The following material is a brief overview and introduction to international human rights in the Australian context. For further or more detailed information please follow the links provided.
Human rights are about the relationship between the individual and the state. Human rights laws are about values and setting standards of what is or is not acceptable treatment of an individual by the state.
Australia does not have a bill of rights and there is no specific Australian legislation that comprehensively protects basic human rights. Click here for information about Australian civil and human rights.
To a limited extent, internationally recognised human rights are protected in Australia through specific provisions in the Commonwealth Constitution, the common law and legislation. Administrative decision makers are sometimes required to take international human rights into account in decision-making. Judges may also have regard to international human rights standards in review. Click here for further information.
International human rights treaties
Australia has agreed to be bound by these key international human rights treaties
On 4 December 2008, Australia acceded to the Optional Protocol to CEDAW and it entered into force on 4 March 2009.
On 30 March 2007, Australia ratified the Convention on the Rights of Persons with Disabilities (CRPD) and Optional Protocol. They entered into force on 17 July 2008. Australia decided to accede to the Optional Protocol to CRPD on 30 July 2009.
On 19 May 2009, Australia signed the Optional Protocol to CAT but has not yet determined whether it will ratify the Optional Protocol.
On 10 December 2008, the UN General Assembly adopted an Optional Protocol to ICESCR and Australia has yet to join this complaints mechanism.
For a full list of the treaties Australia is a party to see the Treaties Library.
See also UN Human Rights Centre data base for Australia.
International Covenant on Civil and Political Rights
Australia ratified (that is, agreed to be bound by) the ICCPR in 1980. So far, Australia has made four periodic reports to the Human Rights Committee that monitors the ICCPR.
The next report is not due until April 2013.
The ICCPR has no direct operation in Australian law in the sense that the rights provided in the ICCPR are enforceable in Australian courts. The ICCPR is included in the Australian Human Rights Commission Act 1986 (Cth) (formerly the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission (HREOC)) may receive complaints about alleged breaches of the ICCPR in some circumstances.
Individual Communications and the ICCPR Optional Protocol
On 25 December 1991, Australia ratified the First Optional Protocol to the ICCPR.
The Optional Protocol allows individuals to petition (that is, lodge a complaint) to the Human Rights Committee for violations of the rights set out in the ICCPR.
There are now a number of decisions of the Human Rights Committee that address how the ICCPR rights are protected in Australia.
Human rights issues generally
In 1994, in Toonen v Australia the Committee considered whether provisions of the Tasmanian Criminal Code that criminalized various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, contravened the ICCPR. The Committee was concerned that the Criminal Code empowered Tasmanian police officers to investigate intimate aspects of Mr Toonen’s private life. The Committee decided that the Criminal Code provisions contravened Mr Toonen’s right to privacy. The Australian Government responded by enacting the Human Rights (Sexual Conduct) Act 1994 (Cth).
In April 2002, in Rogerson v Australia the Committee found that a delay between July 1993 and March 1995 in relation to the delivery of judgment in a contempt case violated the right to be tried without undue delay as provided by article 14(3)(c) of the ICCPR. The other allegations were dismissed. The Committee also stated that the finding was itself a sufficient remedy.
In August 2003 in Young v Australia, the Committee found discrimination on the basis of Young being of the same sex as his partner, that is, due to his sexual orientation, the refusal to provide him with a pension benefit violated his right to equal treatment before the law and was contrary to article 26.
In November 2005, the Committee decided Faure v Australia. The Committee considered there was a violation of article 2(3) with article 8 in relation to remedies. The communication concerned the work for the dole program.
In August 2006, the Committee found a violation of article 19 in relation to the right of freedom of speech in circumstances where Mr Coleman made a public address without a permit but was then fined and gaoled when he failed to pay the fine: Coleman v Australia. In this matter, the author had exhausted local remedies by pursuing an appeal to the High Court – see Coleman v Power  HCA 39.
In July 2007, in Dudko v Australia the Committee found a violation of article 14(1) in relation to the conduct of an application for special leave to appeal to the High Court. The Committee found that the complainant has not been permitted to participate in an oral hearing of the special leave application and this deprived her of a right to a fair hearing. See transcript of special leave hearing on 16 March 2004 – Dudko v The Queen
In Cabal and Pasini v Australia (re articles 7, article 10 (1) and (2)(a)) but the Committee made important findings about the ICCPR applying to privately run prisons and also the effect of reservations.
In March 2006, the Committee decided Brough v Australia. The Committee found a contravention of articles 10 and 24 in relation to the detention of a young Aboriginal man in a NSW correctional facility. The Committee noted that Corey Brough was entitled to an effective remedy, including compensation.
In March and May 2010, the Committee found that the detention of Kenneth Tillman and Robert Fardon following the completion of their sentence under the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 constituted a breach of article 9(1) of the ICCPR – see Fardon v Australia and Tillman v Australia
Immigration detention complaints
In 1997, in A v Australia the Committee considered whether the detention of an asylum seeker contravened various human rights. The Committee decided that certain aspects of A’s detention for a period of over four years was arbitrary and that the inability to have his detention reviewed by a court contravened the rights provided by article 9 of the ICCPR.
