Section 11(1) of the Human Rights Act 2004 says that:
The family is the natural and basic ground unit of society and is entitled to be protected by society.
Note: Under the Act, all rights may be subject to reasonable limits (section 28). The nature of the right is relevant when considering what is reasonable.
This factsheet is not intended to be a substitute for legal advice.
An explanatory note under section 11 of the Human Rights Act says that the term ‘family’ has a broad meaning that recognises the many different types of families that live in the Australian Capital Territory, all of whom are entitled to protection.
The term ‘family’ should be given a broad interpretation to include all people who make up a family unit, reflecting the meaning of ‘family’ in Australian society. For example, a ‘family’ could include a situation where children are living with their grandparents rather than their parents, or with a legal guardian, or a foster family. The term ‘family’ could also include extended family in some circumstances: for example, where there are kinship ties to extended family, or where someone’s culture or ethnicity gives their extended family unit particular significance for them.
The HR Act says that families must be protected by society and the State.
This right is also supported by the right to privacy in section 12 of the Act which prohibits a public authority from unlawfully or arbitrarily interfering with a person’s family or home.
Legislative provisions that allow a child to be removed from a family unit need to be considered in light of sections 11(1), 11(2) and 12 of the HRA. While family unity is an important part of human rights, different rights may need to be taken into account. For example, subsection 11(1) may be qualified by the right to protection of children in subsection 11(2), if a child needs to be removed from a situation of family violence.
A woman who was the sole carer for her elderly parents (one of whom had recently suffered a stroke and the other had dementia) was issued with a notice from the local council that the accommodation she had arranged for her parents was contrary to planning approvals. The woman’s legal representative wrote to the council asking them to consider the right to privacy and family life. The council granted the woman extra time to make alternative arrangements for her parents.
A number of European Cases have further elucidated the scope of the right to protection of the family:
The actions of public authorities can both promote and limit rights. Section 11 could be engaged by activities that: