Courts’ role in safeguarding human rights is missing piece of the Puzzle
When you hear the phrase ‘human rights’, you might think about the rights of a criminal, or a detainee, or someone involuntarily drawn into the mental health system. You may think they are the only people who need to worry about their rights.
However, human rights are universal, and the way our governments fulfil and protect them matters to all of us. The ACT Government must respect your rights, and the rights of your friend, a victim of family violence. Not to mention, your neighbour with a disability, wanting to catch the bus? As well as your parent, applying for a fresh start with a new Government job.
But just how well protected are the rights of the people you care about?
Human rights legislation in the ACT has had a significant beneficial impact. Our elected representatives regularly debate, and act on, human rights arguments when considering new laws. The Commission is also frequently consulted in the early stages of policy and law development, and generally we find that Government policy makers also take human rights seriously.
The missing piece of the puzzle is how the courts hold Government agencies to account when they breach your human rights, or those of the people you care about. We are frequently contacted by people alleging that a Government agency has breached the Human Rights Act. The only assistance we can offer is to talk them through a complex and expensive Supreme Court legal process. A more accessible resolution process would truly embed a human rights culture in the ACT community.
The ACT was the first Australian jurisdiction to legislate universal rights, and we still have no national equivalent. The Act places obligations on ACT Government agencies to act and make decisions in accordance with protected human rights. In this way, the Act doesn’t regulate the behaviour of two individuals in private. It requires the ACT Government to think about and act consistently with the rights of individuals in its day to day operations.
In the ACT model, the courts are not the final arbiter of whether laws are human rights compatible. They must adopt a human rights-consistent interpretation of ACT laws where possible. If they cannot, the law is referred to the Legislative Assembly, who may amend it, or retain it unchanged. That has happened once in the ACT, and the Legislative Assembly has retained the Bail Act unchanged.
A person who alleges that a Government agency has breached a human right can apply to the Supreme Court, which may grant any relief, except for financial compensation. Since 2009 when the Supreme Court gained direct jurisdiction to hear such matters, only 14 individuals have brought such actions.
The Government may argue that this demonstrates how well ACT Directorates uphold human rights. However, there are two barriers that are preventing more actions to test such claims. The first is the cost and time commitment in bringing a Supreme Court action, which usually requires legal representation. The other issue is the lack of any financial compensation to offset those large costs.
Even modest change could have a profound impact on how we measure rights protection. More people asserting their rights will not necessarily result in more successful actions, but at least we would have a fuller picture of how rights protection is actually progressing. Such change need not be costly, and may actually save the taxpayer money in the longer term.
Courts and tribunals below the Supreme Court offer applicants and the Government more cost-effective paths to dispute resolution. They are familiar with specific subject matter, and are thus able to weigh up the impact of an agency’s human rights breach in light of all relevant factors in the proceeding. In creating the ACT Civil and Administrative Tribunal (ACAT), Attorney General Simon Corbell noted that it would promote access to justice, and reduce costs for a range of legal issues including tenancy, discrimination, sexual harassment, small civil claims, guardianship and mental health. Allowing individuals to commence human rights complaints in ACAT would make the process simpler, cheaper and easier.
Another significant improvement would be to allow the courts to financially compensate an individual wronged by the ACT Government’s actions. The availability of damages under the Human Rights Act would assist genuine claimants who may otherwise be deterred by the cost and time involved in pursuing test case litigation. Those subjected to significant human rights breaches are often the most marginalised and least resourced in our community.
Damages for human rights breaches are available in other similar jurisdictions, but are only awarded in limited circumstances. New Zealand Chief Justice Elias observed that the number of cases where damages have been sought is small, ‘suggesting that early predictions of a flood of claims to vex theadministration of justice are well astray, as such predictions usually are.’ In the UK moderate damages are only available if certain conditions are met, including that existing remedies are inadequate, and it is necessary further to compensate the claimant for losses they have actually sustained.
As a result of the Human Rights Act’s influence on the Executive and the Legislature, the ACT community has benefitted by having better policy and legislation, better protections for vulnerable people, and increased transparency and accountability. ACT legislators are giving serious consideration to the potential for legislation to violate human rights. The role of the ACT Scrutiny of Bills Committee is to report on how proposed legislation will impact on rights to the ACT Legislative Assembly. These reports are routinely referred to in debates. In 2014 alone, nearly 100 Government amendments to seven bills were moved in response to Committee comments. However, without change to the way the courts consider rights, there is a question as to how committed the ACT Government is to human rights protection.
It is a sign of the robust human rights culture we have in the ACT that the Government and Legislative Assembly not only allow, but encourage, transparent debates about how we make our laws. However, that is only part of the potential rights protection we are entitled to enjoy. Until the ACT’s courts and tribunals provide an accessible and meaningful avenue for our parents, children, neighbours and friends to test how well they have been treated by our Government, we won’t fully realise the potential of human rights legislation.
This opinion piece was originally published in the Canberra Times