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Precedent (Australian Lawyers Alliance) |
REINVIGORATING THE HUMAN RIGHTS DIALOGUE
By Sean Costello and Renuka Thilagaratnam
The ACT Human Rights Act 2004 (HR Act) was ground-breaking legislation. The Australian Capital Territory was the first Australian jurisdiction to implement a statutory bill of rights, based on a dialogue model of human rights protection that gives separate duties and functions to the three arms of government, while preserving parliamentary supremacy over human rights matters. The HR Act provided the impetus for Victoria to adopt its own Charter of Human Rights and Responsibilities Act 2006, which shares many common features with the ACT legislation. The HR Act has also, perhaps surprisingly, benefitted from being non-entrenched legislation rather than an entrenched ‘bill of rights’, allowing incremental improvement over the years. The HR Act has been subject to regular mandated reviews in the last decade. These led initially to the HR Act being amended to introduce a duty on public authorities to comply with human rights, and an independent right of action in the ACT Supreme Court for breaches of that duty.[1] Subsequently, a right to education was added, the first express recognition of a socio-economic right in the HR Act, albeit in limited form.[2] The HR Act’s latest review is likely to lead to amendments to extend public authority obligations to the right to education, and to provide express recognition of indigenous cultural rights.[3]
The HR Act’s successive reviews have shown that its main benefit has been in influencing the formulation of new legislation and policy. Within the legislature, there are signs that the HR Act has made a genuine cultural difference to the way the ACT Legislative Assembly goes about its work. The HR Act and the standards that it upholds are frequently invoked in parliamentary debates by members across the political divide. Significantly, the ACT Scrutiny of Bills Committee’s reports on the compatibility of legislation with the HR Act are routinely referred to at the debate stage of bills. The Committee’s concerns are also often cited as the basis for government amendments to bills. In 2014 alone, close to 100 government amendments in relation to 7 bills were moved, ostensibly in response to comments made by the Committee.[4]
This may be a reflection of the robust policy process human rights legislation imposes on the executive and legislature. Obliging parliaments and government to think about whether a proposed law or policy will actually achieve what it is supposed to, and whether it is likely to represent the smallest possible infringement on the rights of individuals, is arguably just good policy development.
The HR Act’s impact on the courts and tribunals, however, appears to have been less successful. This article outlines the courts’ role under the HR Act, and proposes several options for greater participation by the courts and tribunals in the human rights dialogue.
The HR Act, similar to the Victorian Charter, invests a number of duties and functions in courts and tribunals:
• Courts and tribunals (and other decision-makers) must adopt, where possible, a human rights-consistent interpretation of ACT laws.[5]
• The Supreme Court is empowered to issue a declaration of incompatibility, or inconsistent interpretation, where a law cannot be interpreted consistently with human rights.[6]
• Under both laws, public authorities must act and make decisions consistently with human rights, and a person may also rely on the unlawfulness of the conduct of the public authority in other legal proceedings.[7]
In the ACT, a person who alleges that a public authority has breached a human right can apply to the Supreme Court for relief via an additional ‘direct right of action’ under s40C of the HR Act. The Supreme Court may grant any ‘relief it considers appropriate’, except for damages.
Consistent with a dialogue-based model of rights protection, the courts are not the final arbiter of whether laws are consistent with human rights, but rather one participant in a discussion that also involves the executive and the legislature.
So how involved have the courts and tribunals been in the human rights dialogue to date?
Overall, in its first ten years of operation, the HR Act has been mentioned in approximately 50 cases in the ACT tribunals (6.6 per cent of published decisions), 164 cases in the ACT Supreme Court (9.2 per cent of 1,846 published decisions) and in 29 cases in the ACT Court of Appeal (7.6 per cent of 371 published decisions).[8] As recently noted by Chief Justice Murrell, after a peak in 2009 (which coincided with the HR Act being raised unsuccessfully in a number of bail applications), there has been a decline in the percentage of cases in which it has been raised in the Supreme Court. In Chief Justice Murrell’s view:
‘[T]he HRA has had little direct impact on the outcome of cases. The enactment of the HRA was a powerful symbolic statement, and it was predicted that the Supreme Court would play an important role in increasing human rights compliance in the ACT. But despite the significant number of cases in which the HRA has been mentioned, there are very few in which it has made a difference to the outcome.’[9]
In comparison, since 2007 the Victorian Charter has been mentioned in approximately 17,596 cases (1.1 per cent of published decisions), 4,951 in the Victorian Supreme Court (2.625 per cent of cases) and 2,720 Victorian Court of Appeal cases (2.875 per cent of reported decisions).
