Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

The answer to the honourable senator's question is as follows:

(1) The ACMA has not been advised by the complainants of their views on investigation report no. 2431. As a matter of practice, the ACMA does not seek such views.

(2) The ACMA has advised that the matter came for decision by the Authority under the terms of the Commercial Television Industry Code of Practice, an industry code. This code includes certain privacy provisions, which, like all provisions of the code, must be assessed against the facts of and circumstances behind an actual broadcast and do not countenance consideration of other areas of the law, or matters to which any other law or code may or may not apply. The Authority is charged with making judgments about the broadcast under the terms of the Code. In doing so, the Authority is also required to consider the exceptions contained in the Code – relevantly, that private matters may be broadcast if it is in the public interest to do so.

In this case, the Authority found that the public interest justification for the broadcast was very limited and, in the particular circumstances of the case, arose solely on the ground that it explained the Minister's sudden resignation.

(3)The ACMA has advised that the decision affirms the following important propositions:

(a) Public figures and private citizens alike are entitled to the privacy protections under the Code.

(b) Even conduct in a public place can be the subject of legitimate expectations of privacy.

(c) A person's sexual behaviour or preference is generally a private matter.

(d) But there is a balance to be struck between an individual's privacy and the broadcast of matters of public interest.

(e) Not all matters that are of interest to the public are matters of public interest.

(f) Under the Code, a public interest must be 'identifiable'; not some mere assertion.

(g) The public interest exception in the Code (to the prohibition of the broadcast of private material) is more likely to apply in cases involving public figures than private citizens.

The Authority found that the material breached both limbs of the privacy provisions set out in clause 4.3.5 of the Commercial Television Industry Code of Practice 2010.

The investigation report makes it clear that the footage of the Minister leaving the KK club, together with information about the nature of services offered by the club, was material that related to the Minister's personal or private affairs and invaded his privacy.

(4) The ACMA has advised that the Authority does not anticipate that its decision will create a precedent for breaches of privacy against elected representatives and this is made explicit in its report.

This is because the Authority made it clear in the investigation report that privacy protections in the Code and in the ACMA's Privacy Guidelines for Broadcasters (2005) apply to public figures, including politicians as well as to everyday individuals.

However, it also accepted that those holding public office will be open to greater and more frequent scrutiny in their personal lives than other citizens as a very consequence of their public office.

It also noted that in these cases the public interest exemption to the prohibition of the broadcast of private material is more likely to apply.

In this investigation, the decision turned on a very particular, single public interest ground – the explanation for the Minister's resignation in the context of ongoing public controversy about his discharge of his duties, including calls for his resignation.

In each case, the Authority will carefully consider whether there is a clearly identifiable linkage between the private material and a legitimate identifiable public interest.

(5) I am not aware of previous cases that are substantially similar to this one.

(6) Decisions about complaints made under the broadcasting codes of practice are matters for the ACMA.

(7) The ACMA has advised that the material broadcast included exterior shots of the Minister leaving the club, and a description of the services offered by the club. It did not include any footage taken inside the club or of any other patrons leaving or arriving. In investigating complaints about alleged breaches of broadcasting codes of practice, the ACMA can only consider the particular broadcast material.

If a complaint by another patron alleging a breach of privacy were to be made, the ACMA would consider that complaint on its merits.

(8) The ACMA is responsible for ensuring issues covered by the Commercial Television Industry Code of Practice, such as privacy and the public interest, adequately reflect current community standards.

I am aware that the Seven Nightly News segment and the ACMA's decision that it did not breach the Code have raised significant community concerns. I have discussed these concerns with the Chairman of the ACMA, Mr Chris Chapman.

I would expect that the ACMA will carefully consider all relevant matters in any future investigations concerning similar complaints.

I cannot compel the ACMA to review an ACMA investigation decision, or have another person or entity review the decision. There is no avenue under the Broadcasting Services Act 1992 for the ACMA's decision to be subject to merits review by the Administrative Appeals Tribunal. Under the Administrative Decisions (Judicial Review) Act 1977, a person aggrieved by the decision could apply for judicial review of the decision, but that review would be limited to consideration of the legality of the administrative behaviour of the ACMA in making the decision, rather than a review of the substance of the ACMA's decision. Constitutional writs are also available (ie. Common law judicial review) but these would be subject to the applicant having sufficient standing to initiate an action.