Secretary of State for the Home Department v AF  EWHC 42 (Admin) (18 January 2010)
The England and Wales High Court recently held that non-derogating control orders imposed on two UK citizens under anti-terrorism legislation were void ab initio. This resulted in a more favourable damages outcome for the complainants in their litigation against the Secretary of State for the Home Department, who had imposed the orders.
AE and AF were subject to control orders under the Prevention of Terrorism Act 2005 (UK) (‘PTA’). During the administrative process which led to the imposition of the control orders, the Secretary of State relied on closed material, which was not disclosed to AE and AF on the grounds of national security.
The complainants were successful in petitioning the House of Lords to revoke the control orders on the basis that the Secretary of State had failed to comply with the complainants’ right to a fair hearing under art 6 of the European Convention on Human Rights (as well as several other human rights breaches). In the subsequent calculation of damages by the High Court, the issue then arose as to whether the control orders should be regarded as revoked from the date of that decision, or revoked ab initio.
The Secretary of State argued that the court did not have power to quash the control orders ab initio, on the basis that art 6 was not listed in the PTA among the matters listed for mandatory review. However, the Court observed that s 3(11) of the PTA provided that ‘in determining [the listed matters] the court must apply the principles applicable on an application for judicial review’. Such principles would include the conventional judicial review ground of challenge by reason of errors of law, which could lead to a decision being quashed. Here, the control order decisions were tainted by an error of law in failing to comply with the complainants’ art 6 rights.
The Secretary of State also argued that the court, and not itself, was responsible for the breach of art 6, on the basis that the duties owed under art 6 relate to the court’s functions and duties, not to the prior administrative decision. The Court disagreed, finding that non-derogating control orders of the kind made against AE and AF were not court orders. Rather, they were orders made by the Executive. The PTA empowered the Secretary to make, revoke, relax or remove obligations in control orders without the court’s intervention. This distinguished the role of the Secretary of State from its role in bringing, for example, a private law claim for an injunction.
The Court also rejected an argument that the interim nature of control order applications meant that art 6 is not engaged. Although, traditionally, preliminary proceedings were not considered to be determinative of civil rights, and thus not within the purview of art 6, the Court held that there are exceptions where the interim measure ‘has such a clear and decisive impact upon the exercise of a civil right that article 6 does apply’. As the control orders limited the rights of AE and AF in such a radical manner, ‘fairly close to house arrest’, the Court held that art 6 was clearly engaged.
Relevance to the Victorian Charter
Section 24 of the Victorian Charter provides for the right to a fair hearing.
Administrative powers curbing movement and association of subjects are a feature of recent legislative efforts in Australian jurisdictions; for example, in anti-bikie and anti-terrorism legislation. Clearly, s 24 would be engaged by the relevant decision process, particularly where the effects of the powers have a ‘clear and decisive’ impact on human rights.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2010/42.html.
Sachini Mandawala, Solicitor, Mallesons Stephen Jaques Human Rights Law Group