Class Actions and Human Rights Litigation in Australia: Realising the Potential
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
- Articles
- Submited: March 11, 2022
-
Published: March 12, 2022
Abstract
Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.
References
2. Australian Law Reform Commission. 1988. Grouped Proceedings in the Federal Court No.46 – The Law Reform Commission – Report No.46.
3. Australian Law Reform Commission. 2018. Integrity, Fairness and Efficiency – An Inquiry Into Class Action Proceedings and Third Party Litigation Funders, Final Report.
4. Bell, DA. 1976 “Serving Two Masters: Integration Ideals and Client Interests in School Integration Litigation” Yale Law Journal, 85: 470.
5. Belton, Robert. 2014 The Crusade for Equality in the Workplace: The Griggs v Duke Power Company Story. Lawrence (KS), University Press of Kansas.
6. Brigham, J. 1996. The Constitution of Interests; Beyond the Politics of Rights. New York, New York University Press.
7. Calnan, S. 2008. The Effectiveness of Domestic Human Rights NGOs: A Comparative Study. Leiden, Martinus Nijhoff.
8. Caruana, Jane and Morabito, Vince. 2011. Australian Unions – the Unknown Class Action Protagonists (2011). http://globalclassactions.stanford.edu/ sites/default/files/documents/Morabito%20CJQ%20union%20class%20actions.pdf Accessed 06/07/21.
9. Clark, S & Harris, C. 2008. “The Push to Reform Class Action Procedure in Australia: Evolution or Revolution?” Melbourne University Law Review, 32(3): 775.
10. Clark, S & Harris, C. 2009. “The Past, Present and Future of Product Liability and Other Mass Tort Class Actions” UNSW Law Journal, 23(3):1022.
11. Coffee, J. 2000. “Class Action Accountability: Reconciling Exit, Voice and Loyalty in Representative Litigation” Columbia Law Review, 100: 370.
12. Degeling, S & Legg, M. 2014 . “Fiduciary Obligations of Lawyers in Australian Class Actions: Conflicts Between Duties” UNSW Law Journal, 37(3): 914.
13. Dubinsky, Paul R 2004. “Justice for the Collective: The Limits of the Human Rights Class Action” Michigan Law Review, 102(6):1152.
14. Ela, Nate. 2017. “Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action” Law and Social Inquiry, 442: 79.
15. Essex, R. 2019. “Contentious Politics, Human Rights and Australian Immigration Detention” Australian Journal of Human Rights 24(3):376.
16. Galanter, M. 1983. “The Radiating Effects of Courts” in KD Boyum & L. Mather (eds) Empirical Theories About Courts. New York, Longman.
17. Gaze, B. 2005. “Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000-2004” Australian Journal of Human Rights, 11(1):171.
18. Grave, Damian, Adams, Ken and Betts, Jason. 2012. Class Actions in Australia Sydney, Lawbook Co. Second Ed.
19. Green, T.R. 2003. “Targeting Workplace Context: Title VII as a Tool for Institutional Reform” Fordham Law Review, 72: 659.
20. Grewcock, G & Sentas, V. 2019. Rethinking Strip Searches by NSW Police. Sydney, UNSW Law.
21. Holly, Gabrielle 2018. “Transnational Tort and Access to Remedy Under the UN Guiding Principles on Business and Human Rights: Kamasaee v Commonwealth” Melbourne Journal of International Law, 19:52
22. Kirk, Jeremy SC. 2018. “The Case for Contradictors in Approving Class Action Settlements” Australian Law Journal, 92(9):720.
23. Lamm, Katherine E. 2015. “Work in Progress: Civil Rights Class Actions After Wal-Mart v Dukes” Harvard Civil Rights-Civil Liberties Law Review, 50:153.
24. Legg, Michael and McInnes, Ross. 2018. Australian Annotated Class Actions Legislation. Sydney, Lexis Nexis Butterworths.
25. Mackinnon, C. 2000. “Collective Harms Under the Alien Tort Statute: A Cautionary Note on Class Actions” ILSA Journal of International and Comparative Law, 6:567.
26. Malveaux, Suzette M. 2017. “The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today” University of Kansas Law Review, 66:325.
27. Marsh, N.S. 1989. “The American Tort Process: A Review Article” The International and Comparative Law Quarterly 38(3): 636.
28. Martinez, George A 2007. “Race Discrimination and Human Rights Class Actions: The Virtual Exclusion of Racial Minorities from the Class Action Device” Journal of Legislation, 33: 181
29. McBeth, A Nolan, J & Rice, S.2017 The International Law of Human Rights Melbourne, Oxford University Press, Second Ed.
30. McCann, M.W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilisation. Chicago, University of Chicago Press.
31. McCubbing, Gus “Court approves $1.2b Robodebt settlement” The West Australian, Fri 11 June 2021 at https://theweest.com.au Accessed on 11/06/21.
32. McNeil, GR. 1983. Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights. Philadelphia, University of Pennsylvania Press.
33. Moran, M. 2019. “The Problems of the Past: How Historic Wrongs Become Legal Problems” University of Toronto Law Journal, 69: 421.
34. Mnookin, R.H. & Kornhauser, L. 1979. “Bargaining in the Shadow of the Law: The Case of Divorce” Yale Law Journal, 88: 951.
35. Murphy, B & Cameron, C. 2006. “Access to Justice and the Evolution of Class Action Litigation in Australia” Melbourne University Law Review, 30(2): 399.
36. Ne Jaime, D. 2011. “Winning Through Losing” Iowa Law Review, 96: 941.
37. O’Sullivan, C. 2019. “Casting the Net Too Wide: The Disproportionate Infringement of the Right to Freedom of Association by Queensland’s Consorting Laws” Australian Journal of Human Rights, 25(2): 263.
38. Parliamentary Joint Committee on Corporations and Financial Services. 2020. Litigation Funding and the Regulation of the Class Action Industry.
39. Rhode, DL. 1982 “Class Conflicts in Class Actions” Stanford Law Review, 34:1183.
40. Rosenberg, G.N. 1993 The Hollow Hope: Can Courts Bring About Social Change? Chicago, Chicago University Press.
41. Schuck, P.H. 1983. Suing Government: Citizen Remedies for Official Wrongs. New Haven (CT), Yale University Press.
42. Silverstein, H. 1996. Unleashing Rights; Law, Meaning and the Animal Rights Movement. Ann Arbor (MI), University of Michigan Press.
43. Southworth, A. 1999. “Collective Representation for the Disadvantaged: Variations in Problems of Accountability” Fordham Law Review, 67:2449.
44. Stewart, S et al. 2016. Creighton and Stewart’s Labour Law, Sydney, Federation Press, Sixth Ed.
45. Sturm, S. 2003. “Equality and Forms of Justice” University of Miami Law Review, 58:5.
46. Thai, L. 2015. “Shareholder class actions – a critical analysis of the procedure under Part IVA of the Federal Court of Australia Act” University of Western Australia Law Review, 140(1):38.
47. Van Schaak, B 2003. “Unfulfilled Promise: The Human Rights Class Action” University of Chicago Legal Forum, 279.
48. Van Schaak, B. 2004 “With All Deliberate Speed: Civil Human Rights Litigation As a Tool for Social Change” Vanderbilt Law Review, 57: 2305.