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‘This case has made legal history’: young Australians just won a human rights case against an enormous coal mine

human rights cases examples australia

Associate Professor, TC Beirne School of Law, The University of Queensland

Disclosure statement

Justine Bell-James receives funding from the Australian Research Council. She has previously been affiliated with the Environmental Defender's Office who were counsel for Youth Verdict and the Bimblebox Alliance.

University of Queensland provides funding as a member of The Conversation AU.

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In a historic ruling today, a Queensland court has said the massive Clive Palmer-owned Galilee Basin coal project should not go ahead because of its contribution to climate change, its environmental impacts, and because it would erode human rights.

The case was mounted in 2020 by a First Nations-led group of young people aged 13 to 30 called Youth Verdict. It was the first time human rights arguments were used in a climate change case in Australia.

The link between human rights and climate change is being increasingly recognised overseas. In September this year, for example, a United Nations committee decided that by failing to adequately address the climate crisis, Australia’s Coalition government violated the human rights of Torres Strait Islanders.

Youth Verdict’s success today builds on this momentum. It heralds a new era for climate change cases in Australia by youth activists, who have been frustrated with the absence of meaningful federal government policy.

Read more: Australia violated the rights of Torres Strait Islanders by failing to act on climate change, the UN says. Here's what that means

1.58 billion tonnes of emissions

The Waratah Coal mine operation proposes to extract up to 40 million tonnes of coal from the Galilee Basin each year, over the next 25 years. This would produce 1.58 billion tonnes of carbon emissions, and is four times more coal extraction than Adani’s operation.

While the project has already received approval at the federal government level, it also needs a state government mining lease and environmental authority to go ahead. Today, Queensland land court President Fleur Kingham has recommended to the state government that both entitlements be refused.

In making this recommendation, Kingham reflected on how the global landscape has changed since the Paris Agreement in 2015, and since the last major challenge to a mine in Queensland in 2016: Adani’s Carmichael mine.

She drew a clear link between the mining of this coal, its ultimate burning by a third party overseas, and the project’s material contribution to global emissions. She concluded that the project poses “unacceptable” climate change risks to people and property in Queensland.

The Queensland Human Rights Act requires a decision-maker to weigh up whether there is any justifiable reason for limiting a human right, which could incorporate a consideration of new jobs. Kingham decided the importance of preserving the human rights outweighed the potential A$2.5 billion of economic benefits of the proposed mine.

From a legal perspective, I believe there are four reasons in particular this case is so significant.

1. Rejecting an entrenched assumption

A major barrier to climate change litigation in Queensland has been the “ market substitution assumption ”, also known as the “perfect substitution argument”. This is the assertion that a particular mine’s contribution to climate change is net zero, because if that mine doesn’t supply coal, then another will.

Kingham rejected this argument. She noted that the economic benefits of the proposed project are uncertain with long-term global demand for thermal coal set to decline. She observed that there’s a real prospect the mine might not be viable for its projected life, rebutting the market substitution assumption.

This is an enormous victory for environmental litigants as this was a previously entrenched argument in Australia’s legal system and policy debate.

A yellow billboard on a truck

2. Evidence from First Nations people

It was also the first time the court took on-Country evidence from First Nations people in accordance with their traditional protocols. Kingham and legal counsel travelled to Gimuy (around Cairns) and Traditional Owners showed how climate change has directly harmed their Country.

As Youth Verdict co-director and First Nations lead Murrawah Johnson put it :

We are taking this case against Clive Palmer’s Waratah Coal mine because climate change threatens all of our futures. For First Nations peoples, climate change is taking away our connection to Country and robbing us of our cultures which are grounded in our relationship to our homelands. Climate change will prevent us from educating our young people in their responsibilities to protect Country and deny them their birth rights to their cultures, law, lands and waters.

This decision reflects the court’s deep engagement with First Nations’ arguments, in considering the impacts of climate change on First Nations people.

3. The human rights implications

In yet another Australian first, the court heard submissions on the human rights implications of the mine.

The Land Court of Queensland has a unique jurisdiction in these matters, because it makes a recommendation, rather than a final judgment. This recommendation must be taken into account by the final decision-makers – in this case, the Queensland resources minister, and the state Department of Environment and Science.

In an earlier proceeding , Kingham found the land court itself is subject to obligations under Queensland’s Human Rights Act. This means she must properly consider whether a decision to approve the mine would limit human rights and if so, whether limits to those human rights can be demonstrably justified.

Kingham found approving the mine would contribute to climate change impacts, which would limit:

  • the right to life
  • the cultural rights of First Nations peoples
  • the rights of children
  • the right to property and to privacy and home
  • the right to enjoy human rights equally.

Internationally, there are clear links made between climate change and human rights. For example, climate change is worsening heatwaves, risking a greater number of deaths , thereby affecting the right to life.

4. A victory for a nature refuge

Kingham also considered the environmental impacts of the proposed mine on the Bimblebox Nature Refuge – 8,000 hectares semi-arid woodland, home to a recorded 176 bird species, in the Galilee Basin.

She deemed these impacts unacceptable, as “the ecological values of Bimblebox [could be] seriously and possibly irreversibly damaged”.

She also observed that the costs of climate change to people in Queensland have not been fully accounted for, nor have the costs of mining on the Bimblebox Nature Refuge. Further, she found the mine would violate Bimblebox Alliance’s right to family and home.

Making history

This case has made legal history. It is the first time a Queensland court has recommended refusal of a coal mine on climate change grounds, and the first case linking human rights and climate change in Australia. As Kingham concluded:

Approving the application would risk disproportionate burdens for future generations, which does not give effect to the goal of intergenerational equity.

The future of the project remains unclear. But in a year marked by climate-related disasters, the land court’s decision offers a ray of hope that Queensland may start to leave coal in the ground.

Read more: Mass starvation, extinctions, disasters: the new IPCC report’s grim predictions, and why adaptation efforts are falling behind

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Amnesty International Australia Human Rights Barometer Report 2021

19 August 2021

Australia is the only liberal democracy without a national human rights protection. Our annual Human Rights Barometer report investigates 7 key areas of human rights concern and highlights how a single Human Rights Act will uphold the rights of everyone and provide a mechanism to hold decision-makers to account.

It’s a challenging time for human rights and countless people around the world are still courageously fighting for their rights to be recognised. For many, justice, freedom and equality are still under threat.

In Australia, the major ongoing human rights issues include structural racism and discrimination which our current laws do not, or do not go far enough, to prevent. These issues are complex; many are embedded in Australia’s history, and they often affect the marginalised individuals and communities including, Indigenous people, women, the disabled and the LGBTQIA+ community.

The launch of Amnesty International Australia’s inaugural annual report, the Human Rights Barometer , reveals how Australians are confused about which rights are protected under law. More than half of Australians believe we already have a national Human Rights Act, and when told we’re the only Western liberal democracy without one, 76% said they would support its introduction.

Currently, human rights protections are found in a range of legislation which are complex, decentralised and sometimes only implied. We should not have numerous individual laws, for example on religious freedoms or sexual discrimination to the exclusion of others, as all human rights are intrinsically linked.

We envision an Australia where everyone is treated with equality, justice, dignity and respect, no matter who you are or what you believe. Implementing a Human Rights Act enshrined in law would make a real and meaningful improvement to human rights protection and have the additional benefit of untangling the current spaghetti bowl of legislation.

Key findings from the 2021 Human Rights Barometer :

  • Racism exists in Australia. While nearly two thirds of respondents (64%) agreed that Australia is a successful multicultural society, 47% believed that Australia has a racism problem and that we should speak out more about it – almost twice as many as those who think we shouldn’t (27%).
  • Many Australian groups face racism. More than half the respondents believed that Indigenous people and refugees need the most protection (55% and 51%). This was closely followed by ethnic minorities and immigrants at 45% and 44%.
  • Issues around racism, multiculturalism and discrimination in Australia should be more openly discussed. 63% of respondents believed that some ethnic groups and cultures don’t want to fit into the “Australian” way of life.

With racial inequality firmly in the spotlight, now is the best time for Australia to act. Together, we can build an equal Australia where everyone feels safe and a sense of belonging regardless of race, ethnicity, culture or religion.

Freedom of speech and association

  • Australians support the right to protest. Overwhelming majority of respondents supported the right to vote (86%), freedom of speech (83%) and the right to protest (68%).
  • Many Australians don’t realise that the right to protest is not protected under federal law. 53% of respondents believed freedom of speech to be protected by Australian law. While the High Court has ruled the existence of an implied freedom of political communication, it is not explicitly protected under the Australian Constitution.