Nonetheless, jurisprudence under the HR Act and Victorian Charter remains largely in its infancy, at least compared with similar (and older) laws overseas.
Section 31 of the HR Act and s32 of the Victorian Charter both contemplate international law being used to interpret rights, in contrast to the consideration of some justices of the High Court in Momcilovic v The Queen.[10] In this respect, the most fertile ground for precedent may be the experiences of New Zealand, United Kingdom and Canada, as comparable human rights jurisdictions, where human rights instruments are at least six years older than the HR Act and the Victorian Charter. These jurisdictions provide some clues as to the potential application of human rights legislation by the Australian courts.
The focus of this article is civil law, particularly tort, and notes many of the cases cited by Nolan.[11] However, criminal law is also important, as human rights arguments are frequently cited in criminal cases, and have equal potential for rich case law. For example, see the extensive United Kingdom, Canadian and United States case law on police powers and impact of overreach on admissibility of evidence. Indeed, the only declarations of incompatibility in Australian jurisdictions have both concerned criminal law.[12]
The following list is intended to provide food for thought about potential future court submissions, but some of the ideas may push the metaphoric envelope.
Public authorities arguably have a narrower range of defences under the HR Act than that provided in tort, particularly negligence.[13] The HR Act permits only two exceptions to the duty to comply with human rights. These relate to circumstances where there is an express direction by a law for the public authority to act in a manner inconsistent with the HR Act, or where a law is incapable of being interpreted consistently with human rights. The available human rights defences refer to a law expressly requiring an act to be done or decision made in a particular way, or a law being incapable of being interpreted consistently with human rights.[14] In contrast, defences in tort may excuse a broader range of behaviour. For example, s110 of the ACT Civil Law (Wrongs) Act 2002 focuses on economic arguments and whether the public authority has complied with its own procedures.[15]
Similarly, there is potentially a higher standard of justification placed on public authorities in human rights law to demonstrate that their actions are reasonable. Also, the public authority bears the burden of demonstrating the reasonableness of its actions. This may be particularly so in cases involving the protection of family.[16] Nolan argues that while in negligence the burden of proof as to fault lies with the claimant, in UK human rights matters involving protection of family, the onus is on the state to establish that intervention is justified. In Handyside v United Kingdom,[17] the ECtHR suggested that the concept of necessity of interference is less flexible than the human rights standard of ‘reasonableness’, which requires the state to show that its actions address a pressing social need, and are proportionate to the aim pursued. This can be particularly relevant to matters involving child protection.
In the recent UK case of Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents),[18] the Supreme Court found that while police did not owe a duty to a victim of crime in negligence, the family could pursue an action under the right to life in the UK Human Rights Act 1998 (UK HRA). Similarly, in Jain v Trent Strategic HA,[19] the House of Lords considered that a health provider owed no duty of care to the owners of a nursing home after the cancellation of the home’s registration. However, the claimants would have been successful under the UK HRA, had it been in force at the time.
Much of the prominent case law in this area involves state child protection authorities. In Z v United Kingdom,[20] the prohibition on inhuman and degrading treatment was held by the ECtHR to oblige authorities to protect children and other vulnerable persons and prevent ill-treatment. Interestingly, this matter was successfully challenged in the ECtHR following a decision by the UK courts that there was no duty of care in negligence owed.
There is also a broad range of civil and political rights directly actionable under the HR Act that may not be justiciable in tort or otherwise under the common law, such as the right to privacy (s12).
The term ‘victim’ is not defined in the ACT or Victorian law. However, it is likely to be interpreted consistently with its meaning in international human rights law: that is, of the person experiencing a breach of human rights. Only individuals can be a ‘victim’, as legal entities such as corporations do not have rights under these laws. But third parties, such as relatives of a victim, have standing in certain circumstances; for example, where a complaint is made about the victim’s death, or where the victim is a child.[21]
Finally, a key factor that may be contributing to the limited success of the HR Act before the ACT courts and tribunals is the lack of clarity regarding the extent to which the ACT Civil and Administrative Tribunal (ACAT) and lower courts may assess and remedy breaches of public authority obligations under the HR Act.
In LM v Children’s' Court,[22] Master Mossop of the Supreme Court considered the ability of the Children’s Court (and ACAT and courts other than the Supreme Court) to assess whether a public authority had breached its human rights obligations. The Master also considered the nature of any remedy such bodies could provide for a breach. This is a matter of concern, because the Supreme Court’s jurisdiction can be more expensive and lengthy for plaintiffs, who will often be vulnerable members of the community.
