Privacy and Reputation

Privacy and Reputation

Section 12 of the Human Rights Act 2004 says that:

Everyone has the right—

  1. not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
  2. not to have their reputation unlawfully attacked.

Section 12 is based on article 17(1) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the right

Interference with privacy, family, home or correspondence

Section 12(a) protects people in the ACT from either unlawful or arbitrary interference with their privacy, family, home or correspondence.

“Unlawful” means not authorised by law. “Arbitrary” interference with a person’s privacy, family, home or correspondence can be either lawful or unlawful, and includes interference that is unreasonable. The United Nations (UN) Human Rights Committee has explained in its General Comment 16 that the concept of “arbitrary interference” was included in this human right to make clear that, even if an interference with privacy, family, home or correspondence is authorised by a law, that interference will still breach the right unless it is also:

  • in accordance with the provisions, aims and objectives of the International Covenant on Civil and Political Rights; and
  • reasonable in the particular circumstances.

A person’s right not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily applies in a wide variety of different contexts. For example, it covers unlawful or arbitrary interferences by either the government, or anyone else, with:

  • a person’s body – including body searches and medical interventions;
  • information about a person;
  • their letters, e-mails, telephone calls or text messages;
  • their sexuality or romantic relationships;
  • their relationships with family members; and
  • the place(s) where they, their partner and their family live – including unlawful or arbitrary searches of those places, surveillance of those places, and evictions from them.

“Privacy”, “family”, “home” and “correspondence” can overlap with one another. For instance, a search or surveillance of the house where a person lives with their family can interfere with that person’s privacy, their family and their home, all at the same time.

There are separate human rights to protection of the family by society (section 11(1) of the Human Rights Act) and to adequate housing (section 27D, in force from 2027). These rights supplement the protection that section 12(a) provides against interferences with family and home.

“Family” in both section 12(a) and section 11(1) has a broad meaning: it includes all people who make up what Australian society considers to be a family unit. For example, it could include a situation where children are living with their grandparents rather than their parents, or with a legal guardian, or a foster family. “Family” could also include extended family in some circumstances, such as where there are kinship ties between Aboriginal or Torres Strait Islander peoples, or where someone’s culture or ethnicity gives their extended family particular significance for them.

Attacks on reputation

Section 12(b) prohibits unlawful attacks on the reputation of people in the ACT, by either the government or anyone else. It also implicitly requires the government to take action to make sure that people whose reputation has been unlawfully attacked can obtain an effective remedy for that attack. That action could include making laws on defamation, which allow victims of reputational attacks to sue the people or entities responsible and stop them from publishing false information, or obtain compensation or other outcomes.

Related laws

Numerous other laws besides the Human Rights Act contain protections and obligations relevant to interferences with privacy, family, home or correspondence and attacks on reputation in the ACT.

These laws include the ACT Information Privacy Act 2014; the Commonwealth Privacy Act 1988; the ACT Health Records (Privacy and Access) Act 1997; the ACT Listening Devices Act 1992; the ACT Workplace Privacy Act 2011; the ACT Residential Tenancies Act 1997; the ACT Children and Young People Act 2008; Chapter 9 of the ACT Civil Law (Wrongs) Act 2002, which concerns defamation; and provisions of the Commonwealth Criminal Code Act 1995 and ACT Crimes Act 1900 that make some interferences with privacy a crime (for example, certain uses of telecommunications services to distribute someone’s personal information, and intimate observation or recording of another person using a device).

As well as complaints about breaches of human rights, the ACT Human Rights Commission has the power to investigate complaints from people in the ACT about breaches of their privacy entitlements under the ACT Information Privacy Act 2014 and Health Records (Privacy and Access) Act 1997. We can also investigate complaints about occupancy disputes. For more information, see our complaints web page.

When could this right be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 12 may be relevant to:

  • collection, storage, use, sharing, disclosure or publication of personal information (for example, electoral roll information or medical test results);
  • restricting or regulating access to personal information;
  • powers of entry, search, seizure, confiscation or forfeiture;
  • surveillance of people, such as surveillance by closed-circuit television (CCTV), for any purpose;
  • compulsory or involuntary (non-consensual) physical interventions, such as DNA, blood, breath or urine tests or gynaecological or other medical examinations, or non-consensual medical treatment (this would also be relevant to section 10(2), which sets out the right not to be subjected to medical treatment without consent);
  • mandatory disclosure or reporting of information, including a person’s disclosure of their own criminal convictions, injury or illness, and reporting by professionals about another person (for example, doctors and teachers reporting abuse or suspected abuse of patients and students);
  • regulating a person’s name, private sexual behaviour, sexual orientation or gender identification;
  • interception, censorship, monitoring or other regulation of mail or other communications;
  • handling of personal information for research or statistics;
  • legal recognition of close or enduring personal relationships;
  • removal of children from a family unit;
  • Family Violence Orders;
  • laws and policies that regulate or affect tenancies and occupancy agreements, including relating to repairs and habitability (whether a property is fit to live in);
  • evictions from public housing;
  • regulations concerning mental health facilities and services;
  • compulsory acquisition of a home, or planning or environmental matters that may affect a person’s home.

Cases

There have been many Australian and international cases about the right not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily, and not to have one’s reputation unlawfully attacked. The large number and diversity of these cases demonstrate the broad scope of this right. Examples include:

Sexuality and sexual activity: Toonen v Australia (UN Human Rights Committee Communication No. 488/1992)

In this prominent case, the UN Human Rights Committee decided that Tasmanian laws criminalising sex between men arbitrarily interfered with Mr Toonen’s privacy, regardless of the fact that Tasmania had not used those laws to prosecute him, or anyone else, for about ten years. As we explain in our section 8 factsheet, the Committee concluded that as well as breaching his right not to have his privacy interfered with arbitrarily, these laws also breached Mr Toonen’s right to enjoy his human rights without distinction or discrimination.

