Figure 6: What happens in my rights are breached?
Administrative review
pathways available.
Where there is an alleged
breach of rights, a person
has a cause of action.
Complaint to the AHRC
for conciliation. Focus is
on quick, cost-effective
resolution of complaint.
This model builds on existing
practice in federal discrimination
law, and ensures focus of
accountability is not on the
courts.
Matters that don’t resolve
or that are unsuited to
conciliation, can proceed
to Federal Circuit and
Family Court:
When applying the
interpretive clause,
courts may indicate that
the legislation is not
compatible with human
rights, which must be
brought to the attention
of Parliament by the
Attorney-General.
• by individuals or
representatives
• with cost protections
• courts able to award
a range of remedies
Some, limited, matters
may go direct to court
where there is urgency.
(a) Cause of action
(b) Complaints
The Commission’s proposed rights are all
amenable to enforcement by complaints bodies
and courts. Unlawful actions and decisions in
relation to all rights in the Human Rights Act
should give rise to a standalone cause of action.
This would provide clarity and consistency and
enable the enforcement of rights in accordance
with Australia’s international obligations.
The Human Rights Act should allow a person
to make a human rights complaint to the
Commission. The Commission’s existing
unlawful discrimination jurisdiction could be
suitably adapted to human rights complaints.
The Human Rights Act should also allow for
Human Rights Act rights to be raised in the
context of another legal proceeding – for
example, in a judicial review proceeding or
as part of a bail application.
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The Commission proposes implementing a
Human Rights Act complaint system that
mirrors the unlawful discrimination jurisdiction.
This would mean that there would be a
requirement for complainants to first bring a
complaint to the Commission, and if conciliation
fails or is inappropriate, the complaint would
be terminated by the Commission. The
complainant could then make an application to
a court for adjudication.
FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights