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Government: International Law & Human Rights

Home >> Legal Information Centre >> Legal Topics >> Government >> International Law & Human Rights

Frequently Asked Questions

You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.

What are the fundamental human rights?
- The most basic human rights are found in the Universal Declaration of Human Rights (UDHR). They include:
  - all human beings are born free and equal;
  - no discrimination between persons;
  - the right to life, liberty and security of person;
  - prohibition on slavery and torture;
  - the right to recognition before the law;
  - prohibition on arbitrary arrest or detention;
  - the right to a fair and public hearing;
  - the principle of innocent until proven guilty;
  - no one to be subjected to arbitrary interference with their privacy;
  - freedom of movement within a state;
  - the right to leave and return to one’s own country;
  - the right to seek asylum;
  - the right to a nationality;
  - the right to marry;
  - the right to own property;
  - freedom of opinion and expression;
  - the right to participate in government;
  - the right to social security;
  - the right to work;
  - the right to rest and leisure;
  - the right to adequate standard of living; and
  - the right to education.
- This is by no means an exhaustive list of human rights. However it is the most internationally accepted collection of basic human rights.
>> Read more & related FAQ's
Where can I find international human rights law?
- International human rights law can be found in three places:
  - international treaties;
  - covenants; and
  - conventions.
- These are generally created by the United Nations (UN) or regional organisations such as the European and African Unions.
- They are easy to locate as they are available online and are updated frequently.
- Each treaty will indicate which countries are party to them.
- Customary international law is law that has been so widely accepted and practiced by countries that it is considered binding on all countries.
- All of the provisions of the Universal Declaration of Human Rights (UDHR) are considered customary international law.
- You may need a lawyer who specialises in international law to help determine what is considered customary international law.
- Resolutions of the General Assembly do not have any legal force but they are very influential and can be indicators of customary international law.
- To see whether a treaty is legally binding on Australia you must check whether it has been ratified or acceded to.
- If it has only been signed then Australia is not bound by it. The Commonwealth government has merely indicated their support for it.
- Once Australia has ratified or acceded to a treaty the government is obliged to ensure that our domestic law reflects the values and provisions of the treaty.
- All treaties are available online and include lists of the signatory countries and their ratification status.
>> Read more & related FAQ's
Human rights seem really vague and broad. How do I know what they actually mean?
- Human rights treaties often have Committees that monitor countries’ application of human rights and also help interpret them.
- The International Covenant on Economic, Social and Cultural Rights (ICESC) has a committee called the Committee on Economic, Social and Cultural Rights.
- The Convention on the Rights of the Child (CROC) has a committee called the Committee on the Rights of the Child.
- These Committees produce reports called ‘General Comments’ which provide more information about the meaning of different human rights.
- An example of this is General Comment No. 14 of the Committee on Economic, Social and Cultural Rights.
- This General Comment examined what the phrase ‘The right to the highest attainable standard of health’ meant.
- This phrase is found in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESC).
- The result is a 21-page analysis of what the right to health means and how countries must implement it as well as possible violations of it.
- These General Comments are not binding on countries but should be used as a guide in interpreting human rights law.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
>> Read more & related FAQ's
Why doesn’t Australia have a Bill or Charter of Human Rights?
- The founding fathers of the Australian Constitution made the conscious decision not to include human rights in the Constitution.
- There were a number of reasons for this decision. It was considered that the protection of rights should be left to the legislature and the processes of responsible government. This is based on the principle that if the government does not comply with human rights the public will simply vote them out.
- Some argue that a Bill of Rights was not considered necessary. Others say that a Bill of Rights was rejected due to continuing discriminating against particular racial groups in the 1890s when the Constitution was drafted.
- There have been many discussions about whether to create a Bill or Charter of human rights today including a failed referendum in 1988. Both the ACT and Victoria have Charters of Human Rights but there is still nothing at the Federal level.
>> Read more & related FAQ's
Why doesn’t Australia have a court of human rights?
- It would be very difficult for Australia to have a dedicated human rights court since human rights are not explicit in Australian law.
- It is considered that human rights are sufficiently protected by our domestic laws and that those laws must be determined by our normal courts and tribunals.
>> Read more & related FAQ's
How are countries held accountable for breaches of international human rights law?
- The United Nations (UN) has a number of procedures to encourage country compliance with their treaties:
  - UN Human Rights Council’s special procedures including:
    
    special rapporteurs (investigators);
    
