Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

"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.     

Alberta law confining child prostitutes upheld

The Alberta Court of Queen's Bench has determined that the Alberta Protection of Children Involved in Prostitution Act is not in violation of the Constitution. This decision overturns the ruling of the Provincial Court, which held that the Act infringes the rights articulated in sections 7, 8, and 9 of the Charter.     

Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

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.     

Rights-based mental health legislation and the right to be treated

Following the United Nations Declaration on the Rights of Persons with Mental Illness (1991), the Australian Government released the National Mental Health Policy in 1992. Pointedly, the Report of the National Inquiry into the Rights of People with a Mental Illness in 1993 was critical of the failure of a number of Australian jurisdictions to adequately protect the rights of people with mental illness. A subsequent critique of the capacity of mental health law and policy to respond to current and future challenges of community-based care suggested that while Australian legislation and policies may pass human rights scrutiny in principle, there was insufficient focus on the monitoring processes to ensure implementation and adherence to those measures. The new Commonwealth Attorney-General has foreshadowed the development of a Charter of Rights to create a framework for legislators and regulators when drafting legislation to cover "aspirations" such as the recognition of fundamental human rights. However, it is argued that the dilemma of how best to care for and protect those afflicted with mental illness as well as the public who may be affected by violence or offending by those persons with untreated mental illness, will not be resolved by resort to a didactic Charter of Rights, however idealistic or well intentioned.     

The right to minority language public school education as a function of the equality guarantee: a reanalysis of the Gosselin Supreme Court of Canada Charter case

This paper concerns a recent Supreme Court of Canada decision dealing ostensibly with the protection of language minority rights. The case, in fact, however, concerns the Court imposing statutory limits on constitutionally guaranteed equality and liberty rights. The Court in the instant case held as constitutional Quebec legislation permitting access to English language schools only to children who have received, or are receiving the majority of their instruction in English in Canada, or whose parents received the majority of their instruction in English in Canada at the primary school level. The appellants, members of the French majority in Quebec, could not meet those eligibility criteria. Therefore, they were held to have no right to access English language public schools for their children. The ruling, as discussed, is inconsistent with the equality and liberty guarantees as well as the minority language protection clause of the Canadian Charter of Rights and Freedoms.     

Australian Aboriginal Property Rights as Issues of Indigenous Sovereignty and Citizenship

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in The Wik Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co-exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co-existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about-turn from the recognition of native title to land in Mabo . We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights.     

New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems,New Prime,and Lamps Plus

The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela rejected a state law interpretation of a contract provision to find that parties to an employment contract intend individual arbitration absent reference to group arbitration. A unanimous Court in New Prime v. Oliveira interpreted the FAA to include independent contractors under the transportation worker exemption, reinvigorating the battle over what it means to be engaged in interstate commerce to qualify for the exemption. These decisions resolved some disputes about the breadth of the FAA, but other questions remain. In the wake of Epic Systems and Lamps Plus, state courts and legislatures are testing the boundaries of the FAA's saving clause, with limited success. Confidentiality provisions, frequently associated with arbitration agreements, may unlawfully interfere with employees’ federal labor law rights. This article recommends that Congress amend the FAA to address these issues by excluding all workers engaged in interstate commerce, not just transportation workers, because the Court has strayed far from the original intent of the Act—to enforce commercial agreements in which the parties had equal bargaining power. State legislation also should provide guidance on what makes arbitration voluntary and fair, and provide a choice to employees on collective action, forum, and confidentiality.     

Privacy of bodily samples

Privacy law in Victoria does not cover human tissue and other bodily samples. To ensure that individuals have some control over how their samples are collected, used and transferred, legislative amendments are required. Can concerns raised by the Australian Law Reform Commission about the lack of privacy protection afforded to bodily samples be addressed in the Human Tissue Act 1982 (Vic)?     

The body and the body politic: assisted suicide under the Canadian Charter of Rights and Freedoms

The author critically examines the majority judgment of the Supreme Court of Canada in Rodriguez v. Canada (A.G.) and concludes that the judges in the majority have adopted a legislative public policy mandate rather than carrying out a judicial function that accords with established canons of Charter interpretation and analysis. The author contends that the majority read section 7 of the Charter as enshrining the sanctity of life as an intrinsic, abstract societal value necessary to protect the ill and the vulnerable and not as an expression of the individual's entitlement to autonomy against the State. She also contends that the majority's section 1 analysis was unduly deferential not only to the Canadian Parliament but also to the legislatures of the majority of Western democracies. This came at the expense of considering the legislative pattern of abandoning laws against suicide, the common law respect for individual autonomy and quality of life regarding refusal of and withdrawal from medical treatment, and the widespread lax enforcement of laws critical of the majority's reliance on "slippery slope" reasoning, which subordinated Ms Rodriguez's Charter rights to apprehend wrongdoing by the medical profession and the presumed best interests of society as a whole. The author recommends that legislators who address the question of assisted suicide look to methods of regulating access to assisted suicide that reflect respect for individual dignity under the Charter at the end of life, and reject any reading of the majority judgment that suggests that legislators are free to regulate or to proscribe assisted suicide according to abstract notions of the sanctity of life, pragmatic views of the public good, or the false consciousness or perceived vulnerability of the terminally ill or disabled.     

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.     

Standing and the Northern Ireland Human Rights Commission

On 7 June 2018, the UK Supreme Court held that the Northern Ireland Human Rights Commission (NIHRC) did not have standing under the Northern Ireland Act 1998 (NIA) and Human Rights Act 1998 (HRA) to challenge the legality of abortion law in Northern Ireland. This case note argues that while a literal reading of the NIA exposes its inconsistencies, a purposive reading of both the NIA and HRA indicates that the NIHRC should have had standing. The note seeks to highlight the unique democratic function of the NIHRC in a consociational setting in protecting rights that are not represented along ethno‐national lines. It also considers the negative ramifications that the judgment will have on women who have been victims of the legislative regime and seek to challenge the compatibility of Northern Irish abortion law with the HRA in the future.     

The Hermeneutics of Jurisdiction in a Public Health Emergency in Canada

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue (political and collective matter) while taking into account s. 7 of the Canadian Charter (individual rights). It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health.     

Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution

Abstract:  This article deals with how the Court of Justice balances fundamental rights protection and Common Market freedoms. From the particular perspective of the Charter and the ECHR, whose legal status will be upgraded upon entry into force of the European Constitution, it studies the Court of Justice's approach to fundamental rights invocations by Member States in the context of Common Market freedoms. For this purpose the judgments in Schmidberger and Omega will be discussed both in the current setting and that envisioned by the European Constitution. It will emerge that the Court of Justice's reasoning in Schmidberger and Omega can be criticised on different levels, and alternative approaches are proposed. At a later stage some further elements for refining the methodology for assessing Member States' fundamental rights invocations are addressed with a view to facilitating the Court of Justice more satisfactorily to take account of the current and likely future setting of fundamental rights protection in Union law.     

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.     

Australian court holds that sublicensor cannot validly assign brand management and termination rights

In Pacific Brands Sport and Leisure Pty Ltd v Underworks PtyLtd the Full Federal Court of Australia held that a sublicensorcould not validly assign certain rights, including brand managementrights and termination rights, to a third party because thenature of the rights was personal between the sublicensor andthe sublicensee and the assignment of those rights requiredthe sublicensee's consent.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.