Practitioner checklist

1. Limiting a protected

freedom?

Does the action

complained of limit a freedom protected by the Covenant (eg expression

or peaceful assembly)?

2. Is the limitation authorised

by the Covenant?

The limitation

needs to satisfy all five criteria:

a. Provided by law? Is the limitation provided for

by legislation or regulations? Is it set out with sufficient certainty?

b. A lawful objective? Does the limitation pursue one of the objectives

set out in the Covenant such as protecting rights and freedoms of others

or protecting public health and safety?

c. Necessary? Is the limitation necessary and proportional to the pursuit

of its lawful objective? Could the objective be achieved by less restrictive

or intrusive means?

d. Non-discriminatory? Does the limitation apply without invidious discrimination?

Is any discriminatory effect rational and justifiable?

e. Exceptional? Does the limitation apply only

in exceptional circumstances? Does it respect the essence of the freedom?

3. Challenging the action

If any

of questions 2a-e is answered in the negative, the limitation is not authorised.

a. If the action was taken or the limitation

imposed by a Commonwealth agency or decision-maker, consider making a

complaint to the Commission: click here for information. http://www.humanrights.gov.au/complaints_information/index.html.

Click here to return to Human Rights Brief No. 4 - Lawful Limits on Fundamental Freedoms.

Last

updated 2 December 2001.