Without the right to raise our voices in protest, the world would be a very different place. We need to protect the right to protest so we can continue to create change and make the world fair, free, and just. A federal Human Rights Act in Australia can be used to challenge anti-protests laws in court and protect our human rights.

  • Australians want an end to offshore detention. 62% of Australians do not support the level of expenditure required to detain asylum seekers ($9 billion+ over the past 8 years) and 52% said they support resettling asylum seekers in Australia if they were found to be refugees.
  • There is also support for refugee sponsorship. 55% of Australians support letting communities that have the resources, sponsor refugees and only 18% were against the idea.

By the end of 2025, we aim to raise refugee and humanitarian intake numbers, increase community resettlement, secure the release of those incarcerated on- and off-shore and build safe pathways for refugees into Australia.

A Human Rights Act would ensure all individuals under Australia’s care, regardless of background or identity, have access to basic rights, equal freedoms and dignity.

COVID and human rights

  • Australians largely support lockdown laws despite their impact upon rights. 78% of respondents agreed the they worth it to slow the spread of the virus. 32% saw the various lockdowns and restrictions as limiting their rights, yet of this group, 65% saw these restrictions as ultimately justifiable in stopping the spread of COVID-19.
  • The rights of children during the pandemic are important to 85% of respondents. AIA reported on instances of human rights abuses of children locked in solitary confinement or being held in QLD watch houses throughout the COVID-19 pandemic. These actions harm already vulnerable children and directly breach international law.
  • The flawed vaccine rollout has highlighted an area of human rights. Around 20% of those in support of a national Human Rights Act expressed the protection of most vulnerable groups, such as Indigenous communities and refugees, as the reason underpinning their support.

We have expressed concern over police overreach in the application of public health orders amidst the pandemic. Reports have been raised of discrimination and targeting of vulnerable groups, namely Indigenous, homeless and migrant Australians.

A Human Rights Act would ensure that these inherent rights are balanced and considered with the protection of public health. It could also ensure greater scrutiny and transparency over policing powers to prevent overreach and abuse in the future.

Climate change

  • Climate change affects our children of today. 85% of Australians identified the rights of children as important to them personally, or as of importance for others. This reflects an onus on Australians to safeguard the fundamental rights of future generations.
  • Climate change affects our right to work. The right to work is important to 73% of Australians. Yet, around 40% of world employment is reliant on industries which are susceptible to environmental degradation and climate change.
  • Young people care for climate justice. Majority of young Australians believe climate change is the most important issue facing the global community.

The climate emergency is a human rights crisis. We are working towards a just and sustainable future where there is climate justice for the communities who are most disproportionately impacted by climate change, including the First Nations people and our Pacific neighbours.

Enshrining Australians’ human rights into law would require the government to act in the fight against climate change and to recognise and protect its most vulnerable citizens’ inherent rights.

First Nations rights

  • There is a limited awareness of the chasm in experience between Indigenous and non-Indigenous Australians . 36% surveyed believed Indigenous Australians had fewer opportunities, 23% thought they had more and 30% the same.
  • Although, there is recognition of Indigenous Australians as a vulnerable group. 55% agreed that Indigenous Australians were among the more vulnerable in society that needed greater protection of their rights.
  • Australians want justice, freedom and equality. More than 70% of Australians believe freedom from discrimination and equal treatment before the law is one of the most important human rights.

Our vision is to work with Indigenous communities to directly challenge the overrepresentation of Indigenous people in prison, by raising the age of criminal responsibility. We want to put an end to children falling into the quicksand of Australia’s prison system.

A Human Rights Act will ensure there is a comprehensive anti-discrimination legislative framework in place across Australia.

Gender-based abuse

  • 52% surveyed regard women’s rights a marked area of concern for the country’s general population.
  • 22% of supporters of an Australian Human Rights Act feel that a national legal framework would provide an important protection for vulnerable people , including the rights of those who are at risk of gender-based abuse and violence.

Our vision is for Australia to become a nation where women and girls live free of gender-based violence and discrimination – this is a human right. Together, we can pressure our leaders to commit to ensuring women and girls safety, which includes better legal protections and access to justice.

A federal human rights protection would be a valuable and democratically supported strategy for providing a more robust legal framework to protect the rights of those who are at risk of gender-based abuse and violence.

While there’s still work underway to ensure everyone enjoys their human rights, we know there is hope. Our collective voices are powerful enough to change society for the better. With your every action, every contribution, we move closer to a world where human rights are enjoyed by everyone, everywhere.

Amnesty International Australia is leading the way on protecting and defending human rights. Over the next five years, we’ll strive for systemic change on the human rights issues that are vital to our allies, partners and the people of Australia. Our vision is to sustain the ground so many fought hard to and take purposeful action to further advance human rights. View our Australian campaigns.

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The case studies on this page include conciliated outcomes of human rights complaints and piggy-back complaints.

Human rights complaints

A human rights complaint is a complaint that a public entity has acted or made a decision that is incompatible with a person’s human rights, or has failed to properly consider human rights when making a decision. The complaint needs to indicate that one or more of the human rights in the Human Rights Act 2019 has been limited, and that the limitation is unreasonable and unjustified.

If a human rights complaint is accepted, the Commission’s role is to help the parties to resolve the complaint, usually through conciliation.

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A complaint about an act or decision of a public entity that is dealt with under the Anti-Discrimination Act might also indicate that the act or decision is incompatible with human rights, or that the public entity has not properly considered human rights in making the decision. The human rights claim can be added to the discrimination complaint. This is called a piggy-back complaint.

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Australia's human rights credibility undermined by domestic record, new report finds

Image of prison buildings behind a high razor-wire security fence

Australia's treatment of Indigenous Australians, refugees and climate protesters is harming the government's credibility when promoting human rights abroad, according to Human Rights Watch.

Key points:

  • First Nations people continue to be over-represented in prisons and deaths in custody rose last year
  • The report highlighted the push to raise the age of criminal responsibility to 14 and new laws targeting climate protesters
  • Human rights abuses in China, Myanmar, Iran and Ukraine were also captured in the annual report

WARNING: This story contains names of Indigenous people who have died .

The US-based organisation's annual World Report — which looks back at global human rights issues in 2022 — identified instances where Australia had fallen short on protecting the rights of children, freedom of expression and taking action on climate change.

Human Rights Watch's report details numerous setbacks in Asia and across the world last year, inlcuding in China, Myanmar, Iran, Papua New Guinea and Ukraine.

In Australia, the report highlighted how Aboriginal and Torres Strait Islander people continued to be over-represented in prisons, making up 29 per cent of detainees, despite accounting for only 3 per cent of the national population.

It pointed to the increase in Indigenous deaths in custody, including Veronica Nelson's death in Victoria, where an inquest found she was crying out in pain to a prison officer the day she died .

The number of Indigenous deaths in custody jumped to at least 17 in 2022, compared to 11 in 2021. 

A child sucks their thumb in front of an Aboriginal flag with a picture of JC on it, at a rally at WA Parliament House

Human Rights Watch researcher Sophie McNeill told the ABC that Australia's deficiencies at home were harming the country's ability to promote human rights and democracy abroad.

"What this year's World Report really exposes is that Australia's failure to uphold the rights at home … It really does harm our credibility to promote human rights in the region and our ability to really be a human rights leader in Asia," Ms McNeill said.

She said conditions at Western Australia's Roebourne Regional Prison — which houses mostly Indigenous prisoners — were "inhumane" because temperatures can climb to more than 50 degrees Celsius in summer . 

The West Australian government has since agreed to install air conditioning at the prison at a cost of $10 million.

Victorian Greens Senator Lidia Thorpe told the ABC that the conditions in some prisons amounted to "torture in the 21st century" and said Australia needed to be held up to international scrutiny.

"We had a Royal Commission into Aboriginal deaths in custody 30 years ago … and all of those recommendations still have not been implemented today," Senator Thorpe said. 

"To have First Nations justice, we need real reform across the country and that means a treaty. We cannot tinker around the edges."

Australia falling behind on children's rights, freedom of expression

Curtin University Law School's Hannah McGlade told the ABC that both federal and state governments needed to take the report's concerns and criticisms seriously.

Dr McGlade said the incarceration of Aboriginal Australians had been a topic of discussion at the United Nations, and will likely come up again.

"The treatment of Aboriginal people in prisons, in custody, the issue of deaths in custody, is a serious issue in our country and it's a long-standing issue," Dr McGlade said.

Citing figures from the Australian Law Reform Commission, Dr McGlade said that Indigenous incarceration was costing taxpayers nearly $18 billion a year and called for the Commonwealth to step up to ensure Australia met its international obligations.

