The nature of the jurisdiction

"The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit."

"In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."

The facts

"The distribution and publication of this film is likely to adversely and substantially affect the [respondent's] business. The film is of the most gruesome parts of the [respondent's] brush tail possum processing operation. It shows possums being stunned and then having their throats cut. It is likely to arouse public disquiet, perhaps even anger, at the way in which the [respondent] conducts its lawful business. This is no different from any animal slaughtering operation in Australia, which is normally hidden from public view."

The respondent's claim of right

1. A court of equity has jurisdiction to grant an injunction to restrain the use of information where the information has been obtained by a trespasser, or by some other illegal, tortious, surreptitious or otherwise improper means and use of the information would be unconscionable.

2. The jurisdiction extends to ordering an injunction against any person to whom the information has been conveyed, whether or not that person is implicated in the trespass or other illegal, tortious, surreptitious or otherwise improper conduct.

3. In determining whether the use of the information would be unconscionable, the court should take account of all the circumstances of the case, including the competing public interests in preserving the rule of law, protecting private property and in otherwise protecting the relevant information, and the public interest in freedom of speech.

4. In all cases, the fact that the information was improperly obtained should weigh heavily against allowing the information to be used.

5. The onus of showing that the publication is in the public interest should rest on the person seeking to publish the improperly obtained information.

"If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available."

"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations."

"The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of [the statute] do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party."

Gouriet v Union of Post Office Workers[20] examined the reasons of history and policy that explain why enforcement of the criminal law by civil injunction at the suit of a private litigant is an exceptional and narrowly confined jurisdiction. In The Commonwealth of Australia v John Fairfax & Sons Ltd[21] Mason J rejected an attempt to rely upon a contravention of the Crimes Act 1914 (Cth) as a basis to restrain the publication of classified government documents.

"In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered."

"If police, in exercising powers under a search warrant or of arrest, were to enter into private property and thereby obtain documents containing valuable confidential information, albeit not protected by the law concerning intellectual property, I believe they could in a proper case be restrained, at the suit of the owner of the documents, from later using that information to their own advantage, or to the disadvantage of the owner, or passing the information on to other persons for them to use in that way; and if other persons acquired such information from the police, knowing the circumstances of its acquisition by the police, then I believe those other persons could likewise be restrained.

I believe the same applies to material obtained in that way which is gratuitously humiliating rather than confidential ...".

Conclusion

"from distributing, publishing, copying or broadcasting a video tape or video tapes filmed by a trespasser or trespassers showing [Lenah's] brush tail possum processing facility at 315 George Town Road Rocherlea in Tasmania".

The Full Court allowed an appeal by the present respondent, Lenah Game Meats Pty Ltd ("Lenah"), against an order made on 3 May 1999 by a judge of the Supreme Court (Underwood J) dismissing Lenah's application for interlocutory relief. On 4 May, Cox CJ had refused an interlocutory injunction in aid of what was then the pending appeal by Lenah[35]. After that decision by the Chief Justice and before the hearing of the appeal, the ABC had televised segments of the video tape in question.

The Supreme Court action

The interlocutory application

The Full Court appeal

The evidence

"One camera was placed above the stunning area and one above the sticking area (which is where the throats are cut). I suspect that a third was placed above the boning room. The evidence which I have to support this is that as a result of Tasmania Police investigations I have observed holes which were cut in the roof of the facility. The holes were not cut from the outside. A person would have had to break in to the facility to cut the holes and place video cameras. The cameras were well hidden. They were not noticed by me or any other staff of [Lenah]. In one case the camera lens appeared to be a three millimetre optic fibre cable which had been drilled from one portion of the ceiling to another. Officers of the Tasmania Police have also located a number of items in and about [Lenah's] premises which are consistent with the surreptitious installation of video cameras."

"Presently the vast bulk of brush tail possums processed by [Lenah] are exported to Asian markets, particularly Hong Kong and China. The likely damage to [Lenah] in those market places if this film is shown will be quite severe. These are sensitive markets which [Lenah] has spent between four (4) and five (5) years developing. [Lenah] also wishes to expand into other markets. The likely effect of airing this [sort] of graphic video material could be potentially catastrophic for [Lenah's] present business and the business which it may be able to do in the future especially in new markets."

Lenah's case

The submissions in this Court

Interlocutory injunctions

"A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court or a judge thereof in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court or judge shall think just; and if, whether before, or at, or after the hearing of any cause or matter, an application is made for an injunction to prevent any threatened or apprehended waste or trespass, the injunction may be granted if the Court or judge thinks fit, whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable."

This provision closely follows the terms of s 25(8) of the Supreme Court of Judicature Act 1873 (UK) ("the Judicature Act"). That is not surprising. The Tasmanian legislature enacted the Supreme Court Actwith the expressed objective of adopting the system established in England by the Judicature Act[51].

"Although injunctions are granted and receivers are appointed more readily than they were before the passing of the Judicature Acts, and some inconvenient rules formerly observed have been very properly relaxed, yet the principles on which the jurisdiction of the Court of Chancery rested have not been changed."

More recently, in The Siskina, Lord Diplock declared[53]:

"Since the transfer to the Supreme Court of Judicature of all the jurisdiction previously exercised by the court of chancery and the courts of common law, the power of the High Court to grant interlocutory injunctions has been regulated by statute. That the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment, was first laid down in the classic judgment of Cotton LJ in North London Railway Co v Great Northern Railway Co[54], which has been consistently followed ever since."

"is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles".

"But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization."

Equally, courts of equity will not always grant injunctions against a party profiting from an illegal activity of some other person. That, too, is a "wide generalisation" which provides an insufficient basis for identifying whether relevant equitable principles are engaged.

"Anti-suit injunctions"

"[i]f the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings[69] no matter where they are brought[70]."

That remedy frequently, as in Cigna itself, will be interlocutory but will have the practical effect of deciding the dispute as to the forum of the trial. In Associated Newspapers Group Plc v Insert Media Ltd[71], Hoffmann J referred to South Carolina and remarked[72]:

"There is no doubt that injunctions of that kind stand on a different footing. They are most commonly sought by defendants who are not seeking to assert any independent cause of action but simply a right not to be sued in the foreign court."

