The Hon Michael Kirby AC CMG


In this article the author surveys the development of legal protections for privacy in publication in jurisdictions of the common law. He explains how, in 1937, the High Court of Australia in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) declined to endorse a new legal protection for privacy despite developments favourable to that course in United States courts. He then discusses the advent of universal human rights that include privacy protection and work that he performed in the 1970s and 80s in the Australian Law Reform Commission and Organisation for Economic Co-operation and Development, proposing improved privacy protection. Controversies in the courts, including inAustralian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) are described, followed by an analysis of recent controversies about media excesses in England and Australia resulting in the Finkelstein Report (2012) and the Leveson Inquiry (2012), both recommending improved protections for privacy. Now the Australian Government is once again considering a federal statutory tort. Would this be desirable or would it be an unjustified burden on free expression in Australia? The author concludes, with some telling illustrations, why protection of privacy is needed, and why the rule of self-regulation on this score should now be ended.

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