Human Rights & Public Interest

Charter of Human Rights Newsletter

Right to Privacy Enhanced by Charter

July 2007 Issue 4
The Victorian Charter of Human Rights and Responsibilities 2006 (the Charter) came into operation on 1 January 2007 with the exception of Divisions 3 and 4 of Part 3, which commence on 1 January 2008. To help you navigate the Charter, VGSO is providing a series of newsletters. Together with the Human Rights Unit of the Department of Justice (Human Rights Unit), we identify what we believe to be the most relevant considerations in the implementation of the Charter and provide you with simple and informative material to help you address these issues. This fourth newsletter discusses the right to privacy under the Charter and provides a suggested checklist that may be useful to government departments when considering the compatibility of legislation with the right to privacy under the Charter. John Cain Victorian Government Solicitor

Appointment of Special Counsel (Human Rights)

Joanna Davidson has recently been appointed to the position of Special Counsel (Human Rights) at VGSO. Joanna worked with VGSO some years ago and, since that time, has been working with the New Zealand Crown Law Office as Special Counsel (Human Rights). In this role in New Zealand Joanna appeared as counsel in many of the leading cases in the development of the New Zealand Bill of Rights Act. With her knowledge of human rights law and the operation and application of the New Zealand Act, which is similar to the Charter, Joanna will be a valuable resource and team member at VGSO. Joanna can be contacted on 8684 0899.

legislation, for example, the Freedom of

Information Act 1982.

The SD Act regulates the use of surveillance devices to monitor peoples activities and restricts the use of information obtained through such surveillance. The HR Act protects the use and disclosure of personal medical records or medical information concerning an individual. The IP Act is primarily concerned with protection of personal information, regulating the way organisations collect, use, disclose and provide access to personal information. 1

Enhanced right to privacy

The right to privacy underpins many facets of the law and is protected to different extents by Victorian legislation. It is directly recognised through the operation of the Surveillance Devices Act 1999 (SD Act), the Health Records Act 2001 (HR Act), the Information Privacy Act 2000 (IP Act) and incidentally in other

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With the enactment of the Charter, the right of all human beings to privacy has been given explicit recognition and more comprehensive protection. The right to privacy under the Charter includes a right not to have ones family, home or correspondence unlawfully or arbitrarily interfered with. The Charter has been introduced for the purpose of increasing the protection of the human rights of all people in Victoria by creating a human rights dialogue between Parliament, the Executive and the courts, and by placing different obligations on various Victorian bodies to consider human rights when making decisions and carrying out functions. The protection of an individuals right to privacy under the Charter should complement and operate consistently with the protection of privacy under the SD Act, the HR Act and the IP Act. The protection of the right to privacy under s 13(a) of the Charter is modelled on art 17 of the International Covenant of Civil and Political Rights (the ICCPR). Section 13 of the Charter provides: 2 A person has the right

protects against the disclosure of personal information. Locational privacy ensures control of technologies that enable monitoring of peoples physical location and movement, for example, traffic management systems. 3 In Coeriel and Aurik v The Netherlands the United Nations Human Rights Committee (HRC) considered that the notion of privacy refers to the sphere of a persons life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone. 4 In international law, the term privacy covers both the physical and psychological integrity of a person and includes the right to personal autonomy. 5 The right not to have ones family, home or correspondence interfered with and not to be subject to unlawful attacks on ones honour and reputation, 6 fall under the umbrella of privacy (they are closely aligned with preserving the individuals identity and relationships) as well as being separately identified in the Charter.

Family and home

The Charter also protects against interferences with a persons family and home. The HRC has stated that the term family should be attributed a broad interpretation to include all those comprising the family as understood in the society of the State party concerned. 7 The HRC has considered a familys right to live together in Australia in the context of immigration proceedings: see Winata v Australia; 8 Bakhtiyari v Australia; 9 and Madafferi v Australia. 10 In these matters the HRC found that Australia had violated art 17 of the ICCPR because the removal of one or more family members from Australia constituted an arbitrary interference with the right to not have ones family arbitrarily interfered with. The term home has been interpreted by the HRC as indicating the place where a person resides or carries out [his or her] usual occupation. 11 The HRCs interpretation of home is consistent with a purposive approach to interpreting art 17 of the ICCPR given the objective of protecting the places in which a person is habitually present. 12

(a)

not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

Privacy, family, home or correspondence

Privacy
Privacy has many dimensions, encompassing: bodily privacy, territorial privacy, communications privacy, information privacy and locational privacy. The protection of bodily privacy prevents interference with a persons bodily integrity including protection from invasive procedures or experimentations. Territorial privacy requires protection of a persons domestic and other environments. Communications privacy requires protection of a persons mail, phone and electronic communications, and information privacy

