The Human Rights Act ACT 2004

1
The Human Rights Act (ACT ) 2004

• An overview

2
The HRA Dialogue Model

• Canadian dialogue debate
• UK HRA 1998 uses dialogue model
• Elements of dialogue
• Unentrenched legislation
• Attempt to engage all arms of government
• Promotion of human rights culture rather than a
  litigation culture

3
Main features of ACT HRA

• Rule of statutory interpretation (ss 30, 31)
• Declarations of Incompatibility (s 32)
• Duty to respond to D o I (s 33)
• A-G compatibility statement (s 37)
• LA Scrutiny Committee (s 38)
• Human Rights Commissioner (s 40)
• Annual reports of govt depts (Schedule 2)

4
Interpretation under s 30 HRA

• In working out the meaning of a Territory law ie
  an Act or stat. instrument, an interpretation
  that is consistent with human rights is as far as
  possible to be preferred, subject to s 139 of the
  Legislation Act (purposive rule)
• Cf s 3, HRA UK So far as it is possible to do
  so, legislation must be read and given effect
  in a way which is compatible with the European
  Convention rights.

5
Effect of s 30 HRA

• EM a new rule of statutory construction
• i.e. goes beyond resolving ambiguous legislation
  in a human rights-consistent manner
• Statutory discretions must be exercised
  consistently with human rights unless relevant
  legislation intends otherwise

6
UK experience with s 3 HRA

• R v A 2001 3 All ER 1 re rape shield law
• Lord Steyn interpretative obligation is strong
  a duty on the court to strive to find a possible
  interpretation compatible with Convention
  rights, even when this linguistically may
  appear strained.
• This may involve reading down express language
  and implication of provisions (in this case
  implies a provision that evidence required to
  ensure a fair trial should not be treated as
  inadmissible).

7
UK interpretative practice (2)

• Lord Hope in R v A s 3 is one of interpretation
  alone and does not allow judicial legislation.
• compatibility with hr is not possible if the
  legislation contains provisions which expressly
  contradict the meaning which the enactment would
  have to be given to make it compatible. (para
  108)

8
UK interpretative practice (3)

• R v Lambert 2001 3 WLR 206 re reverse onus
  provision re drug possession
• HL reads prove in legislation as meaning give
  sufficient evidence
• i.e. provision places evidential rather than
  legal burden on accused

9
UK interpretative practice (4)

• Lord Hopes emphasis on limits of s 3 appear to
  have been accepted (cf muscular approach of
  Lord Steyn)
• Eg Re S (Care Order) 2002 2 WLR 720
• R v Anderson 2002 UKHL 46 (re Home Secretarys
  power to set tariffs for mandatory life prisoners)

10
UK interpretative practice (5)

• R v Anderson
• Section 3 HRA is not available where the
  suggested interpretation is contrary to express
  statutory words or is by implication necessarily
  contradicted by the statute. (Lord Steyn at para
  59)
• Lord Bingham this would be not judicial
  interpretation, but judicial vandalism.