The Law Handbook 2024

1094 Section 12: Government and the individual about the duty of confidence, see Chapter 9.1: Health and the law. Privacy protection in Australia: The UNICCPR and common law Most Australian states and territories have enacted legislation to protect information privacy. However, Australian law does not expressly protect the right to personal privacy in the broader sense, either through legislation or the common law. Also, legislative protections of the privacy of personal information do not include breaches by individuals acting in a personal capacity. Privacy protection under the UNICCPR The right to privacy in the Universal Declaration of Human Rights (1948) is mirrored in Article 17 of the United Nations International Covenant on Civil and Political Rights (1966) ( UNICCPR ). Australia is a signatory to the UNICCPR and agreed to be bound by it on 13 August 1980. The UNICCPR is a schedule to the Australian Human Rights Commission Act 1986 (Cth) (‘ AHRC Act ’); the Australian Human Rights Commission is responsible for monitoring Australia’s compliance with the UNICCPR. However, although Australia has agreed to be bound by the UNICCPR, it is not incorporated into the AHRC Act to the extent that it has created enforceable rights. On 25 September 1991, Australia agreed to be bound by the first optional protocol, which allows individuals whose countries are party to the UNICCPR and the protocol – and who have exhausted all domestic remedies (if any) – to submit a written communication to the United Nations Human Rights Committee (‘ HR Committee ’). This occurred when Nicholas Toonen, who lived in Tasmania, sent a communication to the HR Committee arguing that Tasmania’s law that criminalised homosexual sex between consenting adults was a breach of privacy under Article 17 of the UNICCPR. The HR Committee agreed that because of the Tasmanian law, Australia was in breach of its obligations under the treaty and rejected the argument that the interference was not arbitrary (HR Committee Communication No. 488/1992 Toonen v Australia ). In response to the HRCommittee’s view, the Commonwealth Government passed a law overriding the Tasmanian law. Note that Toonen sent his communication in 1991 and the HR Committee responded in 1994. Also, Australia is not bound by the HR Committee’s response and could have chosen to take no action to remedy the breach. Privacy protection under the common law Australian common law provides limited personal privacy protections through trespass and defamation laws (see Chapter 6.4: Neighbour disputes and Chapter 11.2: Defamation and your rights). Ettingshausen v Australian Consolidated Press In Ettingshausen v Australian Consolidated Press Ltd (1991) 23b NSWLR 443, the plaintiff, a well-known rugby player, successfully took defamation action about the publication of a photograph taken after a game, which was found to show his genitals. This case was, in reality, a claim for breach of privacy. Australian Broadcasting Corporation v Lenah Game Meats In 2001 – in the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) HCA 63 (‘ Lenah Game Meats case ’) – the High Court heard a claim of breach of privacy made by a corporation in relation to an animal rights group that secretly filmed an abattoir that processed possums. The footage had been given to the Australian Broadcasting Corporation ( ABC ), which planned to broadcast it. While ultimately rejecting the corporation’s claim of breach of privacy – on the ground that corporations have no rights of privacy, which is fundamentally about personal autonomy – the High Court invited the possibility of the development by courts of a cause of action for invasion of privacy. Since this decision, Australian courts have been moving towards developing a cause of action for breach of privacy, although this has often been through findings of breach of confidence. Grosse v Purvis In the case of Grosse v Purvis [2003] QDC 151, the plaintiff brought an action for breach of privacy