This Guide has been prepared to provide an introduction to the 25 key human rights protected by the seven human rights treaties which form part of the committee's mandate. Many of these rights are also found under the common law or in the Australian Constitution, and indeed the drafters of these international treaties drew heavily on the common law democratic tradition when framing these rights. In some instances, the common law or the Constitution may provide greater protection for human rights: in such cases, the international treaties provide that these enhanced rights should continue alongside the minimum rights found in the international treaties.

This guide is not intended to be comprehensive or legalistic, rather, it seeks to provide a short and accessible overview of the key rights and how the rights may be applied. Case studies are provided to illustrate how each right can be applied in practice. Further information about the rights listed in the Guide, the sources of the case studies and where to go for a more comprehensive analysis of the rights is found in the References section at the end of the Guide. The committee has also published two guidance notes which are found at the end of this Guide at Appendix 1 and 2.

Functions of the committee

The committee was established under the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act) and has the following functions:

• to examine bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue;
• to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue; and
• to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of the Parliament on that matter.

Human rights are defined in the Act as those contained in the following seven human rights treaties to which Australia is a party:

• International Covenant on Civil and Political Rights (ICCPR);
• International Covenant on Economic, Social and Cultural Rights (ICESCR);
• International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
• Convention on the Elimination of Discrimination against Women (CEDAW);
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• Convention on the Rights of the Child (CRC); and
• Convention on the Rights of Persons with Disabilities (CRPD) (together the seven human rights treaties).

The establishment of the committee builds on the Parliament's established traditions of legislative scrutiny. Accordingly, the committee undertakes its scrutiny function as a technical inquiry relating to Australia's international human rights obligations. The committee does not consider the broader policy merits of legislation.

The committee's purpose is to enhance understanding of, and respect for, human rights in Australia and to ensure appropriate recognition of human rights issues in legislative and policy development.

The committee's engagement with proponents of legislation emphasises the importance of maintaining an effective dialogue that contributes to this broader respect for, and recognition of, human rights in Australia.

Committee's analytical framework

Australia has voluntarily accepted obligations under the seven core United Nations (UN) human rights treaties. It is a general principle of international human rights law that the rights protected by the human rights treaties are to be interpreted generously and limitations narrowly. Accordingly, the primary focus of the committee's reports is determining whether any identified limitation of a human right is justifiable.

International human rights law recognises that reasonable limits may be placed on most rights and freedoms – there are very few absolute rights which can never be legitimately limited. All other rights may be limited as long as the limitation meets certain standards. In general, any measure that limits a human right must comply with the following criteria (the limitation criteria):

• be prescribed by law;
• be in pursuit of a legitimate objective;
• be rationally connected to its stated objective; and
• be a proportionate way to achieve that objective.

Where a bill or instrument limits a human right, the committee requires that the statement of compatibility provide a detailed and evidence-based assessment of the measures against these limitation criteria.

1.1 Australia's obligations under international human rights law are threefold:

• to respect – requiring government not to interfere with or limit human rights;
• to protect – requiring government to take measures to prevent others (for example individuals or corporations) from interfering with human rights; and
• to fulfil – requiring government to take positive measures to fully realise human rights.

1.2 Where a person's rights have been breached, there is an obligation to ensure accessible and effective remedies are available to that person. This includes an obligation to investigate alleged violations promptly, thoroughly and effectively through independent and impartial bodies. It also requires appropriate reparation for victims of abuses, which can include compensation, apologies or changes in relevant laws and practices.

Who has human rights obligations?

1.3 Australia has voluntarily accepted obligations under the seven core UN human rights treaties. These human rights obligations apply to all branches of the Australian government – the Parliament, the executive, and the judiciary including all branches of the state and territory governments. It is the nation-state of Australia that is answerable at the international level for any failure to fulfil the obligations in the core human rights treaties, whether this is the result of the acts or omissions of the Commonwealth, or of a State or Territory. Under international law it is the state that has an obligation to ensure that persons enjoy human rights.

1.4 Human rights treaties do not directly bind non-state actors such as individuals, groups or corporations. Under international human rights law a state is bound to take all reasonable measures, including having in place appropriate laws or practices, to prevent individuals, groups or companies from breaching the rights of others, and to provide remedies where such breaches take place.

1.5 While Australia has obligations under international human rights treaties, these obligations are directly enforceable in Australia only if they are implemented in domestic legislation. Therefore, unless there are specific Australian laws bringing rights guaranteed by these treaties into force, the obligations are not legally binding under Australian law.