However, as is recognised in this passage, there will be cases in which the equitable jurisdiction is exercised in aid of legal rights asserted by the plaintiff. In the joint judgment in Cigna, the majority said[73]:

"Thus, as the respondents correctly contend, if there is a contract not to sue, an injunction may be granted to restrain proceedings brought in breach of that contract, whether brought here or abroad. Similarly, an injunction may be granted in aid of a promise not to sue in a foreign jurisdiction constituted, for example, by an agreement to submit to the exclusive jurisdiction of the courts of the forum."

Australian authorities

"The fundamental principle according to which equity acts is that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct[87]. So it can be said that the overriding aim of all equitable principle is the prevention of unconscionable behaviour - a term which can be seen to encompass duress, undue influence and 'unconscionable dealing as such'[88]. This is not to say that unconscionable conduct within the meaning of the unwritten law, as it presently stands, is any conduct which attracts the intervention of equity. Too broadly defined it may become, in the words of Professor Julius Stone, a 'category of meaningless reference'[89]."

"[T]he Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such to make publication unconscionable."

Young J added that, on a prima facie basis, an injunction should seriously be considered where a film was taken by a trespasser upon private premises and there is some evidence that publication of the film would affect goodwill[91]. Otherwise, the court would be powerless to restrain a defendant who had "obtained the fruits of his tort without holding money or property of the plaintiff and without a breach of confidentiality"[92]. Although in Lincoln Hunt, in the event, damages were considered an adequate remedy, Young J's remarks have been treated in later cases[93] as supporting orders enjoining the publication by the defendant of films it made or caused to be made in the course of trespass upon the premises of the plaintiff. Lincoln Hunt has been said "through the medium of unconscionability, [to open] a new possibility of restraining the publication of materials obtained by trespassers"[94].

No equity to injunctive relief

Victoria Park

"The result of legislative inaction is that no tort of privacy invasion exists. Thus, whilst the value of privacy protection may generally inform common law developments, it would not be proper to award Mr Ettingshausen compensation for the invasion of his privacy, as such."

The Privacy Act 1988 (Cth), particularly since its amendment by the Privacy Amendment (Private Sector) Act 2000 (Cth), confers some enforcement power upon the Federal Court and the Federal Magistrates Court, but the legislation stops short of enacting what might be called a statutory tort of privacy invasion. Lenah suggested in its submissions that to date the Australian courts most probably had not developed "an enforceable right to privacy" because of what generally was taken to follow from the failure of the plaintiff's appeal in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[107].

"The plaintiff in the case was a racecourse proprietor [which] was not seeking privacy for [its] race meetings as such, [it] was seeking a protection which would enable [it] to sell the rights to a particular kind of publicity. [Its] sensitivity was 'pocket book' sensitivity. ... The independent questions of the rights of a plaintiff who is genuinely seeking seclusion from surveillance and communication of what surveillance reveals, it may be argued, should be regarded as open to review in future cases even by courts bound by the High Court decision."

Other common law jurisdictions

"I would conclude, at lowest, that [counsel for the plaintiffs] has a powerfully arguable case to advance at trial that his two first-named clients have a right of privacy which English law will today recognise and, where appropriate, protect. To say this is in my belief to say little, save by way of a label, that our courts have not said already over the years. ...

What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy."

However, his Lordship went on to note that[121]:

"the major part of the claimants' privacy rights have become the subject of a commercial transaction: bluntly, they have been sold".

This suggested that, for the frustration of that commercial transaction, a money remedy would be sufficient.

"Consequently, if the present case concerned a truly private occasion, where the persons involved made it clear that they intended it to remain private and undisclosed to the world, then I might well have concluded that in the current state of English law the claimants were likely to succeed at any eventual trial."

"But privacy is not the only cherished American value. We also cherish information, and candour, and freedom of speech. We expect to be free to discover and discuss the secrets of our neighbours, celebrities, and public officials. We expect government to conduct its business publicly, even if that infringes the privacy of those caught up in the matter. Most of all, we expect the media to uncover the truth and report it - not merely the truth about government and public affairs, but the truth about people.

The law protects these expectations too - and when they collide with expectations of privacy, privacy almost always loses. Privacy law in the United States delivers far less than it promises, because it resolves virtually all these conflicts in favour of information, candour, and free speech. The sweeping language of privacy law serves largely to mask the fact that the law provides almost no protection against privacy-invading disclosures. (As we shall see later, the law is more successful in protecting against commercial exploitation, although for reasons that have more to do with commerce than privacy.)"

With that warning in mind, it is convenient to turn to consider the position in the United States, which has been treated as the fount of privacy jurisprudence.

The United States

"One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other."

The Section then continues that this right to privacy is invaded in each of the four ways detailed in Sections 652B-652E. The first is identified as "Intrusion upon Seclusion" and is described:

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

The second, identified as "Appropriation of Name or Likeness", is described as:

"One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

The third, identified as "Publicity Given to Private Life", is described as:

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public."

The fourth, identified as "Publicity Placing Person in False Light", is described as:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

"Thus far, as indicated in the decisions of the courts, the four forms of invasion of the right of privacy stated in this Section are the ones that have clearly become crystallized and generally been held to be actionable as a matter of tort liability. Other forms may still appear, particularly since some courts, and in particular the Supreme Court of the United States, have spoken in very broad general terms of a somewhat undefined 'right of privacy' as a ground for various constitutional decisions involving indeterminate civil and personal rights."

A celebrated example of this is the discovery in Griswold v Connecticut[132] of "the zone of privacy" located in the penumbras of specific guarantees in the Bill of Rights. Perhaps more conventionally, in a number of cases the prohibition imposed by the Fourth Amendment (applicable to the States by the Fourteenth Amendment) upon unreasonable searches and seizures of property has been interpreted by reference to a reasonable expectation of privacy[133].

"As it has developed in the courts, the invasion of the right of privacy has been a complex of four distinct wrongs, whose only relation to one another is that each involves interference with the interest of the individual in leading, to some reasonable extent, a secluded and private life, free from the prying eyes, ears and publications of others. Even this nexus becomes tenuous in the case of the appropriation of name or likeness ... which appears rather to confer something analogous to a property right upon the individual."

"The tort of invasion of privacy focuses on the humiliation and intimate personal distress suffered by an individual as a result of intrusive behavior. While a corporation may have its reputation or business damaged as a result of intrusive activity, it is not capable of emotional suffering."

