'We must challenge judge over savage attack on media'
High Court judge Pat Keane has savaged the media, and suggested new laws to curb its powers.
And he has taken a swipe at the media industry's Right-to-Know campaign, following the Australian Federal Police raid on journalist Annika Smethurst, cynically suggesting the crusade was motivated by "dollar signs".
Keane goes further, saying that "it would not be surprising" if the High Court accepted a tort (a civil wrong) of invasion of privacy. He quotes from records that show judges favour protecting an individual's private life "free from the prying eyes, ears and publications of others".
His outspoken comments came in his Griffith Law School Michael Whincop memorial lecture. It was a scholarly, entertaining and dangerous speech in which he quoted some of civilisation's greatest thinkers including Plato, Socrates, Sigmund Freud and Thomas Jefferson, and jurists like Louis D Brandeis, one of the great figures of the United States Supreme Court.
Keane said the electronic and print media cared little for the private lives of citizens.
"Should the law aid individuals to profit from the commercialisation of their intimate moments?" he asked.
Keane said drawing "satisfactory boundaries" between our private and public lives is one of the great challenges of Western civilisation.
He added: "The position taken by the media in Smethurst is a reminder, if one were needed, that, when the owners of the media are faced with a choice between the right to know and the right to privacy, they can be expected to favour the right with the dollar signs attached - and that will be so wherever one might think the balance of the public interests lies. The legitimate self-interest whose energy we need to harness is the interest that all of us have as citizens.
"It is definitely not the interest of media outlets, such as Fox News, which lies in pandering to the prejudices of its audience and stoking their distrust and disapproval of their fellow citizens."
This is a jaundiced view. Smethurst was reporting on spy agency efforts to snoop on unsuspecting citizens.
And others will see Fox as a bulwark against the increasingly left-wing media bias in the US led by the New York Times that routinely stokes distrust and disapproval against Republicans.
I could say that the ABC also stokes distrust and disapproval as it panders to the green-left.
Keane says laws to protect privacy had been "hit and miss".
For me, his comments reek of a misunderstanding to the media's role. His words should not go unchallenged.
True, the media sometimes does intrude. But it does not do so unless there is a strong public interest.
Much of the reporting of the intimate affairs of celebrities comes from the stage and screen and sporting luminaries themselves. They crave the limelight.
They frequently leak to the media because publicity feeds their egos and their bank balance.
Those of us who lead comparatively humdrum lives may find their trivialities an entertaining distraction. There is no crime in that. Not everyone spends their days off reading Plato, Your Honour.
While the media should not pander to the basest of instincts, nor should it be expected to change human nature and stifle an inquiring mind.
Paradoxically, much of the salacious gossip and scandal Keane seems to be complaining about comes directly from juicy court cases presided over by his fellow judges. There is an especially rich serving of the most intimate detail delivered weekly by Appeal Court judges of the Supreme Court as they forensically analyse the evidence.
More scandal, spice, humiliation and shame is delivered in Parliament in the time-honoured ritual of bucket-tipping.
In journalism, muckraking is a most noble art.
Keane puts a persuasive intellectual case, but an impractical one.
This is odd for a man who obviously has a brain the size of a planet.
He grew up in dreary, working-class Wilston in inner-city Brisbane and attended St Joseph's Gregory Terrace where he was (of course) dux of the college. At the University of Queensland he won the university medal and then a scholarship to Oxford where he won the Vinerian prize for outstanding scholarship.
Later he was appointed Queensland Solicitor-General then a judge of the Court of Appeal of the Supreme Court.
Next he was appointed Chief Justice of the Federal court of Australia before ascending to the High Court in 2012.
The Australian reported in November 2012 that he was "a Labor man" and a friend of Kevin Rudd, although his appointments met with bipartisan support.
Keane spoke just as Crime and Corruption Chief Alan MacSporran ludicrously suggested that the media be gagged from reporting on matters he was investigating. I found his comments astonishing and arrogant.
Are MacSporran and Keane suggesting we curtail free speech, and therefore your right to know? I'll quote Jefferson back at them: "Our liberty depends on the freedom of the press, and that cannot be limited without being lost."
MacSporran already has extraordinary powers of investigation. He can drag innocent people from the street and compel them to give evidence in a so-called Star Chamber court that the media is forbidden from covering. What would life be like without a free press? Perhaps we should go to China or Russia to find out.
However, tensions between the media and the judiciary may not be a bad thing.
For all their legal smarts, I have a hunch that Keane and MacSporran know very little about journalism or the million wrongs we right every year.
Any more restrictions on the press would kill investigative journalism. A shackled press would not have uncovered the Watergate case that toppled Richard Nixon. Senator Ted Kennedy would not have been exposed as the Chappaquiddick Island coward who fled the scene and tried to cover up his part in the death of Mary Jo Kopechne.
Without intrusive journalism, The Sunday Times in England would not have exposed the cover-up of the thalidomide children who were born with shocking deformities.
Without dangerous and meddling journalism, The Courier-Mail would not have exposed the corruption in the Bjelke-Petersen era that forced the Fitzgerald Inquiry which led to the Police Commissioner and several Cabinet ministers being sent to jail.
But MacSporran and Keane ought to reflect on what they are suggesting. They want to edit our papers, just as bureaucrats do in China.
Could MacSporran's gag proposal be in breach of the new Human Rights Act that guarantees my freedom of thought and freedom of expression?
As irksome as it might sound to the MacSporran and Keane, they are often in the same boat as journalists. This is because journalists, judges and police ultimately strive to serve the same ideals.
If the press is seen to have too much power, so are the courts.
There is dangerous, totalitarian thinking in the belief that the media can somehow be "managed".
The independence of the judiciary is paramount, as is the independence of journalism.
In protecting the citizenry from wrongdoing and injustice, may I humbly suggest, Your Honour, that the intrusive media quite often does a better job than your courts.
Originally published as We must challenge judge over savage attack on media