Source: article 6 of the ICCPR (right to life) and article 9(1) of the ICCPR (security of the person)

1.32 The right to life has three core elements to it:

• it prohibits the state from arbitrarily killing a person;
• it imposes an obligation on the state to protect people from being killed by others;
• it requires the state to undertake an effective and proper investigation into all deaths where the state is involved.

Prohibition of arbitrary killing by the state

1.33 Australia is not only prohibited from imposing the death penalty, it is also required to prevent arbitrary killing by the security forces and police.

1.34 The use of force by state authorities resulting in a person's death can only be justified if the use of force was necessary, reasonable and proportionate in the circumstances. For example, the use of force may be proportionate if it is in self- defence, for the defence of others or if necessary to effect arrest or prevent escape (but only if necessary and reasonable in the circumstances).

1.35 In order to effectively meet this obligation, Australia must have in place adequate legislative and administrative measures to ensure police and the armed forces are adequately trained to prevent arbitrary killings.

Obligation to protect the right to life

1.36 The right to life also requires the state to take steps to safeguard lives by:

• having effective criminal legislation in place and properly enforcing it; for example criminal prosecutions for murder, manslaughter and criminal negligence resulting in death;
• requiring the police to take reasonable steps to protect persons from others where credible threats have been made against them;
• taking appropriate steps to prevent accidental death, by having a framework in place to provide effective deterrence against preventable accidents;
• taking reasonable steps to protect people in state custody, including protecting people from violence and suicide and providing appropriate health care in detention;
• prohibiting the deportation or extradition of a person to another country where there is a real risk that their life would be endangered, for example by imposition of the death penalty;
• taking measures to reduce infant mortality and to increase life expectancy.

Effective investigation

1.37 The right to life requires that there be an effective official investigation into all deaths which result from state use of force and where the state has failed to protect life. Such an investigation must:

• be brought by the state in good faith and on its own initiative;
• be carried out promptly;
• be independent and impartial;
• involve the family of the deceased, and allow the family access to all information relevant to the investigation.

Right to security of the person

1.38 The right to security of the person is broader than the right to life. It requires the state to take steps to protect people against interference with personal integrity by others. This includes protecting people who are subject to death threats, assassination attempts, harassment and intimidation (including providing protection for people from domestic violence).

Source: article 7 of the ICCPR; CAT

1.39 The prohibition against torture, cruel, inhuman or degrading treatment or punishment is absolute, meaning it can never be justified under any circumstances. The prohibition contains a number of elements:

• it prohibits the state from subjecting a person to torture or cruel, inhuman or degrading practices, particularly in places of detention;
• it precludes the use of evidence obtained through torture;
• it prevents the deportation or extradition of a person to a place where there is a substantial risk they will be tortured or treated inhumanely; and
• it requires an effective investigation into any allegations of such treatment and steps to prevent such treatment occurring.

1.40 Also linked to the prohibition against torture, cruel, inhuman or degrading treatment is the right to humane treatment in detention.

What amounts to torture or cruel, inhuman or degrading treatment?

1.41 What amounts to torture or cruel, inhuman or degrading treatment will depend on all the circumstances of the case, including the vulnerabilities of the victim. The aim of the prohibition is to protect the dignity of the person and relates not only to acts causing physical pain but also those that cause mental suffering. It does not extend to pain or suffering which arises only from, or is inherent or incidental to, lawful sanctions (for example, suffering arising only from time spent in a general prison environment following conviction).

1.42 Prolonged solitary confinement, indefinite detention without charge, corporal punishment, and medical or scientific experiment without the free consent of the patient, have all been found to breach the prohibition against torture or cruel, inhuman or degrading treatment.

Prohibition

1.43 The most obvious element of the prohibition against torture or cruel, inhuman or degrading treatment is that the state itself is prohibited from subjecting a person to such treatment. This applies in all contexts where the state exercises some form of control over a person, including in prisons, hospitals, schools, aged care facilities, disability care services and the military.

Torture evidence

1.44 Australian courts and tribunals must not admit evidence that has been obtained through the use of torture, regardless of where the torture took place.

Deportation to torture

1.45 The absolute prohibition against torture or cruel, inhuman or degrading treatment also prohibits Australia from exposing people to the danger of such treatment or punishment by another country. Where there are substantial grounds to believe there is a real risk that a person would be subjected to such treatment in another country, Australia is under an obligation not to extradite or deport the person to that country.

Effective investigation and prevention

1.46 As with the right to life, the prohibition against torture or cruel, inhuman or degrading treatment requires an official and effective investigation to be undertaken when there are credible allegations against public officials.

1.47 Australia is also required to have in place legislative and administrative measures to prevent torture and ill-treatment by both state officials and third parties, and to punish it when it occurs. All public officials involved in the custody or treatment of anyone under state control must receive appropriate training to prevent ill-treatment.

Source: article 8 of the ICCPR

1.48 The prohibition against slavery, servitude and forced labour is a fundamental and absolute human right. Although the slave trade was abolished many years ago, modern-day slavery and trafficking persists.

1.49 The prohibition on slavery and servitude is a prohibition on 'owning' another person or exploiting or dominating another and subjecting them to 'slavery-like' conditions.

1.50 The right to be free from forced or compulsory labour prohibits requiring a person to undertake work which he or she has not voluntarily consented to, but does so because of threats made, either physical or psychological. This does not include lawful work required of prisoners or those in the military; work required during an emergency threatening the community; or other work or service that is a part of normal civic obligation (for example, jury service).

1.51 The obligation on the state is not to subject anyone to such treatment itself, and also to ensure there are adequate laws and measures in place to prevent private individuals or companies from subjecting people to such treatment (such as laws and measures in place to prevent trafficking).

Source: article 9 of the ICCPR

1.52 The right to liberty of the person is one of the oldest human rights, dating back to the Magna Carta of 1215. It is not a right never to be deprived of liberty, as this is a legitimate form of state control (i.e. to punish offenders). Rather, it is a procedural guarantee not to be arbitrarily and unlawfully deprived of liberty.

Prohibition against arbitrary detention

1.53 The prohibition against arbitrary detention requires that the state should not deprive a person of their liberty except in accordance with law. It is not enough that an arrest or detention is carried out in accordance with Australian law: the law, and the enforcement of it, must not be arbitrary under human rights law.

1.54 The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability. Therefore, any detention must not only be lawful, it must also be reasonable, necessary and proportionate in all the circumstances. Detention that may initially be necessary and reasonable may become arbitrary over time if the circumstances no longer require the detention; regular review must be available to scrutinise whether the continued detention is lawful and non-arbitrary.

