector unless there is a clear case for so doing. The Council has not seen the evidence to support this. If such legislation is to proceed the press needs to be excepted from its operation by language that is wide enough to encompass the full range of its publishing activities and not some narrow perception of the news of the day. The legislation also needs to provide recognition of the significance to our society of the principle of freedom of the press as a democratic right of the public to be taken into account in balancing an individual's claims to privacy.

See also
1998-99 Freedom of the Press Report - developments in privacy
for the current state of the law: Press Law in Australia
Index of material on the site on privacy issues

Return to
Submissions list
Freedom of the Press overview

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.