3. General issues

Updates and background for this project (Digest)

• Introduction
• Surveillance
• Privacy and other interests
• Privacy invasion
• The current self-regulatory regime

INTRODUCTION

3.1 In this chapter we address particular issues discussed in the Interim Report. However, their treatment here is angled towards objections raised in submissions to some of the Commission’s recommendations. In large measure these objections emanated from media organisations, both public and private. While the media did figure in the Interim Report, they were not seen as central to an inquiry into surveillance devices. Many of the comments in this chapter, however, relate specifically to media concerns.

3.2 One topic we do not propose to revisit - except to respond briefly to comments regarding the media’s self-regulatory regime¹ - is current surveillance regulation and remedies for breach, as the Commission’s views have been canvassed at some length in the Interim Report.² Similarly, the Commission’s reasons for recommending a broad-based regulatory system that, among other things, eschews a device-specific approach, have been set out previously,³ and it serves little purpose to repeat them here. In response, however, to the comment⁴ that it is inappropriate to undertake legislating now “for possible future technological developments, including convergence” or for the potential “for certain outcomes (for example, convergence of technologies resulting in intrusive information gathering activity)” (emphasis added), the Commission would make the preliminary observation that convergence is not of the future, but the present. This is why the Commission also has concerns about the proposition that “it is … entirely appropriate to have a different way of regulating different kinds of privacy,”⁵ that is “information privacy, …privacy of personal space and privacy of communications”. This treats privacy as a divisible concept. However, the convergence of technologies, breaking down barriers between what were largely separate areas, renders increasingly irrelevant the demarcation that may have existed between the technology of surveillance (eg, monitoring the activities of the living, breathing person) and that of information (eg, the data held about a person in a databank). Flexibility is required to avoid enacting legislation with built-in obsolescence. When the Commission makes reference to “potential” and “future developments”, it intends not only technologies and inventions yet undreamt of, but also the use of existing technologies in new, privacy-intrusive ways.

3.3 For example, in the short time that mobile phone cameras have been available, their use has already caused consternation. Photographs of an inmate on weekend detention at a Sydney prison appeared on the front page of a Sunday newspaper in mid-2003. They were taken by another inmate, who had smuggled a mobile phone camera into the prison and was subsequently charged with introducing contraband to a correctional facility.⁶ Around the same time, the YMCA and the Royal Life Saving Society of Australia took the decision to ban the new phones from public changing rooms, such as those at swimming pools, health clubs and recreational sports stadiums.⁷ In December 2004 a man was convicted on a charge of offensive behaviour in a public place, after he had used his mobile phone camera to take photographs of women sunbathing topless on a Sydney beach.⁸ The President of the Australian Computer Society, representing more than 16,000 information technology professionals, stated:⁹

Mobile phones are rapidly moving towards integrated video and sound capabilities and enhanced computing functionality, which means you’re not just talking about a camera, but an advanced surveillance device.

3.4 Whether an activity constitutes surveillance for the purposes of the proposed Act is a threshold issue. If an activity does not fit within the suggested definition¹⁰ then the proposed Act will not apply. For an activity to constitute surveillance it must comprise the following elements: (1) the use of a surveillance device (2) where there is a deliberate intention to monitor a person, place, etc (3) for the purpose of obtaining information about the surveillance subject. For example, with regard to overt surveillance specifically, the Interim Report stated:¹¹

The Commission’s concern is with those surveillance devices that are used for surveillance. This may seem a tautology. However, recreational photography or the taping by a student of a lecture are examples of surveillance devices in use for non-surveillance activities, according to the definition of surveillance at paragraphs 2.37-2.39. This is because their purpose is not to obtain information about the subjects of the surveillance … but merely to record an occasion for later enjoyment or as an aid to memory. … Surveillance devices also bring many of the sounds and images to news reports on television, radio and in the press. While some of the activity involved in obtaining this material could be characterised as surveillance, much of it is merely a straightforward recording of events to illustrate a story, without any intention of monitoring for the purpose of obtaining further information. In the latter respect it is similar to recreational photography and lecture-taping. (emphasis added)

[R]ecreational photography, the taping of lectures, and so on, would not be regarded as overt surveillance for the purposes of the proposed Act as these would not meet the legislative definition of surveillance.