1.55 The right applies to all forms of deprivations of liberty, including detention in criminal cases, immigration detention, forced detention in hospital (such as involuntary admission for psychiatric treatment), detention for military discipline and detention to control the spread of contagious diseases.

1.56 The right applies to deprivations of liberty, such as incarceration at a particular location, rather than restrictions on whether a person can move freely around, which is dealt with under the right to freedom of movement (see pages 21- 22 for discussion of freedom of movement).

Right to reasons for arrest and to be informed of criminal charge

1.57 A person who is arrested is entitled to be informed, at the time of the arrest, of the reasons for the arrest. This requires enough factual information to indicate the substance of why the person was arrested. This applies whenever the state initiates the process to deprive a person of their liberty, both in a criminal and non-criminal context (for example, immigration detention or detention in a psychiatric facility).

1.58 Anyone charged with an offence should also be promptly informed of the charges against him or her (this right applies only in the criminal context).

Rights of people detained on a criminal charge

1.59 Anyone who is arrested or detained and charged with a criminal offence has the right to be promptly brought before a judicial officer who can decide whether they should continue to be detained.

1.60 A person awaiting trial is entitled to be tried within a reasonable time or otherwise released. This is linked to criminal process rights, discussed at pages 25-27.

1.61 Detention pending trial should be the exception. Bail should normally be granted, except where there is a likelihood that the accused might abscond or tamper with evidence or interfere with witnesses.

Right to challenge detention

1.62 Anyone who is arrested or detained, for any reason, has the right to challenge the lawfulness of their detention in court without delay. This right reflects the common law right to habeas corpus. It applies to everyone in any form of detention. A court that considers the case must have the power to order the release of the person if it finds the person was arbitrarily or unlawfully detained.

1.63 The right requires that review of the detention should be made available without delay, which means having an opportunity to access the courts at the latest within a few days of being detained. This also includes a right to have access to legal representation, and to be informed of that right, in order to effectively challenge the lawfulness of the detention.

Right to compensation

1.64 Anyone unlawfully deprived of their liberty has a right to compensation. This applies if the detention is unlawful under international human rights law, even if it may be 'lawful' under Australian law.

Source: article 10 of the ICCPR

1.65 The right to humane treatment in detention provides that all people deprived of their liberty must be treated with humanity and dignity.

1.66 This applies to everyone in any form of state detention, including prisons, immigration detention and forced hospital detention (including psychiatric wards). It also applies to private detention centres where it is administered under the law and authority of the state (for example, privately run prisons).

1.67 This right is linked to the prohibition against torture, cruel, inhuman or degrading treatment (see pages 14-15). It provides extra protection for persons in detention who are particularly vulnerable as they have been deprived of their liberty.

1.68 The obligation on the state includes:

• a prohibition on subjecting a person in detention to inhumane treatment (including lengthy solitary confinement or unreasonable restrictions on contact with family and friends);
• monitoring and supervision of places of detention to ensure detainees are treated appropriately;
• instruction and training for officers with authority over people deprived of their liberty;
• complaint and review mechanisms for people deprived of their liberty;
• adequate medical facilities and health care for people deprived of their liberty, particularly people with disability and pregnant women.

Prisons

1.69 In addition to the general right to humane treatment in detention and the right to liberty, the following rights apply to persons in prison:

• people accused of an offence must be separated from people convicted of an offence, except in exceptional circumstances (this is linked to the concept of the presumption of innocence);
• people accused of an offence must be subjected to separate treatment as is appropriate to their status as unconvicted people;
• juvenile detainees must be separated from adults, their cases considered as quickly as possible and be treated appropriate to their age and legal status (see the rights of children at pages 47-48 for further detail);
• prisons should focus on the rehabilitation of convicted prisoners, including through providing education and training opportunities.

Source article 12 of the ICCPR

1.70 The right to freedom of movement provides that:

• people lawfully within Australia have the right to move freely within Australia and choose what location to live in;
• all people have the right to leave Australia; and
• no one can be arbitrarily denied the right to enter his or her own country.

Free movement within Australia

1.71 The right to freedom of movement is linked to the right to liberty – a person's movement across borders should not be unreasonably limited by the state. It also encompasses freedom from procedural impediments, such as unreasonable restrictions on accessing public places.

1.72 The obligation requires not only that the state must not prevent people from moving freely, but also that the state must protect people from others who might prevent them from moving freely, for example, by having laws against domestic violence.

1.73 The right also includes the freedom to choose where to live; although this can be limited to protect the rights of others, for example, to protect the right to private property or the rights of Indigenous people.

1.74 As the right applies to those lawfully within Australia, Australia may place restrictions on non-citizens entering Australia and may, in certain circumstances, impose limited restrictions on individuals already in Australia.

1.75 Limitations can be placed on the right as long as they are lawful and proportionate. Particular examples of the reasons for such limitations include the need to protect public order, public health, national security or the rights of others.

Freedom to leave any country

1.76 The right also includes a right to leave Australia, either temporarily or permanently. This applies to both Australian citizens and non-citizens.

1.77 As international travel requires the use of passports, this right includes a right to obtain necessary travel documents without unreasonable delay or cost.

1.78 As with the right to freedom of movement within Australia, there can be limitations on the right to leave a country, including where it is necessary and proportionate to achieve the objectives of protecting the rights and freedoms of others, national security, public health or morals, and public order.

Right to enter own country

1.79 The right to enter one's own country includes a right to remain in the country, return to it and enter it.

1.80 There are few, if any, circumstances in which depriving a person of the right to enter their own country could be reasonable. Australia cannot, by stripping a person of nationality or by expelling them to a third country, arbitrarily prevent a person from returning to his or her own country.

1.81 The reference to a person's 'own country' is not necessarily restricted to the country of one's citizenship – it might also apply when a person has very strong ties to the country.

Source: article 14(1) of the ICCPR (fair hearing) and article 13 of the ICCPR (expulsion of aliens)

1.82 The right to a fair hearing is a fundamental part of the rule of law and the proper administration of justice. The essential right to a fair hearing provides that all persons are:

• equal before courts and tribunals;
• entitled to a fair and public hearing before an independent and impartial court or tribunal established by law.

1.83 The right to a fair hearing applies in both criminal and civil proceedings, including whenever rights and obligations are to be determined, such as:

• private law rights, for example property, contract, negligence and other civil law proceedings;
• proceedings relating to the applicability of social security benefits;
• some employment decisions (such as dismissals); and
• family law decisions (including child custody).

