This Perspective addresses the question of whether noxious odours or pollution in the community that harm an individual’s health or cause environmental harm may also engage international human rights law. In other words, can bad smells amount to a violation of a person’s human rights in certain circumstances?
This submission also discusses international human rights protections and provisions of the Human Rights Act 2019 (Qld) to identify whether international human rights law is available to guide interpretations of human rights law in Queensland.
Noxious Odours in Ipswich, Queensland
These questions are not merely hypothetical for some Queenslanders. These issues have arisen in areas around Ipswich, a large and fast-growing city in south-east Queensland. According to news reports, local residents have complained for years that waste industry odours have adversely affected their health. The Swanbank and New Chum industrial area is home to landfill dumps, composting facilities and mulching sites and, since at least 2018, neighbouring residents have reported health problems in the form of eczema rashes, hives and nausea. They attributed these problems to the raw sewage or ‘rotten egg’ odours which emanated from the sites because the onset of their health conditions coincided with the noxious odours in the air.
On 9 January 2025, the Queensland Health Minister announced the creation of the Swanbank Public Health Inquiry to investigate potential health effects of odours from the Swanbank and New Chum Industrial Estate.[1] The six-month public health inquiry offers a helpful forum in which local residents who have repeatedly called for an investigation into the foul odours can express their concerns. Could there also be a human rights dimension to these events?
Law Relevant to Noxious Odours
European Privacy Rights
It may seem unlikely that bad smells could breach a person’s human rights. Yet the European Court of Human Rights (‘ECtHR’) has determined that toxic emissions and environmental pollution may engage a person’s right to privacy under the Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (‘ECHR’).
Article 8 of the ECHR expresses every person’s right to protection from a public authority’s interference with the person’s ‘right to respect for his private and family life, his home and his correspondence.’ Although article 8 does not explicitly protect a right to a clean and quiet environment, a person’s right to respect for their private and family life nevertheless may be violated where the person is adversely affected by noise or other pollution that harms their health or well-being.
In López Ostra v Spain (1995) 20 EHRR 277 (‘López Ostra’), a malfunction at a Spanish leather tannery plant used to treat liquid and solid waste had released gas fumes, noxious smells and contamination that caused health problems and nuisance to nearby residents. The Court found that ECHR privacy rights could include a right to protection from severe environmental pollution that affected individuals’ well-being and prevented them from ‘enjoying their homes in such a way as to affect their private and family life adversely’, even if it did not seriously endanger their health. The ECtHR held that the government had not struck a fair balance between the town’s economic interests and the complainant’s effective enjoyment of her right to respect for her home and her private and family life (see López Ostra [51]-[58]).
Another complaint concerned environmental pollution caused by an Italian chemical factory that released large quantities of inflammable gas and highly toxic substances which affected the health of workers and nearby residents (Guerra v Italy (1998) 26 EHRR 357 (‘Guerra’)). In this case, the ECtHR concluded: ‘The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that [this right] is applicable.’ The government had breached its obligation under the ECHR to secure the complainants’ right to respect for their private and family life (Guerra [56]-[60]).
Queensland Privacy Rights
Section 25(a) of the HRA expresses a person’s right to protection against unlawful and arbitrary interference in a number of elements: privacy generally, family and home, and correspondence. This right protects a person’s private, family and home life (one’s ‘private sphere’ or ‘sphere of individual autonomy’ (more generally from unwarranted government intervention, including protecting against interferences by private as well as public entities. Indeed, it has been described as a right to be left alone by other people (Bailey, 2009; Joseph and Castan, 2013). Rights to privacy protect against interference with a person’s physical and mental integrity, freedom of thought and conscience, legal personality, individual identity, sexuality, family and home (See Director of Public Prosecutions (Vic) v Kaba (2014) 44 VR 526, 562-563 [125]-[128] and Pretty v United Kingdom [2002] ECHR 427 (Application No 2346/02, 29 April 2002) [61]).
Privacy is a broad term which encompasses different activities and aspects of a person’s individuality, identity and private life.i In Re Kracke and Mental Health Review Board (2009) 29 VAR 1, Bell J found that there was no difference between the scope of the Victorian Charter right to privacy (corresponding to s 25 of the HRA) and article 17(1) of the International Covenant on Civil and Political Cultural Rights (‘ICCPR’), and that ‘privacy’ in the Charter provision bore the same meaning as ‘private life’ in article 8 of the ECHR (Re Kracke 125 [591], [593]).
Section 25(a) also protects a person’s right not to have unlawful or arbitrary interference with the person’s family or home. The term ‘family’ applies to different family types and must be interpreted expansively ‘to include all those comprising the family as understood’ in different societies.
The term ‘home’ is to be understood as the place where a person lives or carries out the person’s usual occupation. In ECtHR has indicated that a person’s home should be identified in a reasonable and pragmatic way and as a question of fact: ‘Whether or not a particular premises constitutes a “home” which attracts the protection of [the right to privacy] will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place’(Paulić v Croatia (European Court of Human Rights, Chamber, Application No 3572/06, 22 October 2009 affirmed in Director of Housing v Sudi [2010] VCAT 328 (‘Sudi’) and P J B v Melbourne Health & Anor [2011] VSC 327 (‘Patrick’s Case’)). In other words, a person’s home may be rented premises or public housing.