"The Commonwealth has a leadership role here. The Commonwealth government is responsible for violations of UN treaties and it needs to work closely with Aboriginal people," she said.

The federal government told the ABC it had committed $81.5 million towards national justice reinvestment across the country as part of its Closing the Gap initiatives.

Human Rights Watch's report also pinpointed the federal government's intention to continue the asylum seeker boat turn-back policy, which was brought into force over a decade a ago.

Man looks back at camera as he's led away by police.

The report also said Australia trailed behind much of the world in increasing the minimum age of criminal responsibility, from 10 to 14.

While the Northern Territory passed laws to raise the age of responsibility to 12 , the Australian Capital Territory and Tasmania have already committed to increase the age to 14.

The federal government said it was working closely with states and territories on increasing the minimum age of criminal responsibility, and that action in the Northern Territory was evidence of progress being made. 

Human Rights Watch said that, while the federal government took steps to end the "climate wars" and support renewable energy projects, it was still actively supporting the expansion of fossil fuel industries.

The organisation said new laws targeting climate protesters in New South Wales, Victoria and Tasmania had resulted in harsh penalties. 

Ms McNeill said the laws were an "overreach". 

"Human Rights Watch spends a lot of time in Asia, speaking to authoritarian governments who are jailing peaceful activists … and then, suddenly, I've got a situation in Australia where our government is sending peaceful activists to jail too," she said.

"It's deeply embarrassing for Australia."

Oppression and torture from China to Myanmar

The World Report described declines in human rights in parts of Asia and the Pacific, during a year plagued by war, political upheavals and COVID-19.

Human Rights Watch cited declining press freedom, increasing censorship and surveillance in Hong Kong — which had seen police raid journalists' offices, books and films banned and further arrests for "sedition" — under the National Security Law.

It said China continued to repress the Uyghur ethnic minority in Xinjiang, restricted freedom in Tibet and had imposed strict COVID-zero policies that forced millions into lockdown. 

Beijing has repeatedly said its actions in Hong Kong were "internal affairs" and defended what it called "vocational training centres" in Xinjiang as necessary to counter "extremism and terrorism".

Riot police with shields charge towards a crowd of protesters.

In Myanmar, security forces have carried out mass killings, arbitrarily arrested pro-democracy supporters, and committed torture, sexual violence and other abuses that Human Rights Watch said amounted to crimes against humanity.

Thousands have been forced to flee frequent and indiscriminate artillery and air strikes by the country's military junta, which has damaged villages and schools.

At least 13 people, including seven children, were killed when military helicopters fired rockets at a school in Let Yet Kone in the Sagaing region .

The junta has defended its attacks as justified and accused armed resistance groups of "terror acts". 

A group of protesters in Iran hold signs and appear to yell.

Authorities in Iran have restricted freedom of assembly and have brutally cracked down on protesters after the death of Mahsa Amini, 22, using lethal and excessive force, according to the organisation.

Russia's invasion of Ukraine caused what Human Rights Watch has described as a "litany of violations of international humanitarian law", which it said includes the indiscriminate shelling and bombing of civilians.

In Papua New Guinea, the national election held last year was overshadowed by election violence, delays and irregularities and was worsened by a lack of police resources to control the unrest.

Despite toughening laws to combat sorcery-related violence, Human Rights Watch said PNG was one of the most dangerous places to be a woman or girl, with about 1.5 million people experiencing gender-based violence each year.

Advancing PNG Women Leaders Network board chair Ruth Kissam told the ABC the election violence impacted people's ability to express their democratic right to vote.

Ms Kissam said the under-resourced police force wasn't able to bring the violence under control, meaning some people weren't able to cast a vote.

"Policemen are outnumbered, outmanned, outgunned. You have mobs of people [who] would swarm in on areas, whether [it was] to hijack the ballot boxes or to fight with other candidate's supporters," Ms Kissam said.

She said ongoing election-related violence had disproportionately impacted women and children in PNG, displacing many.

A woman wearing an orange dress with a grey jacket stands against a wall coloured in green and blue.

"It's the women and children that get to pay the price. When you close down schools, it's the children. When you burn down a hospital, it's the women, mostly the women, [who] get to pay the price for that," she said.

"When you burn down villages, it's the women that are displaced." 

Déjà vu for Asia, but some steps forward

Human Rights Watch Asia director Elaine Pearson said there had been a "concerning sense of déjà vu" in the region.

"We see another member of the Marcos family win an election in the Philippines. We see the military junta in Myanmar once again, and the Taliban once again crushing the rights of women in Afghanistan," she said. 

MCU of Elaine Pearson wearing a pink top and looking straight at the camera.

"It's really unacceptable that girls cannot go to school in Afghanistan anymore past grade six, and the women are now even banned from working for NGOs, which will make it even harder to provide urgent humanitarian assistance.

"It's been nearly two years since the coup, and we see the Myanmar military continue to commit crimes against humanity and war crimes, with impunity."

However, she said, there have also been some positive steps. 

"Across the region, we've seen courageous people take extraordinary risks to take to the streets, even in countries [such as] Afghanistan and China," she said.

She added in Sri Lanka, "people power ousted the Rajapaksas after years of misrule, impunity and corruption".

"And, in a step towards accountability, we did see China face scrutiny for the first time ever at the UN Human Rights Council." 

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50 Human Rights Cases that Changed Australia

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‘These are the cases that have shaped, and continue to shape, the moral heart of the nation. That moral heart is learning to embrace our First Nations, but First Nations and First People know only too well that courts applying human rights law can deliver justice where Parliament lacks the will or bravery.’ – Tony McAvoy SC ‘An essential resource for all interested in how we can advance human rights through the law in Australia – and demonstrates why Australians need and deserve better human rights protections in our laws and in our Constitution.’ – Jennifer Robinson, international human rights barrister and author

The first book of its kind, 50 Human Rights Cases that Changed Australia summarises Australia’s 50 most significant and influential human rights cases. The cases include landmark human rights cases from all Australian states and territories. They range from the seminal freedom of expression and First Nations land rights cases of the 1990s, to lesser-known earlier cases on civil liberties and criminal procedure and more recent advances in LGBTIQA+ rights, environmental rights, and the rights of people with disabilities.

Each case summary explains, in plain language, the facts, the issues and the outcome of the case. Each summary also contains key quotes from the judgment, commentary situating the case in its social and political context, and critical analysis of the case’s impact.

The first half of the book contains summaries of cases that have advanced the rights of particular groups in the Australian community: First Nations rights; women’s rights; LGBTIQA+ rights; disability rights; children’s rights; asylum seeker and refugee rights; prisoners’ rights.

The second half of the book contains summaries of cases dealing with particular human rights: the right against racial discrimination; the right to liberty; criminal justice rights; the right to freedom of expression; democratic rights; the right to a healthy environment; and the rule of law.

The cases demonstrate the potential of the law to achieve justice, as well as its limitations. They also reveal Australia’s human rights protections to be piecemeal and inadequate — illustrating the urgent need for a constitutional bill of rights.

Written by two practising human rights lawyers, this anthology is an essential resource for law students, lawyers and activists. It also provides an engaging overview to anyone who might be curious about how the law, and in particular litigation, has advanced human rights in Australia.

Acknowledgment of Country Author acknowledgments Foreword by the Hon Michael Kirby AC CMG Introduction Note to readers Chapter 1: First Nations rights Chapter 2: Women’s rights Chapter 3: LGBTIQA+ rights Chapter 4: Disability rights Chapter 5: Children’s rights Chapter 6: Rights of asylum seekers and refugees Chapter 7: Prisoners’ rights Chapter 8: Right against racial discrimination Chapter 9: Right to liberty Chapter 10: Criminal justice rights Chapter 11: Right to freedom of expression/ political communication Chapter 12: Democratic rights Chapter 13: Right to a clean, healthy and sustainable environment Chapter 14: Rule of law

What are the two human rights cases law students must read in the book? Why?

Of course we would say they should read all 50! But if we had to pick just two, the first would undoubtedly be Mabo . Eddie Mabo’s long fight for justice makes for an epic narrative. The judgments contain iconic comments on Australian law, history and human rights, which are by turns soaring and devastating. And the outcome of the case changed the Australian legal system in a fundamental way. As Paul Keating said, Mabo established (or, rather acknowledged) a fundamental truth, and laid the basis for justice. All Australian law students, and indeed all Australians, should have a thorough understanding of the case and its implications. The case has never been more relevant, given the upcoming referendum on constitutional recognition and contemporary debates regarding First Nations sovereignty. In recognition of its importance, Mabo is the first case to appear in the book.