1.84 However, it may not apply to areas such as disciplinary proceedings or the extradition or deportation of non-citizens. However, if a court or tribunal has nonetheless been given the power under Australian law to determine the matter, the fair hearing guarantees will apply.

Equality before the courts and access to justice

1.85 All parties before a court or tribunal are to have the same basic procedural rights, including both sides having a reasonable opportunity to present their case. For example, both sides are to have the same rights to present and contest evidence, examine witnesses or appeal a decision, and a defendant who is held in custody pending trial is not to be disadvantaged by reason of their detention.

1.86 All people are to have equal access to the courts, regardless of citizenship or any other status. This requires that no one is to be barred from accessing courts or tribunals (although there are limited exceptions if these are based on objective and reasonable grounds, for example vexatious litigants). To be real and effective this may require access to legal aid and the regulation of fees or costs that could indiscriminately prevent access to justice.

Right to a public hearing

1.87 The right to a fair hearing includes the right to a public and oral hearing – a principle central to the open and transparent administration of justice. However, in exceptional circumstances proceedings may be conducted in private if:

• it is necessary and proportionate to do so for reasons of public order, morals or national security;
• the interests of the private lives of the parties require privacy;
• it is in the best interest of a child; or
• there are special circumstances where the publicity would be prejudicial to the interests of justice.

1.88 This right includes a right to a concluded hearing and delivery of judgement within a reasonable time.

Independent and impartial courts and tribunals

1.89 The right to a fair hearing includes a right to an independent, impartial and competent court or tribunal. This relates to the separation of powers between the judiciary and the executive and the requirement that judges do not have, and are not seen to have, any conflicts of interest.

Expulsion of aliens

1.90 For immigrants lawfully within Australia, article 13 of the ICCPR provides that procedural rights must be available before they can be expelled from Australia. This includes a right to submit reasons against their expulsion and the right to a review of their case (although this can be restricted on national security grounds).

Source: article 14(2)-(7) ICCPR

1.91 In addition to the general fair hearing rights set out above, there are additional specific rights that apply when a person has been charged with a criminal offence or otherwise subject to a penalty which may be considered criminal. Much of these are drawn from generally recognised principles of the common law. See also the right to humane treatment in detention (page 19), the prohibition on retrospective criminal laws (page 28) and the rights of accused children (page 48).

1.92 Note that depending on the nature and severity of the penalty, a penalty or sanction may be considered to be 'criminal' for the purposes of human rights law, even if it is classified as 'civil' under Australian law. See Appendix 2 for more information.

Right to be presumed innocent

1.93 Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. This means that the prosecution has the burden of proving the charge beyond a reasonable doubt. Offences that reverse the burden of proof (for example, by requiring a defendant to prove certain matters in order not to be convicted) will engage this right.

1.94 The right to be presumed innocent also requires all public authorities (including the police) not to prejudice the outcome of a case, and the media is required to avoid undermining the presumption of innocence when reporting on trials.

Right not to incriminate oneself

1.95 The right to a fair hearing for those charged with a criminal offence also includes the right not to be compelled to testify against oneself or to confess guilt, otherwise known as the prohibition against self-incrimination. If a person is ill- treated in order to obtain a confession, this may also breach the prohibition on torture, cruel, inhuman or degrading treatment (see pages 14-15).

1.96 The prohibition against self-incrimination, together with the right to be presumed innocent, also provides for a right to silence during investigations or in pre-trial questioning as well as at trial. These rights also include the right not to have adverse inferences drawn from choosing to remain silent.

Right not to be tried or punished twice (double jeopardy)

1.97 A person who has been finally convicted or acquitted of an offence has a right not to be tried or punished again for that offence. This applies only to criminal offences and not to disciplinary measures that do not amount to criminal sanctions.

1.98 The right does not necessarily prohibit the resumption of a criminal trial in exceptional circumstances, such as where evidence is discovered that was not available or known when the person was acquitted.

Minimum guarantees in criminal proceedings

1.99 All people charged with a criminal offence have, in addition to the general rights to a fair trial, the right to the following minimum guarantees:

• to be informed promptly of any charge against them, including the right to be told as soon as they are formally charged and in a language which they understand;
• to have adequate time to prepare a defence, which varies depending on the nature and complexity of the case;
• to have adequate facilities to prepare a defence, such as access to documents and evidence;
• to be tried (and final judgment given) without undue delay, with what amounts to 'undue' delay depending on the nature and complexity of the case and the conduct of the parties (a lack of resources to bring about the trial is no excuse);
• to be tried in person, except where the person, after being adequately notified of the trial, chooses not to appear;
• to choose their own lawyer, including the right to meet with their lawyer promptly and confidentially (or to choose not to have a lawyer, unless the interests of justice require one);
• to have access to effective legal aid for those who cannot afford to pay for a lawyer of their own choice and where the interests of justice require it (which may depend on the seriousness of the offence);
• to present relevant witnesses and examine witnesses against them in the same manner as the prosecution; and
• to have access to a free interpreter for those who need it, for all stages of the process (including police interviews and court hearings).

Right to appeal and right to compensation

1.100Everyone convicted of a criminal offence has the right to have both their conviction and any sentence reviewed by a higher court. This includes a right to review of both the facts and the law (not just judicial review of questions of law). In general, the fair hearing guarantees applicable at trial also apply on appeal. However, the guarantee does not necessarily require a full retrial or an oral hearing at the appeal, but it must provide for an evaluation of the evidence presented at trial.

1.101Where there has been a miscarriage of justice and the person has been punished for an offence and subsequently acquitted, the person is entitled to compensation.

Limitations

1.102Many of the criminal process rights may be limited if the limitation criteria are met. For example, the right to legal aid may not necessarily apply when a person has been charged with a minor traffic offence, and the right of a defendant to represent themselves in person may not allow a defendant to personally cross- examine a vulnerable witness. See pages 7-8 on limitations on rights.

Source: article 15 of the ICCPR

1.103The prohibition against retrospective criminal laws provides that:

• no-one can be found guilty of a crime that was not a crime under the law at the time it was committed;
• anyone found guilty of a criminal offence cannot be given a heavier penalty than one that applied at the time the offence was committed; and
• if, after an offence is committed, a lighter penalty is introduced into the law, the lighter penalty should apply to the offender. This includes a right, where an offence is decriminalised, to the retrospective decriminalisation (if the person is yet to be penalised).

1.104Laws which set out offences need to be sufficiently clear to ensure people know what conduct is prohibited.

