Damages in the Australian human rights context

Abstract

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.