Surveillance devices capture much of the matter comprising our mass entertainment and current affairs information, delivered through aural, visual and print media. Most of this material is gathered overtly and unexceptionably for the purpose of recording an event, and transmitting it to a wide audience. Sometimes, however, the activity is more akin to surveillance, because the purpose of the monitoring has been to uncover information, most commonly for public interest, or prurience, or, possibly, both. (emphasis added)

3.7 For reasons of public policy, the Commission does not wish to introduce a situation where members of the public feel constrained in taking photographs in public, or cannot carry cameras and the like without raising suspicions that they are about to commit an unlawful act. To use the proposed Surveillance Act as a way of catching voyeurs filming in public places is too heavy-handed and fraught with the difficulty of needing to distinguish innocent activities. At the same time, incidents such as those mentioned in para 3.3 are likely to heighten public unease at the sinister potential of seemingly innocuous devices. The offensive behaviour charge brought successfully against one perpetrator is one possible direction for authorities to pursue. In certain contexts a more grassroots approach may be effective. Surf Life Saving Sydney, concerned that photographs of junior members (or Nippers) were turning up on internet child pornography websites, introduced a media accreditation requirement for all “strangers” photographing club activities. Additionally, they called for vigilance amongst parents and others associated with clubs, in keeping watch for individuals filming who were not known to them or lacked accreditation, and reporting them to club officials and police.¹⁵ Bans imposed by other organisations on taking cameras into privacy sensitive areas such as changing rooms is similarly proactive.

3.8 To reiterate, only those surveillance devices being used to conduct surveillance fall within the ambit of the proposed legislation. There must also be a deliberate intention to monitor a subject for the purpose of obtaining information about that subject.

3.9 In the light of the foregoing, it is difficult to understand criticisms levelled by some media organisations that have claimed the proposed Act would be unduly onerous. This assertion has been made in relation to the regulatory regimes proposed for both overt and covert surveillance. For example, the Special Broadcasting Service Corporation (“SBS”) states “the proposed Act will regulate all filming and recording, even in public places” (emphasis added).¹⁶ The submission from John Fairfax Publications (“Fairfax”), the nation’s largest newspaper publishing group, expresses the view that the Commission’s recommendations, if implemented, would “place powerful curbs on the media’s daily activities and the public’s right to be informed and entertained.”¹⁷ An article¹⁸ by a Nine Television Network employee, appearing in Fairfax’s Sydney Morning Herald, claimed that:

The proposed Surveillance Act will regulate the use of all cameras – even in public places. … The legislation will impose restrictions on everyday news gathering in public places…(emphasis added)

3.10 The Roads and Traffic Authority (“RTA”) sought clarification as to whether the activities of the Transport Management Centre (“TMC”) would fall within the definition of surveillance.¹⁹ The RTA operates the TMC, as its name suggests, for the management of traffic. In its submission, the RTA stated that there is no deliberate intention in the use of cameras to monitor a person etc.²⁰

There is, however, a deliberate intention to monitor objects, ie motor vehicles and places such as roads and intersections but not for the purpose of obtaining information about a person who is the subject of the surveillance. Clearly, the cameras observe some people incidentally.

The public/private distinction

3.11 Current regulation of surveillance devices, both here and in other jurisdictions, operates according to whether the activity being monitored is considered private or not conducted in a public place.²² However, neither geographical location nor the status of the property’s ownership is a reliable determinant of this. In the Interim Report²³ we explained in greater detail our rejection of the public/private distinction, with its lack of clarity or meaningfulness, as a basis for our proposed legislative framework. Since the publication of that paper, the High Court has handed down judgment in ABC v Lenah Game Meats, in which Chief Justice Gleeson observed:²⁴

There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.