1.105The prohibition against retrospective criminal laws does not apply to conduct which, at the time it was committed, was recognised under international law as being criminal even if it was not a crime under Australian law. This relates to crimes such as genocide, war crimes and crimes against humanity.

1.106This prohibition supports long-recognised criminal law principles that there can be no crime or punishment without law. This is an absolute right and it can never be justifiably limited.

1.107This right applies only to retrospective criminal laws and does not apply in civil cases. However, depending on the nature and severity of the penalty, a penalty or sanction may be considered to be 'criminal' for the purposes of human rights law, even if it is classified as 'civil' under Australian law.

Source: Article 17 of the ICCPR

1.108The right to privacy is the right not to have one's private, family and home life or correspondence unlawfully or arbitrarily interfered with. It also includes the right to protection by law of one’s reputation.

1.109Privacy is linked to notions of personal autonomy and human dignity: it includes the idea that individuals should have an area of autonomous development; a ‘private sphere’ free from government intervention and excessive unsolicited intervention by others.

1.110The right to privacy requires that the state:

• does not itself arbitrarily invade a person's privacy; and
• adopt legislative and other measures to protect people from arbitrary interference with their privacy from others (including by corporations).

1.111Whether an interference with privacy is permissible will depend on whether a person has a reasonable expectation of privacy in the circumstances.

Respect for private life

1.112The right to privacy requires respect for informational privacy, including:

• the right to respect for private and confidential information, particularly the storing, use and sharing of such information; and
• the right to control the dissemination of information about one's private life.

1.113In order for the right to be effective, every person has the right to find out what personal data is stored in relation to them, for what purpose and who has access to their information. Effective measures should also be adopted to ensure unauthorised persons are not able to access personal information.

1.114The right to privacy not only protects informational privacy, it also includes protection of our physical selves against invasive action, including:

• the right to respect for individual sexuality (prohibiting regulation of private consensual adult sexual activity);
• the right to personal autonomy and physical and psychological integrity, including respect for reproductive autonomy and autonomy over one's own body (including in relation to medical testing); and
• the prohibition on unlawful and arbitrary state surveillance.

1.115The right to privacy prohibits unlawful and arbitrary body searches, and any lawful searches must be carried out in a manner consistent with the dignity of the person being searched.

Respect for the home

1.116The right not to have one's home arbitrarily interfered with prohibits arbitrary interference with a person's home and workplace, including by unlawful surveillance, unlawful entry or arbitrary evictions. Searches of a person's home or workplace should be restricted and should not be allowed to amount to harassment.

Respect for family life

1.117Respect for family life applies to a range of family types and protects against interference with personal family relationships. See the right to protection of the family at pages 32-33 for further information.

Respect for correspondence

1.118Respect for correspondence prohibits the arbitrary interception or censoring of a person's mail (including email and web access) and the bugging or recording of personal conversations. This also includes respect for professional duties of confidentiality, such as the confidentiality of legal and medical communications with clients or patients.

Right to reputation

1.119The right to reputation requires legislative protection, including the right to a remedy, against unlawful attacks against a person's reputation, including attacks by private individuals as well as by the state.

Limitations on the right to privacy

1.120The right to privacy needs to be balanced against other rights, particularly the right to freedom of expression. It can be limited as long as it can be demonstrated that the limitation meets the limitation criteria.

1.121The concept of arbitrariness requires that any interference with privacy, even when provided for by law, should be reasonable in the particular circumstances. An interference with privacy that provides for review and supervision by an independent and impartial body is more likely to be considered to be a reasonable limitation. See pages 7-8 for more information on limitations on rights.

Source: articles 17 and 23 of the ICCPR and article 10 of the ICESCR

1.122The family is recognised under human rights law as the natural and fundamental group unit of society and is therefore entitled to protection.

1.123The right to protection of the family requires the state:

• not to arbitrarily or unlawfully interfere in family life; and
• to adopt measures to protect the family, including by funding or supporting bodies that protect the family.

1.124The right also encompasses:

• a right to marry (with full and free consent) and found a family;
• a right to equality in marriage (such as laws protecting both spouses equally) and protection of any children on divorce; and
• protection for new mothers, including maternity leave.

What is a 'family'?

1.125Human rights law gives a broad definition of what constitutes a 'family'. It refers not only to spouses, parents and children, but also to unmarried and same-sex couples and extended family members.

1.126Cultural traditions should be taken into account when defining the 'family'. In Australia many cultures, including Indigenous cultures, see 'family' as extending to grandparents, aunts, uncles, cousins and those with kinship ties. As such, the right to protection of the family extends beyond the nuclear family.

Family unification

1.127An important element of protection of the family is to ensure family members are not involuntarily separated from one another. Laws and measures which prevent family members from being together, impose long periods of separation or forcibly remove children from their parents, will engage this right.

1.128There can be limits on this right provided the limitation seeks to achieve a legitimate objective, has a rational connection to that objective, and is proportionate to that objective. For example, a child may be legitimately removed from his or her parents if to do so is in the best interests of the child, and family members might be separated from one another due to migration laws if there is a legitimate state interest in deporting someone or restricting entry and this is proportionate in all the circumstances, and does not discriminate against particular categories of non- citizens. See pages 7-8 for more information on limitations on rights.

Source: article 18 of the ICCPR

1.129The right to freedom of thought, conscience and religion includes:

• the freedom to choose and change religion or belief;
• the freedom to exercise religion or belief publicly or privately, alone or with others (including through wearing religious dress);
• the freedom to exercise religion or belief in worship, teaching, practice and observance; and
• the right to have no religion (e.g. to be atheist) or to have non-religious beliefs protected (e.g. philosophical beliefs such as pacifism or veganism).

1.130It also includes the right not to be coerced in any way that might impair a person's ability to have or adopt a religion or belief of his or her own choice. For example, requiring a person not to wear religious dress, in the absence of a legitimate and proportionate objective, could be seen as coercion against the exercise of one's religion.

1.131The right to freedom of religion not only requires that the state should not, through legislative or other measures, impair a person's freedom of religion, but that the state should also take steps to prevent others from coercing persons into having, or changing religion.

1.132The right also requires the state to respect the convictions of parents and guardians of children in the provision of education. This allows public schools to teach particular religions or beliefs, but only if it is taught in a neutral and objective way or there is a non-discriminatory alternative for those children whose parents or guardians do not wish them to be educated in that religion or belief.

Limitations on exercising religion

1.133While the right to hold a religious or other belief or opinion is an absolute right, the right to exercise one's belief can be limited given its potential impact on others.

1.134The right can be limited as long as it can be demonstrated that the limitation meets the limitation criteria and is necessary to protect public safety, order, health or morals or the rights of others.

