Dispatches From the Moderate Left

Monday, September 19, 2005

Conservative Judicial Activism - Part IV

Conservative Judicial Activism - Part I (eligibility for parliament)
Conservtive Judicial Activism - Part II (voting 'rights')
Conservative Judicial Activism - Part III (Abuse of market power)

The most important privacy case in Australia to date has been ABC v Lenah Game Meats. About five years ago, members of Animal Liberation Ltd broke into a factory in Tasmania which 'processed' possums for meat and fur, with the products primarily designed for the export market (I didn't know such places existed either). They placed a bunch of hidden cameras around, took video and sound recordings of the factory floor and subsequently compiled a tape of the most grusome bits. After confronting the manager of the factory with the tape (presumably to try and convince them to shut down) they sent it to the ABC. When the learned of this, Lenah attempted to obtain an injunction to stop the ABC from broadcasting exceprts of the video. They failed at first instance, succeeded on appeal and then ABC appealed to the High Court.

To obtain an injunction stopping someone from doing something you need to show that you have a chance of winning at a full blown trial (this was actually an issue in the case, but I won't focus on that). Lenah's problem was that there wasn't any obvious law or cause of action they could point to which would give them a decent chance of stopping the ABC broadcasting the tape. While they might have succeeded against the original trespassers, it was much less obvious that they could against the ABC, which was an innocent third party. By the time it got to the High Court their main argument was that the High Court should invent a 'tort of invasion of privacy' which would allow people (natural and artificial) to sue against intrusive and non-consensual disclosures of private information. They lost, 6-1. Six of the judges, including Kirby J, said that making up a tort of privacy was something for parliament to do, not the court. All the judges, except Kirby J, appeared willing to entertain the idea that natural persons might have some privacy rights which would be protected by courts in appropriate situations but everyone but Callinant J felt that corporations had no privacy rights as privacy rights are about protecting human dignity and autonomy not commercial value.

It's the dissenting judgement I'm interested in here, though. Callinan J, a Howard appointment whose appointment was somewhat controversial, is proving to be Australia's most activist (current) conservative judge and his conservative activism was on full display here. In an amazing judgement he started with lengthy tirade against the press (which may or may not have something to do with the fact that he has sued media organisations for defamation before), detailing a whole number of alleged and completely irrelevant (to the case at hand) ethical failings. Then he went on to speak about how freedom of speech was overrated, his main argument being that it made it too hard for barristers to sue for defamation (which is what he had tried to do in the past).

At the end of all this irrelevant ranting he declared the most extraordinary right of privacy imaginable. He said the time was ripe for the court to declare that private information was literal property and so he did. Those who haven't done property might not appreciate the enormity of this (he did what the court didn't do in Victoria Park and found property in a spectacle and other secret information), but think about what happens when you take property without consent. It's theft. And then anyone who receives that information is the recipient of stolen goods and can have it 'traced' (recovered). And, unlike all the other judges, he said that not only do natural persons have privacy rights worth protecting, but so do corporations (and, presumably though he didn't decide on this point, even government). So if you broadcast any information about a company without its consent in a way which doesn't breach any intellectual property or trade secrets laws (and even if you haven't signed a non-disclosure agreement) then you're still stealing and, at the very least, liable to be sued for invasion of privacy.

This was judicial activism of the highest order. He overturned a half century of Australian precedent with regards to what is property and then declared a previously non-existent privacy right which would have crippling effects on public communication and freedoms and make it very easy for companies and individuals to sue other people for saying things about them which they don't like. I don't often agree with the Cato Institute, but this article on the chilling effects of even a weaker right of privacy has some worthwhile points (and some random ranting which should be ignored). Callinan J's position was a classic case of conservative judicial activism. He obviously sympathised with the large company which didn't want sensitive information about it disclosed. He also obviously didn't like nosy journalists and so he invented a cause of action which would satisfy both goals - muzzling the press and making it harder to expose the wrongdoings of big companies. It's a good thing we only have one of him on the High Court. For now.

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