3.12 The Interim Report laid out a framework for regulating all surveillance devices according to one of two regimes, depending on the type of surveillance being conducted, whether overt or covert. The demarcation between the two regimes is based on whether the persons being subjected to surveillance have been notified of this fact by the surveillance user. Presence or absence of knowledge as the distinguishing criterion was criticised by Free TV Australia²⁵ (“Free TV”) as “an arbitrary and inappropriate distinction”, and the Australian Broadcasting Corporation (“ABC”)²⁶ commented:

It is difficult to understand what privacy end is sought to be achieved by this distinction, particularly in respect of surveillance of activities in a public place. Knowledge per se does not confer the right to prevent surveillance nor to complain about it to the person or organisation conducting the surveillance.

3.14 As Chief Justice Gleeson states, the public/private dichotomy is a “convenient method of contrast”. However, it also serves as recognition of the fact that when it comes to preserving their privacy and selfhood, most people will modify their behaviour if they know they can be seen or heard by strangers. By using the terms “overt” and “covert”, we have rejected the public/private distinction, but retained what lies at its core, namely the recognition that the subject’s knowledge of whether he or she is under surveillance is very much linked to the issue of whether the individual’s personal privacy has been breached. The presence or absence of such knowledge should, therefore, help determine the degree of regulation and the weight of sanction applying.

3.15 Under the proposed legislation, overt surveillance activity is permissible - by anyone - so long as complying with principles designed to safeguard a reasonable level of privacy. Covert surveillance attracts a more stringent scheme of regulation under the recommendations contained in the Interim Report, but can be carried out in limited cases subject to strict conditions. This fundamental point appears to have been overlooked or misunderstood by those complaining that certain acts would be deemed “surveillance” for the purposes of the proposed Act, as if this in itself proscribed or restricted the activity. For example, the Australian Press Council (“APC”)²⁷ states:

Among the activities that [would be defined as ‘surveillance’] would be any use of binoculars at sporting events or opera glasses in the theatre; the use of long-lens cameras to capture images of sporting events; the use of wide-angled shots of localities which might inadvertently include individuals or identifiable groups; the use of cameras (whether with long lenses or not) in public places; shooting wedding or Bar Mitzvah videos; any and all webcams; and a vast range of other activities, many of which would not be seen as remotely threatening to the privacy of individuals. In fact, on a ‘black letter’ reading of the definitions, the use of contact lenses, hearing aids and, even, cochlear implants could be seen as covert surveillance, even in public places.

3.16 Fairfax³⁰ lists a number of examples it claims could have been published lawfully in the past, but which could not be published under the proposed regime, such as:

(a) Royal Commission covert footage showing police taking bribes;

(b) footage from street or security cameras, circulated by police to help locate persons of interest, be they suspects, witnesses or missing persons eg, a person filmed in a service station and wanted for questioning in the Peter Falconio case, the last known sighting of Mrs Kerrie Whelan;

(c) amateur videos of the type showing the bashing of Rodney King; and

(d) footage showing drug dealing or illegal immigrants being escorted to work in brothels.

Where material obtained for one purpose is sought to be used for another, acceptable, purpose, the proposed legislation should allow for an order to be made to this effect. This might take the form of a law enforcement exception to the principle. For example, police may wish to circulate the photograph fairly obtained by the media of an individual being sought by them.

3.18 The comment was also made in some media submissions³⁴ that the demarcation between overt and covert surveillance is unclear, especially given the media’s exemption from the notice requirement.³⁵ The absence of notice, in the case of non-media surveillance users, would normally deem an activity covert in the Commission’s proposed scheme.

