Freedom from interference with privacy, family, home and correspondence or reputation

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ICCPR Article 17 | Privacy legislation and institutions | Commission work | International scrutiny | More information | Comments

ICCPR Article 17

ICCPR Article 17 states:

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. Everyone has the right to the protection of the law against such interference or attacks.

Privacy legislation and institutions

With the passage of the Privacy Act 1988, the Privacy Commissioner was initially a member of the Commission. Functions in this area have since been enhanced with the development, first, of the Office of the Privacy Commissioner, and more recently the Office of the Australian Information Commissioner and an expanded range of legislation.

Commission work

The Privacy Commissioner takes the lead role on information privacy issues. Some other aspects of privacy however (including those which have been referred to as a "right to private life" are less clearly covered by the Privacy Act and the Commission has had a more substantial continuing role regarding these issues

• Submissions in Croome and Toonen v Tasmania (1996) 
  
  Criminalisation of consenting homosexual acts inconsistent with right to privacy
•  Report by the Human Rights Commissioner on Certain Provisions of the Tasmanian Criminal Code (Word) or PDF

International scrutiny

Young v Australia (2000)

In 1999, Mr Edward Young took a complaint against Australia to the Human Rights Committee. Under the then current Australian veterans’ entitlements laws, same-sex couples were not entitled to the same veterans pensions as opposite-sex couples.

The Committee found (PDF) that Mr Young had been discriminated against under Article 26 of the ICCPR and was entitled to an effective remedy, including the reconsideration of his pension application.

Australia argued that Mr Young had not exhausted domestic remedies as he had not pursued his claim through the AAT or the courts. The Committee rejected this argument, noting that Australia had no court or tribunal with the capacity to overturn legislation on the grounds of it being in breach of human rights. The Committee reaffirmed its view that Article 26 includes discrimination on grounds of sexual orientation.

The Committee noted that the State party [Australia] is obliged to ensure that similar violations of the Covenant do not occur in the future.

See now Commission report on Same Sex: Same Entitlements and government response

Toonen v Australia (1994)

Rights considered: ICCPR articles 17, 26

• The Committee decided that sections 122 and 123 of the Tasmanian Criminal Code, which were regarded as criminalising various forms of consenting adult  in private, contravened the right to privacy.   The Committee did not find it necessary to decide if Article 26 was also breached.

• Privacy engaged:  The Committee stated that "it is undisputed that adult consensual sexual activity in private is covered by the concept of privacy"

• Privacy interfered with: The Committee considered that the relevant provisions of the Criminal Code interfered with the complainants privacy notwithstanding that they had not been enforced for a decade.

• Interference provided by law: This requirement was clearly satisfied

• Arbitrary interference: The Australian Government conceded that the interference with privacy was arbitrary. The Tasmanian Government however submitted an opposing view. The Committee responded as follows:

While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr. Toonen's privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision.

As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Government of Australia observes that statutes criminalizing homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection". Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.

The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen's right under article 17, paragraph 1.

Response

• The Australian Government responded by enacting the Human Rights (Sexual Conduct) Act 1994 (Cth) so as to render the offending Tasmanian provisions inoperative by virtue of section 109 of the Constitution.

More information

• Attorney General's Department Guidance Sheet
• Human Rights Committee General Comment 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation
• ACT Human Rights Commissioner factsheet (Word or PDF)
• Protecting the right to respect for private and family life under the European Convention on Human Rights (PDF): European Court fact sheet 2012

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