1.6 The committee's mandate to examine all existing and proposed Commonwealth legislation for compatibility with Australia's human rights obligations, seeks to ensure that human rights are taken into account in the legislative process.

When do human rights obligations apply?

1.7 While the specific circumstances and content of an obligation depend on the wording of the treaty in question, the overarching framework of respecting, protecting and fulfilling human rights applies to both civil and political rights and economic, social and cultural rights.

Civil and political rights

1.8 Australia is under an obligation to respect, protect and fulfil its obligations in relation to all civil and political rights. It is generally accepted that most civil and political rights are capable of immediate realisation.

Economic, social and cultural rights

1.9 While Australia is also under an obligation to respect, protect and fulfil economic, social and cultural rights, there is some flexibility allowed in the implementation of these rights. This is often referred to as the obligation of progressive realisation, which recognises that the full realisation of economic, social and cultural rights may be achieved progressively. However, there are some obligations in relation to economic, social and cultural rights which are obligations of immediate effect. These require the government to:

• take immediate steps to identify appropriate baselines and to develop concrete plans for realising economic, social and cultural rights, accompanied by mechanisms for monitoring progress;
• satisfy, at the very least, certain minimum aspects of the rights;
• not unjustifiably deprive a person of access to an existing right;
• ensure that people enjoy economic, social and cultural rights without discrimination; and
• adhere to certain process requirements by ensuring accountability and transparency in decision making and to ensure people can access relevant information and constructively participate in decisions that affect them.

Who do human rights apply to?

1.10 Australia's human rights obligations apply to all people subject to Australia's jurisdiction, regardless of whether they are Australian citizens. This means Australia owes human rights obligations to everyone in Australia, as well as to persons outside Australia where Australia is exercising effective control over them, or they are otherwise under Australia’s jurisdiction.

1.11 Under the UN human rights treaties, human rights belong to individuals and groups of individuals. The treaties do not confer rights on companies or other incorporated bodies.

1.12 Human rights law recognises that reasonable limits may be placed on most rights and freedoms. Absolute rights, of which there are few, may never be lawfully limited.

1.13 Much of the committee's focus is scrutinising legislation to determine whether a bill or regulation that limits a human right is nevertheless justifiable under international human rights law.

Absolute rights

1.14 The following absolute rights may never be limited by Australia:

• the right not to be subjected to torture, cruel, inhuman or degrading treatment;
• the right not to be subjected to slavery;
• the right not to be imprisoned for inability to fulfil a contract;
• the right not to be subject to retrospective criminal laws;
• the right to recognition as a person before the law.

Limitations on rights

1.15 For all other rights, limitations (or restrictions) may be imposed on the human right provided certain standards are met. Some rights have express limitation clauses setting out when the rights may be limited, while others have implied limitations, and some treaties contain a general limitation clause. In general, any legislative measure that limits a human right has to comply with the following criteria (limitation criteria) in order for the limitation to be considered justifiable:

• Prescribed by law;
• Legitimate objective;
• Rational connection; and
• Proportionality.

Limitation Criteria

Prescribed by law

1.16 Any limitation on a right must have a clear legal basis. This requires not only that the measure limiting the right be set out in legislation (or be permitted under an established rule of the common law), it must also be accessible and precise enough so that people know what they need to comply with or when the authorities can restrict the exercise of their rights.

1.17 This means that discretionary powers must be appropriately circumscribed and include adequate safeguards to prevent against abuse. For example, if legislation gives discretion to a public official, the power must not be open-ended and non-reviewable; the legislation should clearly indicate the scope of the discretion and how it should be exercised.

Legitimate objective

1.18 Any limitation on a right must be shown to be aimed at achieving a legitimate objective. A legitimate objective is one that is necessary and addresses an area of public or social concern that is pressing and substantial enough to warrant limiting the right. In general, it will not be a legitimate objective to limit a right simply to prevent an outcome that may be undesirable, offensive to some or inconvenient.

Rational connection

1.19 It must also be demonstrated that any limitation on a right has a rational connection to the objective to be achieved. The key question is whether the relevant measures are likely to be effective in achieving the objective being sought. It is not enough to put forward a legitimate objective if, in fact, the measure limiting the right would not make a real difference to achieving that objective.

Proportionality

1.20 A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if the objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups.

