Saturday, August 15, 2009

A big attack on free speech and freedom of the press in the name of "privacy"

It's a great pity that Australia has no equivalent of America's First Amendment to block this sort of thing. People harmed by unfair or incorrect publicity should obviously have some recourse but one would think that existing libel and defamation laws provided that. Will it now be impossible for the media to expose crooks in case the crook's "privacy" might be violated??

The NSW Law Reform Commission reckons the trouble with freedom of speech is that it comes up trumps too often. But the commissioners yesterday released plans to do something about it: give those whose privacy has been violated by the press wider and less-constrained rights than any in the world to sue for damages.

I need to confess I was one of a bunch of advisers to the commissioners as they pursued their terms of reference, "To inquire into and report on whether existing legislation in NSW provides an effective framework for the protection of the privacy of an individual." In particular they were asked to consider "the desirability of introducing a statutory tort of privacy in NSW". Their answer was a mighty yes, and nothing I said otherwise had any noticeable effect.

In the face of outrageous violations of privacy by the media, journalists are hard put to argue that those whose lives have been trashed can't turn around and sue. The hunt for some basis in law to do this has been on for some time in the courts of the English-speaking world. A very bad result for the press was the Naomi Campbell case in 2004.

The Daily Mirror in London illustrated a story about the grumpy mannequin's drug addiction with a photograph of her leaving a meeting of Narcotics Anonymous in Chelsea. Though the picture was taken of a public figure in a public place, the House of Lords ordered the paper to pay Campbell damages of £3500 and costs of £350,000, essentially for violating her privacy.

Impossible to define, ceaselessly abused by governments and thrown away by kids on Facebook, privacy is being offered fresh protection in the courts. The drift appears irresistible. All that's really been at issue round the world in the past decade or so is how to ground this new action in law while protecting free speech.

The great protection offered in countries going down this track are solid guarantees of free speech in bills and charters of rights. We have nothing like that in NSW, which frankly pleases the NSW commissioners: a former judge, James Wood, a current judge, Kevin O'Connor, and Professor Michael Tilbury. It lets them lower the bar. They write: "We can think of no reason why in Australian law freedom of expression or any other interest should be privileged above privacy."

Courts elsewhere have developed a second great protection: only those "highly offended" can sue. That formula was developed in the US and refined in Britain, New Zealand and even here in the musings of the former chief justice Murray Gleeson, who thought being "highly offended" set "a useful practical test of what is private".

But that's too tough for the NSW commissioners. They want mere offence to be enough. What's more, their report Invasion of Privacy makes it clear this wider test would include people who suffer no more than "annoyance and anxiety" at the hands of the media.

I'm not here to defend The Sunday Telegraph for publishing photographs thought to reveal Pauline Hanson in her underwear. Nor am I going in to bat for those vaudeville characters Kyle and Jackie O interrogating children on air about their sex lives. Awful stuff. But a responsible, free media annoys people all the time. Happens day in, day out. We publish things about people they'd prefer didn't see the light of day and they get annoyed. But the commissioners are suggesting the courts - after balancing all the circumstances and rejecting the merely trivial - should allow people who are annoyed with the press to sue us even when we get it right. It's quite a prospect.

They also want to do away with two ground rules: what happens in public can be photographed and what's already on the public record can be republished. Neither are absolute rules any more, but the exceptions have, hitherto, been very carefully defined. No longer. Pity the poor investigative journalist - or biographer - working under threat of a Hong Kong principle approved by the commissioners, "That the law should take account of the 'practical obscurity' of personal information that is held in public registries or that has already been disclosed." What is buried must remain buried.

The commissioners are polite, intelligent men who have lived their lives around the courts. They're happy to leave to judges the case-by-case task of working out what is "private" and who has "a reasonable expectation of privacy" and whether claims for privacy are outweighed by "competing public interest".

None of those issues are now clear. Defining them would take many years. Meanwhile, newspapers would be published and news bulletins broadcast in a strange new world where the courts could punish the media for annoying people by honestly reporting accurate material contained in public documents.

Footnotes to their report reveal opposition to the proposals from the Law Council of Australia, the media Right to Know Coalition, the Law Society of NSW and the Press Council. And, for what it's worth: me. We were all ignored.


Wealthy homes targeted in Labor Party tax plan

Taxes originally promoted as affecting only the very rich soon end up hitting middle-income people too -- America's "Alternative Minimum Tax", for example

THE Rudd Government is considering slapping a wealth tax on the country's most expensive family homes, according to The Australian. The move is part of a wide-ranging and radical review of the tax system chaired by Treasury secretary Ken Henry.

