Look Who’s Talking

Areas for improvement

Improving HRA accessibility

When the public authority obligations were introduced, the Attorney-General expressed the hope that the new right of action when it commenced in 2009 would stimulate renewed interest in the HR Act amongst the legal profession and turn the trickle of human rights case law into a stream. Compared to the Victorian Charter, the HR Act has been routinely raised in a higher percentage of cases in the ACT courts and tribunals (see chart below). However, the stream cannot be said to be very deep, and as noted by the Chief Justice, the HR Act has rarely made a difference to the outcome of cases. The direct right of action in the HR Act also remains under-utilised and it may be a remedy that is out of reach for the vast majority of people in the community.

(i) Clarification of section 40C – application of the HR Act in the lower courts and tribunals

A key factor that may be contributing to the limited success of the HR Act before the ACT courts and tribunals is the lack of clarity regarding the extent to which ACAT and lower courts may assess and remedy breaches of public authority obligations under the HR Act.

In LM v Children’s’ Court [2014] ACTSC 26, Master Mossop of the Supreme Court considered the ability of the Children’s Court (and ACAT and courts other than the Supreme Court) to assess whether a public authority had breached its human rights obligations. The Master also considered the nature of any remedy such bodies could provide for a breach. This is a matter of concern because the Supreme Court’s jurisdiction is an expensive and lengthy process for plaintiffs, who will often be vulnerable members of the community.

Master Mossop confirmed in LM that an express power to grant relief under the HR Act is given only to the Supreme Court via s 40C(4). However, his Honour also suggested that inferior courts and tribunals (and the Supreme Court) retain their inherent, statutory or common law jurisdictions to grant remedies otherwise available to them other than under the HR Act. Therefore a person may rely on their rights under the HR Act in lower courts and ACAT, but lower courts and ACAT cannot grant a remedy under the HR Act for that breach, unless it falls within the existing rules of that remedy. This creates a risk that HR Act arguments before a lower court or ACAT may be pointless, if any remedy for a breach is subject to the requirement of the non-HR Act matters before the court anyway. Master Mossop in LM did suggest that the consideration of a remedy by a lower court and ACAT for a HR Act breach may include factors beyond the traditional scope of that remedy, however this remains unclear.

In contrast to LM, a recent decision by the Victorian Supreme Court in Goode v Common Equity Housing [2014] VSC 585 (21 November 2014), confirmed that a lower court’s or tribunal’s jurisdiction to consider the question of lawfulness under the Charter was not lost when the original ground for making an application was not determined or rejected. Justice Bell considered that the tribunal in this case had erred because it had considered itself relieved of the responsibility to exercise the jurisdiction in section 39(1) of the Charter because it had rejected the non-Charter discrimination claim. The decision clarifies the previous Court of Appeal decision in Sudi, that the key issue is whether the Tribunal is already considering unlawfulness in the proceedings, in order to enliven the Charter consideration of the matter.

The Commissioner considers legislative reform is needed to clarify these questions, particularly in light of the recent Victorian decision on the operation of s 39(1) of the Victorian Charter, which is similar but not identical to s 40C(4) of the HR Act. If s 40C(4) precludes inferior courts and tribunals from issuing a direct remedy (as the Master of the Supreme Court found in LM), then applicants are likely to be disadvantaged. Inferior courts and tribunals offer applicants a more cost-effective path to remedying wrongs. Tribunals and lower courts offer significant benefits with specific jurisdictional expertise, such as tenancy matters in ACAT, and the Children’s Court. They are familiar with the subject matter and particular legal framework, thus able to weigh up the impact of a public authority’s breach of the individual’s rights in light of all relevant factors in the proceeding. They are well-placed to issue an effective remedy under the HR Act. It has been noted in various forums, including most recently at the HR Act’s ten-year anniversary seminar that such a reform would encourage the use of human rights arguments in ‘far more cost-effective and accessible jurisdictions, in a much broader range of cases, argued by a larger number of advocates’.

The 2014 ACT Government Review Report takes the view that any amendments to these provisions are unnecessary because the courts have already clarified their operation. However, there is still considerable uncertainty about the operation of these provisions and the Commissioner has previously written to the Attorney General about these concerns, which in her view, were not resolved completely by the Supreme Court’s decision in LM. Part of the confusion is how Government agencies are seeking to respond to human rights pleadings in the Magistrates Court, Children’s Court and ACT Civil and Administrative Tribunal.

It would be helpful for the Government’s position on these matters to be clearly articulated during the forthcoming consultation process. It would also be beneficial for the Government to undertake to monitor the application and use of these provisions in practice and to take the step of instructing all relevant agencies as to its position. Absent legislative amendment, this should include amending Government policy so that agencies agree that they consent to courts and tribunals, other than the Supreme Court, considering if they have complied with obligations under the HR Act.

(ii) Damages

The Commissioner remains of the view that the availability of damages under the HR Act would assist genuine claimants who may otherwise be deterred by the cost and time involved in pursuing test case litigation. Excluding the possibility of damages being awarded may deter would-be claimants, including those with meritorious claims, from bringing them to court because of the cost and stress associated with litigation. The ACT remains one of the few human rights jurisdictions in the world to not offer damages to victims of human rights breaches.

Declaration of incompatibility

The Government has yet to legislatively respond to the first declaration of incompatibility issued by the Supreme Court In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147. The Commissioner believes further reform to bail laws are needed as a result of the decision.