1.21 Proportionality has a particular legal meaning. In considering whether a limitation on a right is proportionate, some factors that might be relevant include:

• whether there are other less restrictive ways to achieve the same aim;
• whether there are effective safeguards or controls over the measures, including the possibility of monitoring and access to review;
• the extent of any interference with human rights – the greater the interference the less likely it is to be considered proportionate;
• whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the merits of an individual case.

1.22 Many of the rights in the human rights treaties include a requirement that any limitation on rights must not be arbitrary or unlawful. This has generally been interpreted as requiring the test set out above to be followed: that the limitation be necessary, reasonable and proportionate and that there are adequate safeguards against abuse.

Retrogressive measures

1.23 In respect of economic, social and cultural rights, such as the right to work, social security, an adequate standard of living, health, education and culture, there is a duty to realise rights progressively. As such, there is a corresponding duty to refrain from taking retrogressive measures. This means that the state cannot unjustifiably take deliberate steps backwards which negatively affect the enjoyment of economic, social and cultural rights. Retrogressive measures can only be justified if consideration is given to the totality of economic and social rights; that is, looking at all the competing priorities presented by the range of economic and social rights.

1.24 International human rights law draws on a long history of rights development stretching from the Magna Carta of 1215, common law rights, and the Universal Declaration on Human Rights in 1948. Many of these treaties, particularly the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), which set out universally accepted minimum standards of human rights, draw heavily on this history.

Human rights treaties

1.25 Australia has agreed to be bound by a number of international human rights treaties, including the seven human rights treaties which form part of the committee's mandate. The seven human rights treaties cover:

• civil and political rights;
• economic, social and cultural rights;
• rights of the child;
• rights of persons with disabilities;
• prohibition on racial discrimination;
• prohibition on discrimination against women; and
• prohibition on torture.

1.26 The ICCPR and the ICESCR are the primary sources for most of the key rights. Other treaties build on these rights in relation to particular groups (such as women, people with disabilities, children and racial groups).

UN human rights treaty bodies

1.27 There are a number of UN committees made up of independent experts that monitor implementation of the various human rights treaties (known as UN human rights treaty bodies). The UN Human Rights Committee is responsible for monitoring implementation of the ICCPR and the Committee on Economic, Social and Cultural Rights monitors implementation of the ICESCR.

1.28 Every four to five years, Australia is required to submit reports to these UN committees explaining how the rights are being implemented in Australia.

1.29 In addition, individuals can take complaints against Australia to a number of UN human rights treaty bodies in relation to alleged violations of rights.

1.30 In their General Comments or General Recommendations, the committees publish their interpretation of the meaning of specific human rights treaty provisions and also on thematic issues. They also publish their interpretation of human rights when considering reports submitted by states parties (known as Concluding Observations) and in making decisions on individual complaints (communications). These are not formally binding on states under international law, however these statements are persuasive as interpretations of international human rights law that are consistent with the proper interpretation of treaties as set out in the Vienna Convention on the Law of Treaties.

1.31 In understanding how human rights are to be applied, the committee has regularly looked to the way in which the UN human rights treaty bodies have interpreted the UN human rights treaties, as well as to the interpretations by comparable regional human rights courts and the domestic human rights courts of other countries. Human rights instruments, whether international, regional or national, largely deal with fundamental, universal and overlapping rights, and often contain similar provisions. As such, case law from other domestic systems, including cases brought under the European Convention on Human Rights (which is very similar to the ICCPR), can be a valuable resource in understanding how human rights are to be applied in practice. While none of this is binding on how the committee carries out its scrutiny function, it can assist the committee in gaining a broader understanding of the content and application of human rights.

• Right to life
• Prohibition against torture, cruel, inhuman or degrading treatment
• Prohibition against slavery and forced labour
• Right to liberty
• Right to humane treatment in detention
• Freedom of movement
• Right to a fair hearing
• Criminal process rights
• Prohibition against retrospective criminal laws
• Right to privacy
• Protection of the family
• Freedom of religion
• Freedom of expression
• Freedom of association
• Right to take part in public affairs
• Right to equality and non-discrimination
• Rights of children
• Right to self-determination
• Right to work
• Right to social security
• Right to an adequate standard of living
• Right to health
• Right to education
• Right to culture

General

• S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Third Edition, 2013.
• M Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Second revised edition, 2005.
• Attorney-General's Department, Public sector guidance sheets, available at: http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuid anceSheets/Pages/default.aspx (accessed 8 November 2013).