3.19 Unless the media are engaged in a lot of hidden camera activity, in the overwhelming majority of cases it should not be difficult to distinguish the two. In the Interim Report we stated that, where the media were concerned, “so long as recording is carried out openly, and no attempt is made to actually conceal surveillance devices” the notice requirement could be dispensed with, and any actual surveillance regarded as overt.³⁶

3.20 The threshold issue, however, as already discussed, is whether the activity constitutes surveillance at all. To try to illustrate the distinction we look at three related scenarios:

(a) A couple are sitting on a bench in the Botanical Gardens, and are engaged in an apparently emotional conversation. Other people are about, close enough to see and be seen by the couple. A bystander takes a photograph of the couple. On these facts this would not constitute surveillance. The activity was not one that could be characterised as monitoring people for the purpose of obtaining information about them. Any information gleaned about these people was not obtained through another’s monitoring but by their own willingness to reveal it, or, to quote in part from SBS’s submission, “the camera reproduces what could have been seen by anyone” in those circumstances.³⁷

(b) A couple are having an emotional conversation in their backyard. In the circumstances it is reasonable to assume that they do not expect anyone else to be watching or listening. They are not aware that a newspaper photographer is shooting them from the other side of their fence. Because of the proposed media exemption from a requirement to give notice, the actions of the photographer would most likely be construed as overt surveillance. Note that if the surveillance user were a non-media photographer, this scenario would be regarded as an example of covert surveillance.

(c) A journalist is admitted to the home of a couple for the purpose of conducting an interview. With a camera concealed in a briefcase, the journalist takes photographs of the family and home. This is covert surveillance.

3.21 SBS queried³⁸ the status of “filming a significant public event from inside a media van”, in which case the equipment might not be visible. The Commission had suggested previously³⁹ that, even though it was proposing that media organisations be exempt from giving notice, its personnel should nevertheless be readily identifiable through station logos. Presumably, station vans carry such identification. Filming from an unmarked van would most likely constitute covert surveillance.

PRIVACY AND OTHER INTERESTS

3.22 It is important to re-state that this inquiry is about the use and regulation of surveillance devices, by which we mean, primarily, street cameras, bugging devices, hidden cameras, tracking devices and the like. This inquiry is not concerned with each and every activity that might be thought of as surveillance. Activities such as prying and eavesdropping, if using only the unaided senses, are outside the terms of reference.

3.23 Nor is this an inquiry into privacy rights. The Commission is required by its terms of reference to have regard to “the protection of the privacy of the individual” but within the context of reviewing the Listening Devices Act 1984 (NSW) (“LDA”) and related matters. The rationale underpinning any regulation of surveillance devices is the safeguarding of personal privacy.

3.24 Australian law does not confer a general right to privacy. However, privacy interests are recognised within specific statutory contexts.⁴⁰ In a similar way, within the specific context of the statutory regulation of surveillance devices, the Commission stated⁴¹ as its approach:

that personal privacy is paramount, but that intrusions into it by way of surveillance are sometimes necessary for the greater public benefit. Those intrusions, particularly when conducted without the knowledge of the subject, should occur only when reasonably able to be justified, and when supported by clear rules.

The Commission’s starting point then appears to be that privacy is a fundamental right that overrides other public interest objectives.

Underlying the Commission’s recommendations is the view that “privacy should be the paramount concern”. This approach, however, is contrary to international law, Australian common law and the Privacy Act 1988 (Cth) all of which recognise that individual privacy is only one important right to be balanced against competing rights, in particular the right to free speech and the free flow of information.

3.26 We have not stated or implied that, in general, the human right to privacy (as embodied for example in Article 12 of the Universal Declaration of Human Rights)⁴⁶ is more or less important than other human rights, such as freedom of expression (Article 19). Human rights are not absolutes; they must be balanced against each other. However, the weight accorded a particular principle will depend on the context. In the context of the unregulated use of surveillance devices, the important human right at threat is privacy. The greatly increased capability, array and usage of surveillance devices led the Commission to conclude that their control is necessary in order to maintain individual privacy. At the same time, there is clearly a need to allow surveillance to take place where this is in the public interest, so long as surveillance users are accountable for their activities. The Interim Report stated that not all surveillance devices pose a threat to personal privacy, and accordingly suggested exemptions or balancing mechanisms for various scenarios. As well, privacy protection will grate against some other public interests, such as freedom of expression. The Interim Report did not ignore the other interests, but recommended mechanisms for adjudicating between them as they arise in different circumstances.