Police questioning: DPP v Kaba & another[2014] VSC 52

This case concerned the actions of Victorian police officers who had stopped a car containing two young African men for a random licence and registration check. Mr Kaba was the car’s passenger. When he became angry at the delay caused by the police stop, left the car and walked away, the police repeatedly asked him for his name and address. He protested that this was racial harassment, refused to give the information, and verbally abused the police. After one of the officers arrested him for using offensive language, he allegedly assaulted the officer and committed other crimes.

In a decision that discussed in depth several human rights, and cases on police searches from a variety of countries, the Supreme Court of Victoria concluded that stopping the car and asking for the driver’s name, address and licence were lawful acts which had not breached the driver’s or Mr Kaba’s human rights. However, in the Court’s view, the police’s persistent questioning of Mr Kaba was unlawful, breaching his right not to have his privacy interfered with unlawfully or arbitrarily. The Court therefore upheld a magistrate’s decision on this point. It also concluded that – although the magistrate did not do this – that magistrate would have been correct to decide that the persistent questioning breached Mr Kaba’s right to freedom of movement, as well.

Evictions:

In Naidenova and others v Bulgaria (UN Human Rights Committee Communication No. 2073/2011), the UN Human Rights Committee decided that the forced eviction of members of an impoverished Roma community in Bulgaria from houses on government-owned land where they had lived for decades, without making satisfactory replacement housing immediately available to them, would breach their right not to have their home interfered with unlawfully or arbitrarily.

The Bulgarian authorities argued that Bulgarian law authorised this eviction. However the Committee concluded that, even assuming that the eviction was lawful, it was arbitrary in the circumstances – in particular the long time the community had lived on the land with the authorities’ tolerance. Given this tolerance, and the fact that the residents were registered with the police as living in those houses, the Committee accepted that the houses were their “homes” for the purpose of their right to non-interference with one’s home, even though they were not the land’s lawful owners.

In Commissioner for Social Housing v Jones (Residential Tenancies) [2016] ACAT 75, the ACT’s Civil and Administrative Tribunal decided that the eviction from public housing of a person in prison, who was soon to be released on parole, would arbitrarily interfere with that person’s home and therefore would breach section 12 of the Human Rights Act. The earliest the person could have been released was about 12 weeks from the time when the Tribunal was considering the housing commissioner’s application to end the person’s lease. This time-frame was key to the Tribunal’s decision: in the Tribunal’s view, it was “disproportionate and unreasonable to interfere with the tenant’s home at this late stage in his period of incarceration”. The Tribunal’s decision also took into account the fact that:

  • the commissioner was unlikely to take possession of the property for up to six weeks;
  • the property was particularly well suited to the person’s age and needs;
  • staying there would likely greatly assist his successful transition back into the community; and
  • he had been visiting the property and preparing it for his eventual re-occupation, as part of the prison’s transitional release program.

Lease conditions: Warren Gardner & Julie Beaver v ACT Planning and Land Authority (Administrative Review)[2010]ACAT 64

The applicants in this case had been using their leased premises for the purpose of a home business, without approval. The ACT Planning and Land Authority ordered them to stop using the premises in this way. The applicants applied to the ACT’s Civil and Administrative Tribunal asking it to review the Authority’s decision to issue this order, claiming among other arguments that the order intruded disproportionately into their privacy and home.

The Tribunal dismissed their application for review. It concluded that orders of the type that the Authority had made were governed by clear pre-existing rules where the circumstances and procedures adopted were predictable and foreseeable to the applicants, and noted that the order in this case was made after several complaints from neighbours and repeated inspections and notices. Therefore, although it did interfere with the applicants’ privacy and their home, that interference was neither unlawful nor arbitrary. This conclusion took into account the way that United Kingdom courts, Victorian courts and the UN Human Rights Committee had defined an arbitrary interference with a person’s privacy and home.

Reputation: Birindwa and Tshisekedi v Zaire (UN Human Rights Committee Communication No. 241/1987)

Mr Tshisekedi and the other complainant in this case were leaders of a political opposition group in Zaire (now Democratic Republic of the Congo). While the Zairean authorities were detaining Mr Tshisekedi after he had organised a protest, they ordered him to undergo a psychiatric examination. The UN Human Rights Committee found that those authorities “sought to have him declared insane, although medical reports contradicted that diagnosis”. The Zairean authorities also consistently referred to Mr Tshisekedi in the press as being mentally disturbed. The Committee decided that, among other violations of the complainants’ human rights, those authorities had unlawfully attacked Mr Tshisekedi’s honour and reputation.

Climate change adaptation: Billy and others v Australia (UN Human Rights Committee Communication No. 3624/2019)

In this case, the inhabitants of four low-lying islands in the Torres Strait argued that Australia’s insufficient action on climate change violated several of their human rights. While the Committee rejected some of these claims (for example, regarding the right to life), it agreed that Australia had violated the inhabitants’ rights not to have their privacy, family or home interfered with unlawfully or arbitrarily. Specifically, the Committee said, “when environmental damage threatens disruption to privacy, family and the home, [countries] must prevent serious interference with the privacy, family and home of individuals under their jurisdiction.” In its view, Australia breached this obligation by failing to implement adequate measures to adapt to the effects of climate change. This included failing to construct or update sea walls in a sufficiently timely way.

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.