The Government has asked Treasury to model various capital gains tax scenarios on family homes valued at $2 million or more, including making interest payments on mortgages a deductible expense. An estimated 4000 homes were sold for $2 million or more last year, representing the top two per cent of residential properties. The combined value of properties sold in the bracket was $10 billion.

Dr Henry, whose five-member panel will make its final recommendations on tax reform to the government in December, has indicated that one of the objectives of the tax review is to remove distortions in the taxation of savings. The tax-free status of the family home has made it the "principal form of tax-preferred savings", according to the review's initial outline.

A spokesman for Wayne Swan yesterday declined to comment about the modelling being done by his department on capital gains on family homes. "The Government will await the final report of the ... (tax review) panel due at the end of the year and will not be pre-empting that report," he said.

Residential property forecaster BIS Shrapnel estimates that 500,000 residential properties worth a total of $200 billion are sold in Australia each year. Based on some simple modelling, BIS Shrapnel estimates the Government could raise an additional $125 million a year by targeting the principal homes of Australia's richest residents.


Police to attend WA schools to help problem students

Police in schools is old hat in many American schools but it is a shock for Australia. Government bans on discipline are the cause in both cases, however

POLICE will attend WA schools to help deal with problem students under a new Government initiative. The idea will be tested at Gilmore College, the State Government announced today. WA Police will work with the Department of Education and Training as part of a two-pronged strategy to address antisocial behaviour, reduce truancy and improve behaviour at schools.

Police Minister Rob Johnson and Education Minister Liz Constable announced a six-month trial at Gilmore College where a police officer will spend two afternoons a week with a select group of students known to have behavioural issues. “The intention of this trial is to work with students to prevent truancy and improve general behaviour,” Mr Johnson said. “This will give students the chance to get their lives headed in the right direction. “If successful, it is possible the program could be extended to other locations in 2010, subject to a full review and consultation with Government.”

Mr Johnson said the program would also provide support for students who had experienced contact with the criminal justice system. “We want to give these young people the opportunity to develop a positive rapport with police in a safe environment,” he said. “The intention is to reduce the potential for reoffending by establishing mentoring relationships. “Activities for participating students will be aimed at reducing truancy and antisocial behaviour and improving positive relationships with WA Police and the school community.”

Dr Constable said the second part of the strategy would see a police sergeant posted to the Department of Education and Training’s central office to work for a year as a School Safety Liaison Officer. Dr Constable said the officer would help staff bring in proactive and preventative measures for reducing antisocial behaviour, promoting internet safety and crime prevention.


Doctors warn of more cuts to health services in Western Australia

The Australian Medical Association has warned of a new wave of "secret" cuts to public health which it says could decimate front-line hospital services already struggling to cope with record patient numbers.

Senior doctors at several Perth tertiary hospitals claimed that hospital administrators recently told them to find areas that could be cut as much as 10 per cent as part of the Government's across-the-board spending cuts. The doctors said the advice had been verbal rather than written and they believed this was to avoid public scrutiny. They say the existing Government-imposed 3 per cent funding cuts have stripped services to the bone and they warned that any further cuts would make it impossible to provide essential care to patients.

Treasurer Troy Buswell said this week that he was cracking down on what he regarded as out-of-control spending by the Health Department, claiming it was ignoring directions from the Government and employing too many new staff.

AMA WA president Gary Geelhoed said hospital administrators were now making it clear to senior staff - without putting it in writing - that more cuts to services were looming. He said the Government should make it clear if this was the case. "They're saying they're expecting savage cuts, some suggesting in the order of 10 per cent, and if this is even a possibility, we're very concerned," he said. "It's been impossible with 3 per cent cuts not to affect front-line services and if we're talking about more than that then it's totally unrealistic and there's no way you wouldn't affect services."

Professor Geelhoed said if the Government was serious about making the system more efficient it would address the high number of health bureaucrats compared to the number of clinical staff. It should also review the future of the department's centralised payroll agency Health Corporate Network which he said had been an disaster because it made repeated errors. It should also look at setting up regional boards which offered more accountability.

"As far as Mr Buswell's comments on out-of-control spending are concerned, he needs to take into account the out-of-control demand we're seeing in our health services," Professor Geelhoed said.

Shadow health minister Roger Cook said it was time for the Government to be honest about the impact of the budget cuts on front-line services. "Doctors are giving us the honest picture of what is happening to our health services and this revelation comes on top of the Treasurer's attacks on the Health Department and its staff," he said.

Mr Buswell refused to comment on the doctors' claims.


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