Our right to know? Privacy and free speech

Georgia King-Siem

THE ‘Australia’s Rights to Know’ conference in Sydney on 24 March was essentially a conference by the media, for the media. Its focus was freedom of information (FOI) reform and protection of whistleblowers. Most of the conference participants were either journalists or lawyers who work in media law.

As a result, freedom of speech was championed at the expense of other civil liberties. The Government also used the opportunity to launch an exposure draft of its proposed FOI law reforms and defend the virtues of its proposed federal whistleblower regime.

We were told that Australia is ranked 28th in the world for its approach to FOI, which is well behind other western democracies. Excessive costs and delays make it extremely difficult to access information detrimental to the Government’s interests. Conversely, information which reflects well on the Government is often ‘pushed’ out into the public sphere.

As part of the Rudd Government’s election promises, it has removed conclusive certificates, will reform the federal FOI Act and introduce an Independent Information Commissioner. The consensus of the conference was that the reforms were a welcome improvement in Australia’s FOI laws, but that they did not go far enough.

One interesting comment was that without cultural change in Australia’s public sector, any effective FOI laws would result in fewer records being kept and more advice being given orally to avoid possible later embarrassment.

The main privacy speaker, Robert Todd, told us that Australia does not need a privacy tort or indeed a legislated right to privacy. He argued that Australia’s current privacy legislation is more than adequate and that any further protections of privacy would result in the media being unable to report important public interest events.

He cited the recent UK case of JK Rowling, who, on behalf of her son David Murray (aged five), sued the paparazzi for publishing pictures of David being pushed in a buggy on a public street by his parents. The presiding Appeal Court judge, Sir Anthony Clarke, said: ‘If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent.’

Unfortunately the speaker confused the issue by using several examples which were not relevant to privacy reforms. Specifically, he suggested that privacy reforms would prevent the media broadcasting images of military coffins returning from a warzone or cloth-wrapped victims of war crimes or genocide. In both cases, the images would not identify a specific person and thus did not contain personal information and would not be ‘protected’ by privacy legislation.

Moreover, another of his examples had a clear and overriding public interest in disclosure: the young naked Vietnamese girl fleeing US napalm during the Vietnam war. His suggestion that the media would be prevented from broadcasting all three examples under greater privacy protection was unhelpful at best.

The panel was composed mostly of media personalities and in-house counsel who were strongly anti-privacy protection. Those in favour of privacy protection argued that it would not prevent media reporting of public interest stories or information which did not disclose a particular person’s identity. Those against privacy protection argued that any further reforms would significantly restrict the media. The crux of the debate rested on one’s definition of ‘public interest’ and how that might be interpreted by the courts.

The keynote speaker on whistleblowers, Caroline Overington, gave an impassioned address on the critical role whistleblowers play in revealing incompetence and criminal negligence by government agencies. Without strong protection for whistleblowers and journalists’ sources, negligence, corruption and fraud are often ignored by government and those who seek to expose it are harassed and harangued.

The panel discussed the recent report to government which recommended introducing federal whistleblower laws. The report recommends that whistleblower protections require that in order for a whistleblower to be protected, he or she must have reported the matter to the relevant government body and also reported the matter to the Ombudsman. Moreover, he or she will only be protected if the matter poses a risk to a person’s life or wellbeing. Overall, the panel felt this would only protect a fraction of whistleblowers and was actually a disincentive to reporting government corruption and incompetence.

Georgia King-Siem is a vice-president of Liberty Victoria.