DAVID SOLOMON. Privacy should be protected

Apr 24, 2020

If I thought my privacy would genuinely be protected, I would have little hesitation in downloading the coronavirus tracing app being developed for the national cabinet.

With one or two caveats that I’ll come to. Alternatively, I’d be satisfied if the Federal Government introduced legislation to provide a statutory cause of action for a serious invasion of privacy.

These separate issues have each generated some headlines in the past week or so. We need to wrap them together.

The invasion of privacy matter arose in the High Court decision about a Federal Police raid on journalist Annika Smethurst. The raid followed a story she wrote for the Sunday Telegraph, based on a highly classified secret government document, about a proposal to allow the Australian Signals Directorate to spy within Australia, on Australians, in addition to its usual remit to monitor overseas communications.

During the raid, police seized her phone and copied its contents onto a computer and then on to a USB stick. Smethurst sought to retrieve the material that had been copied onto the USB stick.

The High Court unanimously decided that the warrant that authorised the search and confiscation of the material from Smethurst was invalid and should be quashed. But by a 4-3 margin the Court rejected her application for a mandatory injunction to require the police to give her or to destroy the material they had copied onto the USB stick.

It wouldn’t really have mattered if she had won on this second point. All the police had to do was to get a new warrant that properly stated the offence that the search was supposed to be related to. And in any event, the police would probably be able to get away with using the material they had obtained illegally in an investigation and prosecution, because (as a matter of discretion) the law allows that to happen. This is because there is a public interest in bringing people to conviction.

What was really interesting about the argument raised by News Corp on behalf of Smethurst, was that it specifically rejected relying on the possibility that Australian law recognised a cause of action of invasion of privacy, even though that was probably her best argument and gave her the best chance of getting her information returned.

The idea that Australian common law recognised ‘unjustified invasion of privacy’ as an actionable wrong, first raised by Justice Lionel Murphy in the 1980s, was supported by two High Court judges in a case almost 20 years ago, and had been approved in lower court decisions in Queensland and Victoria. It was picked by the Australian Law Reform Commission in 2014 after it had been asked by the Labor Attorney-General, Mark Dreyfus, to design a statutory cause of action for a serious invasion of privacy.

The ALRC recommended that ‘federal legislation provide for a statutory cause of action for a serious invasion of privacy, in circumstances including where:

· there has been an interference with an individual’s home or family life;

· an individual has been subjected to unauthorised surveillance;

· an individual’s correspondence or private communication has been interfered with; or

· sensitive facts about an individual’s private life have been disclosed.

‘The cause of action should apply only where the individual had a reasonable expectation of privacy; and the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.

‘In addition, the court would be required to consider whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest in informing the public about matters of public concern and the interest in allowing freedom of expression).’

Needless to say, that piece of law reform hasn’t happened under the Abbott, Turnbull or Morrison governments. And in the Smethurst case, the News Corp organisation made sure that the High Court didn’t get the chance to write that kind of reform into the common law. Why not? Because News Corp is not in favour of advancing human rights that might conflict with its own commercial interests. It would hate to have a law that would allow people to sue it for invasion of their privacy.

Its true that we do have a Commonwealth Privacy Act, but it doesn’t provide for any rights along the lines recommended by the ALRC. In fact, when it comes to data protection, it specifically gives political parties exemptions to allow them to invade our privacy. But that’s another story.

Back to the tracing app. In the absence of common law or statutory invasion of privacy rights the only guarantee we have that the app would be used in the way proposed by government is their assurance that it will be so.

However the performance of the responsible minister, Stuart Robert, over the various MyGov and Centrelink debacles does not provide any reason for doubting the correctness of the public’s very low rating for ‘trust in government’.

People are entitled to be sceptical, to wonder if, once installed, the app can be fully deleted at their own discretion, not that of some government official, and that it will provide only the limited information claimed by those who want us to install it.

They might also wonder whether it is really fit for the advertised purpose. Finding those people we have been in close contact with for more than 15 minutes seems directed more to discovering whether we have broken the social distancing rule, than locating the people in the supermarket that we have brushed past and whose coughing and spluttering have set loose droplets of a virus we might pick up.

Its really time, however, that we should require some kind of quid pro quo for every time we surrender part of our freedom, of our ‘rights’. [I know we don’t have rights in the same way that
Americans have constitutionally guaranteed rights, but politicians keep
assuring us that we do.]

This would be a good time to start. If the Federal Government agreed to pass a law providing for a statutory cause of action for a serious invasion of privacy, along the lines suggested by the ALRC, I for one would be prepared to install its tracing app. It would be worth it, despite my other concerns about the app.

David Solomon was a legal and political journalist.

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