Source: articles 19 and 20 of the ICCPR and article 21 of the CRPD

1.135The right to freedom of expression is a crucial right in a democracy as it is essential for political debate and open and transparent government, and forms the basis for the effective exercise of many other rights.

1.136The right includes the right to freedom of opinion, and applies not only to the imparting and seeking of ideas and information, but also to receiving information.

1.137The right to freedom of expression requires the state:

• not to arbitrarily interfere with freedom of expression, particularly restrictions on political debate;
• to protect the freedom to impart and receive information and ideas, including through a free, uncensored press, encouragement of an independent and diverse media and protection for journalists;
• to protect the freedom to seek and receive information held by the state on matters of legitimate public concern, including by ensuring easy, prompt, effective and practical access to such information; and
• to put in place effective measures to protect against attacks on free speech.

1.138Restrictions on the media, including the internet and social media, which limit the information and ideas that can be imparted and received will limit the right to freedom of expression. The ability of journalists to protect their sources is also an important element of the right to freedom of expression.

1.139For the right to be meaningful for people with disability, information must be provided in accessible and appropriate formats and technologies to enable them to exercise their right to freedom of expression.

What is expression?

1.140The types of expression protected under this right include:

• political expression and commentary on public affairs;
• cultural and artistic expression; and
• commercial expression.

1.141The right to political expression is given particular protection given its importance to the democratic process. Cultural and artistic expression is also robustly protected given its importance to the development of ideas and individual fulfilment.

1.142Expression includes not only verbal expression such as books, newspapers, posters and audio-visual and electronic expression (including the internet), but also non-verbal communication such as dress and unfurling a banner.

1.143The right to freedom of expression, to be meaningful, protects both popular and unpopular expression and ideas, including expression that may shock and offend some people.

Limitations on free speech

1.144The right to freedom of expression is expressly recognised to carry with it special duties and responsibilities. Unfettered free speech can infringe on other rights, such as the right to privacy and reputation or pose a threat to safety. As such, limitations on freedom of expression may be justified in certain circumstances.

1.145Limitations may be justifiable if they meet the limitation criteria and are necessary to respect the rights of others, to protect national security, public order, public health or morals. See pages 7-8 for more information on limitations on rights.

Source: article 21 of the ICCPR

1.146All people have the right to peaceful assembly. This is the right of people to gather as a group for a specific purpose. It is strongly linked to the right to freedom of expression, as it is a means for people together to express their views.

1.147The right applies regardless of where people are assembling – it may be inside or outside, on public or private property, it may be a protest march or demonstration that moves from place to place or it may be stationary, such as sit-ins, meetings or motionless protests.

1.148The right only applies to peaceful protest, it does not protect intentionally violent protests.

1.149The right prevents the state from imposing unreasonable and disproportionate restrictions on assemblies, including:

• unreasonable requirements for advance notification of a peaceful demonstration (although reasonable prior notification requirements are likely to be justified);
• preventing a peaceful demonstration from going ahead or preventing people from joining a peaceful demonstration;
• stopping or disrupting a peaceful demonstration;
• punishing people for their involvement in a peaceful demonstration or storing personal information on a person simply because of their involvement in a peaceful demonstration; and
• failing to protect participants in a peaceful demonstration from disruption by others.

Limitations

1.150Limitations on the right to freedom of assembly may be justifiable if they meet the limitation criteria and it is necessary to respect the rights of others, to protect national security, public safety, public order, public health or morals. See pages 7-8 for more information on limitations on rights.

Source: article 22 of the ICCPR

1.151All people have the right to freedom of association with others; that is to join with others in a group to pursue common interests. This includes the right to join political parties, trade unions, professional and sporting clubs and non-governmental organisations.

1.152This right supports many other rights such as freedom of expression, religion, assembly and political rights, as without freedom of association, the effectiveness and value of many of these rights would be significantly diminished. The existence of associations, including those that peacefully promote ideas and values that may not accord with the views of the majority, is the cornerstone of democracy.

1.153The right to freely choose who to associate with also includes the right not to associate with others if their membership would not be compatible with the aims and interests of the association (although only if it is reasonable and proportionate to do so). However, this may not apply if membership of a particular association is required for employment in a particular profession.

1.154The right prevents the state from imposing unreasonable and disproportionate restrictions on the right to form associations, including:

• preventing people from forming or joining an association;
• imposing procedures for the formal recognition of associations that effectively prevent or discourage people from forming an association; and
• punishing people for their membership of a group.

1.155The right does not expressly protect the activities that the association undertakes, only the ability of individuals to join together, without interference, for a common purpose.

Limitations

1.156Limitations on the right to freedom of association may be justifiable if they meet the limitation criteria and it is necessary to respect the rights of others, to protect national security, public safety, public order, public health or morals. See pages 7-8 for more information on limitations on rights.

Source: article 25 of the ICCPR

1.157The right to take part in public affairs has three elements to it:

• the right of every citizen to take part in the conduct of public affairs, either directly or through elected representatives;
• the right of every citizen to vote and to stand for election; and
• the right of every citizen to have equal access to positions in the public service.

1.158Unlike all other human rights which apply to all people in Australia's jurisdiction, the right to take part in public affairs applies only to Australian citizens (although other rights, such as the right to freedom of expression and association apply to all people in Australia and enable participation in public debate).

1.159In order for this right to be meaningful, other rights such as freedom of expression, association and assembly, must also be respected, given the importance of free speech and protest in a free and open democracy.

Taking part in public affairs

1.160The right to take part in public affairs is an essential part of a democratic government that is accountable to the people. It applies to all levels of government, including local government.

1.161People can exercise this right directly (by standing for election or voting on specific issues via a referendum) or indirectly (by electing bodies to represent them).

Voting and standing for election

1.162The right to vote and to be elected requires:

• the freedom to vote at genuine periodic elections, free from undue influence or interference;
• universal and equal suffrage and each vote to be of equal value;
• measures to ensure all people entitled to vote can exercise the right, including removing obstacles for voter registration and positive steps to overcome difficulties people may face in voting, such as illiteracy, disability, language barriers, poverty and distance;
• the holding of secret ballots and independent assistance for those with disability in casting their vote;
• laws in place to protect the integrity of the voting system and an independent electoral authority to oversee the electoral process; and
• administrative and legal requirements imposed on a person standing for office to be reasonable and non-discriminatory (including reasonable registration fees and requirements).