In October 2002 in C v Australia the Committee found prolonged immigration detention and the conditions of detention constituted a contravention of articles 7, 9(1) and 9(4) of the ICCPR. In this matter the Committee also said that Australia should refrain from deporting the author to Iran and was under an obligation to avoid similar violations in the future.
In Baban v Australia, the Committee found a violation of article 9 concerning arbitrary immigration detention.
In November 2003, the Committee decided Bakhtiyari v Australia. The Committee found violations by Australia of articles 9(1) and (4), 24(1) and potentially, of articles 17(1), 23(1) of the ICCPR. The Committee went on to say that in accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. As to the violation of article 9, paragraphs 1 and 4, continuing up to the present time with respect to Mrs Bakhtiyari, the State party should release her and pay her appropriate compensation. So far as concerns the violations of articles 9 and 24 suffered in the past by the children, which came to an end with their release on 25 August 2003, the State party is under an obligation to pay appropriate compensation to the children. The State party should also refrain from deporting Mrs Bakhtiyari and her children while Mr Bakhtiyari is pursuing domestic proceedings, as any such action on the part of the State party would result in violations of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.
In 2006 the Committee has continued to find Australia in contravention of article 9 with respect to prolonged detention of asylum seekers: D&E v Australia, Shafiq vAustralia and Saed Shams (1255/2004), Kooresh Atvan (1256/2004), Shahin Shahrooei (1259/2004), Payam Saadat (1260/2004), Behrouz Ramezani (1266/2004), Behzad Boostani (1268/2004), Meharn Behrooz (1270/2004), Amin Houvedar Sefed (1288/2004)
In 2001, in Winata v Australia the Committee considered that the deportation of both parents of an Australian citizen (who was 13 years old) would amount to an arbitrary interference with the family, contrary to articles 17 and 23 of the ICCPR. Further that in relation to the child, Australia had failed to provide him with the necessary measures of protection as a minor.
In September 2004, the Committee decided Madafferi v Australia. The complaint involved the deportation of a father of four and violations of the rights of a detained person.
In October 2009, the Committee considered the communication in Yin Fong v Australia. The complaint involved deportation to China and the risk of the death penalty.
Inadmissible and Dismissed communications
Not all communications have been successful. In the following matters the communications were either inadmissible or no violation was found:
As at August 2009, there were 15 communication before the Committee concerning Australia – communications resulted in a finding of a violation (see above)
· Londoño Soto v Australia (immigration)
· A,B,C,D, E v Australia (immigration)
· Dranichnikov v Australia (immigration)
· Anderson v Australia (fair trial)
· Katsuno v Australia (fair trial and immigration)
· Soo Ja Lim v Australia (immigration)
· Karawa v. Australia (immigration)
· Yo Han Chung v. Australia (disability and race discrimination)
Burgess v Australia (numerous allegations)
(rights of the child, international child abduction)
· Wilson v Australia (fair trial and privacy)
· Lovell v Australia (freedom of expression and fair trial)
· Juma v Australia (fair trial)
· Dixit v Australia (immigration and discrimination)
· Love v Australia (employment and age discrimination)
· Collins v Australia (conditions of detention – non immigration)
· Hesse v Australia (consent to medical procedures)
· Mankarious v Australia (equality and access to social rights)
· Irving v Australia (fair trial)
· F v Australia (disability discrimination and education)
· Jensen v Australia (treatment and conditions in prison)
· Uebergang v Australia (fair trial and compensation for wrongly detention)
· Hart v Australia (failed to properly regulate private hospital standards and practices)
· Y v Australia (immigration)
· Pasla v Australia (denial of legal aid)
· Lamagna v Australia (discrimination)
· Lindon v Australia (life and fair trial)
· GT v Australia (deportation and arbitrary detention)
· BL v Australia (fair trial)
· ARJ v Australia (right to life, cruel treatment and fair trial)
· Werenbeck v Australia (fair trial)
· Jarman v Australia (discrimination and fair trial)
· X v Australia (fair trial and minority rights)
· Perera v Australia (fair trial)
· AS &LS v Australia (fair trial, discrimination and privacy)
· K. L. B.-W v Australia (lack of an effective remedy, privacy and equality)
· J. L v Australia (fair trial)
For further information see Individual communications under international human rights treaties: an Australian Government perspective and responses.
See also the Attorney-General’s site for a summary of communications.
How to make a communication under the ICCPR OP
The Australian Human Rights Centre’s Communicating with the Committee: A Guide to Optional Protocol provides an excellent guide to making a complaint.
A communication may only be made by an individual. Groups, associations or corporations cannot lodge complaints. The individual who lodges the communication must be a victim of a violation of a right set out in the ICCPR. He or she does not have to be an Australian citizen or even be present in Australia. It is enough to show that he or she is subject to the jurisdiction of Australia. This will usually mean that the individual is in the territory of Australia or an Australian citizen.
