Overview

International law covers many different fields including

• treaties or agreements about trade;
• the law of the sea;
• international criminal law;
• the rules of war; and
• human rights.

This topic focuses on the application of international human rights law in Australia.

Australia is a party to (has signed or ratified) the seven major United Nations (UN) human rights treaties. They are:

• The International Covenant on Civil and Political Rights (ICCPR);
• The International Covenant on Economic, Social and Cultural Rights (ICESC);
• The Convention on the Elimination of All Forms of Racial Discrimination (CERD);
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
• The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT);
• The Convention on the Rights of the Child (CROC); and
• The Convention on the Rights of Persons with Disabilities (CRPD).

When a country signs a treaty or convention the government of that country agrees to apply the standards set out in that treaty in all its dealings. The government is also obliged to incorporate the treaty into domestic (or local) law. A country which acts contrary to the standards of a treaty it has signed is considered to be in breach of international law and its obligations under that treaty.

As a signatory to all 7 of these human rights treaties the Australian government is expected to act consistently with their requirements. Our state and territory governments are bound to abide by international treaties signed by the Australian Commonwealth government as well.

Australian law is also guided by the principles of the Universal Declaration of Human Rights (UDHR) even though this is a Declaration and not binding as a treaty. It has the force of law in Australia as part of customary international law. Customary international law refers to legal principles that have reached such a high level of acceptance around the world that they are considered binding on all countries. The UDHR sets out the most fundamental human rights considered to apply to all humans.

Many of the human rights treaties or conventions have a United Nations standing (or permanent) committee or body that monitors the implementation and observance of that treaty. These committees identify breaches of international law. Most often the only remedy that these UN committees can impose on a country that has committed a breach is to publicly criticise it. Such criticism is sometimes effective for countries where the leaders and people wish to comply with international standards of human rights. In such countries a UN committee’s finding that they are in breach of a treaty or convention may lead to changes which bring the country’s actions back into compliance with the treaty concerned or it may simply be ignored. Australia has rejected UN criticism on a number of occasions particularly over refugee and indigenous issues.

The principal UN body responsible for human rights is the UN Human Rights Council (UNHRC). The UNHRC reviews each country’s human rights record every four years. It also monitors the implementation of the International Covenant on Civil and Political Rights by countries who have signed that convention.

Some treaties have specific monitoring bodies such as the Committee on the Rights of the Child and the Committee against Torture. As well as requiring countries to report to them periodically, a number of Committees also permit individuals to make complaints to them about a country’s alleged violation of human rights.

People often misunderstand the way in which international human rights law is applied in a country. Under the Australian legal system the treaties are not enforceable by themselves. The fact that Australia has signed an international treaty does not automatically make it an enforceable part of our law. You can only bring a court action against a government and argue that a particular provision of a treaty Australia has signed has been breached and must be remedied (put right) if that provision has been specifically written into Australian law. This is done by Federal Parliament (or a state or territory government) enacting legislation (written laws) stating that part or all of a treaty applies.

Unlike some other countries Australia has not directly copied international human rights law into its domestic law. It is the only democracy in the world that does not have a federal Bill of Human Rights or Charter of Human Rights. There is also no human rights court in Australia to judge whether the government has breached its international human rights obligations in any particular case.

Australia’s human rights laws are scattered throughout

• various pieces of legislation,
• the Australian Constitution and
• our common law (or judge-made law).

This makes our human rights laws tricky to locate and difficult to apply.

Judges are required under our common law to interpret and apply Australian legislation. Judges presume that in making legislation Parliament intended to comply with Australia’s treaty obligations unless the legislation expressly states that an inconsistent application was intended. As a result judges will generally try to interpret Australia’s laws in a way that is consistent with Australia’s obligations under international law. Each judge’s decision creates a precedent under our common law and future judges will base their decisions on that interpretation in similar situations. This is the second way in which provisions of international law and human rights can become part of Australian law.

Our Legal Guide on International Law and Human Rights shows how lawyers can provide assistance to individuals, businesses, Non-Governmental Organisations (NGOs), and governments in understanding their rights, obligations and compliance requirements under international human rights law.

Please select below from our Articles, FAQ and Questions & Answers sections all written by experienced lawyers. Our Glossary helps explain the meaning of any words you are unsure about. You can also Ask a Lawyer a question yourself. It is free and anonymous.

How a lawyer can help?

A lawyer can help you to find the law that applies to your situation.

Some international human rights can be considered vague and broad. Many have not been directly implemented into Australian law and others are scattered throughout many different areas of law. For example, the right to privacy is contained in numerous state and federal laws as well as the common law. If you consider that your fundamental human rights may have been violated or disregarded, a lawyer will help you identify the relevant law and determine whether you have a case that is legally enforceable.

It may be that the government has not adequately protected your fundamental rights by

• failing to make relevant laws;
• falling short of the level of protection required by their international obligations; or
• enacting laws that are contrary to their international obligations.

It may be that a tribunal or court has made a decision without giving proper consideration to your human rights. A lawyer will be able to advise you about what to do next.

There are a number of different forums which deal with breaches of international human rights law. The type of breach will determine which forum is right for you. Your case may require

• an administrative review of a government decision,
• litigation in a court,
• a complaint to the Australian Human Rights Commission, or
• a complaint to an international committee.

If your complaint is about the breach of your human rights where someone has unlawfully discriminated against you, this may be heard in a state or territory tribunal or the Federal Court.

Please see our Legal Guide on Anti-Discrimination for more information.