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Human Rights Law Research Guide: Australia

HUMAN RIGHTS LAW IN AUSTRALIA

State & Territory Human Rights Framework

Only Victoria has a Charter of Rights. Only the Australian Capital Territory has a Human Rights Act. All states and territories have anti-discrimination and / or equal opportunities legislation.

Australian Capital Territory

Discrimination Act 1991 (ACT)

Human Rights Act 2004 (ACT)

  • The Act expressly includes provisions of the ICCPR and ICESCR.
  • More information on the Human Rights Act protections.
  • Section 40C of the Act allows a person who alleges that she or he is or would be a victim of a contravention by a public authority of one of its obligations under s 40B to start proceedings in the Supreme Court for this contravention in its own right, independently of any other cause of action.
  • The Human Rights Commission does not deal with complaints of breaches of the Human Rights Act.  
  • All Bills introduced into the Legislative Assembly must be accompanied by a compatibility statement by the Attorney General (s 37 of the Act) . The statement must state whether the Bill is compatible with human rights and, if so, how it is compatible. If the Bill is incompatible with the Charter, the statement should explain how the Bill is incompatible.

New South Wales

Anti - Discrimination Act 1977 (NSW)

  • The Anti-Discrimination Board of NSW administers and handles complaints about breaches of the Act.
  • If the Board is unable to resolve the complaint, it may be sent to the NSW Civil and Administrative Tribunal (NCAT) Administrative & Equal Opportunity Division to make a legally binding decision about whether discrimination has occurred and to provide enforceable remedies.
  • Not all NCAT decisions are published. A selection of written NCAT Administrative & Equal Opportunity Division decisions are available on the NSW Caselaw database.
  • NCAT decisions may be appealed to a NSW Court.
  • To find all published decisions in any NSW court or tribunal on the Act, use the Advanced Search function on the NSW Caselaw database, and type "Anti - Discrimination Act 1977" in the Legislation Cited field.

Northern Territory

Anti-Discrimination Act (NT)

  • Complaints of unlawful discrimination under the Act are dealt with by the Northern Territory Anti-discrimination Commission. If the complaint is not resolved, it may be referred to the Northern Territory Civil and Administrative Tribunal (NTCAT) to determine whether or not there has been discrimination or other prohibited conduct and to make a decision.
  • NTCAT began hearing cases in 2015. Selected decisions are available on AustLII. Prior to this, the Commission made decisions - these are available (1996-2007) on AustLII.
  • NTCAT decisions may be reviewed by a member of NTCAT other than the member who heard the original matter. Alternatively, a party to the NCAT proceeding may appeal by leave to the Supreme Court against a decision of NTCAT on a question of law .
  • Supreme Court decisions (1986 to current) can be browsed or searched on the NT Supreme Court decisions database.
  • To find all NT decisions on the Act, use AustLII Advanced Search - select Northern Territory: All Cases from the database menu and type "anti-discrimination act" in the search box.

Queensland

Anti-Discrimination Act 1991 (QLD)

South Australia

Equal Opportunity Act 1984 (SA)

Tasmania

Anti-Discrimination Act 1998 (TAS)

  • Complaints about unlawful discrimination in breach of the Act are made to the Office of the Anti-Discrimination Commissioner to investigate and resolve.
  • If complaints are rejected or dismissed, the complainant can apply to the Anti-Discrimination Tribunal to have the Commissioner's decision reviewed. The Commissioner can also refer unresolved complaints to the Tribunal.  
  • Tribunal decisions are available on AustLII
  • Tribunal decisions may be appealed to the Supreme Court of Tasmania. Supreme Court decisions (1985 to current) are available on AustLII. Type "anti-discrimination act 1998" in the Enter search query box.
  • To find all decisions on the Anti-Discrimination Act in any Tasmanian court or tribunal, use AustLII Advanced Search - select Tasmania: All Cases from the database menu and type "anti-discrimination act 1998" in the search box.

Victoria

The official and up to date version of each of the following Acts is available on the Victorian Legislation and Parliamentary Documents website (no deep link is available) - select Victorian Law Today to browse to or search for the Act. The following Acts are administered by the Victorian Equal Opportunity and Human Rights Commission.

Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’).

The Charter is based on the International Covenant on Civil and Political Rights (ICCPR). More information on the Charter and the 20 fundamental human rights it protects.

The Charter does not create a right to begin legal action for a breach of human rights. However, it allows a person to raise human rights arguments in legal proceedings on other causes of action. Victorian complaint handling bodies – such as the Victorian Equal Opportunity and Human Rights Commission, the Disability Services Commissioner and the Office of the Public Advocate – must also give consideration to human rights issues in the complaints they are responsible for resolving. In addition, complaints about breaches of the Charter can be made to the Victorian Ombudsman in relation to most public authorities and to the Independent Broad-based Anti-corruption Commission in relation to police misconduct.

The Victorian Equal Opportunity and Human Rights Commission does not handle complaints related to the Charter. It has reviewing, reporting and intervention roles under the Charter.

All Bills introduced into Parliament are required to be accompanied by a statement of compatibility (s 28 of the Charter). The statement must be tabled in each House before the second reading speech is given. The statement must state whether, in the opinion of the Member introducing it, the Bill is compatible with human rights and, if so, how it is compatible. If, in the member's opinion, any part of the Bill is incompatible with the Charter, the statement should explain the nature and extent of how the Bill is incompatible. The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights (s 30 of the Charter). 

The Attorney-General must regularly review the Charter. See the 2015 Review.

Commentary & Cases on each provision of the Charter

For background to the Charter and authoritative commentary and analysis of each provision, including cases, see the Judicial College of Victoria's 2016 Charter of Human Rights Bench Book (freely available online). This resource is regularly updated.

For authoritative summaries of all published decisions cases on Charter issues (in VCAT, the Supreme Court and Court of Appeal), see the  Judicial College of Victoria's Victorian Human Rights Charter Case Collection. The collection is indexed by individual Charter right or section.

For selected cases on each provision of the Charter in all Victorian courts, see the Human Rights Law Centre's Caselaw Database.

Equal Opportunity Act 2010 (Vic) and Racial and Religious Tolerance Act 2001 (Vic)

  • Complaints about unlawful discrimination in breach of either of these two Acts are made to the Victorian Human Rights Commission, which will attempt to resolve the complaint through conciliation.
  • Unresolved or dismissed complaints may be referred to the Victorian Civil and Administrative Tribunal (VCAT). Alternatively, applications for resolution of disputes under the Equal Opportunity Act may be made directly to VCAT, rather than through the Commission. VCAT decisions are available (from 1998 to current) on AustLII. Select Database Search and type the name of the Act in the Enter Search Query box.
  • VCAT decisions can be judicially reviewed by the Supreme Court of Victoria or the Court of Appeal. Leave of the Court to appeal is required. Supreme Court decisions are available on AustLIISelect Database Search and type the name of the Act in the Enter Search Query box.

To find decisions on any or all three Victorian Acts in any Victorian Court or VCAT, use AustLII Advanced Search - select Victoria: All Cases from the database menu and type eg: ("equal opportunity act" OR "racial and religious tolerance act" OR "charter of human rights and responsibilities") in the search box.

Western Australia

Equal Opportunity Act 1984 (WA)

  • Complaints of unlawful discrimination in breach of the Act are made to the Western Australian Equal Opportunity Commission to investigate and resolve through conciliation.
  • Unresolved complaints, or those that the Commission has declined to investigate can be referred by the Commissioner for Equal Opportunity to the State Administrative Tribunal (SAT) to make a decision and, if the Act has been breached, grant a remedy. Decisions of the Tribunal are available to search or browse (by eg: date, legislation etc) on the SAT decisions database.
  • SAT decisions can be appealed on a question of law - to the Court of Appeal of the Supreme Court, if the decision was made by a Tribunal that included a judicial member, or the Supreme Court in all other SAT matters. Decisions in the Supreme Court and Court of Appeal on the Equal Opportunity Act can be searched together by using the Advanced Search on the Supreme Court's Judgments database and typing "equal opportunity act 1984" in the Legislation box.
  • To find all decisions on the Equal Opportunity Act in any WA court or SAT, use JADE's All WA Courts and Tribunals and add "Equal Opportunity Act 1984" to the  keywords to filter box in the menu on the left-hand side of the page.

