HUMAN RIGHTS LAW IN AUSTRALIA
Only Victoria has a Charter of Rights. Only the Australian Capital Territory and Queensland have a Human Rights Act (the Queensland Act was passed on 27 February 2019 and is expected to come into force on 1 January 2020). All states and territories have anti-discrimination and / or equal opportunities legislation.
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 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)
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.
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 sidebar, then click the + button which opens the menu to the following topics. Each + opens to further sub-topics.
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.
Certain Constitutional rights and freedoms have also been implied by the High Court - for example:
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:
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.
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 on open access on SSRN.
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.
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.
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 ).
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:
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:
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:
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 Council. It 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
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
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 :
See the full Rule of Law Index for all countries here.
To find journal articles on Australian human rights law, irrespective of the journals in which the articles are published, use:
INDIVIDUAL JOURNAL TITLES
Australian Journal of Human Rights
Human Rights Defender