"Business firms, as Posner notes[[145]], use privacy as a means to produce income. A trade secret is useful to a firm because it provides a monopoly, which of course enhances profits. Any firm would reveal its trade secrets if it could obtain equivalent monopoly rights for a worthwhile period of time; this is in fact what happens when the government awards a firm a patent that makes the former trade secret a matter of public record. The public inspection to which the patent or copyright is open does not annoy the corporation. As an artificial person, the firm suffers no mental distress when the patent reveals its hidden processes; it simply lacks sensitivity to the value of 'privacy'. A corporation does not want privacy for its own sake. Privacy to a corporation is only an intermediate good."

Hence, the proposition in Section 652I of the Restatement:

"Except for the appropriation of one's name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded."

In par c of the Comment to that Section, the Reporters observe that a corporation has no cause of action for any of the four forms of invasion specified in Section 652A. They continue:

"It has, however, a limited right to the exclusive use of its own name or identity in so far as they are of use or benefit, and it receives protection from the law of unfair competition. To some limited extent this may afford it the same rights and remedies as those to which a private individual is entitled under the rule [respecting appropriation of another's name or likeness]."

Corporate privacy in Australia

Other issues

(a) a court of equity has jurisdiction to enjoin the use of information obtained by illegal or otherwise improper means, if use of the information, which need not have the necessary quality of confidence to be protected on that ground, would be "unconscionable"; and

(b) a third party may be enjoined from using the information even if not implicated in the illegal or otherwise improper initial obtaining of it.

Conclusions

. whether, upon any of the bases propounded, the Supreme Court of Tasmania ("the Supreme Court") lacked the power to grant the interlocutory injunction which it issued against the appellant;

. whether in this Court an alternative basis for the injunction exists, on the ground that the common law now recognises an actionable wrong of invasion of privacy[154]; and

. whether the exercise of any power that otherwise existed miscarried in the circumstances by reason of the failure of those who granted the injunction to take into account limitations, implied from theConstitution, restricting the inhibition by law of free expression. This Court has held that an implication arises from the Constitution that no law may be enacted that would unduly prevent discussion of governmental and political matters relevant to the representative democracy of the Commonwealth. In expressing the common law of Australia (and any rule of equity or judicial practice) courts must also ensure that the law they apply is compatible with this constitutional rule[155].

Other questions were argued in the appeal and will be mentioned. But these three issues capture the essence of the case.

The facts and course of proceedings

The applicable legislation

"[I]n every cause or matter commenced in the Court, law and equity shall be administered according to the following provisions of this section:

(1) If any plaintiff ... claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any ... right, title, or claim whatsoever asserted by any defendant ... in such cause or matter, or to any relief founded upon a legal right which heretofore could only have been given by the Court in its jurisdiction in equity, the Court or judge shall give to such plaintiff ... the same relief as ought to have been given by the Court in its jurisdiction in equity in a suit or proceeding for the like purpose properly instituted before the commencement of this Act.

...

(6) Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity ... the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law ... in the same manner as the same would have been recognized and given effect to if this Act had not passed.

..."

Section 11(12) provides that an injunction may be granted by interlocutory order where it appears "just and convenient that such order should be made"[171].

The establishment of a cause of action is not essential

(1) Statutory power: First, it is an oft repeated mistake of lawyers to gloss statutory language with presuppositions derived from pre-existing law. Every court, but particularly a court within the Australian Judicature established under the Constitution, must obey, and give full effect to, valid Australian legislation understood according to its terms. This is the starting point for a consideration of the power of the Supreme Court. With respect, it is erroneous to start with Chancery practice, the history of injunctions, or observations of English judges on those subjects[184]. It is equally erroneous to start with the opinions of local judges who have not begun the "elucidations" of their relevant powers, as they should, with the terms of the statute by which those powers are granted. This does not mean that the entire ambit of the power is to be found in the statutory provision permitting interlocutory injunctions to be granted where it appears "just and convenient" to do so[185]. Australian judges are not, for this purpose, issued "with a portable palm tree"[186]. But neither is the statutory language confined to particular categories, specified circumstances or enumerated prerequisites fixed for all time by legal history. Unsurprisingly, the power is granted in extremely broad terms to apply to circumstances of almost infinite variety. It is an elementary canon of statutory construction that such provisions should not be narrowed by judicial analysis which distorts the meaning derived from the words used.

(2) Powers of courts: Another canon of construction of direct relevance applies where the powers in question are granted to a court of law, indeed a superior court of record enjoying, in Australia, a constitutional status[187]. Where, as here, the powers are conferred in broad terms on such a court by a parliament, it is contrary to basic principle to restrict such powers to closed categories[188].

(3) Equitable character: In so far as history continues to be imported by the very nature of the remedy of "injunction"[189], it is the history of equity. Whilst that branch of the law, over time, undoubtedly "developed positive rules and shed its ex tempore characteristics"[190], it continues to resist attempts (often said to arise at the hands of common lawyers[191]) to impose on discretions equitable in character classifications described "in terms of inflexible rules"[192]. That approach would be contrary to "fundamental equitable principles"[193]. Above all, such principles require that the beneficial remedy of interlocutory injunctions must, like other injunctions now provided by statute for particular purposes, be kept available to fulfil those purposes and not imprisoned in a cage of unyielding rules derived from ancient cases. The dilemma presented by this appeal evokes the warning of Justice E W Thomas, who in an extrajudicial remark recently described the law's fixation with certainty and formal rules and its distrust of discretion as "adolescent dogmas which the judiciary has outgrown and discarded as the decision-making process has assumed greater maturity"[194].

(4) Interlocutory realities: A final consideration of special relevance to the present appeal arises from the realities that commonly attend applications for interlocutory injunctions, seeking relief prior to a trial. Of their nature, as in the present case, such injunctions are usually sought urgently. Such applications may not always be accompanied by well-prepared pleadings and evidence. That is why the power of the Supreme Court to provide relief is conferred in broad terms. An "interlocutory order"[195] is obviously adjunct to a substantive claim and a "serious issue to be tried" is a prerequisite to relief. But while that "serious issue" is being finally formulated and supported at trial by evidence, it would be inappropriate, and contrary to the purpose of the remedy and of the statute, to impose a narrow rule obliging the demonstration in every case of a cause of action, fully pleaded and proved. In most cases it may indeed be appropriate to require pleading and proof. But in others (particularly in urgent circumstances) justice and convenience may warrant the issue of an interlocutory injunction without them. In this exceptional type of case, the substantive issues between the parties would normally come to trial and be resolved quite quickly. In the present case, the appellant's recourse to appeal has interrupted that usual course of events.