The second case is harder to choose, but a good candidate is a criminal law case from the 1930s called Tuckiar v The King . In that case, a Yolngu Elder called Dhakiyarr Wirrpanda had been convicted of the murder of a white police officer, for which he was sentenced to death. Dhakiyarr had been arrested and put on trial as a result of extensive public pressure following the police officer’s death, and Dhakiyarr’s trial was characterised by shocking incompetence on the part of his counsel, and blatant unfairness to him by the judge. In one of its most famous and celebrated decisions, the High Court overturned Dhakiyarr’s conviction on the basis that there had been a miscarriage of justice. However, as we explain in the book, the injustice inflicted on Dhakiyarr and his people did not end with the High Court’s decision. The case therefore illustrates both the capacity, and the limitations, of the Australian legal system to deliver justice.

What did you discover about Australia’s human rights case law that surprised you while writing the book?

What will probably surprise many readers is simply the quantity of successful Australian human rights cases. Because Australia does not have a constitutional bill of rights or a federal human rights Act, and because our human rights record is undeniably poor, many people assume that Australia has very few successful human rights cases. However, this is not the case. In fact, Australia has a rich history of impactful human rights cases, and we are of the view that these cases deserve to be more widely known and appreciated. What surprised us most was the diversity of the case law. The cases are scattered across various legal forums and areas of law. Further, arguably because of Australia’s deficient human rights protection system, litigants have deployed a vast array of legal mechanisms to protect and advance their human rights. Because of this diversity, and because some of the cases do not explicitly refer to human rights, it can be difficult to obtain a comprehensive understanding of Australia’s successful human rights jurisprudence. We have sought to address this issue by collecting 50 of the most impactful and significant cases together in one book.

What are the under-explored areas of human rights law you expect to develop over the next few years?

One rapidly emerging area of human rights law, which we discuss in the book, relates to the human rights aspects of climate change. There is a growing movement of climate change litigation in Australia and across the globe. The Supreme Court of the Netherlands held that the Netherlands government was obliged by the right to life and the right to private and family life to take action on climate change. In a case summarised in the book, Gloucester Resources Ltd , a NSW Court refused to approve a coal mine on the basis that its emissions would contribute to climate change. Last year the United Nations declared access to a clean, healthy and sustainable environment to be a universal human right and it has previously ruled that the right to life entails an obligation to protect against climate change. Last year, the United Nations Human Rights Committee ruled that Australia’s failure to adequately protect Torres Strait Islander peoples from the adverse impacts of climate change violated their human rights. Given the increasingly urgent nature of the various environmental crises we face, and the success of these human rights cases, we expect to see many more similar cases in the near future. Other areas of law to keep a watch on include the right to privacy, which is likely to develop in response to intrusions by invasive technologies, and the nascent right to ‘switch off’ from work. Similarly, given the sudden explosion in utilisation of artificial intelligence tools, the right against discrimination is likely to be deployed to respond to biases that have been proven to be inherent in AI tools.

Why should people buy the book?

This book is the first of its kind. It brings together, in one resource, Australia’s 50 most significant and influential human rights cases. While there are many books that comment on Australian human rights law from an academic perspective, there are few that provide a practical resource or which are in a format that is clear and accessible to the general public. The book is therefore an essential resource for law students, lawyers and activists, and can be used as a ‘toolkit’ to assist in devising human rights litigation strategies. It also provides an engaging overview to anyone who is curious about how the law, and in particular litigation, has advanced human rights in Australia.

The cases summarised in the book demonstrate the potential of the law to achieve justice. We therefore hope that our book might inspire law students, lawyers, activists and others to undertake human rights work by creatively using the legal tools that are available and also by contributing to debate about the reforms required to ensure that human rights are adequately protected in Australia.

The Australian Human Rights Institute (UNSW Sydney), the Public Interest Advocacy Centre and Gilbert + Tobin held a book launch for 50 Human Rights Cases That Changed Australia in February 2023.

[ Photo ] Book launch panel Andrea Durbach AM (left) leading the discussion, along with GetUp! CEO, Larissa Baldwin-Roberts and authors Lucy Geddes and Hamish McLachlan – 21/02/22

[ Photo ] Book launch audience 50 Human Rights Cases That Changed Australia – 21/02/22

[ Photo ] Book stand 50 Human Rights Cases That Changed Australia – 21/02/22

[ Audio ] 2SER – interview with Danny Chifley – broadcast 9/03/23

ABC Sydney Evenings – interview with Indira Naidoo – broadcast 28/02/23

This book is a helpful gateway for those wanting to learn more about the litigation of rights and freedoms in Australia. For the more experienced, it is a useful resource which can be returned to from time to time. Read full review…

Dr Bruce Chen , Deakin Law School, Law Institute Journal , July 2023

Individual cases, multiplied by many repetitions, can help to teach big lessons. So it is in 50 Human Rights Cases that Changed Australia , a courageous, innovative and novel text. … [This] book illustrates the potential of our legal system to safeguard and advance individual human rights while invoking often very limited tools and rejecting over-narrow legal outcomes. That may be its greatest value. Read full review…

The Hon. Michael Kirby , LSJ Online , Mar 07, 2023.

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Guide to Human Rights Cases

  • A. What is a human rights proceeding?
  • B. What do I have to prove?
  • C. What can I ask the Court to order?
  • D. Steps in a human rights proceeding
  • E. What happens if a matter is commenced against you?
  • F. Further information

This guide sets out information about human rights cases in the Federal Court and the steps involved from the commencement through to the finalisation of these types of cases.

You should always consider the relevant legislation (including the Federal Court of Australia Act 1976 (Cth) ( "Federal Court Act" ) and the Federal Court Rules 2011 (Cth) (" Federal Court Rules ").

Human rights cases fall within the Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area (NPA) .

This guide is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law. 

A. What is a human rights proceeding?

A human rights proceeding is a case which is brought under one of the following discrimination statutes:

  • Sex Discrimination Act 1984 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Racial Discrimination Act 1975 (Cth)
  • Age Discrimination Act 2004 (Cth)

The Court has power to hear these proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). Normally, the Commission must have issued a Notice of Termination before the Court can begin to deal with the case.

B. What do I have to prove?

In human rights proceedings, for you to succeed you must prove, at a general level, three things:

  • what happened to you – what was done to you, and who did it;
  • that what happened to you was unlawful under one of the discrimination statutes - you must identify the area of activity (education, accommodation etc) and the reason you say you were treated as you were (eg sex, race etc); and
  • what harm or damage you have suffered because of what was done to you.

C. What can I ask the Court to order?

In this area, if you are successful the Court may order the person who discriminated against you to do certain things to fix the discrimination. The Court can also order that the person pay you compensation.

D. Steps in a human rights proceeding

The person making the complaint about discrimination is called the " applicant ".

The person or organisation that the applicant says has carried out the discrimination is called the " respondent ".

If you want to come to the Federal Court to defend yourself against a complaint, see section E .

1. Complaint to the Australian Human Rights Commission

  • you must first make a complaint to the Australian Human Rights Commission and the complaint must be terminated;
  • you need a copy of the termination notice from the Australian Human Rights Commission;
  • you must commence a claim within the time limits in the Federal Court - usually, it must be made within 60 days after the issue of the notice of termination.

2. Preparing your application

  • Complete the  Form 116 - Originating Application  under the Australian Human Rights Commission Act (r 34.163 of the Federal Court Rules) and, if required,  Form 16 - the Applicant's Genuine Steps Statement (r 8.02 of the Federal Court Rules). 
  • If you are making your complaint more than 60 days after the date on the notice of termination you need to complete the "Extension of time" part of Form 116 . This part of the form is where you request an extension of time for making the complaint and explain the reasons for the delay.
  • Make a copy of the complaint that you made to the Australian Human Rights Commission . Make a copy of the notice of termination. Copies of these documents must accompany the originating application.