A good place to start your research....

HUMAN RIGHTS

The Laws of Australia  Title 21 - Human Rights on WestlawAU (UniMelb staff & student access) is a good starting point for your research into Australian human rights law. The Laws of Australia provides up to date commentary and links to relevant legislation.

To get there, scroll to this title in the alphabetical list in the left hand menu, then click the + button which opens the menu to the following topics. Each + opens to further sub-topics. 

ANTI-DISCRIMINATION

The Australian Human Rights Commission has published a Quick Guide to Australian Discrimination Laws, which provides an overview of Federal and State anti-discrimination laws, and explains the grounds of discrimination and areas covered by each Act.

CCH Online (UniMelb staff & student access) arranges commentary into broad Discrimination topics, and links to legislation and selected cases. Use the discrimination heading from the lefthand menu and use the + signs to open up more specific topics.

Federal Human Rights Framework

Australia has no comprehensive fundamental human rights instrument at the federal level, such as a Charter or Bill of Rights. Human rights are found in the Constitution, Federal legislation and common law (decisions of the courts). 
 
RIGHTS IN THE AUSTRALIAN CONSTITUTION
Although the Australian Constitution does not contain a Bill of Rights, it does expressly guarantee a few important freedoms. Most significantly:
  1. section 80 guarantees the right to trial by jury (although the High Court has severely limited the protection offered by this provision)
  2. section 116 provides for a range of religious freedoms, including the right to engage in the free exercise of any religion
  3. section 117 prohibits the imposition of 'any disability or discrimination' on account of State residence
  4. section 92 provides that 'trade, commerce and intercourse among the States ... shall be absolutely free', and
  5. as a consequence of section 51(xxxi), the Commonwealth may only acquire property on 'just terms'.

Certain Constitutional rights and freedoms have also been implied by the High Court - for example:

  1. freedom of political communication (see eg Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106)
  2. the right to procedural fairness in the exercise of judicial power (see eg Leeth v Commonwealth (1992) 174 CLR 455 at 470)
  3. freedom of political communication (see eg Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106)

Many basic rights receive no constitutional protection. For example, the Constitution includes nothing regarding freedom from discrimination on the basis of sex or race, it lacks a general right of free speech, and it contains no express guarantee of the right to vote.

FEDERAL RIGHTS LEGISLATION

The most significant Federal rights legislation is anti-discrimination legislation.

The Australian Human Rights Commission is responsible for the following anti-discrimination Acts:

  1. the Racial Discrimination Act 1975 (Cth)
  2. the Sex Discrimination Act 1984 (Cth)  
  3. the Disability Discrimination Act 1992 (Cth) 
  4. the Age Discrimination Act 2004 (Cth)

These Acts apply to all Australians. The Australian Human Rights Commission has authority to investigate and conciliate complaints of alleged discrimination lodged under these discrimination laws. The Commission does not have the power to decide if unlawful discrimination has happened or to grant remedies. Complaints about sex, race, disability and age discrimination that are not resolved or are discontinued by the Commission can be taken to the Federal Court of Australia, which may transfer the matter to the Federal Circuit Court.

  • Judgments of the Federal Court are available on the Court's website to browse or search.
  • Judgments of the Federal Circuit Court are available on the Court's website to browse or search.

The Commission can also inquire into and conciliate complaints of workplace discrimination under the Australian Human Rights Commission Act 1986 (Cth). If the complaint is not resolved or is discontinued, the President of the Commission will decide if workplace discrimination has occurred. If so, the Commission will prepare a report of the complaint, including recommendations for action, for the Commonwealth Attorney General. The report must be tabled in Parliament. See all the Commission's Reports.

The Fair Work Commission administers the Fair Work Act 2009 (Cth).