The equitable foundation for injunctive relief

"in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained".

"[I]t does not mean that when unconscionable situations exist in modern society which do not have an exact counterpart in history, that this Court just shrugs its shoulders and says that as no historical example can be pointed to as a precedent the court does not interfere. This Court still continues both in private and commercial disputes to function as a court of conscience. What is unconscionable will depend to a great degree on the court's view as to what is acceptable to the community as decent and fair at the time and in the place where the decision is made. ... [O]pinions may differ as to where the line of unconscionability is to be drawn, but that does not remove from this Court its responsibility to make a decision as to whether conduct is unconscionable in new commercial situations."

"power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such to make publication unconscionable. ...

In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered."

A tort of privacy?

Constitutional implications: substantive law

Constitutional implications: exercise of discretion

Conclusion: the Full Court's discretion miscarried

Orders

CALLINAN J.

The issue

The structure of these reasons

(i) Statement of the facts

"The distribution and publication of this film is likely to adversely and substantially affect the [respondent's] business. The film is of the most gruesome parts of the [respondent's] brush tail possum processing operation. It shows possums being stunned and then having their throats cut. It is likely to arouse public disquiet, perhaps even anger, at the way in which the [respondent] conducts its lawful business. This is no different from any animal slaughtering operation in Australia, which is normally hidden from public view. Presently the vast bulk of brush tail possums processed by the [respondent] are exported to Asian markets, particularly Hong Kong and China. The likely damage to the [respondent] in those market places if this film is shown will be quite severe. These are sensitive markets which the [respondent] has spent between four (4) and five (5) years developing. The [respondent] also wishes to expand into other markets. The likely effect of airing this sought [sic] of graphic video material could be potentially catastrophic for the [respondent's] present business and the business which it may be able to do in the future especially in new markets. It is quite unlikely in my assessment that the [respondent] could be adequately compensated by an award of damages for the airing of this film domestically and in overseas countries. For example, persons who may be potential consumers of the [respondent's] products (but who are unknown to the [respondent]) may simply not purchase."

(ii)(a) Proceedings in the Supreme Court of Tasmania

"(a) An interim injunction restraining the First Named Defendant, its servants or agents, from publishing or causing to be published the video or excerpts from it;

(b) A mandatory injunction requiring the First Named Defendant to deliver up to the Plaintiff all copies of the video or excerpts from it in its possession, custody or power;

(c) An injunction restraining the Second Named Defendant from distributing, copying or causing to be published by others the video or excerpts from it or the contents of it.

(d) A mandatory injunction requiring the Second Named Defendant, its servant or agents to deliver up to the Plaintiff all copies of the video in its possession, custody or power;

(e) As against each Defendant damages;

(f) As against each Defendant interim injunctions;

(g) Further or other relief;

(h) Costs."

(ii)(b) The appeal to the Full Court of the Supreme Court of Tasmania

"For my part, I would be content to acknowledge the proposition for which the appellant contends, viz, that as part of its auxiliary jurisdiction the Court has power to issue an injunction to prevent the use of material obtained unlawfully in such a way as to cause harm to the individual against whom the unlawful act was committed, whether or not that individual can establish a cause of action in tort or equity against the person sought to be enjoined (cf White v Mellin[323]). However, it seems to me that in circumstances such as the present, it is at least arguable that an actionable tort would be committed by the ABC were it to publish the relevant video tape."

"Nonetheless it seems clear enough that the granting of an injunction is not dependent upon the existence of an enforceable cause of action by the appellant against the individual to be enjoined and this much was conceded by counsel for the respondent."

"Unconscionability is at the core of the Court's equitable jurisdiction in relation to both confidential information and information which is the product of a trespass. This strongly suggests that the equitable jurisdiction that is invoked in relation to each is the same and I cannot discern any reason for concluding otherwise. The jurisdiction invoked is the Court's exclusive jurisdiction in equity and this jurisdiction is not auxiliary to a cause of action. Just as relief can be obtained against a third party innocently in receipt of the confidential information, Butler v Board of Trade[326],Malone v Metropolitan Police Commissioner[327] and Wheatley v Bell[328], so it should, in appropriate circumstances, be available against a third party innocently in receipt of information which is the product of a trespass.

I am satisfied that the Court's exclusive equitable jurisdiction to grant relief may be invoked when it can be established that it would be unconscionable to allow a person in possession of a video tape which is the product of a trespass, to publish that tape. In my respectful view, the learned primary judge erred in concluding that as the statement of claim did not disclose a cause of action in trespass against the ABC, the plaintiff could not establish an entitlement to the relief sought."

(iii) The appeal to this Court

"(a) The Full Court wrongly proceeded on the basis that the Court had jurisdiction to grant an injunction to restrain media publication based on unconscionability in the absence of claims in trespass or defamation or breach of confidence against the Applicant.

(b) The Full Court wrongly extended the remedy of an interlocutory injunction to a party on the basis of unconscionability which that party alleged did not arise from any tortious or unlawful conduct or breach of confidence of the Applicant, but as a result of a trespass by an unknown person who was not a party to the proceedings.

(c) The Full Court so invoked the exclusive jurisdiction as to circumvent the general rule which does not permit injunctive relief to prevent media publication of matter capable of causing injury to reputation, whether by way of defamation or injurious falsehood, other than in the most exceptional circumstances.

(d) The Full Court failed to have regard to whether, when applying the equitable principle of unconscionability to the media, concepts of public interest in freedom of the press need to be applied in deciding whether or not to grant the injunction.

(e) The Full Court failed to apply the settled principles with regard to the granting of injunctions to restrain the publication by the mass media capable of causing damage.

(f) The Full Court in the judgment of Wright J wrongly asserted that a broadcaster which published material capable of causing harm but which did not defame could be liable in negligence, and that this provided an alternative basis for the grant of an injunction in the auxiliary jurisdiction."

