Redefining human rights remedies

When Jason Varuhas was hard at work writing his doctoral thesis at Cambridge, little did he know it would help set the course for human rights remedies.

Three years on from its publication, his book Damages and Human Rights (Hart Publishing, 2016) has been cited in landmark cases in Australia and the UK, and in December he became the first person outside the UK to win the prestigious Inner Temple Book Prize for New Authors. This honour follows on from the book being awarded the UK Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship in 2016.

The book, based on Varuhas’ thesis, addresses an issue with which courts grapple – awarding compensation for human rights violations. A key difficulty, Varuhas explains, is that these remedies intersect with public, private and international law.

“The trend in most jurisdictions has been to marginalise the remedy,” he says.

“Courts have rendered human rights damages a highly discretionary remedy, which is rarely awarded, and set damages at a level below the amounts one would see in private law fields.”

Varuhas’ book articulates a set of principles to guide damages awards that reflects the goals of human rights law. But he draws on established common law principles derived from traditional private fields such as the torts of trespass and false imprisonment.

Since its publication, Damages and Human Rights has been cited by the Federal Court of Australia, Victorian Court of Appeal, the UK Supreme Court and the English High Court.

Significantly, it was cited in the Palm Island class action, Wotton v State of Queensland (No 5) [2016] FCA 1457, where the Federal Court found police had racially discriminated against the Aboriginal community following a death in custody. The three applicants were awarded a total of $220,000.

“Justice Mortimer directly addressed the book, endorsing the analogy between these sorts of human rights claims … with longer-standing tort actions, and postulating that under the anti-discrimination legislation, this approach could be taken to damages,” Varuhas says.

One of Varuhas’ key arguments is that parties should receive damages solely because their fundamental right has been breached, regardless of whether they suffered consequential loss.

“Justice Mortimer considered that that could be an approach that could be taken under the discrimination law; so you could, if you prove racial discrimination, get damages for the breach of that fundamental right in and of itself.”

He notes this idea has been picked up in a class action by youth detainees in the Northern Territory, and was pleaded in another case, before the High Court, involving damages claims for removal of Native Title.

In 2017, the English High Court cited Varuhas’ book in the high-profile Alseran case, where it found four Iraqis were unlawfully detained by the British military and suffered inhuman and degrading treatment. The men were collectively compensated more than £80,000.

“The Court actually – and this is quite a significant development – moved away from the former approach which had marginalised human rights damages and [had] distinguished them from ordinary common law principles,” Varuhas says.

“Instead, [the Court] held there was no good reason why awards should be lower than awards we find in other areas of private law.

From what I understand, there are hundreds of clone cases in the context of which this precedent will now apply.

Varuhas, the Co-Director of MLS’s Government Law and Public and International Law Masters programs, is pleased his work has had “such a practical, tangible outcome”.

“I wrote this book to offer a principled solution to a complex legal problem,” he says.

“The aim was simply to get the law right, and one does not have particular expectations as to the effect the work will have.

“However, it is rewarding to see the book’s marked impact across jurisdictions, especially in assisting judges and practitioners to resolve remedial questions in cases where people have suffered through excessive state action.”

Editor's note: Since time of publishing, 'Damages and Human Rights' has also been nominated for the prestigious St. Petersburg International Private Law Prize.