Damages in the Australian human rights context

ABSTRACT

The article engages with the relationship between statutory rights and damages in Australia. It begins by examining the architecture of the rights statutes in Victoria, Queensland, and the Australian Capital Territory to then determine the justification that Australian legislatures had for precluding damages. Two potential rationales for the non-provision of damages are canvassed: pragmatic-political concerns about government liability and principled concerns about the co-existence of damages and the Commonwealth dialogue model. The article demonstrates that these concerns are not borne out in practice and that the current remedial architecture is inadequate to achieve the statutes’ purposes. It argues that damages play a fundamental role in protecting statutory rights and analyses the suitability of two damages models to the Australian context.

KEYWORDS:

• Human rights
• tort law
• administrative law
• remedies
• vindicatory
• tort-based damages
• public law damages

Acknowledgments

I wish to acknowledge and thank Dr Janina Boughey for her generous support and guidance throughout the honours and publication process. I would also like to thank the invaluable feedback from the honour’s examiners and journal reviewers.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Ciara Murphy

Ciara Murphy is a final year Bachelor of Arts/Bachelor of Laws, University of New South Wales, Sydney, Australia. This was originally a thesis for completion of the Bachelor of Laws (Honours) program at UNSW.