Australia: tort law filling a human rights void

Tort law offers real prospects for litigants to pursue human rights claims in Australia. The basic concern of tort law is the protection of certain human interests considered either inviolable or fundamental to social order. It is directed at all social participants and therefore applies to both public and private actors, as well as to both individuals and corporations. As a result, many human rights abuses can be re-characterised as torts, albeit imperfectly. Nevertheless, there has been limited human rights litigation in Australia, probably due to procedural hurdles[1] as well as a relative lack of both litigation and human rights cultures. Nonetheless, there are significant case examples that illustrate how particular torts might apply to certain kinds of rights violations and that exemplify a growth in tort litigation strategies by dedicated human rights organisations and lawyers in Australia.

To explore the potential of Australian tort law as a mechanism for human rights enforcement, this chapter is structured as follows. Following this introduction, section II provides an explanation of the general protection of human rights in Australian law. Section III sets out basic features of the Australian tort law system and its relationship to human rights, before explaining those torts of most significance to human rights claims. Section IV focuses on two case studies that highlight emblematic human rights concerns in Australia. They concern medical treatment for asylum-seekers in detention and asbestos exposure in the workplace (including parent company liability). These case studies enable a closer look at civil liability in Australia animated around specific human rights concerns. Section V concludes.