Master Mossop confirmed in LM that only the ACT Supreme Court has an express power to grant relief under the HR Act. However, his Honour also suggested that inferior courts and tribunals (and the Supreme Court) retain their inherent, statutory or common law jurisdictions to grant remedies otherwise available to them other than under the HR Act. Therefore, lower courts and ACAT can consider if a public authority has breached its obligations as part of other proceedings. However, if a breach is declared, inferior courts and the Tribunal can only remedy that breach using powers they otherwise hold.
A recent decision by the Victorian Supreme Court in Goode v Common Equity Housing[23] provides greater clarity. The decision confirmed that a lower court’s or tribunal’s jurisdiction to consider the question of lawfulness under the Charter was not lost when the original ground for making an application was not determined or rejected. Justice Bell considered that the tribunal in this case had erred because it had considered itself relieved of the responsibility to exercise the jurisdiction in s39(1) of the Victorian Charter because it had rejected the non-Charter discrimination claim. This decision clarifies the previous Victorian Court of Appeal decision in Sudi[24] that, in order to enliven the Charter consideration of the matter, the key issue is whether the Tribunal was already considering unlawfulness in the proceedings.
Currently, there is no direct right of action (leading to damages) under the Victorian Charter, and the ACT’s direct right of action prevents the Supreme Court awarding damages. This raises several questions.
Firstly, what if a right explicitly mentions ‘compensation’? In Morro, N & Ahadizad v Australian Capital Territory,[25] the ACT Supreme Court considered compensation for three separate matters involving decisions by the ACT Sentence Administration Board to revoke periodic detention orders and commit them to full-time imprisonment. This case pre-dated the 2009 amendments to the HR Act, which provided a direct right of action in conjunction with the express exclusion of damages. The government accepted liability for the unlawful detention. Section 18(7) of the HR Act states that ‘anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention’. While Justice Gray held that s18(7) HR Act confers a ‘substantive statutory right to compensation’, the Court found that the s18(7) right to compensation could be fully vindicated by recourse to the common law action of trespass to the person. There has not been a similar decision since the 2009 amendments, but Justice Gray’s reasoning would seem to create an arguable case for specific rights providing damages as a remedy.[26]
Secondly, as discussed above in relation to the ACT case of LM and Victorian case of Goode, there is some question as to what remedy lower courts can award, and what process they can utilise in assessing claims.
Finally, an unlikely way forward might be provided by the New Zealand Supreme Court, which was left to rule on the lack of express remedy under the Bill of Rights Act 1990 (BORA). In Simpson v Attorney-General (Baigent’s Case),[27] the Court limited Crown immunity to tortious cases and found that the courts had a positive duty to award appropriate remedies for a breach of the BORA. This was characterised as a public law remedy. Since then, the New Zealand courts have developed and considered a variety of remedies including monetary compensation (although this is discretionary, depending on there being no existing cause of action, or that the remedy for the cause of action is inadequate).
It should be noted that one of the key considerations for the Court was New Zealand’s obligations under the International Covenant on Civil and Political Rights (ICCPR), particularly article 2(3), which requires an effective remedy for breach. It remains to be seen whether a similar view would apply to the ACT or Victoria, as Australia is a state party to the ICCPR.
Finally, while the HR Act seems to expressly remove ‘damages’ as a remedy, there may be some scope as evidenced in the New Zealand jurisprudence to suggest that ‘compensation’ and ‘damages’ are different things. The NZ courts have suggested that there is a distinction between ‘compensation’ for a BORA breach and a concurrent claim for ‘damages’ based on common law or statute, although double recovery is not possible.[28]
Even if the above potential branches (or saplings) of human rights jurisprudence do not grow, the Australian human rights legislation does at least have some potential to influence the common law in those jurisdictions. How that will interact with the concept of Australia’s ‘one common law’ remains to be seen.[29] Certainly the ACT Supreme Court decision in Morro implies that the two can co-exist.
These uncertainties also provide opportunities for the ACT and Victorian legal profession to make their mark on human rights law into the future. In the meantime, if the growing ‘human rights’ culture in the ACT Legislative Assembly takes hold, new legislation and policy is likely to be more human rights-compliant, and through that process, will also lead to better outcomes. It may even inspire other Australian parliaments to do the same.
Sean Costello is Senior Human Rights Legal Adviser at the ACT Human Rights Commission. PHONE (02) 6205 2222 EMAIL Sean.Costello@act.gov.au.
