Complaints mechanisms under human rights treaties

Disclaimer
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.

What are the complaints mechanisms under human rights treaties?

Under five of the seven core United Nations human rights treaties to which Australia is a party, individuals may make complaints that their rights under the treaty have been violated by Australia. Complaints are made to the treaty body, or committee, established under the treaty. In the case of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the committee is not established under the treaty itself, but by a 1985 resolution of the UN Economic and Social Council.

These mechanisms are distinct from mechanisms such as courts and tribunals within Australia where individuals can seek to enforce rights arising under Australian laws which give effect to a treaty. These mechanisms are also distinct from the rights of individuals to make complaints to bodies such as the Australian Human Rights Commission and the Ombudsman. These subjects are dealt with in the Guidance Sheet on the Right to an effective remedy.

A country may be a party to the treaty itself, but decline to agree to be subject to the complaints mechanism. In order to be subject to the complaints mechanism, a country must accept the jurisdiction of the committee by either becoming party to the Optional Protocol that establishes the complaints mechanism or, in the case of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), by agreeing to the mechanism that is contained within the treaty itself.

The table below sets out the complaints mechanisms under the seven core human rights treaties, the authority for each, when they were adopted, whether Australia is a party to the complaints mechanism, and if so, from what date. Complaints may be made about alleged violations that occur after the date on which Australia became a party.

Other optional protocols

Note that there are other instruments called Optional Protocols to some of the human rights treaties, but they do not establish complaints mechanisms. They are the Second Optional Protocol to the International Covenant on Civil and Political Rights, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the two Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and on the involvement of children in armed conflict.

Complaints by states

Some of the human rights treaties, namely the International Covenant on Civil and Political Rights (ICCPR), CERD and CAT, also contain mechanisms enabling complaints to be made against countries by other countries that are parties to the treaty, rather than by individuals. These mechanisms have never been used by any country. This guidance sheet deals only with complaints by individuals, not complaints by countries.

Individual complaints

As an example of a provision that enables complaints to be made is the text of article 1 of the First Optional Protocol to International Covenant on Civil and Political Rights:

A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.

The 'Committee' referred to is the Human Rights Committee, established under the ICCPR.

There are a number of conditions that need to be met by a person who wishes to make a complaint under any of the human rights treaties. They are dealt with in the material from the Office of the United Nations High Commissioner for Human Rights which is referred to in the section below on 'Where can I read more about complaints mechanisms?'. These are among the more significant conditions:

• The complainant must establish that he or she has been a personal victim of the violation. It is not sufficient to establish that a law or policy amounts to a violation if the complainant has not been personally affected by it.
• The complainant must have exhausted all available domestic remedies before making a complaint. For example, a complainant who claims to be a victim of racial discrimination by the Commonwealth must have first exhausted all remedies that may be available under Commonwealth legislation, such as the Racial Discrimination Act 1975.

When a committee receives a complaint it determines whether it is admissible under the rules governing admissibility, which are referred to in the section below on 'Where can I read more about complaints mechanisms?'. If the committee determines that the complaint is admissible, it asks the country against whom it is made to respond to the allegations. The complainant may then be asked to respond to the submissions made by the country. Following the conclusion of this process, and assuming the committee finds the complaint admissible, it considers the merits of the complaint and adopts its views on whether a violation has occurred. The entire procedure is conducted in writing; neither the complainant nor the country appears before the committee in person.

When complaints under UN human rights treaties are made against Australia, the Commonwealth's response is coordinated by the Office of International Law in the Attorney-General's Department.

Inquiry procedures

In addition to the individual complaints mechanisms, there are procedures under CAT, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol to the Convention on the Rights of Persons with Disabilities to enable the Committees established under those instruments to conduct an inquiry if the Committee receives reliable information indicating grave or systematic violations by a country of rights contained in the relevant instruments. In addition, the Committee on the Elimination of All Forms of Racial Discrimination has established an urgent procedure, designed to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.

What is the status of the individual complaints procedure under Australian law?

Views adopted by committees are not legally binding on Australia. The Human Rights Committee has stated that:

The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.

Although views of human rights treaty bodies are not binding, they are influential factors to which Australian courts may have regard. In the High Court case of Mabo v Queensland (No. 2) (1992) 175 CLR 1, Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed) said:

The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

Case studies

Toonen v Australia

In 1991 Nicholas Toonen made a complaint to the UN Human Rights Committee claiming that his rights were violated on the basis that his private life and liberty were threatened by Tasmanian laws that criminalised consenting adult homosexual sex in private. He argued that the laws created the conditions for discrimination in employment, constant stigmatisation, vilification and threats of physical violence.

The Human Rights Committee found that the laws constituted an arbitrary interference with Mr Toonen's privacy under article 17 of the International Covenant on Civil and Political Rights. The Committee did not consider it necessary to determine whether there had been a breach of article 26 of the Covenant, which guarantees equality before the law, although it did observe that the reference to "sex" in article 26 is to be taken as including sexual orientation.

In 1994 the Commonwealth Parliament responded by enacting the Human Rights (Sexual Conduct) Act 1994, which operated to override the Tasmanian laws. Later, the Tasmanian Parliament repealed the laws.

Where can I read more about complaints mechanisms?

• United Nations, Office of the High Commissioner for Human Rights, Human Rights Bodies (human rights treaty bodies that monitor implementation of thecore international human rights treaties)
• Office of the United Nations High Commissioner for Human Rights information about individual complaints
• UN Human Rights Committee General Comment No 33 (on the obligations of countries under the Optional Protocol to the International Covenant on Civil and Political Rights)