Right to an effective remedy
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.
Human rights law imposes an obligation on countries to provide remedies and reparation for the victims of human rights violations.
Australia is a party to seven core international human rights treaties. The right to an effective remedy is contained in article 2(3) of the International Covenant on Civil and Political Rights (ICCPR).
See also article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) , article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
You will need to consider the right to an effective remedy whenever you are working on legislation, a policy or a program that deals with the rights of victims of human rights violations by Australian authorities under the ICCPR, as well as the rights of victims of racial discrimination, discrimination against women or torture perpetrated by Australian authorities.
You will also need to consider the right when you are working on legislation, a policy or a program dealing with sanctions for the perpetration of violations of human rights obligations. You should ask yourself whether the legislation, policy or program on which you are working allows for rights of appeal or review and whether those rights provide for an effective remedy.
Both the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination have stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to victims. Reparation can involve measures including compensation, restitution, rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws and practices.
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.
Although article 2(3) is not listed among the obligations from which derogation is prohibited, the UN Human Rights Committee has stated that it is an obligation inherent in the Covenant as a whole. The Committee's view is that while a country may avail itself of the power to derogate in relation to the nature of the remedy provided (judicial or otherwise), the country must nevertheless provide a remedy that is effective.
Under Commonwealth law, the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and the Age Discrimination Act 2004 prohibit discrimination on the grounds set out in the Acts. Complaints made under these laws may be investigated and conciliated by the Australian Human Rights Commission. If the complaint is not resolved before the Commission, the complainant may apply to a federal court for an enforceable remedy. Remedies that may be awarded include an apology, monetary compensation, reinstatement or promotion, provision of goods or services or a combination of these remedies.
Under Australian criminal law, perpetrators of human rights abuses amounting to criminal offences can be prosecuted and brought to justice. An example is the offence of torture under the Criminal Code Act 1995. Civil remedies, such as fines are also available under Australian law in relation to actions which breach human rights, for example, wrongful imprisonment.
In addition to these cases in which remedies may be enforced by the courts, there are a number of other avenues under which complaints of human rights violations may be made.
For example, the Commission also has power under the Australian Human Rights Commission Act 1986 to inquire into complaints of breaches of human rights and workplace discrimination. Where the Commission receives such a complaint it must attempt conciliation if appropriate. If conciliation is unsuccessful or inappropriate and the Commission finds a breach of human rights, or that workplace discrimination has occurred, then the Commission prepares a report to the Attorney-General's Department which may include recommendations for action.
Complaints about the administrative actions of Commonwealth agencies may be made to the Commonwealth Ombudsman under the Ombudsman Act 1976. Applications may also be made to have a decision re-made in a merits review tribunal, for example under the Administrative Appeals Tribunal Act 1975, and to have the legality of a decision reviewed in a court, for example under the Administrative Decisions (Judicial Review) Act 1977. Judicial decisions indicate that the common law recognises particular human rights in a range of situations, such as the right of an accused to a fair trial. Accordingly, remedies for violations of human rights may be available before Australian courts.
Complaints about the activities of security and intelligence agencies may be made to the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. Complaints about the Australian Federal Police may be made under the Complaints (Australian Federal Police) Amendment Act 1994. Complaints about immigration detention conditions may be made to the provider of immigration detention services, the Department of Immigration and Citizenship, the Commonwealth Ombudsman and the Australian Human Rights Commission. Complaints about military personnel may be made through internal military channels, the Commonwealth Ombudsman and the Australian Human Rights Commission.
The right to an effective remedy is an essential component of all the rights in the ICCPR and the prohibitions against discrimination in CERD and CEDAW.
International Covenant on Civil and Political Rights
Article 2 (3)
Each State Party to the present Covenant undertakes:
- To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, not withstanding that the violation has been committed by persons acting in an official capacity;
- To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
- To ensure that the competent authorities shall enforce such remedies when granted.
See also: CAT article 14; CEDAW article 2; CERD article 6.
- United Nations, Office of the High Commissioner for Human Rights, Human Rights Bodies (human rights treaty bodies that monitor implementation of the core international human rights treaties)
- UN Human Rights Committee General Comment No 31 (paragraphs 15 – 20)
- UN Committee on the Elimination of Racial Discrimination General Recommendation No 26
- UN Human Rights Committee General Comment No 29 (paragraph 15, on derogations)