Making a complaint

Contributed by Kate Eastman and current to 1 September 2005

WHO CAN COMPLAIN

Only individuals can lodge a communication. Non-government organisations or lawyers can only lodge a communication on someone’s behalf if they can satisfy the committee that the person is unable to do so.

Group complaints

Groups and associations cannot lodge complaints about violations of the rights of the group as a whole, except to the Committee on the Elimination of All Forms of Racial Discrimination. If the complaint is to be made to another committee, either:

• all members should lodge individual communications; or

• one person should lodge a communication as a test case.

WHAT CAN BE COMPLAINED ABOUT

What the complainant must establish
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

• have suffered some form of physical, emotional or financial detriment.

Hypothetical and potential violations

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

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, 8-14 Avenue de la Paix, 1211 Geneva 10, Switzerland.

Formal requirements

Communications to 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;

• explain the role of the government body, agency or law responsible;

• outline the steps taken in exhausting local remedies;

• include copies of relevant court or tribunal decisions;

• give details of the unavailability or ineffectiveness of Australian remedies, where relevant; and

• be signed and dated by the complainant.

Costs

There is no fee for applying to the committees. However, costs will be incurred in exhausting local remedies, preparing the communication and keeping in touch with the committee once it has been lodged.

Time limits

While there is no time limit, it is advisable to lodge the communication as soon as possible after all local remedies have been exhausted. A model communication can be found in the NSW Lawyers Practice Manual (LBC Information Services, Sydney).

EXHAUSTING LOCAL REMEDIES

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 a remedy through the relevant court or tribunal, appealed if possible or lodged a complaint with an agency such as the Human Rights and Equal Opportunity Commission, the WA Equal Opportunity Commission, the Privacy Commissioner or the Ombudsman (see CHALLENGING GOVERNMENT DECISIONS and DISCRIMINATION ).

A case where there was no local remedy

In the first complaint brought by an Australian to a United Nations committee there was no Australian remedy for the violation of human rights. Nick Toonen complained to the United Nations Human Rights Committee about Tasmanian laws that criminalised sex between consenting homosexual men in private. He argued that the threat of being charged and prosecuted breached his rights to privacy and was discriminatory.

In this case, there were no Tasmanian or federal laws, or any common law, that Mr Toonen could use to protect himself fromarbitrary interference with his privacy or that outlawed discrimination on the basis of homosexuality. The committee accepted that there were no Australian remedies for Mr Toonen to exhaust.

Where no remedy is available

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.