Section 26 of the HRA also protects families and children in a separate rights provision. Although rights to privacy (s 25) and protection of families (s 26) are both available to protect families and aspects of family life, the two rights operate differently: s 25(a) is expressed as a negative right that prohibits unlawful or arbitrary interference with a person’s family, while s 26(1) is a positive right that requires society and the government to protect families.
The right to privacy has been described as a right of ‘considerable amplitude’ which encompasses a broad scope of interests (Castles v Secretary to the Department of Justice [2010] VSC 310, 163 [79] (‘Castles’)). However, despite its development in Victorian and Australian Capital Territory case law (see, eg, Re Kracke; Sudi; Castles; Patrick’s Case) privacy protection in Australian jurisprudence has also been described as ‘thin in content’, with the exception of protection of personal information (Bailey, 2009: 655).
International and Comparative Perspectives
The right to privacy protected under s 25 of the HRA is modelled on s 13 of the Victorian Charter of Human Rights and Responsibilities Act 2006 and both domestic provisions are drawn from the privacy rights expressed in article 17 of the ICCPR. The ICCPR rights impose negative duties on public entities not to interfere unlawfully or arbitrarily with a person’s privacy, family, home or correspondence. In addition, the UN Human Rights Committee has commented that this right imposes positive obligations that require governments to adopt legislative and other measures to protect this right and give effect to the prohibition against such interferences and attacks.ii
The ECHR also protects privacy rights, although the ECHR provision emphasises a communitarian aspect by protecting the right to respect for a person’s ‘private and family life’ and permits a greater number of limits to the rights (ECHR, art 8). Differences between s 25 of the HRA and the international privacy rights, particularly the relevant protection provisions in the ECHR, must be taken into account when considering privacy complaints decided in these jurisdictions.
Conclusions
In view of the potentially broad scope of the interests encompassed in privacy rights, rights to privacy under s 25 of the HRA may be available to protect a person in circumstances where the person’s right to be free from unlawful or arbitrary interference with their private life or family or home life is adversely affected by pollution that harms their health or well-being. In other words, the noxious odours on which Ipswich residents have based their complaints may also amount to human rights breaches under the HRA.
The ECtHR cases which have decided relevant complaints about breaches of article 8 of the ECHR certainly suggest as much.
This Perspective concludes by proposing that human rights law can offer rights-based arguments to support and assist the Ipswich residents who have been affected by noxious odours from the Swanbank and New Chum Industrial Estate.
Accordingly, the HRA may assist Ipswich residents by offering human rights-based arguments to supplement (and augment) their complaints and submissions to the Swanbank Public Health Inquiry. Furthermore, the HRA’s human rights complaints regime may also be available to those residents, despite its limited scope (for example, it can only consider complaints about human rights breaches by public entities), resolution procedures and relief.
Endnotes
i See Bell J’s detailed description of the privacy right in Re Kracke [619]–[620] and Sudi [29] quoted in Castles [77]–[78], Patrick’s Case and SF v Department of Education (Qld) [2021] QCAT 10 [44].
ii The UN Human Rights Committee monitors the implementation of ICCPR treaty obligations and issues General Comments which set out expert interpretations of the ICCPR rights. The General Comments are not binding instruments nor direct or primary sources of international law; rather, they are a subsidiary source that can guide the determination of rules of international law: Statute of the International Court of Justice, article 38(1)(d). Nevertheless, the International Court of Justice has observed that ‘great weight’ should be ascribed to the General Comments in interpreting the treaties, see: Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy), [1], [9], in United Nations, Human Rights Instruments, UN Doc HRI/GEN/1/Rev.9 (vol 1) (27 May 2008) 19; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits, Judgment) [2010] ICJ Rep 639, 663–4 [66].
References
Bailey, Peter, The Human Rights Enterprise in Australia and Internationally (LexisNexis Butterworths, 2009)
Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy) in United Nations, Human Rights Instruments, UN Doc HRI/GEN/1/Rev.9 (vol 1) (27 May 2008) 191
Explanatory Notes, Human Rights Bill 2018, 22; Department of Premier and Cabinet (Qld),
The Queensland Legislation Handbook: Governing Queensland (online at 1 March 2020)
Joseph, Sarah and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd ed, 2013) 534.
McBeth, Adam, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017) 93.
Queensland Human Rights Commission, ‘Right to Privacy and Reputation: Section 25 of the Human Rights Act 2019’ (Factsheet, July 2019)
Queensland Government, Guide: Nature and Scope of the Human Rights Protected in the Human Rights Act 2019 (DJAG, 2nd ed, May 2022) 77-8 <https://www.forgov.qld.gov.au/humanrights>
Nicky Jones
Dr Nicky Jonesteaches international law and human rights and anti-discrimination law at the University of Southern Queensland. Nicky has worked as a judge’s associate for the Hon Justice Margaret McMurdo AC FAAL (then President of the Court of Appeal in Queensland), and in private practice and Crown Law, before returning to academia. Nicky is admitted to practice in the Supreme Court of Queensland and Federal and High Courts of Australia, and was recently appointed to the Queensland government’s Human Rights Advisory Panel. Her book An Annotated Guide to the Human Rights Act 2019 (Qld) (written with Peter Billings) was published by LexisNexis in 2023.