(iv) The test for an interlocutory injunction

(v) Commentary on the facts

(vi) An overview of the circumstances prevailing today

"A man may glitter with new and valuable ideas or burn with wise thoughts or passionate feeling, but if he is to communicate them to any circle wider than that of his own immediate friends he has got to render them acceptable to the real licensors of thought today, the editors, the publishers, the producers, the controllers of radio and television."

"Our newly patriated human rights instrument, the European Convention, contains no express right to information. Nor do any of the other international or constitutional instruments of which I am aware. Even the most recent and most meticulously liberal, that of South Africa, dropped an enforceable right of reply from its original draft. In the United States, legislative attempts to secure a legal right of reply have been struck down under the First Amendment - logically enough, since the necessary premise of the prohibition on the abridgment of free speech is the possession of it, and ex hypothesi those who need a right of reply don't possess it. There remains in general no way in the developed world of making the media carry the other side of an argument if they don't want to; nor of preventing the dissemination by them of disinformation; nor of stopping them from imposing selective information blackouts." (emphasis added)

"Some American commentators, who value freedom of speech for its capacity to promote public deliberation, have argued that the current American approach is not consistent with that ideal. In particular, it neglects the distorting effect of existing inequalities in access to information and the capacity to communicate. Consequently, protecting speech from regulation may hinder rather than advance public debate by excluding the voices of some and emphasising the voices of others. A truly full and fair discussion of public affairs may actually require government intervention." (emphasis in original)

"Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue."

"It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's 'right to know', has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instanter."

"[T]he Times has copyrighted its material and there were strong intimations in the oral argument that the Times contemplated enjoining its use by any other publisher in violation of its copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others - a protection the Times denies the Government of the United States."

"(i) although the subjects of the allegations substantially related to events much earlier and had been under consideration by the respondent for a period of months, publication took place peremptorily and without any sufficient attempt to provide the appellant with an opportunity to put forward his side of the story;

(ii) even having regard to information actually held by the respondent, there was a lack of balance;

(iii) there were significant unexplained inaccuracies in the articles including one headline;

(iv) a journalist employed by the respondent acquiesced in the deception of a potential witness after the publication;

(v) witnesses who were available who might have provided explanations were not called;

(vi) relevant documents were not discovered or, when discovered, not produced; and

(vii) there was a refusal to apologise or even admit error throughout and, on the contrary, the respondent robustly defended the articles." (emphasis added)

"[T]here were lots of papers in the old days; what The World said might be contradicted by The Tribune. Now there are fewer papers, weightier and more self-important. 'The establishment press takes itself so seriously,' [Professor] Smolla wrote. It 'seems to dispense not merely news but Truth, and juries may be reflecting a general public backlash against that oracular role.'

Television is even more of an oracle. Its pervasive reach has made national eminences of the network anchor men and women and the top reporters. To the public, that looks like power - and power sometimes exercised in an unaccountable, even arrogant way. The networks, big newspapers and magazines ask questions and demand answers, but when anyone wants to know about their business, they wrap themselves in the First Amendment and refuse to answer. So it often appears to the public."

"The press sometimes aggravates the public perception of arrogance by the way that it speaks of its constitutional rights. Phrases such as 'freedom of the press' or 'First Amendment rights' have taken on the air of dogma, and exclusivist dogma at that. Some editors and publishers act as if the press clause of the First Amendment were designed to protect journalism alone, and to make that protection superior to other rights in the Constitution - propositions that have no support in logic or history."

"The media may, by the exercise of this power, influence what is done by others for a purpose which is good or bad. It may do so to achieve a public good or its private interest. It is, in this sense, the last significant area of arbitrary public power."

Members of the Executive branch would wish for the borders between what may and what may not be published to be drawn beyond the outer marches of the most trivial of government activities. Where the borders are to be drawn between what may and what may not be published is not for the media or for governments of the day but for Parliament. And perceived ends, however desirable, of open government and public discourse, do not justify the use of any means at all, whether by breaking the law, inciting others to break it, or knowingly accepting the benefits of illegal conduct by others.

(vii) A stand-alone injunction?

"However, in England, it is now settled by several decisions of the House of Lords[376] that the power stated in Judicature legislation - that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so - does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights[377]. The situation thus confirmed by these authorities reflects the point made by Ashburner that 'the power of the court to grant an injunction is limited by the nature of the act which it is sought to restrain'[378]."

"The Mareva was a response to the use of the one-ship company registered in Liberia with directors in Sark and a bank account in Zurich. The Norwich Pharmacal order could be used to try to penetrate the veil of secrecy behind which financial transactions had taken place. These developments created a new form of litigation. Instead of the interlocutory process being ancillary to a trial, it became in many cases an end in itself. Often it was extremely unlikely that the matter would come to trial at all. If the interlocutory orders were successful in securing the goods or freezing the assets, the defendant submitted to judgment and that was an end of the matter. The judge granting the orders, usually ex parte, acted more in the role of a juge d'instruction, controlling a privatised police inquiry, than the referee of traditional English justice. This represents a radical change of role and it is therefore not surprising that judges over the past 25 years have been feeling their way to an adequate system of rules and guidelines."

"The court habitually grants injunctions in respect of certain types of conduct. But that does not mean that the situations in which injunctions may be granted are now set in stone for all time. The grant of Mareva injunctions itself gives the lie to this. As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today's conditions and standards, not those of yester-year." (emphasis added)

(viii) Unconscionability and breach of confidence

"I must dissent ... from the suggestion that there is a general principle of equity which justifies the court in relieving a party to any bargain if in the event it operates hardly against him. In particular cases, for example, of expectant heirs or of fiduciary relationship, a court of equity (and now any court) will if the circumstances justify it, grant relief. So also if there is duress or fraud 'which unravels all'. In the present case there is nothing which would justify the court in granting relief".

"There are a number of areas in which equitable intervention is well established but in such a manner as to defy reduction to any specific principle."

"The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf Phipps v Boardman[397]), viz, trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions 'for', 'on behalf of', and 'in the interests of' signify that the fiduciary acts in a 'representative' character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal."

