A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

11 September 2001, Counter-terrorism, and the Human Rights Act

The attacks of 11 September 2001 and the reaction to them has been the gravest challenge to date to the Human Rights Act 1998. The Antiterrorism, Crime and Security Act 2001 has expanded the remit of the Terrorism Act 2000 and there has been a new concentration on antiterrorism by government. This article assesses the impact of human rights law on the debate about liberty and security following 11 September. It considers how the provisions of the Human Rights Act have influenced the formulation and interpretation of anti-terrorism laws, and examines the role of the judiciary in adjudicating on disputes between the individual and the state. It ends with some general discussion about the security-driven challenges to human rights that lie ahead.     

The Hard Sell: Promoting Human Rights

The Human Rights Act 1998 is one of the most important constitutional reforms to have been implemented by the New Labour administration in Britain. In addition to incorporating the European Convention on Human Rights into domestic law, its main ambition is the creation of a human rights culture. However, while citizens appear to have very little understanding of what the legislation entails, there is a strong tide of negative media publicity which depicts the Human Rights Act as a ‘villains’ charter’. It has been suggested that the government should do more to promote human rights. This paper reflects on how this may be achieved. An important strategy for creating a positive public awareness of human rights involves eradicating myths which have been allowed to flourish in sections of the British press. However, drawing on the work of Roland Barthes, this paper argues that this may be an unattainable goal. Human rights are empty signifiers which invite mythical appropriation. Both proponents and detractors of human rights legislation mobilise this capacity for mythmaking in their rhetoric.     

Implications of the Human Rights Act (1998) for schools

The Human Rights Act 1998 finally came into operation on 2 October 2000 for all jurisdictions of the United Kingdom. The Act, which incorporates the European Convention on Human Rights into the UKs domestic laws, means that it will be unlawful for public authorities, which includes the DfEE and LEAs, to act in a way which is incompatible with the fundamental human rights set out in the Convention (found in Schedule 1 to the HRA). Bodies such as schools and their governing bodies, whose functions are of a public nature, are also covered by the legislation. The articles of the Act which have a particular relevance for schools and education are identified. It is probable that pupils and their legal advisers will invoke the Act in disputes over a wide range of educational issues, for example, bullying, exclusions and suspensions. Some of these issues are examined and where possible existing European human rights case law is cited. It is likely that the HRA will create interesting legal challenges involving schools and education, some of which cannot be anticipated at the moment, and that the Act will cause changes to education laws and schools regulatory procedures .     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.     

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

In RR v Secretary of State for Work and Pensions – follow-on litigation from the high-profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.     

"Chartering" the limits of involuntary psychiatric treatment in Victoria: interpreting the Mental Health Act 1986 (Vic) in the age of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) allows for individuals with a serious mental illness to be treated on an involuntary basis either in a psychiatric hospital (on an involuntary treatment order) or in the community (on a community treatment order). The Act also establishes the Mental Health Review Board with the authority to review these orders within eight weeks of those orders being made and at least once every 12 months thereafter. This article analyses a recent decision of the board, Re Appeal of 09-085 [2009] VMHRB 1, in which the appellant challenged a decision of a psychiatrist to extend his community treatment order for a further 12 months. The appellant argued that aspects of his involuntary treatment under the Act amounted to "cruel, inhuman or degrading" treatment and therefore breached his right to freedom from "cruel, inhuman or degrading" treatment under s 10(b) of Victoria's recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic). Thus, the board was asked to consider whether the definition of "treatment" under the Act was compatible with the rights and freedoms enacted by the Charter. This was the first time that a Victorian court or tribunal had considered the impact of the Charter on involuntary psychiatric treatment. The decision was also a prelude to the Victorian Government's announcement that it would comprehensively review its mental health legislation, now the oldest in Australia. As this case highlights, in determining the future direction of mental health legislation and policy in Victoria, the Charter has been crucial.     

Developments in medical law in the United Kingdom in 2005 and 2006

This article highlights and summarises the key developments in medical law in the jurisdictions of the United Kingdom in 2005 and to April 2006. Topics are mental health and mental capacity, data protection, freedom of information and the impact on health data, the Human Tissue Act, genetic research databanks, Human Fertilisation and Embryology Act--Review of the legislation, consultations and related case law, developments in embryo and embryonic stem cell research, clinical trials and human subject research, medical futility, and physician assisted dying.     