Media as business

3.27 While many journalists are motivated by a genuine desire to pursue truth in the public interest, there is also no denying that their employers are public or private corporations, driven of necessity by commercial and ratings imperatives. They seek, therefore, to give the public what interests it. The public’s interest in a subject is not, however, the measure of whether the subject is “in the public interest”. In their submissions, the media organisations have stressed the public interest aspect of their activities. They do not mention their self-interest in boosting sales and ratings. They have sought to portray the issue as a simple tug-of-war between two competing human rights. This would be misleading even if this were an inquiry into the regulation of the media. It is not. It is an inquiry into the regulation of surveillance devices. The Senate Select Committee on Information Technologies, which did conduct an inquiry into media regulation,⁴⁷ commented:

The small number of major commercial interests in Australia’s media industries, and the potential threat posed to the public interest by the push for higher circulation and ever higher ratings, suggest a need for an effective system of their regulation. Without it, private corporate interests may well be promoted over and above the public interest.

We have a whole shift in media outlets – a shift in attitude towards the bottom line, circulations and ratings while still flying the flag of public interest and press freedom. You wonder who is the real master sometimes of these organisations – whether it is the MBA that is ruling the newsroom, as one American article suggested, or whether it is a legitimate concern for public interest rather than just what is interesting to the public.

3.28 Privacy and freedom of expression should not be regarded as mutually exclusive. Freedom of speech or expression is a universal human right, not the exclusive preserve of the media, and it can be enhanced through confidence in the privacy of one’s communications and activities. The feeling that one is being watched or monitored can easily have a chilling effect on freedom of speech. Journalists know this well when it comes to protecting their sources:

The media have been pressing for legislative action to protect journalists from the law of contempt in cases where they invoke an ethical obligation to keep secret the identity of a confidential source. It bases its claim on the argument that the ability to keep a source confidential is essential to the maintenance of the free flow of information in a democratic society and that sources of information will dry up if journalists are forced to disclose them. Unless they can guarantee anonymity they will not be trusted with information which needs to be disclosed in the public interest.⁴⁹

3.29 In ABC v Lenah Game Meats Chief Justice Gleeson observed⁵⁰ that there were certain kinds of information about a person that may be easy to identify as private, such as information relating to health, personal relationships or finances. One might add that where private information is easily identifiable, its breach is more readily discernible. However, sometimes disagreement may arise as to what constitutes an invasion of privacy. For example, SBS states:⁵¹

The Commission’s emphasis in its Report is on the collection of material, with no distinction made between a private individual and a journalist. The key issue for media organisations, however, is not the collection of material but its dissemination. Any harm suffered by an individual results from the broadcast or publication of the material and breaches of privacy in the media tend to occur in a context of disclosure. The emphasis on collection rather than publication, which is the critical issue for the media, is therefore inappropriate.

3.30 Were material collected through covert surveillance and not broadcast or published, no opportunity would arise to test whether the surveillance was carried out in the public interest. On the test proposed by SBS, putting the emphasis on broadcast not collection, the media would have licence to carry out surveillance without accountability so long as the material did not come to light. Yet it is the public interest in publishing the material that is the media’s major justification for engaging in surveillance.

THE CURRENT SELF-REGULATORY REGIME

3.31 In the Interim Report we addressed arguments for and against self-regulation,⁵³ concluding that the public interest in this regard would be better served by making users accountable for their use of surveillance. The Commission has not conducted any detailed research into the media effort at policing themselves. In response to matters raised in submissions, however, the Commission makes the following observations.