"The distinguishing characteristic of a fiduciary relationship is that its essence, or purpose, is to serve exclusively the interests of a person or group of persons; or, to put it negatively, it is a relationship in which the parties are not each free to pursue their separate interests." (emphasis in original)

"In the case of a constructive trust, the inquiry is not as to the actual or presumed intentions of the parties, but as to whether, according to the principles of equity, it would be a fraud for the party in question to deny the trust. As Cardozo CJ put it[400], 'When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee'. The trust is constructive in the sense that equity construes the circumstances by explaining or interpreting them; equity does not construct the trust, it attaches legal consequences to the circumstances. Moreover, the constructive trust demands the staple ingredients of the express and resulting or implied trust: subject matter, trustee, beneficiary and personal obligation attaching to the trust property."

The film was brought into existence, and the appellant acquired it, in circumstances in which it cannot in good conscience use it without the permission of the respondent. If the facts remain at the trial as they appear to be now, the appellant should then be obliged to deliver up the film to the respondent. There is therefore an underlying remedy sufficient to support an interlocutory injunction. And, as I have already said, the balance of convenience lies heavily with the respondent. The only other suggested impediment to the continuation of the injunction granted by the Full Court is the so-called constitutional defence and to that I will go in due course.

"Where money has been stolen, it is trust money in the hands of the thief, and he cannot divest it of that character. If he pays it over to another person, then it may be followed into that other person's hands. If, of course, that other person shows that it has come to him bona fide for valuable consideration, and without notice, it then may lose its character as trust money and cannot be recovered. But if it is handed over merely as a gift, it does not matter whether there is notice or not."

"These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. 'At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.'[407] By 'protecting the privacy of individual thought and expression,'[408] these statutes further the 'uninhibited robust, and wide-open' speech of the private parties[409]. Unlike the laws at issue in the Daily Mail[410] cases, which served only to protect the identities and actions of a select group of individuals, these laws protect millions of people who communicate electronically on a daily basis. The chilling effect of the Court's decision upon these private conversations will surely be great".

"[A] duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice ... that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others."

(ix) A new tort of intrusion of privacy?

"[W]hat follows in these reasons does not give effect to, any notion that the boundaries of the power conferred by s 51(xviii) are to be ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trade mark. No doubt some submissions by the plaintiff would fail even upon the application of so limited a criterion. However, other submissions, as will appear, fail because they give insufficient allowance for the dynamism which, even in 1900, was inherent in any understanding of the terms used in s 51(xviii)."

"Courts have always refrained from fettering themselves by definitions. 'Courts of equity constantly decline to lay down any rule, which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence'[428]. 'The common law has not proved powerless to attach new liabilities and create new duties when experience has proved that it is desirable. That this was so in the older days was due to the wide scope of the action upon the case. The action upon the case was elastic enough to provide a remedy for any injurious action causing damage ... When relationships come before the courts which have not previously been the subject of judicial decision the court is unfettered in its power to grant or refuse a remedy for negligence ...'[429] ... This case presents the peculiar features that by means of broadcasting - a thing novel both in fact and law - the knowledge obtained by overlooking the plaintiff's racecourse from the defendant's tower is turned to account in a manner which impairs the value of the plaintiff's occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour's land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff's land to his own commercial ends - a thing made possible only by radio - falls within the reason of the principles which give rise to the action on the case in the nature of nuisance."

"Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognize that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life."

"Brandeis J[433] cites with approval Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd[434], a decision of Horridge J (affirmed by the Court of Appeal[435]), which he describes as follows[436]: 'The plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against the defendant, who had also taken pictures of the show and was publishing them. The court said that, except in so far as the possession of the land occupied by the show enabled the proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed in that case), the proprietors had no exclusive right to photograph the show and could therefore grant no such right. And, it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him'."

"A liberal state respects the distinction between public and private speech because it recognizes that the ability to expose in some contexts parts of our identity that we conceal in other contexts is indispensable to freedom. Privacy is necessary for the formation of intimate relationships, allowing us to reveal parts of ourselves to friends, family members, and lovers that we withhold from the rest of the world. It is, therefore, a precondition for friendship, individuality, and even love. In The Unbearable Lightness of Being, Milan Kundera describes how the police destroyed an important figure of the Prague Spring by recording his conversations with a friend and then broadcasting them as a radio serial. Reflecting on his novel in an essay on privacy, Kundera writes, 'Instantly Prochazka was discredited: because in private, a person says all sorts of things, slurs friends, uses coarse language, acts silly, tells dirty jokes, repeats himself, makes a companion laugh by shocking him with outrageous talk, floats heretical ideas he'd never admit in public, and so forth.'"

"The invasions of privacy I have discussed in this book are part of a larger crisis in America involving the risk of mistaking information for knowledge in a culture of exposure. We are trained in this country to think of all concealment as a form of hypocrisy. But we are beginning to learn how much may be lost in a culture of transparency: the capacity for creativity and eccentricity, for the development of self and soul, for understanding, friendship, and even love. There are dangers to pathological lying, but there are also dangers to pathological truth-telling. Privacy is a form of opacity, and opacity has its values. We need more shades and more blinds and more virtual curtains. Someday, perhaps, we will look back with nostalgia on a society that still believed opacity was possible and was shocked to discover what happens when it is not."

"It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, 'to be let alone'. Without any attempt to exact definition, these four torts may be described as follows:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness."

Prosser's categorisation has been accepted by the United States Supreme Court[442] and the Restatement of the Law Second, Torts[443].

"More compellingly, the century has experienced a strong tide running in favor of the so-called right of privacy. In 1967, we noted that '[i]t has been said that a "right of privacy" has been recognized at common law in 30 States plus the District of Columbia and by statute in four States'[446]. We there cited the 1964 edition of Prosser's Law of Torts. The 1971 edition of that same source states that '[i]n one form or another, the right of privacy is by this time recognized and accepted in all but a very few jurisdictions'[447] ...

These are impressive credentials for a right of privacy".

And in Dietemann v Time Inc[448], Hufstedler J said that "[t]he First Amendment is not a license to trespass"[449].

"One Canadian court has recognized a general right to privacy. Several trial judges have refused to dismiss actions for the invasion of privacy at the pleading stage on the ground that it has not been shown that our courts will not create a right to privacy. Recently, Chief Justice Carruthers has stated 'the Courts in Canada are not far from recognizing a common law right to privacy if they have not already done so'. Furthermore, courts have been willing to protect privacy interests under the rubric of nuisance law. We seem to be drifting closer to the American model."[458]

"Without such receivers [of stolen property], theft ceases to be profitable. It is obvious that the receiver must be a principal target of any society anxious to stamp out theft in its various forms."