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Correspondence
Protection from unlawful or arbitrary interference with a persons correspondence is also provided by the Charter. The HRC has stated that an individuals right not to have their correspondence interfered with includes the right of a person to have their written and verbal communications protected, and requires the integrity and confidentiality of such correspondence to be guaranteed by law, and in practice. 13

compatibility with the Charter. 15 Each provision, policy or practice needs to be individually considered in light of the rights set out under the Charter. When determining the compatibility of the provision, policy or practice with the right to privacy under the Charter the following checklist may be useful:

1. Does the provision, policy or practice interfere in any way with an individuals right to privacy, family, home or correspondence?
This requires consideration of whether the terms of the provision raise privacy issues and whether the application of the provision, or the exercise of a discretion under the provision, may raise privacy issues. Interference probably means a disturbance or an unwanted involvement. Where there is a power to exercise a discretion that may interfere with the right to privacy, thought should be given as to whether the exercise of that power could amount to an arbitrary interference with the right to privacy.

Unlawful or arbitrary interference

The Charter protects an individuals right to privacy to the extent that any interference with the individuals right to privacy must not be unlawful or arbitrary. An unlawful interference is an interference with an individuals right to privacy which is not expressly provided for by current law. The relevant law that authorises an interference with privacy should be precise and circumscribed rather than broad and ambiguous. So, if the interference with privacy is provided for by law it will not, prima facie, limit an individuals right to privacy (subject to the interference not being arbitrary). Protection from an arbitrary interference requires that the interference must be reasonable and objectively set out by the law. In other words, the interference cannot be open-ended or broad so as to impose a subjective discretionary power on a decision-maker. The conferral of broad powers on decision-makers, that can be exercised in a way that unreasonably interferes with a persons right to privacy, may be regarded as allowing an arbitrary interference. In such a case, the rights under s 13(a) of the Charter would be limited. The limit on the right to privacy may still be permissible if it can be substantiated as a reasonable limit [that] can be demonstrably justified in a free and democratic society under the general limitation clause in s 7 of the Charter. 14

2. Is there an unlawful or arbitrary interference with the right to privacy etc?

To determine lawfulness, look at whether the interference is authorised by law and check whether the law is precise and circumscribed. To determine whether a provision, policy or practice is arbitrary, consider whether the interference is reasonable and clearly set out. Also consider whether the provision, policy or practice gives a broad discretionary power to a decision-maker. If so, consider whether the exercise of the power is subject to any objective criteria and whether the power is necessary and reasonable in the circumstances.

Implications of the new right to privacy

As part of the implementation of the Charter the Victorian government is reviewing all new and current legislation, policies and procedures for

3. If there is an unlawful or arbitrary interference with an individuals right to privacy, can it be demonstrably justified in a free and democratic society?

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Consider the factors set out in s 7(2) of the Charter to determine whether the interference may be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. The relevant factors are: the nature of the right, the importance and purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and whether there are any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. An analysis of whether the limit on the right is reasonable involves a balancing exercise and consideration of whether the limitation is rational and proportionate to achieve the ends sought. The question of whether there are any less restrictive means available to achieve the same purpose is likely to be an important consideration. If the limit on the right to privacy cannot be justified in accordance with s 7 of the Charter, the provision will be incompatible with the Charter.

Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)

Mr Toonen lodged a complaint with the HRC on 25 December 1991, challenging two provisions of the Tasmanian Criminal Code, which criminalised homosexual activity between men, on the basis that his private life and liberty were threatened by the continued existence of the provisions. The complaint alleged that the provisions violated art 17 of the ICCPR (right to privacy) because, among other reasons, they enabled the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence by engaging in the prohibited sexual acts. The HRC held that it is undisputed that adult consensual activity in private is covered by the concept of privacy. As the prohibition against private homosexual behaviour was provided for by law, the HRC was required to consider whether those provisions were arbitrary and, in doing so, highlighted the following:
the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

Significant cases on the right to privacy

International cases
R (on the application of Countryside Alliance) v Attorney-General [2006] EWCA Civ 817
The Appellants argued that the operation of the Hunting Act 2004 infringed their rights under art 8, right to private life, of sch 1 the Human Rights Act 1998 (UK) (HRA) because they were prevented from using their land or allowing others to use their land for the purpose of hunting. The Court of Appeal rejected the claim and stated that the Appellants submissions had stretched the ambit of art 8 far wider than had been previously recognised by the European Court of Human Rights. The Court of Appeal said that the Appellants submissions misconstrued the nature of the rights under art 8, concluding that the Hunting Act 2004 did not engage rights under art 8 on any of the grounds asserted by the Appellants.

