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
·
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)
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.
Click here for a copy of the Fifth
Periodic Report and all relevant documents relating to the Committee’s
consideration of the report and concluding observations
published on 7 May 2009.
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
[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:
2009
None to date
As at August 2009, there are 15 communication before the Committee concerning Australia.
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)
2005
·
Yo Han Chung v. Australia
(disability and race discrimination)
·
Burgess v Australia
(numerous allegations)
·
Laing v Australia (rights of the child,
international child abduction)
2004
·
Minogue v Australia
(detention and fair trial) Nicholas v Australia
(article 15 retrospective criminal laws)
·
Wilson v Australia (fair
trial and privacy)
·
Lovell v Australia (freedom
of expression and fair trial)
2003
·
Juma v Australia (fair
trial)
·
Dixit v Australia (immigration
and discrimination)
·
Love v Australia
(employment and age discrimination)
2002
·
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)
2001
·
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)
2000
·
Hart v Australia (failed
to properly regulate private hospital standards and practices)
·
Y v Australia
(immigration)
1999
·
Pasla v Australia (denial
of legal aid)
·
Lamagna v Australia
(discrimination)
1998
·
Lindon v Australia
(life and fair trial)
1997
·
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)
1996
·
Jarman v Australia
(discrimination and fair trial)
·
X v Australia (fair
trial and minority rights)
1995
·
Perera v Australia (fair
trial)
1994
·
AS &LS v Australia
(fair trial, discrimination and privacy)
1993
·
K. L. B.-W v Australia
(lack of an effective remedy, privacy and equality)
1992
·
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.
Click here for
the Rules of Procedure
and links to the General
Comments.
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.
Remedies
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
·
Hagan v Australia (2003)
and Hagan v Australia
(2004) re follow up comments
·
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.
CEDAW
Decisions
There
are presently no communications lodged under the CEDAW Optional Protocol (as at
August 2009)
CRPD
Decisions
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/
ICESCR
The Third Periodic Report
was examined in August 2000 – see concluding
observations
The Committee considered
Australia’s Fourth
Periodic Report in May 2009 – see concluding
observations.
The next report is due on 30
June 2014.
CERD
The
Tenth, Eleventh And Twelfth Periodic Reports were examined in
March 2000 – see concluding
observations
The
13th and 14th
Periodic Reports were examined in March 2005 – see concluding observations and the Australian
comments
The
CERD Committee asked Australia to provide its 15th, 16th
and 17th report by 30 October 2008. It is yet to be submitted.
CEDAW
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 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.
CRC
The Initial Report was
examined in September/October 1997 – see concluding
observations
The Second
and Third Reports see also DFAT
copy were submitted on 29
December 2004. See the concluding
observations from October 2005.
The Fourth
Report was due on 15 January 2008 and tabled in the Parliament on 25 June
2009.
CAT
The Second Periodic Report
was examined in November 2000 – see concluding
observations
The Third periodic report was
examined in May 2008 – see concluding
observations
The Fourth periodic
report was lodged on 7 April 2005 – see concluding
observations from 16 May 2008.
The next report
is due in June 2012.
CRPD
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
Australian Human Rights Commission
·
see ARHC’s Links to Human Rights
Organisations and Resources
Internet
Resources
·
Office of the United Nations
Commissioner for Human Rights
·
University of Minnesota's
Human Rights Library
·
Rights International Research
Guide
·
Netherlands Institute of Human Rights
·
Bayefsky
Australian
Human Rights Information
·
Australian Lawyers for Human Rights
·
Castan Centre for Human Rights
Law
·
Australian Human Rights Centre
·
Human
Rights Law Resource Centre
Texts
· 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
This information
is for reference only.
It is not a
substitute for legal advice and you should contact a lawyer or your local
community centre if you require legal advice. I cannot provide legal advice by
email or respond to any requests for advice through this web-page.
© Kate Eastman September
2009