The Part 3-1 General Protections provisions of the Fair Work Act  protect rights and freedoms and prohibit discrimination in employment. Discrimination applications under the Fair Work Act are to the Fair Work Commission. If the matter cannot be settled by agreement, then the Commission will hear and decide the matter. The Commission's decisions and orders are published on its website. The Commission's decisions may be appealed with permission to the Full Bench of the Commission (the Appeal Bench). Parties who do not agree with the outcome of an appeal heard by the Appeal Bench may apply to the Federal Court of Australia for judicial review. 

COMMON LAW RIGHTS

A principle of statutory interpretation in Australian courts is that Parliament is presumed not to have  intended to limit fundamental rights, unless it indicates this intention in legislation in clear terms (see eg Coco v The Queen (1994) 179 CLR 427,437). This presumption includes fundamental rights recognised by the common law. 

See more on common law rights on the Human Rights Commission's website.

See also a discussion of the evolution of fundamental rights protection provided by Australian courts in Dan R. Meagher, 'The Principle of Legality and a Common Law Bill of Rights - Clear Statement Rules Head Down Under' (2015) Deakin Law School Research Paper No. 16-18. Available freely on SSRN.

Finding Decisions on Legislative Provisions in Multiple Courts & Tribunals

JADE will find all cases on legislative provisions of all Federal, State & Territory Acts in courts & tribunals.

To search for cases on legislative provisions, you need to register to use JADE, and then login.  

Start to type the title of the Act in the top search box and select the Act from the drop down menu.

The Act shows a summary in the top right of the page, indicating all the cited sections.

Click on the section, or scroll through the Act - green 'Jade-marks' beside the cited sections indicate how many cases have cited that section.

Clicking on the Jade-mark open all citing references in all courts, ordered by most recent and including the relevant citing paragraph of the decision. You can select cases on sub-sections, or look at appellate decisions only, or view the citing cases in full screen by clicking Citator.

JADE cases are unreported and use medium neutral citations. To find out if a case has been reported, click on a case in the list of citing cases, and you will see at the right hand top of the page a JADE CaseTrace box, containing parallel citations - so you can see if the case has been reported (the case below has been reported in the authorised Victorian Reports), as well as see the case history, all cases citing this case, which paragraphs have been cited, and what is the most recent citing case.

 

Finding Cases by Topic

JADE will find all cases on your human rights or discrimination topic in courts & tribunals.

1. Browse by Topic and select eg: human rights or discrimination.

2. Click Refine Search Results in the lefthand menu - and then select Show Advanced Filters.

3. From here you can add eg: keywords, legislation, court etc.

Human Rights Law Centre Caselaw Database

Although the focus of this database is cases on the Victorian Charter of Rights and Responsibilities 2006 (Vic), it is useful for finding selected cases in all Australian jurisdictions, in comparator foreign jurisdictions, such as the UK, New Zealand and Canada, and in individual foreign and international jurisdictions. Cases can be searched by topic, court / tribunal and jurisdiction. Useful case summaries are provided. To find all Australian cases, choose Australia from the Jurisdiction drop down menu.

 

International Law and Australian Domestic Law

Australia follows a dualist approach with respect to the domestic effect of international treaties. This is similar in approach to other Commonwealth countries such as the United Kingdom, Canada and New Zealand. The dualist system means that in order for the treaty obligations to be given the force of law domestically, Australia cannot simply become a party to the treaty - the treaty obligations must be incorporated into domestic legislation. The core international human rights treaties incorporated into Australian domestic legislation are:

However, when Australia is a party to a treaty but  has not implemented this domestically by statute, there is a presumption that Parliament, prima facie, intends to give effect to Australia's obligations under international law (High Court of Australia - Mason CJ and and Deane J in Teoh's case 183 CLR 273 [26]).

The Commonwealth Parliamentary Joint Committee on Human Rights was established by the Human Rights (Parliamentary Scrutiny) Act 2011. The committee's main function is to examine all Commonwealth bills and legislative instruments for compatibility with the seven human rights treaties to which Australia is a party, and to provide Committee Reports to both Houses of Parliament on its findings.

