the impact of the charter of human rights on public interest litigation phil lynch director human...
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The Impact of the Charter of Human Rights on Public Interest Litigation
Phil LynchDirectorHuman Rights Law Resource Centre [email protected](03) 9225 6695
Outline
What is ‘public interest litigation’? Impact of Charter on PIL:
Process and Procedure Access to courts and fair hearing Third party intervenors
Substance Areas/issues litigated Rights litigated and engaged
Impacts and Outcomes
What is ‘Public Interest Litigation’?
PILCH Guidelines: require a legal remedy or other legal assistance; and affect a significant number of people; or raise matters of broad public concern; or impact on disadvantaged or marginalised groups.
UK Working Group on Public Interest Litigation: raise issues of general public importance; and the public interest requires those issues be resolved: see
also Corner House Case [2005] EWCA Civ 192
HRLRC undertakes ‘impact analysis’
Access to Courts and a Fair Hearing
Charter s 24(1): Fair Hearing A person charged with a criminal offence or a
party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court and tribunal after a fair and public hearing.
Access to Courts and a Fair Hearing (2)
Minimum basic elements of a fair hearing include: Equal access to, and equality before, the courts (inc
issues as to costs, standing and form of petition) Right to legal advice and representation (inc right to
civil legal aid in some circumstances) Right to procedural fairness Discretion as to costs Right to expeditious hearing / trial without undue
delay Right to interpreter where necessary
Third Party Interveners
HRA appears to have focused and stimulated NGO and CLC litigation activity, esp as TPIs
TPI applications have increased significantly in both UK Court of Appeal and House of Lords under HRA (11 NGOs in ‘torture case’ A (No 2))
TPIs in human rights cases have included Law Society, Bar Council, JUSTICE, UNHCR, Amnesty, AIRE Centre
Third Party Interveners (2)
In Victoria, note potential intersection of s 32(2) and Maxwell J in Royal Women’s Hospital:
‘Since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will necessarily involve judges and practitioners working together to develop a common expertise.’
NB: HRA has led to ‘close and positive’ dialogue between UK and ECtHR
What Areas/Issues will be Litigated?
HRA raised in between 20-50 % of superior court cases but generally only engaged in cases which raise:
Principles of civil liberty Principles of legality Principles of human dignity
Cf Aerial Advertising (Major Events) Bill
Sources: Conor Gearty, Principles of Human Rights Adjudication (2004), Department of Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006)
What Areas/Issues will be Litigated? (2)
Judicial review patterns (descending order by volume in post-permission cases):
Source: Public Law Project, The Impact of the Human Rights Act on Judicial Review (2003)
Case Category % Cases raising HRA
Immigration / asylum 45
Housing / homelessness 32
Prison 55
Education 22
Disciplinary proceedings 20
Mental health 100
What Rights will be Litigated?
Use of articles in post-permission cases citing HRA:
Migration / asylum (NB: federal law) Art 3 (freedom from torture and cruel treatment) – 71 % Art 8 (right to respect for privacy and family life) – 46 % Art 5 (right to liberty and security of person) – 22 %
Housing / homelessness Art 8 (right to respect for privacy and family life) – 80 % Art 6 (right to a fair trial ) – 40 %
What Rights will be Litigated? (2)
Use of articles in post-permission cases citing HRA (cont):
All ‘Other’ (inc education, prisons, mental health, police, community care)
Art 8 (right to respect for privacy and family life) – 46 % Art 6 (right to a fair trial ) – 44 % Art 5 (right to liberty and security of person) – 23 % Art 14 (prohibition on discrimination) – 14 % Art 3 (freedom from torture and cruel treatment) – 13 % Art 2 (right to life) – 10 %
Source: Public Law Project, The Impact of the Human Rights Act on Judicial Review (2003)
Right to Privacy (s 13)
A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with
Areas of application in the UK have included:
Housing and homelessness Monitoring of employee communications Noise and air pollution Physical, social, sexual and professional identity
Prohibition on Torture and Cruel, Inhuman or Degrading Treatment (s 10)
A person must not be subject to torture or treated or punished in a cruel, inhuman or degrading way
Areas of application by the HRC, ECtHR and UK courts include:
Unnecessary strip-searching and handcuffing Failure to provide adequate facilities (eg, health
care and drug treatment) Failure to investigate, punish and remedy
alleged violations
Right to Liberty and Security of Person (s 21)
Every person has the right to liberty and security
Areas of application by the HRC and UK courts have included:
Consideration of proportionality of detention Imposition of mandatory sentences Delays in reviewing involuntary detention of
persons with mental illness
Right to Life (s 9)
Every person has the right to life and the right not to be arbitrarily deprived of life
Areas of application by the HRC, ECtHR and UK courts have included:
Access to adequate heath care (esp people in detention) Protection of people who have received death threats or
are at real and immediate risk Prompt, effective and independent investigation of deaths
or near-deaths of people caused by or in custody and control of the state
Amelioration of serious pollution
Right to Equality before the Law (s 8)
Every person has the right to enjoy his or her human rights without discrimination
Areas of application by the HRC, ECtHR and UK courts have included:
Unlawful to discriminate against a person in any area that falls within the ‘ambit’ or ‘general scope’ of a relevant human right even though there may not be any violation of that right
Impact on Judicial Review – UK
PLP research from Oct 2000 to Oct 2002 considered: Impact of HRA on volume of JR applications Impact of HRA on outcome of JR applications Relevance or ‘spread’ of use of articles
Key findings: HRA did not lead to significant increase in the use of JR
(though note impact of Bowman reforms) However, almost 50 % of JR applications cited HRA HRA most often used to supplement established grounds of JR
in cases which would have been pursued regardless Reference to HRA by practitioners and judges often cursory
and unsophisticated, reflecting need for more extensive and effective legal professional and judicial education
Impact on Judicial Review – Vic
Charter s 38(1): Obligations of Public Authorities It is unlawful for a public authority…in making a
decision, to fail to give proper consideration to human rights
Requires real, genuine and proportionate consideration of human rights
the doctrine…may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions…It may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations: R (Daly) v Secretary of State for the Home Department [2001]
Impact on Outcomes of Litigation
DCA Review – Considered in 1/3 of House of Lords Cases and ‘substantially affected result’ in 1/10
PLP – On average, across all areas, the ‘value added’ by HRA arguments in JR was:
Minimal (ie, increased likelihood of success by less than 20 %) – around 70-75 %
Significant (ie, increased likelihood of success by more than 20 %) – around 25-30 %
Further Information
Human Rights Law Resource Centre Ltd
Level 1, 550 Lonsdale Street
Melbourne VIC 3000
(03) 9225 6695
www.hrlrc.org.au