Australia's obligations under human rights law

• UN Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (2004).
• UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States parties obligations (1990).
• For a list of Australia’s reservations and declarations in relation to specific articles in the various human rights treaties, see:
  • ICCPR: http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html
  • CRC: http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html
  • ICERD: http://www.austlii.edu.au/au/other/dfat/treaties/1975/40.html
  • CEDAW: http://www.austlii.edu.au/au/other/dfat/treaties/1983/9.html

Can human rights be limited?

• Attorney-General's Department, Public sector guidance sheet: Absolute Rights.

Legal basis of human rights

• International Covenant on Civil and Political Rights (monitored by the UN Human Rights Committee).
• International Covenant on Economic, Social and Cultural Rights (monitored by the UN Committee on Economic, Social and Cultural Rights).
• Convention on the Rights of the Child (monitored by the UN Committee on the Rights of the Child).
• Convention on the Rights of Persons with Disabilities (monitored by the UN Committee on the Right of Persons with Disabilities).
• International Convention on the Elimination of All Forms of Racial Discrimination (monitored by the UN Committee on the Elimination of Racial Discrimination).
• Convention on the Elimination of All Forms of Discrimination against Women (monitored by the UN Committee on the Elimination of Discrimination Against Woman).
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (monitored by the UN Committee against Torture and the UN Subcommittee on the Prevention of Torture).

Right to life

• Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 1989.
• Suarez de Guerrero v Colombia (45/79), Human Rights Committee, 31 March 1982.
• Olmedo (Dominguez) v Paraguay (1828/08), Human Rights Committee, 22 March 2012.
• Eshonov v Uzbekistan (1225/03), Human Rights Committee, 22 July 2010.
• UN Human Rights Committee, General Comment No. 6: The right to life (1982).
• Case study: Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5, (2009), para 21.

Prohibition against torture, cruel, inhuman or degrading treatment

• UN Human Rights Committee, General Comment 20: Prohibition of torture and cruel treatment or punishment (1992).
• Committee Against Torture, General comment No. 2: Implementation of article 2 by States parties (2008).
• C v Australia (900/99), Human Rights Committee, 28 October 2002.
• Elmi v Australia (120/98), Committee Against Torture, 25 May 1999.
• Case study: FKAG and MMM v Australia (2094/2011 & 2136/2012), Human Rights Committee, 20 August 2013.

Prohibition against slavery and forced labour

• Case study: Silidin v France, European Court of Human Rights, Application no. 73316/2001, 26 July 2005.

Right to liberty

• Van Alphen v The Netherlands (305/88), UN Human Rights Committee, 23 July 1990.
• FKAG     v     Australia     (2094/2011),     UN     Human     Rights     Committee, 20 August 2013.
• A v Australia (560/1993), UN Human Rights Committee, 30 April 1997.
• UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia, A/55/40, paras 498-528, (2000), paras 526-7.
• Case study: Case of HL v The United Kingdom, European Court of Human Rights, Application no, 45508/99, 5 January 2005.

Right to humane treatment in detention

• UN Human Rights Committee, General Comment No. 21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (1993).
• Cabal and Pasini Bertran v Australia (1020/2001), UN Human Rights Committee, 19 September 2003.

Freedom of movement

• UN Human Rights Committee, General Comment 27: Freedom of movement (1999).
• Case study: Nystom v Australia (1557/07), UN Human Rights Committee, 1 September 2011.

Right to a fair hearing

• UN Human Rights Committee, General Comment 32: Right to equality before courts and tribunals and to a fair trial (2007).
• Case study: AT v Secretary of State for the Home Department [2012] EWCA Civ 42; Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 and A v United Kingdom, European Court of Human Rights, Application no. 3455/2005, 19 February 2009.

Criminal process rights

• UN Human Rights Committee, General Comment 32: Right to equality before courts and tribunals and to a fair trial (2007).
• Case study: R v Momcilovic [2010] VSCA 50 and Momcilovic v The Queen [2011] HCA 34.

Prohibition against retrospective criminal laws

• Case study: Cochet v France (1760/2008), UN Human Rights Committee, 21 October 2010.