    independent experts; and
    
    working groups;
  - reporting procedures where countries report directly to UN Committees;
  - country versus country complaints;
  - individual complaints against countries; and
  - criminal proceedings in the International Criminal Court.
- Not all of these mechanisms apply to all treaties. Each treaty will specify which methods can be utilised.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
>> Read more & related FAQ's
What is the United Nations Office of the High Commissioner for Human Rights (OHCHR) and what does it do?
- The OHCHR is a UN agency with the mandate (authorisation or command) to advance and defend the basic rights of all humans.
- The OHCHR can assist governments by providing expertise and technical training in the areas of:
  - administration of justice;
  - legislative reform; and
  - electoral processes.
- The aim of the OHCHR is to help countries implement and abide by international human rights standards.
- It also conducts peace missions to areas where political or cultural disturbances place human rights at risk.
- The OHCHR is the secretariat (permanent administrative office) of the Human Rights Council (HRC).
- It identifies areas where there are obvious gaps in implementing human rights and maintains a field presence or regional office in those countries.
- The OHCHR coordinates a close collaboration with NGOs, governments, civil societies and other agencies of the UN in order to promote human rights protection.
>> Read more & related FAQ's
What human rights do I have in Australia?
- Australian law incorporates many of the rights protected by the seven major human rights treaties. This may be through legislation the Constitution or the common law.
- It is difficult to describe where to find each right as they are scattered throughout the law and can sometimes be implicit rather than explicit. This means they understood to be there without being directly stated.
- One example of the application of international human rights law in Australian law is the Convention on the Rights of the Child (CROC).
  - The Convention holds that every decision concerning a child must be made “in the best interests of the child”.
  - This standard has been incorporated into the Family Law Act 1975 (Cth). It has also been considered by the High Court in an immigration related hearing although this caused some controversy.
- Another example is the right to freedom from unreasonable arrest and detention which is found in:
  - various criminal procedure acts;
  - police powers and responsibilities acts;
  - the common law; and
  - the Australian Constitution.
>> Read more & related FAQ's
Why do the ACT and Victoria have Charters of Human Rights? What does this mean?
- The Charter of Rights in the ACT and Victoria do not create new legal rights. They do not give residents of the ACT or Victoria more human rights than other states or territories.
- Instead this legislation aims to encourage law-makers to consider human rights at the planning and policy level. Their intention is to prevent human rights breaches from ever happening.
- For example the Victoria Charter requires all public authorities to consider human rights and act in accordance with those principles when:
  - developing policies;
  - making laws;
  - delivering services; and
  - making decisions.
- Any new law must be checked against a ‘statement of compatibility’ before it is presented to parliament.
- The courts are not empowered to overturn laws that they find are inconsistent with human rights. However they are able to declare the inconsistency. When the courts make a declaration of inconsistency the responsible Minister for that legislation is required to review the legislation.
- Neither Charter contains the full set of human rights but they are an attempt to highlight some of the most fundamental.
>> Read more & related FAQ's
Do I have the right to privacy?
- The right to privacy is a fundamental human right found in Article 12 of the Universal Declaration of Human Rights (UDHR). For more information see our Privacy topic.
- At Commonwealth and state or territory levels there are numerous pieces of legislation that address an individual’s right to have their privacy protected.
- Privacy may also be protected under common law although there is doubt about whether you can bring an action for invasion of privacy. Privacy rights are more commonly litigated on the grounds of trespass or defamation.
- Privacy is often balanced against competing rights and duties. It is not an absolute right.
- A lawyer can advise you about whether your right to privacy has been breached and if there are any remedies available to you.
>> Read more & related FAQ's
Do I have the right to free speech?
- Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) contains the right to freedom of opinion and expression.
- There is no Commonwealth law which specifically contains this right but people in Australia still enjoy the right to freedom of speech.
- There are limitations on this freedom contained in legislation such as the Racial Discrimination Act 1975 (Cth).
- The ICCPR provides that countries may also limit freedom of opinion and expression through domestic legislation when that is necessary to protect
  - the rights or reputations of others;
  - national security;
  - public order; or
  - public health or morals.
>> Read more & related FAQ's
Do I have the right to a lawyer?
- Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR) provides that an accused should have legal assistance provided for them "in any case where the interests of justice so require."
- The High Court of Australia held that although Australia is a party to the ICCPR there are no domestic laws specifying that an accused person has the right to legal assistance.
- This is an example of an area where Australia has fallen short of writing our full human rights obligations into domestic law.
- There is still the common law principle of the right to a fair trial. In some cases this requires providing state-funded legal aid to an accused.
- The current position is that many people who are unable to pay for legal representation may be entitled to legal aid subject to a means test and certain other conditions. Our topic on Legal Aid provides more information.
- Some states and territories also provide community legal centres or advice lines where people can access free or subsidised legal advice.
- Lawyers may also uphold this human right principle by occasionally providing pro bono (voluntary) legal representation to clients who have a good claim but who cannot afford their services.
>> Read more & related FAQ's
What can the Australian government do under anti-terrorism laws? Aren’t they contrary to human rights principles?
- Many new laws about anti-terrorism were introduced in the aftermath of September 11.
- These laws created new:
  - criminal offences;
  - detention and questioning powers for police and security agencies;
  - powers for the Attorney-General to ban terrorist organisations; and
  - ways to control people’s movement and activities without criminal convictions.
- These measures clearly affect rights such as:
  - the right to a fair trial;
  - the right to freedom from arbitrary detention and arrest;
  - the right not to be subjected to torture;
  - the right to privacy;
  - the right to freedom of association and expression; and
  - the right to non-discrimination.
- Concern has been voiced by the Australian Human Rights Commission (AHRC), the Australian Law Reform Commission (ALRC) and the UN Special Rapporteur (investigator) about potential breaches of international human rights law posed by these new terrorism laws.
- However without a Charter of Human Rights it is difficult to force parliament or the courts to consider the human rights implications of terrorism laws.
- The AHRC has suggested that either the government enact a federal Charter of Human Rights or create an independent body to review the impact of terrorism laws on human rights.
- If your rights have been affected by anti-terrorism laws you may need a lawyer who specialises in human rights to represent you.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
What is the International Criminal Court and what does it have to do with human rights?
- Sometimes a breach of human rights is so serious it amounts to a criminal offence.
- These criminal offences are considered to be international crimes if they are:
  - systematic and widespread;
  - take place during a war; or
  - include the intention to destroy a group of people in whole or in part (genocide).
- The International Criminal Court is the judicial body charged with prosecuting those who commit international crimes.
- Australia is a party to the Court which means that anyone in Australia (including military and political leaders) can be charged under the ICC’s jurisdiction.
- The ICC is a court of last resort. It will only prosecute an individual if the relevant country is unable or unwilling to do so.
- As Australia has a robust and independent judiciary it is highly unlikely that the ICC would ever agree to prosecute an Australian citizen.
>> Read more & related FAQ's

View more Information on International Law & Human Rights

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LegalPlans

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Government: International Law & Human Rights

Frequently Asked Questions

View more Information on International Law & Human Rights

Connect with a Lawyer