Human Rights Resources

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.

For more information about human rights see

· Human Rights Manual (Australian Department of Foreign Affairs & Trade)

· Human Rights Explained (HREOC)

· Human Rights: A Basic Handbook for UN Staff

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.

Australia also has a national action plan that seeks to give effect to Australia’s international human rights commitments in a variety of legal, administrative, political and social spheres. Click here for Australia’s National Action Plan.

International human rights treaties

Australia has agreed to be bound by these key international human rights treaties

· International Covenant on Economic, Social and Cultural Rights (ICESCR)

· International Covenant on Civil and Political Rights (ICCPR)

· First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR OP)

· International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

· Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

· Convention on the Rights of the Child (CRC)

· Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

For a full list of the treaties Australia is a party to see the Treaties Library.

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.

Click here for a copy of Australia’s Third Periodic Report and Fourth Periodic Report.

The Human Rights Committee considered these reports in July 2000. In the Concluding observations of the Human Rights Committee on 24 July 2000, the Committee commented on Australia’s human rights record and made recommendations about on-going implementation. The Committee said:

The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.

The State party should take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated have an effective remedy (art. 2).

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 Human Rights and Equal Opportunity Commission Act 1986 (Cth) and the Human Rights and Equal Opportunity Commission (HREOC) may receive complaints about alleged breaches of the ICCPR in some circumstances.

Click here for further information HREOC’s Know your rights.

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 [2004] 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

Treatment in detention

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.

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)

Deportation

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.

Inadmissible and Dismissed communications

Not all communications have been successful. In the following matters the communications were either inadmissible or no violation was found:

2008

· Londoño Soto v Australia (immigration)

· A,B,C,D, E v Australia (immigration)

2007

· Dranichnikov v Australia (immigration)

2006

· Anderson v Australia (fair trial)

· Katsuno v Australia (fair trial and immigration)

· Soo Ja Lim v Australia (immigration)

· Karawa v. Australia (immigration)