Non-governmental organisations (NGOs) and other individuals (such as a legal representative) may lodge a communication on behalf of the victim. The Committee must be satisfied that the victim is unable to lodge a communication, and that the person lodging the communication is authorised by the victim to do so on his or her behalf.
Australia is the respondent to any communication, regardless of whether the alleged violation is committed by a Commonwealth, state or local government department or agency.
There is no fee for submitting a communication to the Committee. However, there will be costs incurred in exhausting local remedies, in preparing the communication and keeping in touch with the Committee once the communication is lodged.
A communication must be in writing. The communication should set out all the facts and circumstances giving rise to the violation. Either a brief letter or a detailed submission is acceptable or you can use the model communication that has been prepared by the Centre for Human Rights in Geneva
Click here for further Information for links to the model communication forms
What happens to a communication?
Lodging a communication is a two-stage process. The first stage involves an assessment by the Committee as to whether the communication is admissible.
The second stage is a consideration of the merits and substantive aspects of the communication, to determine whether Australia has violated the rights as set out in the ICCPR.
The entire process may take several years, depending on the workload of the Committee.
Exhausting local remedies
A communication will be inadmissible (that is – not make it past the first stage) if the victim has not taken action to pursue a remedy under Australian law. The victim must demonstrate that he or she has exhausted all local remedies, to the extent that those remedies are both effective and available. The rationale for "exhaustion of local remedies" is that the author is likely to receive the best redress for a breach of human rights under Australian laws.
In some cases, there will be no remedies to exhaust. If this is the case, the author should set out what steps he or she has taken to find an avenue of redress and the reasons why he or she believes that an Australian legal remedy is unavailable.
The only remedy the author will obtain from the Committee is a non-binding recommendation called a "view". The Committee will state whether in its view Australia has violated the ICCPR, and will set out the written reasons for its decision.
Other UN complaint mechanisms under key treaties
In addition to the ICCPR OP, Australia has also agreed to participate in the individual complaints procedures for CERD, CAT, CEDAW and CRPD.
The procedures for making a communication under these conventions are similar to the ICCPR OP.
CERD Decisions involving Australia
· DR v Australia (2009) – no violation was found
· Barbaro v Australia (1997) and (2000)
· Z.U.B.S v Australia (1999)
· BMS v Australia (1999)
See also the “Early Warning Decision” (1999)
As at August 2009, there is one communication before the Committee concerning Australia.
In 1999, in Elmi v Australia, the Committee considered that there were substantial grounds for believing that the author would be in danger of being subjected to torture if returned to Somalia. The Committee said that Australia should refrain from forcibly returning Mr Elmi to Somalia or to any other country where he runs a risk of being expelled or returned to Somalia.
In the following complaints the Committee found no violation or that the complaints were inadmissible:
· Chelliah v Australia (2005)
· AK v Australia (2004)
· ZT v Australia (2003)
· MPS v Australia (2002)
· H.M.H.I. v Australia (2002)
· YHA v Australia (2001)
· MS v Australia (2001)
· NP v Australia (1999)
As at August 2009, there is one communication before the Committee concerning Australia.
There are presently no communications lodged under the CEDAW Optional Protocol (as at August 2009)
To be advised
Australia’s Periodic Reports
Australia has also made periodic reports to the Committees. For copies of the reports and activities of the Committees in relation to Australia go to www.unhchr.ch/tbs/doc.nsf and then Australia. Otherwise refer to the DFAT website: http://www.dfat.gov.au/hr/
The next report is due on 30 June 2014.
The Third Periodic Report was examined in July 1997 – see concluding observations
The Fourth and Fifth Periodic Reports were examined on 30 January 2006 – see concluding observations.
The Committee considered the combined sixth and seventh report of Australia (CEDAW/C/AUL/7) at its 935th and 936th meetings, on 20 July 2010 - see concluding observations
The CEDAW Committee has requested that Australia submits its Sixth Report (due in 2004) with its Seventh Report. It was submitted in December 2008 but has not been considered by the CEDAW Committee.
The Fourth Report was due on 15 January 2008 and tabled in the Parliament on 25 June 2009.
The Third periodic report was examined in May 2008 – see concluding observations
The next report is due in June 2012.
Convention on the Rights of Persons with Disabilities and the Optional Protocol were adopted on 13 December 2006. They entered into force internationally on 3 May 2008.
Australia’s First Report is due on 16 August 2010.
Where to go for further information and references
Human Rights Agencies in Australia
· see ARHC’s Links to Human Rights Organisations and Resources
Australian Human Rights Information
· Redfern Legal Centre Publishing Law Handbook and Lawyers Practice Manual
· Joseph, Schultz and Castan International Covenant on Civil and Political Rights (2nd ed)
· Kinley ed, Human Rights in Australian Law: Principles, Practice and Potential, Federation Press
· Flynn M, Human Rights in Australia, Butterworths.
· Bailey The Human Rights Enterprise, Lexis Nexis