"Legislators can, and usually do enact transitional provisions when they change the law. The courts have so far found and provided no like means of cushioning the impact of decisions which effect significant changes. It may ultimately turn out to be an inescapable concomitant of any role that a final court may arrogate to itself to change the common law markedly, that it do so only in a way which is sensitive to the affairs and expectations of those who have acted upon the basis of what they reasonably took to be the legal status quo. If the proposition that judges do not change the law is to be acknowledged as a fiction, then something may have to be done to displace the effect of the other legal fiction, that the law as found by the Court has always been so, and those who may have acted upon a different understanding in the past are nonetheless bound by the Court's most recent exposition of the law. Merely to state the problems is to expose the difference between the legislative and curial roles. Certainty, predictability, the desirability of a gradual and incremental development of the common law only, and respect for the knowledge, wisdom and experience of those who made the earlier decision are very important considerations. The last of these matters will always however invite the question whether those who made the decision under challenge themselves paid due deference to those who in the past held a different opinion."

"The Australian common law experienced many changes introduced by judges in the last two decades of the 1900s. The doctrine of privity was modified, at least in relation to insurance contracts[471]. The distinction between mistakes of fact and mistakes of law in the law of restitution was abandoned[472]. Native title was invented[473]. Liability for the escape of dangerous non-natural substances from land, previously a small realm of its own, became part of the vast empire of negligence[474]. Battery manslaughter was abolished[475], and the implied consent to sexual intercourse derived from the relationship of marriage was declared dead[476]. This list could easily be extended.

Similarly, Australian constitutional law changed considerably in those two decades despite the lack of any change to the express words of the Constitution since 1977. Decades of refusal to reconsider the constitutionality of the states' taxes on alcohol and tobacco gave way to a declaration of unconstitutionality[477]. The interpretation of s 92 was changed and placed on a rationally defensible basis[478]. Discrimination by the states against residents of other states was finally recognised as obnoxious to the spirit of the Australian federation and not as something that was to be saved at any cost, including, if necessary, at the cost of twisting the words of the Constitution[479]. The interpretation of Commonwealth powers, and, more generally, the permissible methods of interpretation were hammered out in a series of cases[480]. An immunity from laws that unduly restrict communication about governmental and political matters was identified in theConstitution[481], joining the separation of powers and the State Banking[482] doctrines as the third judicially approved general implication from the terms of the Constitution. At the intersection of public and private law, this immunity was found to affect the common law of defamation so as to widen the availability of the defence of qualified privilege[483].

Again, the list could easily be extended. Looking at these two lists, and at possible additions, from the perspective of comparative law, there is, however, one notable omission: there is still no 'right of privacy' properly so called in the Australian common law."

(x) A constitutional defence?

"What signifies a declaration that 'the liberty of the press shall be inviolably preserved'? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights."

"Certainly, defamatory statements are very tenuously related to the core values which underlie s 2(b). They are inimical to the search for truth. False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society." (emphasis added)

I would agree also with what was said by Cory J[496] in adopting a passage from Gatley on Libel and Slander[497] that excessive (and inaccurate) political expression will "deter sensitive and honourable men from seeking public positions of trust and responsibility, and leave them open to others who have no respect for their reputation."[498]

"The principal purpose of parliamentary committees is to perform functions which the Houses themselves are not well fitted to perform, that is, finding out the facts of a case, examining witnesses, sifting evidence, and drawing up reasoned conclusions. Because of their composition and method of procedure, which is structured but generally informal compared with the Houses, committees are well suited to the gathering of evidence from expert groups or individuals. In a sense they 'take Parliament to the people' and allow direct contact between members of the public by a representative group of Members of the House. Not only do committee inquiries enable Members to be better informed about community views but in simply undertaking an inquiry committees may promote public debate on the subject at issue. The all-party composition of most committees and their propensity to operate across party lines are important features. This bipartisan approach generally manifests itself throughout the conduct of inquiries and the drawing up of conclusions. Committees oversight and scrutinise the Executive and can contribute towards a better informed administrative and government policy-making process. In respect of their formal proceedings committees are microcosms and extensions of the Houses themselves, limited in their power of inquiry by the extent of the authority delegated to them and governed for the most part in their proceedings by procedures and practice which reflect those which prevail in the House by which they were appointed."

In the same work[508], the author points out that in September 1987 the House of Representatives established a comprehensive system of committees and refers to the very broad ambit of their activities. Since 1970, the Senate also has made extensive use of both standing and select committees[509]. Nor should s 75(iii) and (v)[510] of the Constitution, which enable citizens and others to challenge and correct misbehaviour by Commonwealth bureaucracies and officers in various respects by prerogative writs, be left out of the equation. Furthermore, almost always the media have the advantage of resources, money and endurance over those who would seek vindication by proceeding against their members.

"As for the taboo that kept it there, a taboo that was faithfully observed by the national press for over twelve years, it is inconceivable that today it would be maintained for a week or a day. Some British tabloid would be sure to offer a fortune to the first to break it."

"The broadly formulated terms of the new rule left much discretion in the hands of the courts who were to apply and develop it. Although not unheard of, the standard embodied in the recklessness and reasonableness requirements would have to be defined in the context of freedom of political communication by the courts. The notion of a 'reasonable' publication was particularly unclear. One important outstanding issue was whether this required that the defendant establish an honest belief in the truth of the matter published. The little clarification given by the Court raised further questions. Although the Court indicated that '[t]he publisher should be required to show that, in the circumstances which prevailed, it acted reasonably, either by taking some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps', it was not at all clear what kinds of steps are necessary or when a publisher is justified in disregarding them. These kinds of judgments were for later development, principally by the lower courts."

The same author goes so far as to argue, convincingly in my opinion, that the judicial method which Lange requires is unsustainable[515]:

"The unsustainability of the Lange method can be seen by considering how the High Court should choose between the proportionality test and other more defined tests, of which strict scrutiny is one example. This choice itself cannot be made without reference to ideas beyond the text and structure of the Constitution and, moreover, the future development of such tests requires departure from that method. More value-laden reasoning in the freedom of political communication doctrine might be unpalatable, even daunting, for the High Court, but it is the inevitable result of the course on which the Court set itself when it first recognised the freedom of political communication."

