Transcript Homeless Persons’ Legal Clinic Induction Training

The Impact of the Charter of
Human Rights on Public
Interest Litigation
Phil Lynch
Director
Human Rights Law Resource Centre Ltd
[email protected]
www.hrlrc.org.au
(03) 9225 6695
Outline

What is ‘public interest litigation’?

Impact of Charter on PIL:
Process and Procedure



Substance




Access to courts and fair hearing
Third party intervenors
Areas/issues litigated
Rights litigated and engaged
Impacts and Outcomes
What is ‘Public Interest Litigation’?
PILCH Guidelines:





UK Working Group on Public Interest Litigation:




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.
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):
Case Category
% Cases raising HRA
Immigration / asylum
45
Housing / homelessness
32
Prison
55
Education
22
Disciplinary proceedings
20
Mental health
100
Source: Public Law Project, The Impact of the Human Rights Act on
Judicial Review (2003)
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
[email protected]
www.hrlrc.org.au