The Australian Human Rights Commission is responsible for monitoring and scrutinising Australia’s performance in meeting its international human rights commitments. Detailed information on the Commission's scrutiny and monitoring of each international right and freedom is provided on the Rights and Freedoms: Right by Right webpage. See also the Commonwealth Attorney General's Human Rights Guidance Sheets, which contain information on the rights and freedoms in the seven core international human rights treaties to which Australia is a party.

Under the Australian Human Rights Commission Act 1986 (Cth), the Commission can also inquire into and conciliate complaints about breaches of human rights where they are against the Commonwealth Government or one of its agencies and they allege a breach of specific international human rights instruments, including:

  • the International Covenant on Civil and Political Rights
  • the Convention on the Rights of the Child
  • the Convention on the Rights of Persons with Disabilities
  • the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

 If the complaint is not resolved or is discontinued, the President of the Commission will decide if a breach of human rights has occurred. If so, the Commission will prepare a report of the complaint, including recommendations for action, for the Commonwealth Attorney General. The report must be tabled in Parliament. See all the Commission's Reports.

See also the chapter on Australia in:

UN Treaties - Australia's Ratification Status and Reservations

Check Australia's ratification status and reservations of the core human rights treaties in the UN Treaty Collection Status of Treaties database.

In addition to supporting the principles enunciated in the Universal Declaration of Human Rights, Australia is a party to seven United Nations human rights treaties:

Monitoring compliance with international human rights obligations - Australian, UN and Civil Society reports

REPORTS TO AND BY THE UN

UN Treaty Body Reports

Australia is required to submit periodic reports to the UN on its implementation of each of the seven core UN human rights treaties it has ratified. Australia's Reports to the United Nations can be found on:

Universal Periodic Review

The UN Universal Periodic Review (UPR) is a review of the human rights records of all UN Member States, undertaken by the UN Human Rights CouncilIt involves review of the human rights records of all 192 UN Member States once every four years. Review under the UPR does not depend on a country being a party to a particular human rights treaty. Australian Reports can be viewed on the UPR Documents database and on the Australian Human Rights Commission's Australia's Universal Periodic Review on human rights website.

UN Country Reports

The Australia Country Report includes information on the latest Universal Periodic Review, and the status of the country in relation to UN Charter based bodies and Treaty bodies.

Universal Human Rights Index

The UN Universal Human Rights Index provides access to country-specific human rights information emanating from international human rights mechanisms in the United Nations system: the Treaty Bodies, the Special Procedures and the Universal Periodic Review (UPR).

CIVIL SOCIETY REPORTS

Amnesty International Annual Country Reports

Human Rights Watch annual  World Reports 

Freedom House's Freedom in the World - an annual study of political rights and civil liberties 

US STATE DEPARTMENT REPORTS

US Department of State annual Human Rights Reports 

Human Rights ranking in the Rule of Law Index

In the latest Rule of Law Index from the World Justice Project, Australia ranked 10th out of 102 countries for its adherence to protection of fundamental human rights. See the Australian statistics on the Rule of Law website. 

The factors taken into account in assessing Australia's human rights rank are those established under the Universal Declaration :

  • effective enforcement of laws that ensure equal protection; 
  • the right to life and security of the person;
  • due process of law and the rights of the accused;
  • freedom of opinion and expression;
  • freedom of belief and religion;
  • the right to privacy;
  • freedom of assembly and association; and
  • fundamental labor rights, including the right to collective bargaining, the prohibition of forced and child labor, and the elimination of discrimination.  

See the full Rule of Law Index for all countries here.

Finding Australian Human Rights Journal Articles

DATABASES

To find journal articles on Australian human rights law, irrespective of the journals in which the articles are published, use:

  • AGIS on INFORMIT (UniMelb staff & student access)
  • SSRN - for very recent articles (this database is multijurisdictional, so use 'Australia' in your search)
  • AustLII Journals

INDIVIDUAL JOURNAL TITLES

Australian Journal of Human Rights

Online

In print

Human Rights Defender

  • vol 1 (1992) to current on HEIN Online (UniMelb staff & student access)

Human Rights Books in the Law Library

Australian Human Rights Blogs

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