Right to privacy

• UN Human Rights Committee, General Comment 16: The right to respect of privacy, family, home and correspondence and protection of honour and reputation (1988).
• UN Human Rights Committee, General Comment 28: Equality of rights between men and women (2000).
• Case study: Gillan and Quinton v the United Kingdom, European Court of Human Rights, Application no. 4158/2005, 12 January 2010; and Statement of compatibility, Summary Offences and Control of Weapons Acts Amendment Bill 2009, Mr Cameron, Minister for Police and Emergency Services.

Protection of the family

• UN Human Rights Committee, General Comment 19: Protection of the Family, the Right to Marriage and Equality of the Spouses (2008).
• Case study: Winata v Australia (930/2000), UN Human Rights Committee, 26 July 2001.

Freedom of religion

• UN Human Rights Committee, General Comment 22: The right to freedom of thought, conscience and religion (1993).
• Case study: Singh v France (1876/2000) UN Human Rights Committee, 22 July 2011 and Singh Bhinder v Canada (208/1986), UN Human Rights Committee, 9 November 1989.

Freedom of expression

• UN Human Rights Committee, General Comment 34: Freedom of opinion and expression (2011).
• Convention on the Rights of Persons with Disabilities, article 21.
• Toktakunov v Kyrgysztan (1470/2006), UN Human Rights Committee, 21 April 2011.
• Case study: Coleman v Australia (1157/2003), UN Human Rights Committee, 17 July 2006.

Freedom of assembly

• Case study: R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55.

Freedom of association

• Case study: Case of United Party of Turkey v Turkey, European Court of Human Rights, Application no. 133/1996/752/951, 30 January 1998.

Right to take part in public affairs

• UN Human Rights Committee, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (1996).
• Case study: Hirst v UK (No. 2), European Court of Human Rights, Application no. 74025/01, 6 October 2005; and Yevdokimov and Rezano v Russia (1410/2005), UN Human Rights Committee, 9 May 2011.

Right to equality and non-discrimination

• UN Human Rights Committee, General Comment No. 18: Non-discrimination (1989)
• Case study: Young v Australia (941/2000), UN Human Rights Committee, 18 September 2003.

Rights of children

• Committee on the Rights of the Child, General Comment No. 5: General measures of implementation of the Convention on the Rights of the Child, (2003).
• Committee on the Rights of the Children, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, (2013).
• Case study: Brough v Australia (1184/2003), UN Human Rights Committee, 27 April 2006.

Right to self-determination

• UN Human Rights Committee, General Comment No. 12: Article 1 (Right to Self-determination), (1984).
• Kristina Roepstorff, 'Self-Determination of Indigenous Peoples within the Human Rights Context: A Right to Autonomy?' http://www.lawanddevelopment.org/docs/selfdetermination.pdf (accessed 1 October 2013).
• Case study: James Anaya, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: the Situation of Indigenous Peoples in Australia, A/HRC/15, 4 March 2010.

Right to work

• UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work (2006).
• Case  study:  UN  Committee  on  Economic,  Social  and  Cultural  Rights,
• Concluding Observations: Australia, E/C 12/AUS/CO/4, 12 June 2009.

Right to social security

• UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The right to social security (2008).
• Case study: Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 and letter from UN Special Rapporteur on extreme poverty and human rights and the Chair-Rapporteur of the Working Group on the issue of discrimination against women in law and practice, dated 19 October 2012, available at: https://spdb.ohchr.org/hrdb/22nd/public_-_UA_Australie_19.10.12_(2.2012).pdf (accessed 1 November 2013).

Right to an adequate standard of living

• UN Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (1999).
• UN Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water (2002).
• UN Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (1991).
• Case study: Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, 2007, A/HR/4/18/Add.2

Right to health

• UN Committee on Economic, Cultural and Social Rights, General Comment No. 14: The right to the highest attainable standard of health (2000).
• Anand Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Mission to Australia, 23 November to 4 December 2009, A/HRC/14/20/Add.4.

Right to education

• UN Committee on Economic, Social and Cultural Rights, General Comment No. 11: Plans of action for primary education (1999).
• UN Committee on Economic, Social and Cultural Rights, General Comment No.13: The right to education (1999).
• Case study: UN Committee on the Rights of the Child, Concluding Observations: Australia, CRC/C/AUS/CO/4 (2012), paras 74-75.

Right to culture

• UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994).
• UN Committee on Economic, Social and Cultural Rights, General Comment No. 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (2005).
• UN Committee on Economic, Social and Cultural Rights, General Comment No. 21: right of everyone to take part in cultural life (2009).
• Case study: UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia, A/55/40 (2000) and Human Rights
• Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009).