3. Lodgment, filing & fees

  • Once your application and any supporting documents have been completed you need to get these to the Court (see Division 2.3 of the Federal Court Rules). This is called 'lodging'. If the Court accepts those documents, that is referred to as "filing". 
  • You can lodge a document at the Court in a number of ways. The Court's preference is that you eLodge using the Court's electronic eLodgment system, however you may also lodge documents at your local registry, by post or by fax. You cannot lodge documents by email. More information about how to lodge a document is available on the Court's website. 
  • Upon lodgment you must pay the application fee (if any). If you cannot afford this fee, you may be able to ask the Court to exempt you from having to pay it or to defer the time for its payment. You can get a form to ask the Court to either exempt or defer payment and information about the circumstances where an exemption or deferral can be given on the exemptions and deferral of fees page or from the Registry.
  • a Notice of Filing and Hearing (if a hearing date is required) - which sets out the time and date when the people involved in the case need to come to the Court for the first case management hearing; 
  • a Notice of Filing - confirm filing of the document. 
  • Once you have filed the required documents with the Court, you must give a copy of the stamped application with accompanying document(s), to each of the people involved in the case. This is known as "service".
  • Part 10 of the Federal Court Rules 2011 (Cth) (Rules) relates to service, including how to go about personal service. Registry can assist you about what to do.

5. Case management hearing

  • The next step will usually be a first case management hearing. The Judge who has been allocated the case will hold this hearing. You must prepare carefully for this hearing.
  • an idea of how many witnesses you intend to call; and 
  • what documents you might need to obtain from the respondent or respondents, or from anyone else.
  • If you or your representative do not come to the Court at that time, the Court may dismiss your proceeding.

human rights cases examples australia

6. Documents and discovery

  • You may be entitled to ask another party for documents relevant to your case, if all the documents have not been provided.
  • You may also be asked by another party to supply documents you have that might relate to the issues in the proceeding.
  • If you consider you need more documents, and the other party does not agree to give them to you, you must request the Court to make an order for discovery. Part 20 of the Federal Court Rules relates to discovery.
  • In human rights proceedings, discovery orders may be made more often than in administrative or constitutional law cases, but the Court decides whether discovery is appropriate if the parties cannot agree.
  • Part 20 of the Federal Court Rules ;
  • Part 10 of the Central Practice Note ; and 
  • Part 8 of the ACHLR Practice Note . 

7. Mediation

  • The Court has a broad range of options to facilitate alternative dispute resolution (ADR), including mediation (see s 53A of the Federal Court Act and Part 28 of the Federal Court Rules ). 
  • A wide variety of outcomes can be achieved in mediation, often more than can be achieved by court orders, even if you are successful at trial.
  • In human rights cases, a successful mediation can result in an agreement that the respondents will do certain things to remedy the discrimination, or pay compensation, or both. A wide variety of outcomes can be achieved in mediation, often more than can be achieved by court orders, even if you are successful at trial.
  • Further information about mediation  in the Federal Court is available in the Central Practice Note and on the Court's website.

8. Preparing for trial: affidavits or outlines of evidence

  • The individual Judge will decide whether she or he wants the trial to be undertaken with affidavits, or with oral evidence.
  • The Judge may prefer parties and witnesses to give oral evidence, in the witness box at the hearing. If this is the case, the Judge may order parties to provide outlines of evidence.
  • The Judge will make orders about when parties must file and serve affidavits, or outlines of evidence. Parties can put documents with affidavits if they wish those documents to form part of the evidence. They can also attach documents to outlines of evidence.
  • Parties should refer to the information relating to evidence in Part 11 of the Central Practice Note and Part 9 of the ACLHR Practice Note . 
  • whether a person has a disability and what kind of disability may be established by calling an expert medical practitioner
  • whether a person has suffered psychological damage from unlawful discrimination for which she or he should be compensated may be established by calling a psychiatrist or psychologist to give her or his opinion about what kind of harm a person has suffered.
  • If an expert witness is retained, parties should be familiar with the Court's Expert Evidence Practice Note , including the Annexure A - Harmonised Expert Witness Code of Conduct .

9. Preparing for trial: Court eBooks

  • The Judge may order an applicant, or sometimes a respondent if the applicant is self-represented, to file and serve a Court eBook. The Court eBook contains all the necessary documents and evidence, and previous decisions, as well as the filed court documents, all in one book for easy access.
  • Parties should refer to the eBooks Practice Note when compiling court eBooks.

10. Preparing for trial: submissions

  • Submissions are written documents that set out what a party's case is about. They cover what a party says are the relevant facts about what happened, what law the party says applies and arguments about why the Court should make the orders the party asks the Court to make (see Part 14 of the Central Practice Note and Part 12 of the ACLHR Practice Note ).
  • The Court may order a summary of submissions to be filed and served on the other parties ahead of the trial.
  • The Court may also order that the parties file and serve final submissions at or after the end of the trial.

11. The trial itself

  • The trial will be listed for one or more specified days and the Court expects parties to finish in the time that has been allocated. Trials usually start at 10:15 am with a one to one and a half hour break for lunch and finish about 4:15 pm each day.
  • The Court might place limits on how long a party can ask witnesses questions, or how long a party can make arguments for.
  • If there are expert witnesses called by both sides, the Court may order the expert witnesses to give their evidence together. This is called concurrent evidence. The Judge will explain this to you if the Judge decides this should occur in your proceeding.
  • At the hearing, the Judge will listen to the evidence of the applicant and the respondent and their witnesses (if they have any). The Judge will also listen to any submissions about the relevant law.
  • The Judge will then consider the complaint and give a final decision.
  • A transcript of the trial is always made. However a party must pay for access to the transcript. Information about how to order a copy of the transcript is set out in the Access to Documents and Transcripts Practice Notes (GPN-ACCS) and on the Court's website. You may be permitted to inspect a copy of the transcript at the registry. This generally incurs a cost. The Registry may require you to provide an undertaking to the Court that you will not make a copy of the transcript. 

12. The Court's decision

  • The Court may make an immediate decision on your case when the case finishes and give oral reasons for the decision in open court. If this happens, the Court will generally provide a written copy of the reasons and a copy of the orders made.
  • Alternatively, the Judge may "reserve" her or his decision to think about what is the correct decision and to take some time to read and consider all the evidence, and to write reasons for the decision (judgment).
  • You will be notified when the Court is ready to hand down its decision in your case. Usually this will be done in open court. The Court will pronounce its orders and give written reasons for its decision. You will get a copy of those orders and reasons.
  • Although it is not always possible or achievable, the Court's policy is that it attempts to hand down decisions within 3 months of the final submissions being made.
  •  If your case is unsuccessful you may be able to apply to the court to appeal the decision. More information regarding the appeals process is available on the court's website, including information relating to the time limits that apply to starting an appeal.
  • If the Judge is not satisfied that there has been unlawful discrimination the Judge will dismiss the complaint.
  • In most matters in the Federal Court, the unsuccessful party is ordered to pay part of the legal costs of the successful party. The amounts involved can be many thousands of dollars, sometimes tens of thousands or more.
  • Costs orders are enforceable and bankruptcy proceedings can be taken if orders are not complied with. For further information regarding costs, refer to the Difference between fees and costs and the Court's Costs Practice Note (GPN-Cost) .

E. What happens if a matter is commenced against you?

  • If the applicant has made a complaint against you, the applicant must give you a copy of the documents which the applicant has filed with the Court. 
  • If you want to come to the Federal Court to defend yourself against the complaint, you need to take the following steps:

1. Preparing for Court

  • Once the forms have been filled out you need to lodge the forms together with any accompanying documents. For further information about lodging and filing documents, refer to Part D .

2. Attend Court

  • On the day of your hearing you should check the Court List which is available in each registry for the courtroom and time. You should aim to get to the Court with enough time to allow you to find the courtroom and make sure you are in court on time.
  • You should make sure that you bring a copy of all the documents that you have filed at the Court or have been served with and be prepared with any relevant material that you might need for your matter.
  • This hearing is called the first case management hearing. If you or your representative do not come to the Court at that time, the Court may still make orders which affect you.

F. Further information

Human Rights cases fall within the ACLHR NPA. Further information about practice and procedure in this NPA can be found:

  • in the Administrative Law and Constitutional Law and Human Rights Practice Note ;
  • on the Administrative Law and Constitutional Law and Human Rights NPA webpage .

The Court's website contains useful information to assist litigants including, attending court, how to address the Judge and a courtroom layout.

Updated: October 2022 

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10 Landmark Cases: How to Protect Rights Without a Bill of Rights

Photo of old law books

Last month, Right Now focused on rights issues and cultural shifts . In this article, we look at 10 landmark cases that arguably shifted how rights are protected in Australia.

Australia has passed far too many legal milestones to canvass them all here. We’ve tried to provide a cross-section of case s that have had enduring legal significance for Australia’s rights landscape. Even then, we’ve left a lot out. Because the common law advances incrementally, we’ve generally tried to illustrate the legacy of these 10 landmark cases in the subsequent case law. Don’t be put off – this just means you’re getting more bang for your buck.

