Information Sheet
Know your rights: human rights and the Human Rights and Equal Opportunity Commission Act 1986
What are human rights?
Everyone has human rights,
regardless of their sex, race, disability or religion.
Human rights allow people to live a
life that they choose, free from discrimination, harassment and
persecution.
Human rights are usually
divided into two groups:
- civil and political rights
- economic, social and cultural rights.
Civil and
political rights protect people from any unfair use of power by the government.
Examples include the right to a fair trial, the right to vote and the right to
express an opinion.
Economic and
social rights include such rights as adequate health care, education, a clean
environment and welfare assistance.
In the last 50 years, the
international community has agreed on a number of standards that cover human
rights. The Australian Government has agreed to uphold many of these standards
and to protect and promote these rights for everyone in Australia.
International human rights laws
provide the Australian community with clear guidelines to measure equality and
fairness. The human rights spelled out in international conventions and
declarations are given force in Australia through enacting domestic laws.
Laws passed by state and federal
parliaments give legal protection to many fundamental human rights. At a federal
level, the Sex Discrimination Act 1984, the Racial Discrimination Act
1975, the Disability Discrimination Act 1992 and the Age
Discrimination Act 2004 have been enacted to implement international human
rights laws which protect people from discrimination on the basis of sex, race,
disability and age in certain areas of public life.
Various Crimes Acts, welfare
legislation, health and education legislation and laws which govern fair court
procedures also protect people’s human rights and often reflect the
principles contained in international declarations and
conventions.
What human rights are covered by the Human Rights and Equal Opportunity Commission Act 1986?
The Human Rights and
Equal Opportunity Commission Act 1986 brings into Australian law the rights
contained in certain international human rights instruments. The Act provides
people with a mechanism to lodge a complaint about breaches of these human
rights.
The Act says that complaints
about alleged breaches of human rights should be resolved through conciliation.
If conciliation is not successful or not appropriate – and HREOC finds
that there has been a breach of human rights – the HREOC President can
report on the matter to the Federal-Attorney General. The report must be tabled
in parliament.
Under the Act human
rights are defined in a very specific way. If an action does not come within
this strict definition, it is not covered by the
Act.
For an action to constitute a
breach of a person’s human rights two requirements must be met
- the organisation against which you are complaining must be the Commonwealth, or one of its agencies
- the action you are complaining about must breach a right or infringe a freedom recognised in the international human rights instruments scheduled to, or declared under, the Act.
The following
international instruments are scheduled to or declared under the Act:
- International Covenant on Civil and Political Rights (ICCPR)
- Convention on the Rights of the Child (CROC)
- Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief
- Declaration on the Rights of Mentally Retarded Persons and Declaration on the Rights of Disabled Persons.
The following international
human rights instruments are not included:
- International Covenant on Economic, Cultural and Social Rights
- Convention relating to the Status of Refugees
- Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention on the Prevention and Punishment of the Crime of Genocide.
The ICCPR
recognises a number of very important civil and political human rights and
freedoms including:
- the right to life
- freedom from torture or cruel, inhuman, or degrading treatment or punishment
- the right not to be held in slavery or servitude
- the right not to be subjected to arbitrary arrest or exile
- the right to humane conditions and treatment while in detention
- the right to a fair and public hearing
- freedom of thought and religion
- freedom of opinion and expression
- freedom of association and assembly
- the right to vote.
CROC provides a
detailed set of civil, political, economic, social and cultural rights that
apply to all people under the age of
18.
The Act does not apply to unfair
treatment or human rights violations by Territory, State or Local governments or
by private individuals.
Even if
you believe you have been treated unfairly by the Commonwealth, you are only
able to make a complaint under the Act if the treatment could breach a human
right that is recognised by the Act.
The Act does not cover complaints
where the events complained about are the result of the direct operation of
legislation; for example, a decision to detain a person in direct compliance
with the Migration Act 1958.
For the purposes of the Act the
following would not constitute a breach of human rights:
- negligence by a medical practitioner or a hospital
- harsh conditions of detention in relation to, or unfair treatment or punishment of, a person who is a State or Territory prisoner
- unfair treatment by primary/secondary school teachers or education providers
- actions taken under State or Territory mental health legislation
- a decision not to grant, or to end, social security or other welfare payments.
The following may
constitute a breach of human rights under the Act
- unfair conditions in relation to, or treatment of, a person who is a federal prisoner or immigration detainee, for example, refusing to facilitate requests for legal assistance, incommunicado detention, unreasonable use of force or instruments of restraint by a custodial officer, refusing to provide medical assistance
- unfair treatment of a child in immigration detention that does not take into account the needs of a person of his or her age
- unreasonable restrictions by the Commonwealth on the ability of people who are lawfully within Australia to move freely within Australia.
Can I make a complaint?
If you are thinking about making a complaint about an alleged breach of human rights under the Act, you need to consider two things:
- Are your concerns about an action or policy of the Commonwealth?
- Does the action or policy breach a human right recognised in the Act?
If
your answer is no to one or both of these questions it is likely that HREOC will
not have the legal authority to inquire into your
complaint.
If your answer is yes to
both of these questions you can make a complaint to HREOC under the Act.
Where can I find out more?
HREOC's contact details:
Post:
Human Rights
and Equal Opportunity Commission
GPO
Box 5218
Sydney NSW 2001
Telephone:
Complaints Info
line: 1300 656 419 (local call)
TTY: 1800 620 241 (toll free)
Fax: (02) 9284 9611
Online:
E-mail: complaintsinfo@humanrights.gov.au
Web site: www.humanrights.gov.au
If you are deaf or hearing impaired, the Commission can arrange for an Auslan interpreter if this is needed. You can also communicate with us by TTY by calling 1800 620 241.
Complaints must be made in writing
If you cannot write in English, the Commission can organise for your complaint to be translated. The complaint should describe what happened, where it happened and who was involved.
Complaints must be sent to:
Director, Complaint Handling
Human Rights
and Equal Opportunity Commission
GPO
Box 5218
Sydney NSW 2001
Disclaimer: The
information on this fact sheet is intended only as a guide. It is not a
substitute for legal advice.