Access to the public service

1.163The right to have access to positions in the public service is based on general terms of equality and principles of merit. This right requires:

• that the criteria and processes for appointment, promotion, suspension and dismissal of people to the public service must be objective and reasonable;
• all people holding public service positions must be free from political interference or pressures; and
• in some instances, affirmative action may be necessary to ensure equal access to public service for all citizens.

1.164The term 'public service' applies to all administrative positions within the executive, judiciary and legislature and other areas of public administration, such as school teachers and lecturers in public universities.

Limitations

1.165The right to take part in public may be limited if the limitation criteria are met. There may be reasonable limits on the right to vote, such as age restrictions. It is considered unreasonable to restrict the right to vote on grounds of physical disability, party membership or to impose literacy, educational or property requirements.

1.166It may be reasonable to restrict a person from standing for office if it is clear that their policies are aimed at destroying the rights and freedoms of others (for example, Far Right fascists). In addition, restrictions on campaign expenditure may be justified if it is necessary to preserve the integrity of the electoral processes. See pages 7-8 for more information on limitations on rights.

Source: articles 2, 3 and 26 of the ICCPR, articles 2 and 3 of the ICESCR, ICERD, CEDAW, CRPD, and, and article 2 of the CRC.

1.167The right to equality and non-discrimination is a fundamental human right that is essential to the protection and respect of all human rights.

1.168The human rights treaties provide that everyone is entitled to enjoy their rights without discrimination of any kind, and that all people are equal before the law and entitled without discrimination to the equal and non-discriminatory protection of the law.

1.169The right to equality and non-discrimination requires that the state:

• ensure all laws are non-discriminatory and are enforced in a non- discriminatory way;
• ensure all laws are applied in a non-discriminatory and non-arbitrary manner (equality before the law);
• have laws and measures in place to ensure that people are not subjected to discrimination by others (for example, in areas such as employment, education and the provision of goods and services); and
• take non-legal measures to tackle discrimination, including through education.

What is discrimination?

1.170The right to non-discrimination applies to any form of distinction, exclusion, restriction or preference that has the effect of nullifying or restricting the enjoyment of human rights or freedoms on a prohibited ground. This includes grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

1.171The ICCPR defines 'discrimination' as a distinction based on a personal attribute which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.

1.172

Direct discrimination

1.173There will be direct discrimination when someone is treated less favourably than another person in similar circumstances on the basis of a prohibited ground (for example, because of their race or sexual orientation). The test is one of substantive equality, so that differential treatment based on a protected status may be permissible if it is based on objective and reasonable grounds in pursuit of a legitimate objective.

Indirect discrimination

1.174There will be indirect discrimination when even though a practice, rule, requirement or condition is non-discriminatory on its face, it impacts disproportionately on certain groups, and the practice, rule, requirement or condition cannot be demonstrated to be reasonable.

Differential treatment and special measures

1.175The right to equality and non-discrimination does not mean identical treatment in every instance. The principle of substantive equality sometimes requires positive action on the basis of a protected status to reflect relevant differences between different groups. This differential treatment can be justified if it is based on objective and reasonable criteria and seeks to achieve a legitimate goal.

1.176Measures based on a protected status that are consistent with the principle of substantive equality are ‘special measures’ or 'temporary special measures’. These involve giving a temporary benefit or preference to members of a disadvantaged group for the sole purpose of advancing the rights of that group.

Source: CRC and articles 10(2)-(3), 14(4) and 24 of the ICCPR

1.177Children have special rights under human rights law taking into account their particular vulnerabilities. Under a number of treaties, particularly the CRC, children's rights are protected. All children under the age of 18 years are guaranteed these rights.

1.178The rights of children includes the right of children to develop to the fullest; protection from harmful influences, abuse and exploitation; family rights; and access to health care, education and services that meet their needs.

1.179States are required not to deny children basic human rights and are also required to give special protection to children in their laws and practices.

1.180In interpreting all rights that apply to children, the following core principles apply:

• rights are to be applied without discrimination;
• the best interests of the child are to be a primary consideration;
• there must be a focus on the child's right to life, survival and development, including the child's physical, mental, spiritual, moral, psychological and social development; and
• there must be respect for the child's right to express his or her views in all matters affecting them.

Best interests of the child

1.181Human rights law requires that in all actions concerning children the best interests of the child must be a primary consideration. This must be assessed from the child's perspective rather than that of their parents or the state.

1.182It not only requires that the rights of the child be taken as a primary consideration when different interests are being considered, it also provides that any laws that are open to interpretation are interpreted in a way which most effectively serves the child's best interest and any decision that will affect a specific child or children generally must evaluate any possible impact on the child.

1.183What is in the best interests of the child should be able to be adjusted according to the specific situation of the child or children affected and consider their personal context and needs.

1.184While the best interests of the child may not be the only relevant consideration, it is to be given high priority and is not to be considered as just one of several considerations; larger weight should be given to what serves the child best.

Children in the criminal process

1.185There are specific rights in both the ICCPR and the CRC for children in the criminal justice system. In particular, any child accused of a criminal offence has to be treated in a way that takes account of their age and immaturity and the importance of promoting their rehabilitation.

1.186In addition to the fair trial rights that apply to adults, children have rights to have their age taken into account so that the arrest, detention or imprisonment of a child is to be a last resort and for the shortest appropriate period of time. Any child who is imprisoned must be separated from adults and given treatment that is appropriate to their age and legal status.

1.187Measures should be promoted for dealing with accused children without resorting to judicial proceedings, such as care, guidance and supervision orders, counselling, probation, foster care and educational and vocational training programs.

Source: article 1 of the ICESCR and article 1 of the ICCPR

1.188All peoples have the right to self-determination. This is not an individual right but is a right that peoples have as a group.

1.189There are two aspects of the meaning of self-determination under international law:

• that the people of a country have the right not to be subjected to external domination and exploitation and have the right to determine their own political status (most commonly seen in relation to colonised states); and
• that groups within a country, such as those with a common racial or cultural identity, particularly Indigenous people, have the right to a level of internal self-determination.

1.190In the Australian context the right to internal self-determination is the most relevant, and has particular significance in relation to Aboriginal and Torres Strait Islander peoples.

1.191It provides that where there are identifiable groups of Indigenous people, they have the collective right to have control over their destiny and the right to freely choose their own political, economic and social system and pursue their cultural development.

1.192The right to self-determination requires the state to give access to and to ensure representation of such groups in the democratic process, particularly in relation to decision-making on issues affecting traditional land and economic activities. This includes the right of Indigenous Australians to preserve their group identity and culture, to lead lives of dignity and to be consulted on issues affecting them.

