Human rights

Contributed by JulieO'Brien and BronwynByrnes and current to 1 May 2016

Treaties binding on Australia

Australia has agreed to be bound by a range of international human rights treaties. The seven key international human rights treaties are:

• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• International Covenant on Civil and Political Rights (ICCPR)
• 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)
• Convention on the Rights of Persons with Disabilities (CRPD)

These treaties set out the minimum standard of treatment that government at Federal, State and local government levels should accord all people in Australia or a place where Australia has effective control.

Treaties that are part of Australian law

Treaties only become part of Australian law when they are implemented. This means that legislation is passed which gives effect to a treaty's terms. Below are some examples of Federal legislation which has implemented international human rights treaties:

• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984(Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)
• Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
• Migration Act 1954 (Cth)

Complaints under the AHRC Act

Human rights

As well as unlawful discrimination (see Discrimination ), the Australian Human Rights Commission has functions relating to human rights. These functions include inquiring into complaints that the Commonwealth has acted contrary to any human right.

'Human rights', as defined by the AHRC Act, means those rights recognised in the following treaties:

• ICCPR
• CRC
• CRPD
• Declaration on the Rights of the Child
• Declaration on the Rights of Mentally Retarded Persons
• Declaration on the Rights of Disabled Persons
• Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

In general terms, these treaties recognise the fundamental rights and freedoms of all people, regardless of their race, gender, age, religion or where they live.

In the event that the Australian Human Rights Commission finds a breach of human rights, it has the power to make recommendations (including for the payment of compensation). However, the Commission's recommendations are not enforceable.

ILO 111 discrimination

Independent of the 'unlawful discrimination' jurisdiction under the AHRC Act, is the 'discrimination' jurisdiction. These provisions give effect to ILO Convention 111.

There are two key differences between 'unlawful discrimination' and 'discrimination' (which is sometimes also called 'ILO 111 discrimination'):

• First, ILO 111 discrimination includes a broader range of grounds of discrimination than 'unlawful discrimination'. Notably, it includes discrimination on the grounds of religion, political opinion, criminal record, nationality and trade union activity; and
• Second, ILO 111 discrimination is limited in its application to 'employment or occupation', while unlawful discrimination applies to a wide range of areas of public life (in employment, education, accommodation, the provision of goods and services etc).

While there is some overlap between the two concepts, it is important to differentiate them as they have distinct regimes for the resolution of complaints. Remedies are only available from the Federal Court and the Federal Circuit Court in unlawful discrimination matters. These remedies are not available for ILO 111 discrimination matters.

In relation to ILO 111 discrimination, the Australian Human Rights Commission has the function of inquiring into conduct that may constitute 'discrimination' and of seeking to settle such matters, where appropriate. If the Commission decides that the action/s constitute ILO 111 discrimination, and settlement is not achieved, the Commission must make a report to the Minister. The Commission has power to make recommendations, including for compensation, where it finds ILO 111 discrimination has occurred. However, its recommendations are not enforceable.

Human rights complaints to the United Nations

As set out above, Australia is a party to various international agreements - conventions or treaties - guaranteeing human rights. Some allow people in Australia to complain to the United Nations about human rights violations when local remedies have proved inadequate.

United Nations treaties

Australia has signed and/or ratified a number of Optional Protocols to the human rights treaties, which set out the mechanisms for making a complaint to a United Nations Committee. These include:

• ICCPR Optional Protocol
• CEDAW Optional Protocol
• CRPD Optional Protocol

The ICERD and CAT also provide a right to complain to, or petition, a United Nations Committee.

An individual who believes that their right/s under one of the relevant human rights treaties have been violated, must first seek a remedy for their complaint under Australian law. If a remedy under local law is inadequate or unavailable, a complaint may then be made to one of the Committees.

International Covenant on Civil and Political Rights (ICCPR)

This is the principal human rights treaty. It sets out the major civil and political rights, including the right:

• to not be arbitrarily deprived of life
• to not be subjected to torture
• to not be subjected to medical or scientific experimentation without consent
• to not be imprisoned because of an inability to fulfil a contractual obligation
• to freedom of movement and choice of residence in Australia
• to equality before the law
• to a fair trial in criminal and civil proceedings
• to protection from arbitrary interference with privacy, family, home or correspondence
• to protection from unlawful attacks on reputation
• to freedom of thought, conscience and religion
• to peaceful assembly
• to participation in public affairs, voting and access employment in the public service
• to freedom of association and freedom to join trade unions
• to not be discriminated against because of race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status
• for minority groups, to enjoy their own culture, religion and language.

International Convention on the Elimination of Racial Discrimination (ICERD)

This convention focuses on racial discrimination and requires Australia, as a signatory, to guarantee to all its citizens, without distinction on the ground of race, colour or national or ethnic origin:

• equal treatment before courts and tribunals
• security of the person, and protection from violence, whether inflicted by government officials or by an individual, group or institution
• participation in elections and equal access to the public service
• freedom of movement and residence in Australia
• the right to leave any country, including Australia, and return to Australia
• the right to marriage and choice of spouse
• the right to own property alone and in association with others
• freedom of thought, conscience and religion
• freedom of opinion and expression
• freedom of peaceful assembly and association
• the right to employment and just conditions of work
• equal opportunity in cultural activities
• access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.

