The Impact of the Charter of Human Rights on Public Interest Litigation

1. The Impact of the Charter of Human Rights on Public Interest Litigation Phil Lynch Director Human Rights Law Resource Centre Ltd hrlrc@vicbar.com.au www.hrlrc.org.au (03) 9225 6695

2. 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

3. 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’

4. 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.

5. 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

6. 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

7. 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

8. 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)

9. 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)

10. 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 %

11. 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)

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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]

19. 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 %

20. Further Information Human Rights Law Resource Centre Ltd Level 1, 550 Lonsdale Street Melbourne VIC 3000 (03) 9225 6695 hrlrc@vicbar.com.au www.hrlrc.org.au