3.32 Both SBS and Free TV make the point that the level of complaints about privacy is low compared to those of, for example, accuracy and bias.⁵⁴ The Commission accepts this. In the seven years ending 2001-2002, Free TV reports that privacy complaints never constituted more than 1.7% of the total number of complaints. The most recent report of 2002-2003, however, has the figure at 2.4%, double that of the previous year.⁵⁵ The Commission wonders at the relevance of presenting privacy complaints as a percentage of the total received, especially when privacy complaints will only be relevant to a small percentage of the programs broadcast. The table lists 15 categories of program.⁵⁶ Every one of these categories logged complaints relating to program classification, particularly concerning sex, nudity or sexual references. This ground of complaint, at 24.7% of the total, constituted the greatest proportion of the total number of complaints received. The next highest ground of complaint, constituting 22.5% of the total, related to sex and nudity, and complaints were logged in 11 of the 15 categories. Privacy complaints, by contrast, applied to only two categories of program, news and current affairs. If one considers news programs in isolation, one finds that of the total number of 73 complaints lodged against these, 12 (or 16%) related to privacy.

3.33 Stations reported receiving a total of 741 written complaints during 2002-2003, of which they upheld 20 (2.7%). One of these related to privacy. Viewers then chose to refer to the Australian Broadcasting Authority (“ABA”) 33 (4.5%) of the complaints that had been assessed but not upheld by the stations. Of these, 12 were upheld by the ABA. We are not told the nature of the complaint in these cases. Free TV’s Report concludes “the small number of complaints referred to the ABA indicates that in more than 95% of cases viewers are satisfied with the station’s investigation and response.”⁵⁷ Possibly this analysis is correct, but it is impossible to know for certain. The Commission does not take issue with the proposition that privacy complaints are not high. The reports available to the public, however, do not provide much detail from which to draw any clear assessment as to the level of public satisfaction.

3.34 On the matter of enforcement mechanisms the Commission would cite one example, raised by Free TV. The Interim Report made mention of the Senator Bob Woods case.⁵⁸ This prompted Free TV to comment:⁵⁹

[W]hat the Commission ignores is that in this case, the Australian Press Council’s decision clearly illustrates that there are already appropriate forums in place that govern the media. These forums are able to adjudicate appropriately on the sometimes competing interests of privacy and freedom of speech.

The newspaper printed the adjudication but took issue with it in an editorial on the same day. The editorial stated that Senator Woods’ wife became a public figure when her husband introduced her through his statement regarding allegations that he had misused his parliamentary entitlements, and when her activities were investigated by the Australian Federal Police.

Some nine months later and after Senator Woods had left the Senate the newspaper republished one of the photographs when the photographer won a merit award in the Nikon-Kodak press photographer awards for a portfolio which included the offending photo. When the Committee questioned [the APC’s] Mr Herman about the re-publication, he replied that:

… the Press Council is not aware of that, if I can say so, because we have not received a complaint about it. The Press Council does not operate as judge, jury and prosecutor. The Press Council operates … on complaints received from the public, from organisations and individuals. Until we receive such a complaint, we do not act.
The photograph in the Daily Telegraph that was the subject of the successful complaint also appeared on the same day in the Herald Sun, the Courier-Mail, the Advertiser and possibly other newspapers. Yet the APC’s adjudication did not deal with these publications, presumably because the complaint related only to the Daily Telegraph. Once again the other publications thereby escaped censure as a result of the narrow, reactive approach taken by the APC.

1. See below para 3.31-3.35.

2. Report 98 at para 1.36-1.56.

3. Report 98 at para 2.8-2.32.

4. SBS, Submission at 8.

5. SBS, Submission at 7.

6. L Kennedy, “Inmate on Phone Camera Charge” Sydney Morning Herald (19 June 2003) at 3.

7. D Hoare, “Don’t Look Now, Privacy Laws are Changing” Australian (12 June 2003) at 3; see also D Gregory, “Ban on Phone Cameras in Change Rooms” Sun-Herald (17 October 2004) at 38, regarding similar bans imposed by a council in south-western NSW.

8. L Lamont, “Unhappy Adventures End as Beach Pest Loses Camera” Sydney Morning Herald (2 December 2004) at 5.

9. E Mandla, “Naked Truth of Phonecams” Australian (9 June 2004) at 35; J Lee, “Call for Tighter Controls to Stop Camera Phone Perverts” Sydney Morning Herald (21 June 2004) at 3.

