Right to Life

Right to Life

Section 9 of the Human Rights Act 2004 says that:

  1. Everyone has the right to life. In particular, no-one may be arbitrarily deprived of life.
  2. This section applies to a person from the time of birth.

Section 9 is based on article 6(1) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the right

The right to life is primarily concerned with preventing the arbitrary deprivation of life. It is relevant to, among other matters:

  • the use of force by public authorities. Public authorities in the ACT include all ACT Government agencies, their employees, police officers when they exercise functions under ACT laws, and private and community organisations with public functions;
  • the delivery of medical treatment;
  • the investigation of the conduct of public authorities, particularly when a person dies while in the care of public authorities.

The right to life imposes both negative and positive duties on public authorities. They include duties to refrain from arbitrarily taking someone’s life, to take reasonable steps to protect people’s lives, and to investigate deaths involving a public authority that may have amounted to an arbitrary deprivation of life.

The right to life recognises that in some limited circumstances people acting on behalf of a government may have to take life, such as in law enforcement or military activities. This can only be done in accordance with the law and when strictly necessary.

Negative duties

The principal negative duty imposed by the right to life is that public authorities must not arbitrarily take a person’s life.

The United Nations (UN) Human Rights Committee has explained in its General Comment 36 on the right to life that a killing that is against the law is “arbitrary”, and that “arbitrariness” also includes elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.

For the intentional killing of a person by law enforcement officials (such as police) not to be arbitrary, the Committee has advised, it must have been “strictly necessary in order to protect life from an imminent threat”. For example, this might occur when the police have to use lethal force against a person to protect the lives of other people who are in imminent danger of being killed by that person.

It is against the law everywhere in Australia, including in the ACT, to impose the death penalty for any crime. This is stated in the Commonwealth Death Penalty Abolition Act. A human rights treaty to which Australia is a party, the Second Optional Protocol to the International Covenant on Civil and Political Rights, bans Australia from ever re-introducing the death penalty.

Positive duties

The right to life also requires public authorities to take positive steps to protect life and investigate and address violations. This includes imposing a duty on government:

  • to establish a framework of laws, precautions and procedures that will protect life;
  • to warn people about life-threatening hazards that the government knows or should know about (such as fires or chemical spills);
  • to take steps to protect the life of people within its care and control (in places such as prisons, detention centres, medical facilities or state care);
  • to take steps to protect people whose lives are at particular risk because of threats or patterns of violence from another person or group. Those at such risk may include witnesses to crime and victims of family and domestic violence;
  • to investigate deaths that may have involved an arbitrary deprivation of life involving a public authority;
  • to take measures to address the general conditions in society that may give rise to direct threats to life or prevent people from enjoying their right to life with dignity. These can include measures to ensure access to essential goods and services, such as food, water, shelter, health care, electricity and sanitation. They can also include measures to address harms to the environment.

When could this right be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 9 may be relevant to:

  • the way that essential services (for example, medical or emergency services) are provided, or how and whether these services can be accessed;
  • procedures and conditions for those held in mental health and aged care facilities;
  • procedures and conditions for those held in correctional facilities;
  • the use of force by law enforcement officers, including the use of weapons in the course of their duties;
  • the provision or withholding of medical treatment;
  • coronial proceedings or investigations into the conduct of public authorities, especially when people die while in the care of public authorities, for example, deaths in custody or of children in the child protection system.

Cases

ACT

ACT cases discussing the right to life include Veness & Medical Board of Australia (Occupational Discipline) [2011] ACAT 55. That case concerned the suspension of a doctor’s registration on the basis that he posed a serious risk to persons and immediate action was necessary to protect public health or safety. In a decision on an interim application, the ACT Civil and Administrative Tribunal referred to its obligation to interpret legislation compatibly with human rights, if possible to do so. In considering how to interpret a section requiring a balancing of the interests of the doctor with the interests of the public, the Tribunal referred to the right to life and relied on decisions of the European Court of Human Rights and the obligation of the government to:

Other Australian cases

Other cases on the right to life in Australia have included coronial cases. For example, in a 2010 ruling on an investigation of 29 deaths at level crossings, Victoria’s Coroner found that an inquest in relation to the deaths “must address broader systemic and prevention issues that may have contributed to the death”, as provided under Victoria’s Coroners Act 2008, “in order to comply with the State’s requirement to protect the right to life”.

In a later Victorian coronial investigation, of the 2017 death of Aboriginal woman Tanya Day after she fell while detained in a cell at a police station, the Deputy State Coroner said that the right to life under Victoria’s equivalent of the Human Rights Act:

“encompasses a positive measure to protect life through a comprehensive, thorough, and independent death investigation process. This positive duty to protect life and prevent death has particular application to protect people who are detained by the state. This duty extends to ensuring appropriate monitoring and supervision of people in detention and providing appropriate medical care.”

The Deputy State Coroner did not say outright whether Ms Day’s right to life was breached, but found that as Ms Day’s injury was not identified in checks made on her in the hours after her fall, “there was potentially an omission to obtain timely, appropriate medical care which impacted on her death”.

The Deputy State Coroner also accepted that her investigation should take into account both the immediate cause and potential systemic causes of Ms Day’s death. She found that there were systemic failings including a culture in the Victorian police of complacency regarding intoxicated detainees. While she considered the potential role of systemic racism in Ms Day’s death as well, she did not find this to have caused it.

International decisions

There are also many decisions of international courts and other international bodies on the right to life. They include the UN Human Rights Committee’s decision in the case of Camargo v Colombia (Communication No. 45/1979). In this case, Colombian police ordered a raid of a house in the belief that a person who had been kidnapped was being held prisoner there. When police officers carried out the raid, they did not find that person in the house but decided to wait there until the suspected kidnappers arrived. They then shot and killed seven people who arrived at the house, without warning them or giving them any opportunity to surrender. There was no evidence that the police were acting in self-defence or to defend anyone else. Those killed included a woman whom police shot several times after she had already died of a heart attack.

That woman’s husband complained to the Committee. In its decision, the Committee said that the law must strictly control and limit the circumstances in which state authorities may deprive a person of their life. It found that the police action that resulted in the woman’s death was disproportionate to the requirements of law enforcement in the circumstances of the case, and violated her right to life.

In another UN Human Rights Committee case, Billy and others v Australia (Communication No. 3624/2019), the inhabitants of four low-lying islands in the Torres Strait argued that Australia’s insufficient action on climate change violated, among other rights, their right to life. The Committee disagreed. It said that those complainants had not indicated that they had faced or were facing adverse impacts on their own health, or a real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life. However, the Committee did confirm that a country’s obligation to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations, that that right may be violated even if such threats and situations do not result in the loss of life, and that “such threats may include adverse climate change impacts”.

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated February 2026.