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Human rights and discrimination

AGS has authoritative expertise in all areas of human rights and anti-discrimination law and legislation and unrivalled visibility of how that legal framework applies within a Commonwealth context. The interpretation, operation, administration and application of those laws across the Commonwealth is core business for us.

We are best equipped to deal with disputes in the Commonwealth context and in the administration of government programs for 3 main reasons.

Firstly, because we have been deeply involved in advising on the development, amendment, interpretation and application of key pieces of relevant legislation, including the Australian Human Rights Commission Act 1986, the 4 Discrimination Acts (Racial, Sex, Disability and Age) and the Human Rights (Parliamentary Scrutiny) Act 2011, as well as international human rights instruments, we know the framework like nobody else.

We also have extensive experience advising on programs that deal with Indigenous issues, having been involved in all major native title cases since the Mabo decision in 1992. We have practical insight and cultural sensitivity to these often nuanced cases.

Secondly, we offer significant experience in dealing with claims brought to the Australian Human Rights Commission (AHRC), State tribunals and the courts.

Finally, these disputes often involve contextual comparator tests. Because we understand the context of government, we are best-placed to understand the context of these disputes. Our advice will be practical, strategic and robustly defensible because of our whole-of-government understanding.

Our lawyers are experts at navigating the complex interactions between State and Territory and Commonwealth law in this area. We can seamlessly supply constitutional advice where those issues arise.

We will seek to resolve complaints through alternative dispute resolution processes such as mediation, conciliation and arbitration. We will practically attempt to avoid litigation where possible. Where that is not possible, our national team have successfully run complex and high-profile cases in all relevant courts, commissions and tribunals, including the High Court.

In addition to advising on, and representing the Commonwealth in disputes relating to human rights and discrimination, we frequently assist departments with the preparation of the Statements of Compatibility required by the Human Rights (Parliamentary Scrutiny) Act 2011 for Bills and disallowable legislative instruments.

AGS works across agencies to help manage legal risk and discharge obligations to avoid discriminatory practices or practices in breach of human rights, particularly in the workplace. This broad experience across the Commonwealth means our practitioners have real-time access to best practice across the whole of government.

We also have significant expertise relating to constitutional human rights, both express and implied (such as, for example, the requirement that property be acquired on just terms and the freedom of political communication), as well as relating to common law rights and principles and their influence on statutory interpretation.

We can advise you on various Commonwealth and State human rights and anti-discrimination legislation:

  • Disability Discrimination Act 1992 (Cth)
  • Equal Opportunity Act 2010 (Vic) (and predecessor legislation)
  • Racial Discrimination Act 1975 (Cth)
  • Sex Discrimination Act 1984 (Cth)
  • Age Discrimination Act 2004 (Cth).

Recent examples include our involvement in the large-scale proceedings concerning allegations of discrimination in the calculation by the Commonwealth of disability payments and advising the Commonwealth in proceedings relating to the application of the Racial Discrimination Act in the Supreme Court of South Australia.

We can also advise you on the Commonwealth on Australia’s legal obligations under international human rights instruments:

  • International Covenant on Civil and Political Rights
  • International  Covenant on Economic, Social and Cultural Rights
  • International Convention on the Elimination of all Forms of Racial Discrimination
  • Convention on the Elimination of all Forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Rights of the Child
  • Convention on the Rights of Persons with Disabilities.

Australia’s human rights and anti-discrimination laws give effect to a number of these obligations.