10. Report 98 at Rec 2.

11. Report 98 at para 3.4.

12. Report 98 at para 4.20.

13. Report 98 at para 2.66-2.67.

14. Report 98 at para 2.53.

15. Surf Life Saving Sydney, News Centre “Renew Your Media Accreditation for 2004-05” (as at 14 December 2004) «www.surflifesavingsydney.com.au/main/newsitem.asp?NewsID=206».

16. SBS, Submission at 1.

17. Fairfax, Submission at 8.

18. S Rice, “They’ll Soon Be Safe From Candid Cameras” Sydney Morning Herald (13 June 2002) at 13.

19. RTA, Submission at 2.

20. RTA, Submission at 1-2.

21. Report 98 at para 4.41-4.43.

22. Report 98 at para 2.21.

23. Report 98 at para 2.20-2.27.

24. (2001) 208 CLR 199 at 226.

25. Free TV Australia, Submission at 13. Free TV Australia was formerly known as Commercial Television Australia. The peak industry body representing the free-to-air commercial broadcasters announced its name change on 10 June 2004: «www.203.147.163.200/documents/Industry_Briefing_Media_Release_100604.pdf».

26. ABC, Submission at 6.

27. APC, Submission at 2.

28. See para 3.4.

29. Report 98 at para 4.16, and see also para 3.5-3.6.

30. Fairfax, Submission at 4-5.

31. Report 98 at para 4.59.

32. Report 98 at para 4.61.

33. See para 4.34.

34. SBS, Submission at 9; ABC, Submission at 7.

35. Report 98 at para 4.26.

36. Report 98 at para 4.26.

37. P Chadwick and J Mullaly, Privacy and the Media (Communications Law Centre, Sydney, 1997) at 28, quoted in SBS, Submission at 11.

38. SBS, Submission at 9.

39. Report 98 at para 4.49.

40. Eg Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).

41. Report 98 at para 2.7.

42. SBS, Submission at 2.

43. ABC, Submission at 1, 4.

44. Report 98 at para 1.34, 2.58, 6.16.

45. Report 98 at para 3.4, 3.19, 3.88, 4.15, 4.26, 4.46. 4.61, 6.12-6.20.

46. See «www.un.org/Overview/rights.html».

47. Australia, Senate Select Committee on Information Technologies, In the Public Interest: Monitoring Australia’s Media (Senate Printing Unit, Canberra, 2000) (hereinafter “In the Public Interest”). The terms of reference were “to evaluate the appropriateness, effectiveness and privacy implications of the existing self-regulatory framework in relation to the information and communications industries and, in particular, the adequacy of the complaints regime.”

48. In the Public Interest at para 1.9.

49. Australia, Senate Standing Committee on Legal and Constitutional Afairs, Off the Record: Shield Laws for Journalists’ Confidential Sources (Senate Printing Unit, Canberra, 1994) at para 2.4.

50. (2001) 208 CLR 199 at 226.

51. SBS, Submission at 7.

52. Report 98 at para 3.29.

53. Report 98 at para 3.84-3.99, 4.17-4.20.

54. SBS, Submission at 6; Free TV, Submission at 9.

55. Free TV Australia, “Commercial Television Industry Annual Code Complaints Report 2002-2003” (as at 1 October 2004) «www.ctva.com.au/documents/Annual_Code_Complaints_Report_2002-2003.pdf» at Appendix 2 part (i).

56. Children, comedy, current affairs, documentary, drama, information, movie, music video, news, program promos, quiz, religion, sport, unspecified and variety.

57. Commercial Television Industry Annual Code Complaints Report 2002-2003 at 6.

58. Report 98 at para 2.25, 4.42.

59. Free TV, Submission at 14.

60. Australia, Senate Select Committee on Information Technologies, In the Public Interest: Monitoring Australia’s Media (Senate Printing Unit, Canberra, 2000) at para 2.24.