Practitioner checklist
1. Limiting a protected
freedom?
Does the action
complained of limit a freedom protected by the Covenant (eg expression
or peaceful assembly)?
2. Is the limitation authorised
by the Covenant?
The limitation
needs to satisfy all five criteria:
a. Provided by law? Is the limitation provided for by legislation or regulations? Is it set out with sufficient certainty?
b. A lawful objective? Does the limitation pursue one of the objectives set out in the Covenant such as protecting rights and freedoms of others or protecting public health and safety?
c. Necessary? Is the limitation necessary and proportional to the pursuit of its lawful objective? Could the objective be achieved by less restrictive or intrusive means?
d. Non-discriminatory? Does the limitation apply without invidious discrimination? Is any discriminatory effect rational and justifiable?
e. Exceptional? Does the limitation apply only in exceptional circumstances? Does it respect the essence of the freedom?
3. Challenging the action
If any
of questions 2a-e is answered in the negative, the limitation is not authorised.
a. If the action was taken or the limitation imposed by a Commonwealth agency or decision-maker, consider making a complaint to HREOC: click here for information. http://www.humanrights.gov.au/complaints_information/index.html.