The HRC concluded that the provisions did not meet the reasonableness test in the circumstances of the case and they arbitrarily interfered with Mr Toonens right to privacy. The HRC held that there was a clear violation of art 17 by Australia.

A noteworthy Victorian case

Royal Womens Hospital v Medical Practitioners Board of Victoria [2006] VSCA (20 April 2006)
In January 2000, Ms X attended the emergency department of the Royal Womens Hospital

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(RWH) in a state of agitation, exhibiting hysterical and suicidal behaviours and requested that her pregnancy be terminated. An abortion was conducted in February 2000 following confirmation from a number of health professionals that Ms X was acutely suicidal and would most likely kill herself unless her foetus was aborted. Ms X was approximately 32 weeks pregnant. In 2001 Senator Julian McGauran reported the matter to the Medical Practitioners Board of Victoria (the Board). Senator McGauran subsequently requested details of the matter from the Coroner (who held Ms Xs medical file) and the Coroner forwarded copies of Ms Xs medical files to the Senator. Senator McGauran then made a formal complaint to the Board and enclosed copies of Ms Xs medical files. In order to facilitate their investigation, the Board obtained a search warrant from the Magistrates Court, which enabled them to seize medical files from the RWH. The RWH then sought an order that the documents that were seized in the warrant be returned on the basis that they were subject to public interest immunity. The Magistrate concluded that the doctrine of public interest immunity did not apply. The RWH then appealed to the Supreme Court. The appeal was dismissed and the RWH appealed to the Court of Appeal. The Court of Appeal invited the parties to make submissions based on international human rights law. The RWH included human rights arguments in their submissions, focussing on the right to privacy and its application to the specific circumstances of Ms X. Whilst the appeal was dismissed, the relevance and importance of arguments based on international human rights law was emphasised by Maxwell P. In respect of the utility of international human rights law arguments, Maxwell P commented as follows: 1. The court will encourage practitioners to develop human rights-based arguments where relevant to a question in the proceeding.

2. Practitioners should be alert to the availability of such arguments, and should not be hesitant to advance them where relevant. 3. Since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will necessarily involve judges and practitioners working together to develop a common expertise.

For further information

The Victorian Government Solicitors Office (VGSO) has established a Human Rights Practice Group. The VGSO is in a unique position to advise government departments and statutory authorities on the application and implications of the Charter to their operational practices. For further information or legal advice on any issues raised in this newsletter contact: Ully Merkel on 8684 0497 Senior Solicitor James Ruddle on 8684 0470 Deputy Victorian Government Solicitor John Cain on 8684 0400 Victorian Government Solicitor The VGSO is the primary source of legal services to the Victorian state government and its statutory authorities, providing strategic advice and practical legal solutions.

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Personal information is defined by the IP Act as any information or an opinion that is recorded in any form about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. The definition includes information such as a persons name and address, or their photograph. 2 Section 13(b) of the Charter provides: A person has the right (b) not to have his or her reputation unlawfully attacked. The right will be discussed in a subsequent newsletter. 3 Territorial and locational privacy is currently protected by the operation of the SD Act and information privacy is currently protected by the IP Act and the HR Act. 4 (453/1991), ICCPR, A/50/40 vol II (31 October 1994) UN Doc CCPR/C/52/D/453/1991) [10.2]. 5 Pretty v United Kingdom (2002) 35 EHRR 1 [61]; see comments in passing in R (on the application of Countryside Alliance) v Attorney-General [2006] EWCA Civ 817. 6 Refer to our comments in footnote 2. 7 General Comment No 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art 17): 08/04/88, CCPR General Comment No 16 (General Comments) thirty-second session, 1988, [5]. 8 Communication No 930/2000, CCPR/C/72/D/930/2000 (2001). 9 Communication No 1069/2002, CCPR/C/79/D/1069/2002 (2003). 10 Communication No 1011/2001, CCPR/C/81/D/1011/2001 (2004). 11 CCPR General Comment No 16 (General Comments), above n 7. 12 Human Rights Commission, The Right to Privacy and Reputation, ACT Government fact sheet, 6 available at <http://www.hrc.act.gov.au/assets/docs/humanrightsfactsheet.pdf>. See also Alex Conte, Privacy, Honour and Reputation in Alex Conte, Scott Davidson and Richard Burchill (eds), Defining Civil and Political Rights: the Jurisprudence of the United Nations Human Rights Committee (2004) 145, 156. Also note that the protection of private life under the European Convention on Human Rights extends to activities of a professional or business nature, as per the Strasbourg Court in Niemietz v Germany (1993) 16 ECtHR 97 [29]. 13 CCPR General Comment No 16 (General Comments), above n 7, [8]. 14 Charter of Human Rights and Responsibilities Act 2006, s 7. 15 Refer to s 2 of the Charter and the Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill, 16/6/2006, 2.