(xi) Why should an interlocutory injunction not be granted?

"A further example of the manner in which judges trained in a common law rather than an equitable tradition may misunderstand the nature of equitable discretions, and hence attempt to describe them in terms of inflexible rules, is seen in a series of cases that are concerned with the right to obtain injunctions restraining the publication of libels. In such cases the right to obtain an interlocutory injunction ought, on general equitable principles, to depend simply on whether, in the special circumstances in question, the balance of justice inclines towards the grant or refusal of relief; and such matters should be taken into account as considerations of hardship in relation to the parties, any special considerations of unfairness that may arise, the undesirability that a defendant should be prevented from making statements the legality or illegality of which will only subsequently be established with certainty, the extent to which third persons or the public generally may be interested in the truth of those statements, the degree of probability that the alleged libel will be published and will be wrongful, the degree to which the plaintiff will be injured in the event of its publication, and any other material considerations. Probably the observations of Jessel MR in Quartz Hill Consolidated Gold Mining Co v Beall[520] were not intended to depart from these general principles. In the course of these observations, after giving an example of cases where an injunction would be granted, he went on to say, 'But on the other hand, where there is a case to try, and no immediate injury to be expected from the further publication of the libel, it would be very dangerous to restrain it by interlocutory injunction.' Properly understood, this statement was unexceptionable. Five years later, however, Lord Esher expressed an opinion that the jurisdiction to restrain a libel 'ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find the court would set aside the verdict as unreasonable'. It is important to notice that in this statement Lord Esher apparently intended to lay down, as a definite condition of the grant of relief, rather than merely as a discretionary consideration, proof of a state of facts such that no jury could reasonably conclude otherwise than that the publication sought to be enjoined was libellous. At law, of course, a state of facts of this kind is a condition on which certain rights do indeed depend. It is not necessary here to do more than to note that, for example, in a trial of an action with a jury, various rights of the parties both before the entry of judgment and on appeal depend on whether a jury could reasonably reach the conclusion that it has in fact reached. In equity, however, different considerations apply. The fact that the absence of a libel could not reasonably be found may be relevant, and indeed may be of great weight. So if it appears that the only conclusion that may be reasonably reached is that the proposed publication will be libellous, exceptional circumstances must be shown in order to justify the view that it would be inequitable to grant an injunction. But on general equitable principles it may in some circumstances be unjust to deny interlocutory relief merely because this condition is not satisfied. So if, for example, the prospective injury to the plaintiff were overwhelming, the detriment to the defendant through any delay of publication small, and the probability of the wrongfulness of the proposed publication high, although not such as to be beyond the possibility that a jury might, especially in view of any fresh evidence that might subsequently be adduced, reasonably find in favour of the defendant, an interim or interlocutory injunction might well appear to be appropriate. Whilst equity lawyers tend thus to express principles in terms of general discretionary considerations, common lawyers tend to express themselves in terms of rules with specific and inflexible criteria. Hence it has been largely in the formulations of common law judges that the rule laid down by Lord Esher has received subsequent support, and, in the absence of a full analysis in the courts, there has come to be a risk that it will be regarded as orthodox, contrary as it may be to fundamental equitable principles. Similar comments may be made as to suggestions that an interlocutory injunction will not issue if the defendant proposes to rely upon justification or fair comment or some other such defence. Such considerations as an intention to plead justification, for example, are always of importance and are often decisive. But it is clearly contrary to principle that they should be treated as inflexible bars to relief, so that other countervailing considerations are not given due weight." (emphasis added)

Orders

1. "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. 2. Everyone has the right to the protection of the law against such interference or attacks."[260]

1. "The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that often override traditional journalistic criteria for newsworthiness. This trend is apparent in local and national television's treatment of crime, where the extent and style of news stories about crime are adjusted to meet perceived viewer demand and advertising strategies (which frequently emphasize particular demographic groups with a taste for violence). In the case of local news, this results in virtually all channels devoting a disproportionate part of their broadcast to violent crimes, and to many channels adopting a fast-paced high crime strategy based upon an entertainment model. In the case of network news, this results in much greater coverage of crime, especially murder, with a heavy emphasis on long-running tabloid-style treatment of selected cases in both the evening news and the newsmagazines. Newspapers also reflect a market-driven reshaping of style and content ...
2. Economic factors have also reshaped the newspaper industry and the reporting of crime. In newspapers, as in television, we are in an era of market-driven journalism. In general, newspapers are publicly owned, and they face pressures to generate high profit margins for shareholders at a time of declining readership and intense competition from other media sources. In response to these pressures, newspaper owners and top management have emphasized cost cutting and content designed to attract readers, and as a result the traditional wall between the editorial and marketing/advertising departments in newspapers has come tumbling down. The most famous example is that of the Los Angeles Times, where CEO Mark Willes reorganized the newsroom on the lines of a consumer products company, with brand managers and profit-and-loss statements for each section of the paper. Newspaper editors are increasingly expected to consider marketing as well as traditional journalistic considerations." (footnotes omitted)

1. "[J]ournalists write to length. A book ends when the author has said all he wants to say. An academic paper ends when the point has been made. Except in rare circumstances, the length of an article written by a journalist is determined by the amount of white space left on a particular page or pages after the advertisements have been allocated."[357]

1. "1. Report and interpret honestly, striving for accuracy, fairness, and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply.
2. 8. Use fair, responsible and honest means to obtain material. Identify your self and your employer before obtaining any interview for publication or broadcast. Never exploit a person's vulnerability or ignorance of media practice.
3. 11. Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude."[358]

1. "My objection is not to the gun but to its aim, the archaic obsession of the tabloids with sex. All but two of the 17 scalps that Fleet Street claims to have cut from the heads of senior Tories of late are for sexual 'misbehaviour'. The misbehaviour is usually of a sort that none of the journalists would recognise as such in themselves or their colleagues. No politician is hounded from office for incompetence or wasting public money. It simply does not happen. The thinnest of justifications for sexual intrusion is that the victims are 'hypocrites', that those who preach family values and back-to-basics lay themselves open to intrusion, even if they are doing nothing that impinges on their public duties. That is garbage."[365]

1. (a) freedom of conscience and religion;
2. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
3. (c) freedom of peaceful assembly; and
4. (d) freedom of association."[494]