Page 97 - Courting the Media Contemporary Perspectives on Media and Law

88 David Rolph

the recognition of such a right over the last decade. Both the Australian Law
Reform Commission and the New South Wales Law Reform Commission
have had recent investigations into this issue (NSWLRC, 2007; ALRC, 2008).
As the only Australian jurisdictions with human rights legislation, both the
Australian Capital Territory and Victoria seek to protect privacy as a right
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based upon the dignity of the individual. In Australian Broadcasting
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Corporation v Lenah Game Meats Pty Ltd, the High Court of Australia
revisited its earlier refusal to acknowledge an enforceable right to privacy in a
case concerning the threatened broadcast of footage of a possum abattoir taken
in the course of a trespass to land. A number of the judges suggested that they
were willing to recognise a tort of invasion of privacy but not for the benefit of
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a corporate entity such as Lenah Game Meats Pty Ltd, privacy being a right
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founded upon the dignity of the individual. Significantly, in the course of his
judgment Gleeson CJ endorsed Laws J‘s dicta from Hellewell v Chief
Constable of Derbyshire but noted that what constituted a ‗private act‘ could
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be problematic. Further eroding the nexus between privacy and private
property, Gleeson CJ analysed the problematic nature of the concept of
privacy thus:

‗An activity is not private simply because it is not done in public. It
does not suffice to make an act private that, because it occurs on private
property, it has such measure of protection from the public gaze as the
characteristics of the property, the nature of the activity, the locality, and
the disposition of the property owner combine to afford. Certain kinds of
information about a person, such as information relating to health,
personal relationships, or finances, may be easy to identify as private; as
may certain kinds of activity, which a reasonable person, applying
contemporary standards of morals and behaviour, would understand to be
meant to be unobserved.‘

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Human Rights Act 2004 (ACT) s 12; Charter of Human Rights and Responsibilities Act 2006
(Vic) s 13.
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(2001) 208 CLR 199.
53
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at
231 per Gaudron J, at 248-50, 257-58 per Gummow and Hayne JJ. See also Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 225-26 per
Gleeson CJ (‗The law should be more astute than in the past to identify and protect interests
of a kind which fall within the concept of privacy.‘)
54
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at
226 per Gleeson CJ.
55
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at
224.