1.193The UN Declaration on the Rights of Indigenous Peoples provides further guidance on the different dimensions of the right to self-determination, including that Indigenous peoples should have the right to self-governance and to be actively involved in developing and determining health, housing and other economic and social programs that affect them.

Sources: articles 6, 7 and 8 of the ICESCR

1.194The right to work is a right of all people to have the opportunity to gain their living by work they freely choose, allowing them to live in dignity. It is a right to decent work, providing an income that allows the worker to support themselves and their family, which respects fundamental human rights and provides safe and healthy conditions of work.

1.195It is not to be understood as providing an unconditional right to obtain employment or for the state to provide everyone with employment; rather it is a right to choose an occupation and engage in work. It applies to all types of work, both in the public and private sectors, and to the formal and informal labour market.

1.196The right to work provides:

• that everyone must be able to freely accept or choose their work; including that a person must not be forced in any way to engage in employment (see also the prohibition against slavery and forced labour at page 16);
• a right not to be unfairly deprived of work, including minimum due process rights if employment is to be terminated;
• that there is a system of protection guaranteeing access to employment, including:
• that specialised employment services are made available to support people in finding employment;
• that there are technical and vocational education plans in place to facilitate access to employment;
• that the labour market is open to everyone without discrimination (including that work be physically accessible for people with disability); and
• that measures are taken to reduce the number of workers outside the formal economy; and
• that all workers have the right to just and favourable conditions of work, particularly safe working conditions, and the right to join trade unions.

1.197Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect the right to work; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right. See pages 5-6 for more information on Australia's obligations.

Conditions of work

1.198The right to work includes a right to just and favourable conditions of employment, including that:

• remuneration provides everyone with a fair wage and a decent living and equal remuneration for equal work of equal value (particularly between men and women);
• workers are provided with safe and healthy working conditions, with policies in place designed to minimise, as far as possible, workplace health hazards, and mechanisms to investigate workplace accidents;
• there is equal opportunity for all workers to be promoted on the basis of competence and seniority;
• there are adequate rest and leisure periods, working hours are reasonably limited and there are periodic holidays with pay.

Right to join trade unions

1.199The right to work also recognises the right of everyone to form and join trade unions, which is linked to the right to safe and healthy working conditions. It includes the right to strike, when the strike is exercised in conformity with law.

1.200Trade unions are entitled to function freely, subject only to limits prescribed by law and which are necessary, reasonable and proportionate.

1.201This is linked to the right to freedom of association (see pages 40-41), and the right to join trade unions likely includes a right not to be compelled to join a union.

Source: article 9 of the ICESCR

1.202The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty. This right plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living and the right to health.

1.203Access to social security is required when a person lacks access to other income and is left with insufficient means to access health care and support themselves and their dependents. Enjoyment of the right requires:

• that social support schemes are available to people in need, established under law, supervised by public authorities and sustainable;
• benefits payable (either in cash or in kind) must be adequate, both in amount and duration, to enable people to realise the right to an adequate standard of living and the right to health care; and
• accessibility (including universal coverage without discrimination; qualifying conditions that are reasonable, proportionate and transparent (and any withdrawal of benefits must be done in accordance with law, be reasonable and subject to due process); and affordable (if contributions are required)).

1.204Measures considered to provide social security include:

• contributory schemes, such as superannuation; and
• non-contributory schemes, such as pensions or unemployment benefits, which can apply to everyone in a particular group or be targeted at people with specific needs.

1.205Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect social security; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right. See pages 5-6 for more information on Australia's obligations.

When social security may be required

1.206There are specific situations that have been recognised as those in which a person has a right to access social security, including:

• health care and sickness (to ensure health care is accessible, affordable and adequate to all, and cash benefits are provided to people unable to work because of ill-health);
• old age (particularly for groups who have not had access to other contributory schemes such as superannuation);
• unemployment and workplace injury;
• family and child support (taking into account the circumstances of both children and adult dependents);
• paid maternity leave (to cover all women who have a baby for an adequate period of time);
• disability support; and
• benefits to dependent family members on the death of the breadwinner who had rights to benefits.

Source: article 11 of the ICESCR

1.207The right to an adequate standard of living requires that the state take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in Australia.

1.208Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect living standards; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right to an adequate standard of living. See pages 5-6 for more information on Australia's obligations.

Food

1.209The right to food includes a requirement that food be:

• affordable to those on the lowest incomes (for example, by ensuring that the minimum wage and social security benefits are sufficient to meet the cost of nutritious foods and other basic needs);
• made available to satisfy people's dietary needs;
• safe for human consumption and free from adverse substances; and
• culturally appropriate.

Water

1.210Although not expressly referred to in article 11 of the ICESCR, it is accepted that the right to water is part of the right to an adequate standard of living. The right to water requires that the state ensure there is sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. This includes:

• protection against arbitrary and unlawful disconnection of water;
• water to be made available on a non-discriminatory basis;
• access to a minimum amount of safe drinking water to sustain life and health;
• community participation in water and sanitation related decision making;
• sustainable access to water resources for agriculture to realise the right to adequate food; and
• protection of water resources from depletion, contamination and proposed developments;
• access for Indigenous people to water resources on traditional lands and protection from interference and pollution.

Housing

1.211The right to housing is a right to live somewhere in security, peace and dignity; it is not just a roof over one's head. It is a right to adequate housing. Factors that go to whether housing is adequate include that:

• people should have a degree of security of tenure that provides legal protection against forced eviction, harassment and other threats;
• people should have access to essential facilities, including safe water, sanitation, and energy for cooking, heating and lighting;
• housing related costs should be affordable; that is they should be commensurate with income levels so other basic needs are not compromised. This may require the state to establish housing subsidies and protection for tenants from unreasonable rent increases;
• housing should be habitable;
• housing should be accessible, with housing law and policy taking into account the special housing needs of disadvantaged groups;
• housing should be located in areas accessible to employment and health and other services, and should not be built on polluted sites; and
• the way housing is constructed should be culturally appropriate.

Source: article 12 of the ICESCR

1.212The right to health is fundamental to the exercise of other human rights. It is a right to enjoy the highest attainable standard of physical and mental health. The right to health is not a right to be healthy (given that is often not in the state's control); rather it is a right to have access to adequate health care as well as to live in conditions that promote a healthy life (such as access to safe drinking water, housing, food and a healthy environment).

1.213Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect the right to health; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right to health. See pages 5-6 for more information on Australia's obligations.

