Section 58 of the Constitution is headed Compensation, and it is expressed to be in addition to, and not in derogation of, Section 57.
Section 58(2)
A person whose rights or freedoms declared or protected by this Division are infringed — including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment) on the use of emergency powers in relation to internment — is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
The language is of entitlement, not discretion, so far as reasonable damages are concerned. A person whose Basic Right is infringed is entitled to them.
Exemplary damages are different — those are awarded if the court thinks it proper. See exemplary damages against the State, where the position is further qualified by statute.
Sections 58(3) and (4)
(3) Subject to subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.
(4) Where the infringement was committed by a governmental body, damages may be awarded either —
(a) subject to subsection (5), against a person referred to in Subsection (3); or
(b) against the governmental body to which any such person was responsible,
or against both, in which last case the court may apportion the damages between them.
The individual officer may be liable; the governmental body may be liable; or both, with the Court apportioning between them.
Note the breadth of subsection (3): damages may be awarded against any person who committed, or was responsible for, the infringement. That reaches a superior who directed or permitted the conduct as well as the person who carried it out.
In practice a claim arising from the conduct of a disciplined force is commonly brought against the individual officers, the relevant office holder, and the State — and Order 23 Rule 5(e) of the National Court Rules 1983 places such claims on the Human Rights List. See cases against police.
Section 58(5)
Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if —
(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and
(b) the action taken was genuinely believed by that person to be required by law,
but the burden of proof of the belief referred to in paragraph (b) is on the party asserting it.
Paragraph (a) confines it to acts made unlawful only by section 41(1) — that is, acts done under a valid law which were nonetheless harsh or oppressive, disproportionate, or not reasonably justifiable in a democratic society. See section 41.
It does not protect an officer whose act was unlawful for any other reason — an unlawful detention contrary to section 42, inhuman treatment contrary to section 36, an arbitrary search contrary to section 44.
Paragraph (b) requires a genuine belief that the action was required by law, and the burden of proving that belief is on the person asserting it. Note also that the defence protects only the individual; the governmental body remains liable under subsection (4)(b).
A statutory precondition
Section 2(2) — the provisions of the Act apply to applications for the enforcement against the State of a right or freedom under Section 57 of the Constitution and for damages for infringement of a right or freedom under Section 58.
Section 5(1) — no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given to the Departmental Head of the Department responsible for justice matters, or the Solicitor-General.
Section 5(2) — within six months after the occurrence out of which the claim arose, or such further period as the Principal Legal Adviser or the court before which the action is instituted, on sufficient cause being shown, allows.
Section 2(2) puts the matter beyond argument: the section 5 notice applies to a claim for damages under section 58 against the State.
Six months is short, and the events giving rise to a human rights claim are rarely followed by prompt legal advice. Give the notice as soon as the claim is contemplated.
If the period has passed, note Order 23 Rule 5(j): an application under section 5(2)(c)(iii) to allow a further period in which to give notice, where the claim relates to enforcement of a Division III.3 right, itself goes on the Human Rights List. See late section 5 notices.
How to claim damages
- Give the section 5 notice within six months if the State may be liable.
- Choose the mode. Where damages are the principal object and facts are disputed, a writ with reference WS (HR) is usually right — Order 4 Rule 2 requires a writ for tort claims. A Form 124 application suits enforcement rather than a substantial damages claim.
- Identify the right by section and the relief sought, as Rule 7(3) requires.
- Plead and particularise the loss. Where damages for personal injuries are claimed, Order 8 Rule 33 requires full particulars — and Rule 33(2) requires the claim to conclude without quantifying either general damages or costs.
- Prove the loss. Under Order 8 Rule 21(3), allegations of damage and of the amount of damages are taken to be traversed unless specifically admitted. See assessment of damages.
A judgment against the State is not enforced under Order 13. Under the Claims By and Against the State Act 1996 there is no execution against the State, and satisfaction follows a statutory certificate process. See how a judgment against the State is paid.
Where damages are recovered for a disabled person, Order 5 Rule 32 requires the money to be paid into Court unless otherwise ordered, and the Court directs how it is held or applied.
Sources
- Constitution — ss 36, 41, 42, 44, 57, 58, Div III.3, Pt X.5
- Claims By and Against the State Act 1996 — ss 2, 5, 12–14
- National Court Rules 1983 — O 4 r 2; O 5 r 32; O 8 rr 21, 33; O 13; O 23 (Human Rights Rules 2010) rr 5, 7
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.