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Remedies (Clause 6)
26.
The ICCPR imposes an obligation on States Parties
to ensure that where there has been a violation of one of
the rights or freedoms recognized under the covenant then
there must be an effective remedy available to the person
whose rights have been violated. The determination of the
right to a remedy may be undertaken by the judicial, legislative or administrative authorities, or by any other
competent authority provided for by the legal system of the
state. The ICCPR does not define the term "effective
remedy" and leaves it to States Parties to apply existing
remedies or develop new ones in order to meet this obligation.
27.
Clause 6 of the BOR has been drafted so as to
enable courts and tribunals to provide an effective remedy
where there has been a breach of the BOR. No new remedies
are created by this clause but does permit courts and
tribunals some flexibility in dealing with breaches of the BOR in order that existing remedies may be used in new ways
or developed so as to ensure that in any particular case an
effective remedy is granted. Clause 6 does not alter the jurisdiction of courts and tribunals; magistrates will not be entitled to award damages for breaches of the BOR.
28.
During the public consultation, some criticism was
directed at Clause 6(1) of the White Bill which
characterised a breach of the BOR as a tort. Some people
argued that a tort action, which if successful normally leads to a remedy in damages, would be inappropriate for a
breach of BOR. Because we believe that there is some force
in the argument we therefore propose to delete clause
6(1).
In our view, clause 6(2) [as consequentially
redrafted] is sufficient to enable courts and tribunals to
grant an effective remedy in respect of breaches of the BOR
and will enable damages to be awarded as an effective
remedy only when it is appropriate and just to do so.
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