The emerging debate on privacy, sparked by the release this week of the Australian Law Reform Commission’s report on the subject, could have been avoided if we had in place a bill or charter of rights. It is beyond argument that currently the Australian law — despite what some media lawyers such as The Age’s legal adviser Peter Bartlett says — does not adequately protect the right of all individuals in our society to privacy. This is in stark contrast to two countries that have a charter or bill of rights — Canada and the UK.

One of the major reasons British F1 aficionado Max Mosley was successful in his recent legal action against News of the World, which published lurid details of a private s-x party that Mosley held earlier this year, was because the court was able to rely on the right to privacy enshrined in the European Convention on Fundamental Rights and Freedoms.

The Convention says that “Everyone has the right to respect for his private and family life, his home and his correspondence,” and says that the right to freedom of expression is qualified by the need to protect “the reputation or rights of others, for preventing the disclosure of information received in confidence.”

As Justice David Eady said in his ruling on July 24, Mosley had a reasonable expectation to privacy which was breached by News of the World.

In Canada, that country’s Charter of Rights and Freedoms provides that every person is entitled to a reasonable expectation to privacy, and the courts regularly deal with cases where individuals seek to enforce their Charter right to privacy where the media and other organs infringe that right.

But Mr Mosley and others in his position might not have the same protection in Australia. The High Court in a 2001 case involving a meat company in Tasmania that was targeted by animal rights protestors, dealt with the right to privacy and described the law as emerging but not yet defined. Last year Victorian County Court judge Felicity Hampel recognised the right to privacy in the case of a rape victim whose name was published in the media. But other courts around the nation have knocked back the idea of a right to privacy.

The ALRC’s report and the Rudd government’s commitment to introducing privacy legislation are to be welcomed, but it is another illustration of piecemeal reform in the area of human rights in Australia.

Australians deserve to know that their fundamental rights and freedoms are fully and comprehensively protected in a charter or bill of rights. They should not have to wait years for politicians and courts and law reform bodies to play catch up with other countries that already provie that certainty.

Peter Fray

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