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Transforming Public Health Law: The Turning Point Model State Public Health Act

Law is an essential tool for improving public health infrastructure and outcomes; however, existing state statutory public health laws may be insufficient. Built over decades in response to various diseases/conditions, public health laws are antiquated, divergent, and confusing. The Turning Point Public Health Statute Modernization National Collaborative addressed the need for public health law reform by producing a comprehensive model state act. The Act provides scientifically, ethically, and legally sound provisions on public health infrastructure, powers, duties, and practice. This article examines (1) how statutory law can be a tool for improving the public's health, (2) existing needs for public health law reform, (3) themes and provisions of the Turning Point Act, and (4) how it is being used by public health practitioners.     

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Decriminalisation of abortion performed by qualified health practitioners under the Abortion Law Reform Act 2008 (Vic)

In 2008, the Victorian Parliament enacted the Abortion Law Reform Act 2008 (Vic) and amended the Crimes Act 1958 (Vic) to decriminalise terminations of pregnancy while making it a criminal offence for unqualified persons to carry out such procedures. The reform legislation has imposed a civil regulatory regime on the management of abortions, and has stipulated particular statutory duties of care for registered qualified health care practitioners who have conscientious objections to terminations of pregnancy. The background to, and the structure of, this novel statutory regime is examined, with a focus on conscientious objection clauses and liability in the tort of negligence and the tort of breach of statutory duty.     

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?

In Animal Defenders International v United Kingdom a majority of the Grand Chamber of the European Court of Human Rights held that the UK's statutory broadcasting ban on political advertisements under the Communications Act 2003 did not breach the right to freedom of expression under Article 10 of the European Convention on Human Rights. The judgment departs from the Court's established case law and, it is argued, raises several issues of concern both with regard to freedom of expression, and for human rights adjudication more generally. In particular, the Court's use of a doctrine of ‘general measures’ led it to place a great deal of reliance on the quality and quantity of legislative debate that preceded the UK ban, rather than its actual impact upon the applicant.     

A Tort-Based Approach to Damages under the Human Rights Act 1998

This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach.     

The United Kingdom Identity Cards Act 2006 Civil or Criminal?

After much controversy and debate, the United Kingdom Parliamentpassed the Identity Cards Act in March 2006. The new nationalidentity registration scheme established under the legislationwill be in operation in 2 years. Initially the scheme will notbe generally compulsory, though the intention is eventuallyto make it mandatory. The Act uses a mix of civil penalty andoffence provisions as part of its enforcement regime. This articleconsiders the approach of the legislation, particularly thepractical implications of authentication and verification ofidentity under the scheme and the potential impact on the effectivenessof the enforcement regime, having regard to the right againstself-incrimination under the Human Rights Act 1988 (UK) andArticle 6 of the Convention for the Protection of Human Rightsand Fundamental Freedoms 1950, and the common law privilegeagainst self-incrimination.     

The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998

This essay gives more detailed content to the widespread viewthat the Human Rights Act 1998 (HRA) has changed the traditionalrole of parliamentary intention in statutory interpretation.It begins by outlining the various ways in which legislativeintent has featured in traditional (pre-HRA) statutory interpretation.This is followed by an examination of the interpretive principlesdeveloped by the senior judiciary under the HRA case-law, focusingon the extent to which they seem to depart from traditionalprinciples. It is argued that although the traditional roleof parliamentary intention is partly preserved post-HRA, theinterpretive obligation under s 3(1) HRA nonetheless shiftsthe interpretive focus away from what Parliament originallyintended in enacting the legislation under HRA scrutiny, towardsfulfilling the overriding goal of achieving compatibility withConvention rights. The final sections of the essay attempt toprovide an account of what is involved in this shift.     

Regulating surrogacy--a contravention of human rights?

On the 2nd of October 2000, The Human Rights Act 1998 came into full force, signalling the incorporation of The European Convention on Human Rights into U.K. law. Areas of law believed to be inconsistent with the Convention may now be challenged in both The European Court of Human Rights and domestic courts. This article considers whether existing laws on the regulation of access to infertility services, in particular surrogacy, will be deemed incompatible with the ECHR. Human rights as enshrined within Articles 8 and 12 will be examined in light of recent suggestions that there may arise legal challenges by those who have had access to reproductive services restricted or denied. It will be shown that, although existing and potential future controls may arguably infringe these rights, it is nevertheless unlikely that they will be held to be in contravention of The Human Rights Act 1998.