1.     The Separation of Powers 

The Separation of Powers maintains the separation between the three institutions of Australian statehood – the legislature, the executive and the judiciary. Probably the most controversial aspect of the doctrine has been the strong separation between legislative and executive powers on the one hand and judicial power on the other, a separation that emerged out of the 1956 case, R v Kirby; Ex parte Boilermakers’ Society of Australia .

Boilermakers did two things. First, it limited the exercise of judicial power to the judiciary. Second, it prohibited the judiciary from exercising any power but judicial power. A number of subsequent cases demonstrate how this has become a major player in rights litigation under the Constitution.

In Polyukhovich v Commonwealth (1991) the High Court held the doctrine prohibited laws that declared particular people or groups to be guilty of a criminal offence. Such laws, called Bills of Attainder, offended the Separation of Powers because they involved the legislative exercise of judicial power – effectively, “trial by legislature”. Parliament can create criminal offences; it is for the Courts to determine guilt. That hasn’t stopped very recent moves in Queensland trying something suspiciously similar, in order to deal with “Bikie” groups.

In Al-Kateb v Godwin (2004) the High Court declared valid provisions of the Migration Act that allowed the executive (the government) to indefinitely detain certain asylum seekers. It was settled law that only a Court could order punitive detention. By a 4 to 3 majority, however, the High Court held that immigration detention was “administrative” not “punitive” in nature and therefore permitted by the Separation of Powers.

2.     The Principle of Legality

It lacks the allure of a Bill of Rights, is unknown by the public it protects, and is not explained in much detail by the judges who use it. Yet, the “principle of legality” is an important method of rights protection in Australia.

Put simply it is an assumption by courts that parliament does not intend to overturn fundamental rights unless the words of its legislation make very clear that it does.

While there’s no ground-breaking case, in Australia the 1908 High Court case of Potter v Minahan is routinely referred to. Notable and more recent, the just-mentioned case of Al-Kateb v Godwin was the first in which the phrase “principle of legality” was used by an Australian High Court judge to describe this assumption. However, the “principle of legality” could not prevent the result in that case, as a majority of the High Court found that the Migration Act is clear enough that parliament intended through it to set up a system of potentially indefinite detention.

Importantly, then, the “principle of legality” requires only clarity, it does not make invalid a law seen as inconsistent with fundamental rights (in the way that the US Bill of Rights does). Nonetheless, the High Court strictly adheres to the assumption. That is because the “principle of legality” relates to both the separation of powers – as a Court cannot do the job of rights abrogation for the legislature – and representative democracy – as parliament must be clear enough for there to be political costs for its decisions.

3.     General Law Protections: Privacy

In the absence of a substantive Bill of Rights, rights protection in Australia is first and foremost a matter of actions available to us under legislation or the common law (the law developed by judges over centuries).

It is notorious, for example, that Australians have no general “right to privacy”. Yet, Australia’s international obligation to ensure protection of that right cannot be said to be unanswered (and the same is true for other areas, notably anti-discrimination legislation).

For example, the actions of breach of confidence, trespass and defamation, and the legislative actions related to (beneficial) copyright, surveillance devices, unconscionable conduct, misleading and deceptive conduct and indeed the Federal Privacy Act may be understood to cover some aspects of privacy. And for that reason there is no one landmark case to speak of. Of course, this doesn’t mean there aren’t specific and serious concerns in light of this patchwork approach.  

4.     Constitutional Rights: Religion, Juries, “Just Terms” and Judicial Review

The Australian Constitution, despite its clear absence of a US-style Bill of Rights, does include some explicit rights. There are rights to religious freedom (section 116), trial by jury (section 80) and compensation for acquisition of land by the state on “just terms” (section 51(xxxi); yes, like in The Castle ).

To focus on one of the three, the concept of religious freedom noticeably lacks any developed explication in the judgments of courts. Rather, courts tend to decide potentially relevant cases by other means. The most recent example is the case of Williams v Commonwealth (2012), or the “School Chaplain’s case”. In it, the High Court focused on the complex Constitutional questions of the appropriation of money to pay for Chaplains in public schools, rather than freedom of and from religion. So far as it is clear how section 116 operates, however, the answer is very narrowly, as Professor Denise Meyerson has explained previously in Right Now (owing to the 1981 DOGS case).

Another area that can be understood to be a Constitutional right is the High Court’s ability to review the lawfulness of government action allegedly carried out under legislation (as opposed to the lawfulness of the legislation itself). Section 75 is the source of this right, and the inability of parliament to limit it was forcefully confirmed in the 2003 case of Plaintiff S157 v Commonwealth. This “protective” jurisdiction of the High Court is often invoked in important asylum seeker cases, including in the “Malaysia Solution case”(discussed below).

5.     Implicit Rights: Political Communication 

Added to the few explicit rights in the Australian Constitution are implicit ones. The rationale of these rights is that they are necessary to give effect to the Constitution.

To begin with, Australian law recognises that the Constitution necessarily protects “freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors”, as it was put in the 1997 High Court case of Lange v Australian Broadcasting Corporation . Five years earlier, in the 1992 case of ACTV v Commonwealth , a ban on political advertising during an election was struck down by the High Court on the basis of this newly recognised implicit right.

The central place of necessity is important. The freedom to receive and disseminate information concerning government or political matters is an implication drawn from the text and structure of the Constitution, and especially several sections (7, 24, 64 and 128) that entail the concept of  representative government. As a result, the freedom extends only so far as is necessary to give effect to those sections, which refer to elections and representatives “chosen by the people”.  In other words, a society in which representatives are “chosen by the people” cannot be meaningfully realised if the flow of the kinds of information that direct such a choice is barred by law. Any law that attempts to bar it will not be given effect by courts. While an important development, this reasoning process is not likely to lead to anything like comprehensive rights guarantees.

6.     Implicit Rights: Voting 

Similarly, an implicit (and again limited) “right to vote” has been recognised by the High Court in a line of cases, probably beginning with Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975). Essentially, these cases reveal that the Constitutional requirement that parliament be “chosen by the people” implies a minimum degree of protection for voting rights.

The 2007 case, Roach v Electoral Commissioner demonstrates the limited nature of this protection. The question before the Court was whether the Commonwealth Parliament could disenfranchise prisoners. The answer: if you are sentenced to three or more years in prison you cannot vote during that period. For more on the topic, Professor Graeme Orr has previously written for Right Now on prisoners and voting rights .

7.     Technical Interpretation & International Law 

Even where the Australian Constitution provides for explicit rights, their narrow interpretation (as in section 116) reveals a general preference by Australian Courts for formal or technical legal reasoning. However, technical interpretation is often put into the service of rights protection.

Plaintiff M70 , or the “Malaysia Solution” case, is a good example. The High Court’s reasoning in the case is purely technical. It concerns a section of the notoriously Byzantine Migration Act that lists conditions under which a country can be declared one that asylum seekers may be taken to. The declaration of Malaysia as such a country was found to be unlawful as it didn’t meet these conditions, not because of some inherent Constitutional guarantee against the treatment of asylum seekers proposed. Incidentally, however, the Migration Act conditions did relate to human rights protections existing in Malaysia. For all the technicalities see this Right Now article explaining both the case and various amendments proposed since, that aim at slackening the conditions .

Somewhat differently, Courts will look to international human rights norms to interpret Australian law where terminology or concepts are borrowed from international law (as in the Migration Act , as suggested recently in the case of M47 , the “ASIO case”) or more generally where words in legislation are ambiguous and international law may assist in deciding between two or more possible meanings. Yet, Courts cannot directly apply the norms, such as by holding a particular law to be invalid as it is inconsistent with international human rights law.

8.     Native Title

How to deal with Indigenous property rights that existed at the time of colonisation? The traditional view, articulated in Attorney-General v Brown (1847), was that with settlement the Crown had acquired full title over all the “waste lands of this Colony”. Mabo v Queensland (No 2) (1992) was the landmark High Court case that recognised that Australia wasn’t terra nullius at settlement: it was inhabited.

The Mabo court found the Crown hadn’t acquired full ownership, but what it called “radical title”. Radical title could mature into full title but, significantly, didn’t automatically extinguish Indigenous property rights to traditionally held lands. These rights are now known as Native Title.

The doctrine has been subject to some hefty statutory overhauls, some of these more revisionist than others. Bryan Keon-Cohen, counsel for Eddie Mabo and the Murray Islanders, reviews the losses and gains to Native Title in the 20 years since the Mabo case in this article for Right Now .

