Privacy protection in Australia: The International Covenant on Civil and Political Rights and common law

2 Feb

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 for the privacy of personal information do not include breaches by individuals acting in a personal capacity.

The right to privacy in the Universal Declaration of Human Rights (1948) is mirrored in Article 17 of the International Covenant on Civil and Political Rights (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’).
Australian common law provides limited personal privacy protections through trespass and defamation, and other legal causes of action (see Chapter 6.4: Neighbour disputes and Chapter 11.2: Defamation and your rights).
For example:
- Ettingshausen v Australian Consolidated Press Ltd (1991) 23b NSWLR 443: The plaintiff, a well-known rugby player, took defamation action concerning a publication of a photograph taken after a game, which was found to show his genitals.
- Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (‘Lenah Game Meats case’): The High Court rejected the complainant’s claim for breach of privacy concerning an animal rights group’s secret filming of its abattoir operations and provision of the recording to the ABC, on the basis that a corporation did not have a right to privacy. However, the court alluded to the possibility of the development of a common law cause of action for breach of privacy.
- Grosse v Purvis [2003] QDC 151: The court awarded aggravated and exemplary damages for breach of privacy to a plaintiff who had been stalked and defamed by the defendant. The court noted that the High Court in the Lenah Game Meats case had removed the barrier to people attempting to rely on a tort of privacy.
- Giller v Procopets [2008] VSCA 236: A woman sought to rely on several causes of action in relation to her ex-partner’s disclosure to family and friends of a sex tape depicting the two of them. She successfully used breach of confidence as a remedy for breach of privacy.
- Doe v Australian Broadcasting Corporation [2007] VCC 281: The ABC published information that identified a woman as a victim of rape by her husband, contrary to statutory prohibition. In addition to finding a breach of statutory duty and breach of confidence, the court found the ABC liable in tort for invasion of privacy.
Considering the slow and piecemeal development of a right of privacy at common law, various law reform commissions have recommended that there be a statutory cause of action for breach of privacy.
In September 2023, the Australian Government published its formal response to the most recent review of the Privacy Act 1988 (Cth) (‘Privacy Act’) and committed to changes that would strengthen online privacy protection, in addition to several other areas of privacy protection. This includes further consideration of a direct right of action for serious invasions of privacy.
For the 2022 report, see www.ag.gov.au/sites/default/files/2023-02/privacy-act-review-report_0.pdf, and for the Australian Government’s response to the review, see www.ag.gov.au/rights-and-protections/publications/government-response-privacy-act-review-report. A new Privacy Bill to deal with an initial tranche of reforms was introduced into Parliament in September 2024.
The Criminal Code Act 1995 (Cth) (‘Criminal Code’) was amended in 2024 to strengthen offences targeting the creation and non-consensual sharing of sexually explicit material online, including material that has been created or altered using technology such as deepfakes (see other references in Chapter 3.3: Sexual offences).