1.214Health care should meet certain key requirements, including:

• there must be a sufficient quantity of functioning public health care facilities;
• access to health care must be universal and provided without discrimination (including located where people can access it and affordable);
• health services and facilities must be culturally appropriate, respectful and maintain patient confidentiality;
• health care must be scientifically and medically appropriate and of good quality.

Right to reproductive and sexual health

1.215The right to health includes a right to control your own health and body, including your sexual and reproductive health. This includes a right to have equal access to sexual and reproductive health services, such as family planning, care during and after pregnancy, and access to information.

Right to a healthy environment

1.216The right to health includes, not only a right to health care, but also a right to safe and healthy working conditions and a healthy environment. This includes access to safe drinking water, adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information.

1.217It requires steps to be taken to minimise unsafe working practices, and protection of the population from environmental health hazards, including steps to discourage abuse of alcohol or the use or alcohol or harmful drugs or substances.

Source: articles 13 and 14 of the ICESCR and article 28 of the CRC

1.218The right to an education is a fundamental human right and plays a vital role in promoting human rights and democracy. Having the right to education is central to individuals being able to fully exercise a number of other rights.

1.219It is a right to an education directed at the development of a person's humanity and dignity, enabling people to effectively participate in a free society. The right to fundamental education is not limited to children; all people, including adults, have the right to life-long learning.

1.220The right to education requires that the state provide free primary school education and work progressively to providing free secondary and higher education (including vocational training). The right requires:

• that functioning educational facilities are made available, including adequate buildings, sufficient quantities of trained teachers (receiving competitive salaries), teaching materials, and access to information technology;
• that education is accessible to everyone without discrimination, including being located in safe physical reach or via distance learning, and is affordable to all (with measures taken to enhance educational access for people from disadvantaged groups); and
• that education is relevant, culturally appropriate, of good quality and flexible and tailored to the needs of individual students (including education that is suitable for students of all ages and for those with a disability).

1.221Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right (such as the access to primary education); not to unjustifiably take any backwards steps that might affect access to education; and to ensure the right is made available in a non- discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right, such as free access to secondary and higher education. See pages 5-6 for more information on Australia's obligations.

Primary education

1.222The right to education requires primary school education to be compulsory for all children and to be made available free of charge. Some indirect costs (such as school uniforms) may be justifiable, but the costs should not create a barrier to any child attending school.

Secondary education, vocational training and higher education

1.223Secondary education must be made available to all students and should not be dependent on a student's apparent capacity or ability. It should prepare students for vocational and higher educational opportunities.

1.224Technical and vocational education, aimed at helping students achieve personal development and full and productive employment, should be made available to all.

1.225Higher education should be made available to all on the basis of capacity, and should have a flexible curriculum and varied ways of delivery (such as distance learning).

1.226Concrete steps are required to be taken by the state towards achieving free secondary, vocational and higher education to ensure availability of education to all.

Educational freedom and academic freedom

1.227The right of parents and guardians to choose to have their child educated in conformity with their own religious and moral views is recognised. However, while the teaching of the general history of religion and ethics is permitted in public schools, it must be taught in an unbiased and objective way, and there must be provision made for non-discriminatory exemptions or alternatives for the children of parents or guardians who object to such teaching.

1.228Parents and guardians also have the right to have their children educated other than in public schools, as long as this conforms to minimum educational standards laid down by the state.

1.229The right to education can only be properly enjoyed, particularly in the area of higher education, if there is academic freedom for staff and students. Academics must be free to pursue, develop and transmit their ideas and knowledge without discrimination or fear of repression. This requires the autonomy of higher education institutions and a degree of self-governance in relation to their academic work, standards and management.

Source: article 15 of the ICESCR and article 27 of the ICCPR

1.230All people have the right to benefit from and take part in cultural life. This is linked to a number of other rights, including the right to education, through which values, religions, customs, language and other cultural references are passed on.

1.231'Culture' has been considered to be a broad and inclusive concept and includes ways of life, language, literature, music and song, religion, rites and ceremonies, sport and games, food, clothing, the arts and customs and traditions.

1.232A person's decision whether or not to take part in cultural life is a cultural choice and should be respected without discrimination. The right to take part in cultural life may be exercised individually or with others in a community or group. There must be the ability to participate, access and contribute to cultural life, including:

• that cultural goods and services must be available for everyone to enjoy and benefit from (such as libraries, museums, cinemas, sports stadiums, literature, parks and nature reserves);
• there must be opportunities for everyone to enjoy culture without discrimination (for example, access should be facilitated for people with disability, older people and people in remote areas); and
• policies adopted by the state that impact on cultural life must be respectful of cultural diversity, flexible and culturally appropriate.

1.233Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect the right to culture; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right. See pages 5-6 for more information on Australia's obligations.

Right to benefit from scientific progress

1.234The right to culture also includes the right of everyone to benefit from scientific progress, which is linked to the enjoyment of a number of other human rights, such as the right to health and an adequate standard of living. It includes a right to access the benefits of progress; for example, scientific advancements in medical research should be financially accessible for all.

Protection of scientific, literary or artistic production

1.235The right to culture includes protection of the moral and material interests of the author of scientific, literary or artistic productions. This is not necessarily the same as protecting intellectual property.

1.236It includes a right for authors of scientific, literary or artistic productions to be recognised as its creators, and to be able to object to any distortion or modification of their work that could prejudice their reputation. It also provides that authors of such work are entitled to receive some payment for their work. This requires the state to have adequate legislation and other measures in place to provide such protection.

1.237However, like most rights, this right may be limited if it is necessary, reasonable and proportionate to do so. For example, in order for others to benefit from scientific discoveries it may be necessary to limit the right in order to promote the general welfare of others. In some cases, such limitations may require payment of adequate compensation to use scientific, literary or artistic productions in the public interest.

Right of minority groups to enjoy culture

1.238Individuals belonging to minority groups have additional protections to enjoy their own culture, religion and language. This right is separate from the right to self- determination as it is conferred on individuals (whereas the right to self- determination belongs to groups). The right applies to people who belong to minority groups in a state sharing a common culture, religion and/or language.

1.239This right has been identified as particularly applying to Indigenous communities, and includes the right for Indigenous people to use land resources, including traditional activities such as hunting and fishing and to live on their traditional lands. The UN Declaration on the Rights of Indigenous People, while not a legally binding instrument (although reflecting some binding international obligations), usefully expands on the way Indigenous people are entitled to observe their distinct religious and cultural practices and use their own languages.

1.240The state is prohibited from denying individuals the right to enjoy their culture, and may be required to take positive steps to protect the identity of a minority and the rights of its members to enjoy and develop their culture.