9.     The Race Power

In 1967 an overwhelming majority of Australian’s voted to amend section 51(xxvi) of the Constitution to allow the Commonwealth government to pass special laws with respect to persons of the aboriginal race. One question that arose for determination in Kartinyeri v Commonwealth (1998) was whether this section, the “race power”, permitted the making of laws that were detrimental, rather than beneficial, to persons of the aboriginal race.

The Court split 2 to 2 on the scope of the race power. Justices Gummow and Hayne held the power was inherently discriminatory and that laws made under it would inevitably benefit some just as they disadvantaged others. They did, however, leave open the possibility that the Court has a supervisory jurisdiction to police manifest abuse of the power.

Justice Gaudron focused on the requirement that the law be “necessary”. She held that only laws that were directed towards remedying disadvantage could, today, be deemed necessary for persons of the aboriginal race. Justice Kirby, on the other hand, held that the 1967 referendum had forever changed the meaning of section 51(xxvi) of the Constitution so that it permitted only positive discrimination.

The position of aboriginal people under the Australian Constitution remains uncertain.

10.  Marriage Equality?

In October 2013 the ACT’s Marriage Equality (Same Sex) Act 2013 passed into law. Marriages occurred from 8 until 12 December 2013, when the High Court unanimously held the law to be invalid for inconsistency with Federal marriage legislation. Ironically, the decision is arguably more significant as a step towards marriage equality than away from it.

Inconsistencies between state and federal laws are resolved, under section 109 of the Constitution, in the Commonwealth’s favour. So the issue, as the Court framed it, was this: “if the Federal Parliament can make a national law providing for same sex marriage, and has provided that the only form of marriage shall be between a man and a woman, the [state and Commonwealth] laws cannot operate concurrently.”

So why be heartened? In finding the two pieces of legislation to be inconsistent, the High Court held the Commonwealth Parliament has the power to pass laws permitting same-sex marriage. It had long been thought that a potential constitutional challenge to federal marriage equality legislation would be that the word “marriage”, as it appears in the Constitution, had the meaning it bore at Federation (no points for guessing what that might have been). No longer.

So while we’re stuck (for the moment) with the federal government’s marriage laws, we’re left with a more tolerant constitution. The rest is up to our elected representatives.

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Complaints upheld against Australia

Since Australia first joined the individual complaints determination processes at the UN, there have been 65 * cases in which human rights violations by Australia have been found.

* Shams et al is 8 separate communications decided jointly due to their similarity and concurrence.

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Human Rights Careers

15 Examples of Social Issues in Australia

Over 26 million people live in Australia, which is the smallest continent on the planet. It’s home to some of the world’s most beautiful ecosystems, like the Great Barrier Reef, the Blue Mountains, and the Daintree Rainforest. It was also colonized by the British, which used it as a penal colony from the late 18th century until the mid-19th century. Today, it is a sovereign country with its own social issues. Here are 15 examples:

#1. Poverty

In 2022, a report on poverty found that 1 in 8 people, including 1 in 6 children, were living in poverty . Australia is one of the world’s richest countries, but over 3 million people struggle to pay basic bills. Income support would make a big difference. During the COVID-19 lockdowns, an economic support program lifted 645,000 people (245,000 of those people were children) above the poverty line. These supports were temporary, but if they became permanent, Australia could reduce poverty very effectively.

#2. Rights of asylum seekers and refugees

When asylum seekers and refugees come to Australia without a valid visa, they’re held in immigration detention until they get a visa or are removed from Australia. There is no limit to how long someone can be detained, so thousands of asylum seekers and some recognized refugees are held in centers around the country. Australia also uses an offshore processing system. Under this system, asylum seekers and refugees are taken to camps in places like Nauru and Papua New Guinea. Families and individuals live in inadequate conditions, sometimes for years. Human Rights Watch has called Australia’s offshore system “abusive and costly.” Since 2013, at least 12 refugees and asylum seekers have died in Australia’s offshore processing system. Six took their own lives.

#3. Indigenous rights

When it comes to Indigenous rights, Australia’s history is full of abuse and discrimination. From the mid-1800s to the 1970s, government policies took children from their families in a period known as “The Stolen Generations.” The legacy of racism and discrimination continues today. Despite making up just 3.8% of the population, Indigenous Australians are “overrepresented” in the criminal justice system . In 2021, at least 11 Indigenous people died in custody due to abuse and/or medical neglect. Indigenous people are also more likely to receive poor education and die young. Australia has the opportunity to protect Indigenous rights with referendums like the “ Voice to Parliament ,” which would enshrine Aboriginal and Torres Strait Islander people in the constitution and create an advisory body.

#4. Disability rights

The Disability Discrimination Act, which passed in 1992, makes it illegal to discriminate against someone based on their disability. It covers areas like employment, education, public services, and more. Temporary and permanent disabilities are also covered. According to a research paper, however, Australia’s interpretation of the UN’s Convention on the Rights of Persons with Disabilities prevents reform and allows human rights violations to thrive . Examples of violations include forced medical interventions and indefinite detention. Children and people in prisons face some of the worst abuse and discrimination.

#5. LGBTQ+ rights

Australia has many laws regarding LGBTQ+ rights and protections, but the system is far from perfect. According to reporting from The Guardian, anti-discrimination laws across the country are “patchy.” There are broad exemptions, especially for religious groups, which can open the door to discrimination and bigotry. Victoria, South Australia, and Western Australia don’t even have laws that protect LGBTQ+ people from vilification. There are also no federal laws that outlaw vilification based on gender or sexuality. To protect the LGBTQ+ community, Australia needs to strengthen its existing laws and expand protections.

#6. Gender equality

Generally, Australia is a safe and welcoming place for most women, but it still hasn’t achieved gender equality. According to the Australian Human Rights Commission, women in Australia are paid 17.5% less than men doing the same work. The causes include gender stereotypes and low pay for jobs historically performed by women, like social work. Differences in education and work experience, a lack of female leadership, discrimination, and a lack of accommodations for families are other causes.

#7. Violence against women

While Australia ranks high on lists of safest countries for women, violence against women is still an issue. According to the Australian Human Rights Commission, 1 in 3 Australian women will experience violence in an intimate relationship. 1 in 5 women have experienced sexual violence since turning 15 years old. Indigenous women face a higher risk. Research shows they’re 12 times more likely to be victims of assault than non-Indigenous women. Violence is often perpetuated by partners or husbands.

#8. Incarceration of children

Currently, Australia’s age of criminal responsibility is just 10 years old, while the international recommendation is 14 years old. Hundreds of kids are imprisoned each year. In one case, a 13-year-old Indigenous Australian boy spent 45 days in solitary confinement, despite being held for minor offenses. In another case, a 13-year-old with developmental disabilities spent 78 days in a cell for 20 hours a day. These cases could violate the boys’ rights to fresh air and exercise. The cases are not uncommon , either. According to data, overcrowding in juvenile prisons means children – mostly Indigenous children- are often moved to adult prisons. Kids in adult prisons face a high risk of sexual abuse, assault, and suicide.

#9. Healthcare access in prison

Australia uses Medicare. It’s a single-payer, universal healthcare program that covers all Australian citizens and residents. Groups like veterans and Indigenous Australians can access special programs, but there’s one demographic that’s excluded: people in prison. Many human rights experts believe this exclusion constitutes a human rights violation. During COVID-19, the state was slow to give prisoners vaccines despite their heightened risk for the disease due to poor ventilation, an inability to social distance, inadequate sanitation and hygiene, and other factors. People in prison also lack adequate mental health services. In 2018, 40% of jail entrants had a mental health condition, while mental health services in prison were “severely underfunded.” Without access to Medicare, it’s much harder for people in prison to get the healthcare they need.

#10. Rights of older people

Australia’s population is aging, which opens the door to systemic discrimination and inadequate care. In 2021, the Royal Commission into Aged Care Quality And Safety released a report recommending “fundamental reform” of the aged care system. Specific changes included increased accountability for human rights violations , minimum staffing requirements, and increased access to home and community support services. COVID-19 revealed cracks in the system, but it will take significant changes to improve Australia’s aged care services.

#11. Housing affordability

It’s getting more and more expensive to buy and rent housing in Australia. According to a report by PropTrack, which analyzes the real estate market, a household earning an average income would need to spend a third of their income on mortgage repayments for a median-priced home. Increasing home prices and rising mortgage rates are two reasons for housing unaffordability. Tasmania, which has historically had the most affordable homes, is now a place where a typical-income household can only afford 5% of homes sold. Young people and first-time home buyers are some of the hardest hit.