The Convention Against Torture (CAT)

The rights in this convention are relatively limited, and there is some overlap with the ICCPR which also prohibits torture. Torture in this convention is broadly defined to mean any government act that intentionally inflicts severe pain or suffering (physical or mental) to obtain a confession, or for purposes of punishment, intimidation or coercion.

Under the CAT:

• Australia has an obligation not to threaten to deport or extradite a person to another country when there are substantial grounds for believing that the person would be in danger of being tortured if they went there
• a person who claims to have been tortured has a right to complain to the State's authorities, and to have the claim promptly and impartially examined
• a person is protected in court proceedings from the use of statements made under torture.

United Nations Committees

Complaints (or communications) may be lodged with one of the following specialist United Nations Committees:

• the Human Rights Committee
• the Committee on the Elimination of Racial Discrimination
• the Committee Against Torture
• The Committee on Elimination of Discrimination against Women
• The Committee on the Rights of Persons with Disabilities.

There is often overlap between the treaties, and sometimes more than one right has been violated. Most complaints are made to the Human Rights Committee, which allows a person to complain about several different violations. Generally, if a complaint involves violations under more than one of the treaties, the complainant will have to choose one of the Committees (see Contact points).

Exhausting local remedies

As a general rule, the human rights guarantees in treaties are expressed as obligations on governments in their dealings with individuals. Violations occur when a government fails to protect a person's rights in certain circumstances.

Accordingly, United Nations Committees will only deal with a complaint after the person lodging it has exhausted all available remedies under Australian law. The complainant must be able to show they have pursued all judicial or administrative avenues that offer a reasonable prospect of redress, this usually means pursuing a remedy through the relevant court or tribunal and appealing if possible. There is no need to first make a complaint to the Australian Human Rights Commission or the Commonwealth Ombudsman. Sometimes no remedy is available. In this case, the complainant should set out the steps they have taken to seek a remedy, and why they believe an Australian legal solution is unavailable. The rationale for exhausting local remedies is that the complainant is likely to receive the best outcome for a breach of their human rights under Australian law.

There are a number of drawbacks to using international remedies for human rights violations, such as the length of time it can take, the costs involved in fully exhausting local remedies and the fact that the Committee's decisions are not binding on Australia. Despite all this, however, international human rights remedies are an important means of seeking remedies for violations of human rights.

Because Australia does not have a Bill of Rights and Australian law does not provide comprehensive protections for human rights, international remedies are sometimes the only real recourse in cases of human rights violations. Even though these processes take time, using them focuses both Australian and international attention on human rights problems in Australia. Increased international attention can help persuade governments to take appropriate action, to change or introduce laws and to work towards developing long-term human rights protections in Australia.

What the Committees do

Each United Nations Committee consists of independent experts in their field. The Committees meet only a few times a year, in either Geneva or New York, so it can take a long time for them to consider a communication. In fact, the entire process may take several years, depending on the workload of the Committee.

Lodging a communication is a two-stage process. The Committee is in contact with the complainant and the Australian government at both stages. There is no oral hearing and the whole process is confidential. Very few complaints survive the entire process, and even fewer are successful.

The Committee first determines whether the communication is admissible; that is, whether the human rights allegedly violated are contained in the relevant treaty, and whether the complainant has exhausted all Australian remedies. If it does not meet these requirements, it will be ruled inadmissible and proceed no further.

If a communication satisfies the admissibility requirements, the Committee considers the merits of the case, and whether Australia has violated its treaty obligations. This involves examining the facts surrounding the alleged violation, along with the submissions of the complainant and the Australian Government.

Who can complain

Only individuals can lodge a communication. Groups, associations or corporations cannot lodge complaints.

However, there are two exceptions to this general rule:

• non-government organisations and other individuals (such as a legal representative) may lodge a communication on an individual's behalf
• a group or association may lodge a complaint about violations of the rights of a group as a whole to the Committee on the Elimination of Racial Discrimination.

The complainant must establish that they:

• have suffered a violation of one or more of the human rights contained in one of the treaties
• are affected by a government's acts or practices and are subject to Australian jurisdiction.

The Committees generally do not consider hypothetical complaints or potential violations.

Making a complaint

Communications to the United Nations Committees should be in writing. They should:

• name Australia as the respondent
• set out all the facts and circumstances, including key events and dates
• identify what human rights have been violated and explain the role of the government body, agency or law responsible
• outline the steps taken in exhausting local remedies
• include a copy of relevant court or tribunal decisions
• give details of the unavailability or ineffectiveness of Australian remedies where relevant
• be signed and dated by the complainant.

While there is no time limit, it is advisable to lodge the communication as soon as possible after all local remedies have been exhausted.

Lodging a complaint

Either the person who has suffered the violation or their authorised representative may lodge a complaint by sending a letter or written submission to the appropriate Committee at the Office of the High Commissioner for Human Rights (see Contact points ).

While there is no fee for applying to the Committees, costs will be incurred in exhausting local remedies, preparing the communication and keeping in touch with the Committee once it has been lodged.