The Human Rights Act 2004 invests a number of duties and functions on courts and tribunals:
• Under s 30 of the HR Act, courts and tribunals (and other decision-makers) must adopt, where possible, a human rights consistent interpretation of ACT laws.
• Under s 32 of the HR Act, the Supreme Court is empowered to issue a declaration of incompatibility, declaring a law incompatible where such an interpretation cannot be adopted.
• Under s 40C of the HR Act, a person who alleges that a public authority has breached a human right can apply to the Supreme Court for relief, and the Supreme Court may grant ‘the relief it considers appropriate’ except for damages. A person may also rely on the unlawfulness of the conduct of the public authority in other legal proceedings in ACT courts and tribunals.
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 which also involves the executive and the legislature.
So how active a participant have the courts and tribunals been in the human rights dialogue to date?
From July 2004 – June 2009, the HR Act was referred to in some 76 cases in the ACT Supreme Court (including in 10 instances in the ACT Court of Appeal – see chart below). It was also mentioned in approximately 10 cases in the former Administrative Appeals Tribunal and the Residential Tenancies Tribunal. There were no declarations of incompatibility issued by the ACT Supreme Court in the first five years of the HR Act’s operation.
The one-year stage: The 12-month review of the HR Act noted that the Act had resulted in ‘only a small impact in a handful of cases where parties have specifically argued human rights issues’, and that it could not be said to have been a ‘decisive factor’ or to have been considered in ‘any great depth’ by the courts so far. At most, it had been used ‘to lend support to a conclusion already reached by other reasoning’. The review concluded that ‘the courts and tribunals have arguably been the least affected by the [HR Act]’. As a result of the 12-month review, a number of amendments were made to the HR Act which were aimed at improving its operation, including clarifying the interpretive provision in s 30; creating a duty on public authorities to comply with the rights under the Act; and creating a direct right of action to the Supreme Court for a breach of those rights, without entitlement to claim damages. The latter two amendments commenced on 1 January 2009.
The five-year stage: The 5-year review of the HR Act, which was concluded in June 2009, however, did not identify any significant improvement in the involvement of the courts and tribunals in the human rights dialogue:
With some exceptions, the courts have, for the most part, remained a spectator to the HRA dialogue thus far. While … there is some indication that its application in the Supreme Court is increasing, in most instances its use has been perfunctory and/or displays a lack of understanding by the legal profession of the provisions of the HRA, and their potential application.
The review concluded that ‘[un]til the courts fully grasp their part in the human rights conversation, there will remain some question as to the HR Act’s ability to generate dialogue between the courts and legislature, and to provide accountability for the Government’s implementation of human rights’.
In its second five years, from July 2009 to November 2014, the HR Act was referred to in some 110 cases in the ACT Supreme Court (including on 17 occasions in the ACT Court of Appeal) and in some 41 cases in the ACT Civil and Administrative Tribunal. The ACT Supreme Court issued one declaration of incompatibility (without any legislative response by the Government to date; see further below). The duty on public authorities, which came into effect on 1 January 2009, has been considered by the Supreme Court in approximately 14 cases, including on a handful of occasions, in the context of the new direct right of action.
Overall, in its first ten years of operation, the HR Act has been mentioned in approximately 50 cases in the ACT tribunals (6.6% of published decisions), 164 cases in the ACT Supreme Court (9.2% of 1846 published decisions) and in 29 cases in the ACT Court of Appeal (7.6% of 371 published decisions) – see chart below. 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 her 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.