Renuka Thilagaratnam is a Human Rights Law and Policy Adviser at the ACT Human Rights Commission. PHONE (02) 6205 2222 EMAIL Renuka.Thilagaratnam@act.gov.au.
The authors are grateful to Noor Blumer of Blumers Laywers, former President of the ACT Law Society, for her feedback and input into this article.
[1] ACT Department of Justice and Community Safety (JACS), ‘Human Rights Act 2004 – Twelve Month Review Report’ (2006) and ‘Human Rights Act 2004 Twelve Month Review – Discussion Paper’ (2006).
[2] ANU, ‘ACT Economic, Social and Cultural Rights Research Project’, Australian Research Council (2010), and Government response to the review (2012). See also ANU Human Rights Research Project Report, The Human Rights Act 2004 (ACT): The First Five Years of Operation (2009) and related government response in 2012; available at: http://www.justice.act.gov.au/protection_of_rights/human_rights_act.
[3] ACT Department of Justice and Community Safety (JACS), ‘Economic, Social and Cultural Rights in the Human Rights Act 2004: section 43 review’ (November 2014), available at: http://cdn.justice.act.gov.au/resources/uploads/JACS/ACT_Government_s_43_Review_Report.pdf.
[4] In contrast, Victoria’s Scrutiny of Acts and Regulations Committee has identified only eight instances over a period of eight years where its Charter reports had resulted in a house amendment to a bill. See, Scrutiny of Acts and Regulations Committee, Alert Digest No. 13 of 2014, 14 October 2014, p27.
[5] See s30 of ACT HR Act and s32 of Victorian Charter.
[6] See s32 of the ACT HR Act and s36 of Charter.
[7] See ss40B and 40C of the ACT HR Act and ss38 and 39 of Victorian Charter.
[8] See ACT Human Rights Commission, ‘Look who’s talking: A snapshot of ten years of dialogue under the Human Rights Act 2004 by the ACT Human Rights and Discrimination Commissioner’, December 2014, pp4-5; available at: http://www.hrc.act.gov.au/res/HRA%2010%20yr%20snapshot%20HRDC%20webversion.pdf.
[9] Chief Justice Helen Murrell, ACT Supreme Court, ‘The judiciary and human rights’, paper presented at Ten Years of the ACT Human Rights Act: Continuing the Dialogue Conference, ANU, 1 July 2014; available at: http://www.hrc.act.gov.au/content.php/content.view/id/385.
[10] Momcilovic. [2011] HCA 34 (8 September 2011). A number of justices of the High Court questioned whether the constitutional and other normative differences between Australia and international jurisdictions meant that citing foreign lines of authority could be problematic. See, for example, French CJ at [19], [49]-[50]; Gummow J at [152] to [160] and Crennan and Kiefel JJ at [546].
[11] D Nolan, (2013), Negligence and Human Rights Law: The Case for Separate Development, The Modern Law Review, 76(2): 286-318.
[12] R v Momcilovic [2010] VSCA 50 and In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147.
[13] See s40B(2) of the ACT HR Act and s38 of the Victorian Charter.
[14] The Victorian Charter has an added defence for religious bodies acting in conformity with their doctrines.
[15] Noting that s111 of the Civil Law (Wrongs) Act 2002 likely applies to alleged breaches of the HR Act, which states ‘an act or omission of the defendant authority is a breach of statutory duty only if the act or omission was in the circumstances so unreasonable that no authority having the functions of the defendant authority could properly consider the act or omission to be a reasonable exercise of its functions’.
[16] See s11 of the ACT HR Act, s17 of the Victorian Charter.
[17] (5493/72) [1976] ECHR 5 (7 December 1976).
[19] Nolan, above note 11.
[20] ( 29392/95) [2001] 34 EHRR 97 (10 May 2001).
[21] See, for example, Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2.
[22] LM v Children’s' Court [2014] ACTSC 26.
[23] Goode v Common Equity Housing [2014] VSC 585 (21 November 2014).
[24] Director of Housing v Sudi [2011] VSCA 266.
[26] As well as s18(7), s23 of the ACT HR Act also provides a right to compensation for wrongful conviction.
[28] See this excellent New Zealand Ministry of Justice paper for more information: http://www.justice.govt.nz/publications/publications-archived/2004/guidelines-on-the-new-zealand-bill-of-rights-act/part-iv-remedies-under-the-bill-of-rights-act#981.
[29] See, for example, the unanimous High Court’s decision in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 563.
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