#12. Homelessness

On any given night, around 1 in 200 Australians don’t have a place to sleep. According to data, 1 in 3 houseless Australians are under 18 years old. Young people are especially vulnerable as it’s difficult to get affordable, long-term housing. Domestic violence is the biggest driver of homelessness in Australia, while other causes include unemployment, poverty, and addiction. Most people experiencing homelessness are in Sydney, Melbourne, Perth, and Brisbane, which are Australia’s largest cities.

#13. Mental health

According to the Australian government, over 2 in 5 Australians between 16 and 85 years old have experienced a mental disorder at some point in their lives. Anxiety is the most common disorder, followed by depression and substance abuse. While anyone can experience poor mental health, 24% of the Indigenous Australian population reported a mental health or behavioral condition in 2018-2019. Mental illness still faces stigma in Australia, which makes it even harder for people to get the help they need. Reducing stigma, making it easier to access care, and addressing the roots of poor mental health are all necessary steps.

#14. Loss of biodiversity

“Biodiversity” refers to the variety of life on earth, including plants, animals, and microorganisms. It’s essential to a healthy planet. Australia is home to some of the world’s most unique ecosystems and species. Around 82% of animals and 93% of frogs in Australia only exist there. Tragically, the human impact on biodiversity has been catastrophic. Pollution, resource exploitation, and other issues threaten areas like the Great Barrier Reef, which is the world’s largest coral reef system. Currently, Australia has the worst mammal extinction rate in the world. Preserving Australia’s biodiversity is essential to its future.

#15. Wildfires

Australia is known for its brutal wildfire season. Climate change has made it worse. One fire, which burned through Australia’s summer from June 2019 to January 2020, released smoke levels comparable to a major volcanic eruption. According to research, the smoke from these catastrophic fires could have contributed to a rare triple La Nina weather event, which affected other continents . The fires, known as the Black Summer Fires, also destroyed an area equivalent to half of California and killed 33 people. Children and pregnant people are among those most affected by lingering health effects , such as premature labor, low birth weight, impaired lung development, and other ongoing issues. Australia is one of the biggest greenhouse gas emitters in the world, so new, strict regulations on emissions are vital.

If you want to get active on the issues above, consider joining one of the many NGOs in Australia .

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

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Past decisions.

Julian Assange: Lawyers describe US prosecution as state retaliation

  • Published 6 days ago

A court sketch shows lawyers for Julian Assange addressing High Court judges Dame Victoria Sharp and Mr Justice Johnson

Lawyers for Julian Assange have accused the US of "state retaliation" over its bid to prosecute the Wikileaks founder.

Mr Assange has been in Belmarsh - a UK prison - since 2019, and is wanted by the American authorities for disclosing secret military files in 2010 and 2011.

At a two-day High Court hearing, which began on Tuesday, his legal team argued it would be against UK law to hand him over.

If an appeal is turned down, Mr Assange could be extradited within weeks.

Edward Fitzgerald KC, one of the 52-year-old Australian's lawyers, argued that the US's prosecution bid was "politically motivated".

"Mr Assange was exposing serious criminality" when he disclosed the documents in question, Mr Fitzgerald told judges Dame Victoria Sharp and Mr Justice Johnson.

He told them his client was "being prosecuted for engaging in [the] ordinary journalistic practice of obtaining and publishing classified information - information that is both true and of obvious and important public interest."

Another of Mr Assange's lawyers, Mark Summers KC, said the US sought retribution for Mr Assange's political opinions - one of many bars to extradition from the UK, as set out by the Crown Prosecution Service (CPS).

"This is a paradigm example of state retaliation for the expression of political opinion," Mr Summers told the court in central London.

The lawyers also argued that their client was at "a real risk of further extrajudicial actions ... by the CIA [Central Intelligence Agency] or other agencies" - a legally delicate way of saying he could be assassinated or subject to some harm beyond a criminal sanction after a fair trial.

Their allegation - not yet evidentially tested - is that the CIA plotted to kill Mr Assange during the seven years he took refuge inside Ecuador's London embassy, from 2012 to 2019.

Who is Julian Assange and why is he facing extradition?

Assange's wife says he 'won't survive US extradition'

Mr Summers told the judges that then-US President Donald Trump had asked for "detailed options" of how to kill Mr Assange, who was not present in court on Tuesday due to sickness.

"Sketches were even drawn up," he said, adding there was evidence of this "truly breath-taking plan" - though none has so far been produced.

Mr Summers said the alleged plan "only fell apart when the UK authorities weren't very keen on the thought of rendition, or a shootout, in the streets of London".

In written submissions, he and Mr Fitzgerald added: "The evidence showed that the US was prepared to go to any lengths, including misusing its own criminal justice system, to sustain impunity for US officials in respect of the torture/war crimes committed in its infamous 'war on terror', and to suppress those actors and courts willing and prepared to try to bring those crimes to account.

"Mr Assange was one of those targets."

Mr Assange's mammoth legal battle began in 2010, when Wikileaks disclosed huge numbers of confidential military files from the wars in Iraq and Afghanistan - including footage showing a US helicopter gunning down civilians in Baghdad.

He took refuge in London's Ecuadorian embassy, before being arrested by the Metropolitan Police in 2019.

The US demanded his extradition from the UK that year, saying the disclosures endangered lives.

Assange supporters hold placards outside the High Court

Two years later, a British judge ruled that while the US had shown it had a legitimate criminal case against Mr Assange, he could not be transferred because he may try to harm himself.

The US later overturned that ruling after giving the UK new assurances about how Mr Assange would be treated in the event of extradition, including the possibility of spending any possible jail sentence in his native Australia.

At this week's hearing, largely seen as a last-ditch attempt, Mr Assange's lawyers are asking for permission to challenge the extradition order signed by the then UK home secretary Priti Patel in 2022.

If they fail to convince judges there is anything wrong with that order, Mr Assange must be extradited within 28 days - unless he can convince the European Court of Human Rights to temporarily stop the flight with a so-called "Rule 39" order.

Nick Vamos, the former head of extradition at the Crown Prosecution Service, said US Marshals could arrive in London within days if the High Court throws the case out.

"There is a very high threshold for [the European Court of Human Rights to intervene], namely that there is 'an imminent risk of irreparable damage' to his human rights, which of course is one of the arguments the High Court in London would have just rejected," he said.

Case 'will determine if he lives or dies'

Speaking to the BBC on Monday, Stella Assange said her husband would not survive in a US jail - and described the case as politically-motivated.

"This case will determine if he lives or dies," she said.

Outside the High Court on Tuesday, supporters of Mr Assange gathered, waving placards featuring the words "Free Julian Assange".

Mrs Assange thanked them for their backing and, addressing them from a stage outside court, said: "We have two big days ahead. We don't know what to expect, but you're here because the world is watching."

Speaking to the BBC, she described her husband as the "victim" of US "retaliation", echoing the words of Mr Assange's lawyers inside.

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    Charters of Human Rights promote respect for human rights and give people power to take action if their rights are breached. The 101 cases set out here highlight the benefits of the Charters of Rights that exist in the ACT, Victoria and Queensland. They also highlight the need for a national Charter of Rights, as well as Charters in states and ...

  17. 10 Landmark Cases: How to Protect Rights Without a Bill of Rights

    Plaintiff M70, or the "Malaysia Solution" case, is a good example. The High Court's reasoning in the case is purely technical. ... Somewhat differently, Courts will look to international human rights norms to interpret Australian law where terminology or concepts are borrowed from international law (as in the Migration Act, ...

  18. Cases

    Complaints upheld against Australia. Since Australia first joined the individual complaints determination processes at the UN, there have been 65 * cases in which human rights violations by Australia have been found. * Shams et al is 8 separate communications decided jointly due to their similarity and concurrence.

  19. List of All Cases

    2024. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) 2017. 2024. Contentious. Title. Introduction.

  20. 15 Examples of Social Issues in Australia

    Today, it is a sovereign country with its own social issues. Here are 15 examples: #1. Poverty. In 2022, a report on poverty found that 1 in 8 people, including 1 in 6 children, were living in poverty. Australia is one of the world's richest countries, but over 3 million people struggle to pay basic bills.

  21. Past decisions

    31 May. 2006. 30 June 2007. Department of Health and Ageing. Applicant seeks to provide assistance in reducing the costs of continence aids to persons between 16 and 65 years of age. Persons over the age of 65 years would only be eligible for assistance if they worked in paid employment for at least 8 hours per week.

  22. Julian Assange: Lawyers describe US prosecution as state retaliation

    Lawyers for Julian Assange have accused the US of "state retaliation" over its bid to prosecute the Wikileaks founder. Mr Assange has been in Belmarsh - a UK prison - since 2019, and is wanted by ...