Section 12 of the Human Rights Act 2004 says that:
Everyone has the right—
Note: Under the Act, all rights may be subject to reasonable limits (section 28). The nature of the right is relevant when considering what is reasonable.
This factsheet is not intended to be a substitute for legal advice.
The right to privacy under section 12 of the HRA protects people in the ACT from ‘unlawful’ interference with their privacy – this means that no interference can take place except in cases authorised by law. Under international law, the right to privacy has been interpreted as applying in a variety of different circumstances. It has been defined widely as ‘the right to be left alone’ (the right to live free from interference), and so includes the right to autonomy.
The term ‘arbitrary interference’ in the right to privacy can extend to lawful interference. Arbitrary interference in someone’s private or family life is interference that may be lawful, but is unreasonable, unnecessary and the degree of interference is not proportionate to the need. The inclusion of the concept of arbitrariness in the right to privacy ensures that even lawful interference should be in accordance with the provisions, aims and objectives of the HRA and should be reasonable in the particular circumstances.
The term ‘family’ in the right to privacy should be given a broad interpretation to include all people who make up a family unit, reflecting the meaning of ‘family’ in Australian society. For example, a ‘family’ could include a situation where children are living with their grandparents rather than their parents, or with a legal guardian, or a foster family. The term ‘family’ could also include extended family in some circumstances: for example, where there are kinship ties to extended family, or where someone’s culture or ethnicity gives their extended family unit particular significance for them. See the ACT HRC Factsheet on the “Right to Protection of the Family and Children (s.11)” for more information.
The diversity of international cases about privacy, family life and reputation demonstrates the breadth of these rights. Examples include:
However, as always the right to privacy is subject to reasonable limits. In R v Cringle  ACTSC 34 (5 March 2013), the ACT Supreme Court held that legislation providing for search and seizure of materials found in a person’s cell at a Correctional Centre do not violate s 12. The Court held that prisoners or remandees form a discrete sub-set of the population for whom it is necessary to make particular rules. The rules were not arbitrary but were designed to maintain safety and discipline within correction centres.
The actions of public authorities can both promote and limit rights. Section 12 could be engaged by activities that: