HR ACTs.9 – Right to life
(1) Everyone has the right to life. In particular, no-one may be arbitrarily deprived of life.
(2) This section applies to a person from the time of birth.
The Right to Life
The right to life in section 9 of the Human Rights Act 2004
(‘HR Act’) derives from Article 6(1) of the International Covenant on Civil and Political Rights
Article 6(1) provides that:
Every human being has the inherent right to life. This shall be protected by law. No-one shall be arbitrarily deprived of his life.
interpreting the right to life
In accordance with section 31 of the HR Act:
International law and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.
‘International law’ is defined inclusively in the Dictionary to the HR Act to mean the ICCPR and other human rights treaties to which Australia is party, as well as other relevant United Nations (‘UN’) standards. Comparative domestic human rights jurisprudence may also be considered. Section 31 aims to promote a consistent interpretation of universal human rights standards that derive from the ICCPR.
Set out below are some of the key international, regional and domestic human rights instruments which also recognise the right to life. Pursuant to s.31 HR Act, the jurisprudence developed under the ICCPR, as well as these other instruments will be relevant in determining the content and application of the right to life in s.9 HR Act.
International human rights instruments
Convention on the Rights of the Child (“CRC”)
States Parties recognize that every child has the inherent right to life.
States Parties shall ensure to the maximum extent possible the survival and development of the child.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
The right to life of migrant workers and members of their families shall be protected by law.
NB: Australia is not a signatory to the Convention. However, the Convention may be considered to be part of international law for the purposes of interpreting the right to life as the HR Act Dictionary definition of ‘international law’ is not exhaustive.
Regional human rights instruments
European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)
Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally... .
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
in defence of any person from unlawful violence;
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
in action lawfully taken for the purpose of quelling a riot or insurrection.
Domestic human rights instruments
Victorian Charter of Human Rights and Responsibilities Act 2006
Every person has the right to life and has the right not to be arbitrarily deprived of life.
New Zealand Bill of Rights Act 1990 (“NZBORA”)
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
United Kingdom Human Rights Act 1998 (“UKHRA”)
The UK HR Act gives domestic effect to the rights protected in the ECHR, including the right to life in Article 2.
Canadian Charter of Rights and Freedoms
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.
South African Bill of Rights
Everyone has the right to life.
A fundamental right:
The right to life was considered by the drafters of the ICCPR to be ‘the most fundamental of all rights’.1 This view has also been reflected by the Human Rights Committee,2 which has stated that the right to life is the ‘supreme right from which no derogation is permitted even in time of public emergency’.3 The Committee has further noted that the right to life is ‘basic to all human rights’.4
No arbitrary deprivation:
The right to life is primarily concerned with preventing arbitrary deprivations of life. The Human Rights Committee has emphasised that ‘the protection against arbitrary deprivation of life … is of paramount importance’.5 The term ‘arbitrarily’ is taken to mean not only ‘illegally’ but also ‘unjustly’,6 and includes a requirement to satisfy conditions of necessity and proportionality.7 The circumstances allowing for the deprivation of life must therefore be clearly established by law, capable of being articulated with certainty, and subject to due process. Moreover, they must be substantively just and comply with the principles of necessity and proportionality. The scope of this obligation is discussed below.
In addition to the obligation not to deprive life arbitrarily, the right to life also imposes a positive obligation to protect life. The drafting history of Article 6(1) of the ICCPR indicates that a strong emphasis was placed on the duty of States Parties (countries that have ratified the treaty) to protect life. The drafters considered that, as well as protecting individuals from unwarranted actions by the State, it was also necessary for the State to protect individuals from unwarranted actions by private persons.8 The Human Rights Committee has confirmed that protection of the right to life ‘requires that States adopt positive measures’.9 The scope of the positive obligation to protect life is discussed below.
The right to life has also been interpreted to impose a duty on the State to investigate deaths occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have been (or may have been) breached. The scope of this duty is discussed below.
Given its fundamental nature, the Human Rights Committee has stated that the right to life ‘should not be interpreted narrowly’,10 noting that the right ‘cannot be properly understood in a restrictive manner’.11 Thus, for example, the Committee has viewed issues such as homelessness,12 infant mortality,13 and life expectancy14 as falling within its scope. It has also specified that ‘it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’. A similarly broad interpretation has been given by some national courts. For example, the Indian courts have found that the right to life extends to a right to a livelihood,15 a right to the basic necessities of life such as adequate nutrition, clothing, reading facilities,16 and the rights to shelter17 and education.18 However, other national courts have displayed a more cautious approach, particularly where there are social policy and budgetary implications.19
‘From the time of birth’:
Sub-section 9(2) of the HR Act specifies that the right to life applies from the time of birth. In other words, consistent with the meaning given to ‘everyone’ elsewhere in the HR Act, the protection afforded by sub-section 9(1) applies only from birth and does not extend to a foetus.20 However, this does not prevent the criminal law from treating the death of a foetus as an aggravating factor in a serious criminal offence;21 nor does it limit any entitlements to adequate prenatal care or measures to prevent stillbirths.
the obligation not to deprive life arbitrarily
As noted above, the right to life imposes an obligation on the State to refrain from arbitrarily taking life. The deprivation of life by State authorities is viewed as a matter of the utmost gravity.22 It follows then that the prohibition against arbitrary deprivation of life is mainly concerned with controlling and limiting the circumstances in which lethal force may be used by State authorities. The obligation therefore has particular relevance for police and other law enforcement authorities, including prison officers.
Limited purposes based in law
The circumstances in which State authorities may use lethal force must be strictly defined in law. The Human Rights Committee has stated that ‘the law must strictly control and limit the circumstances in which a person may be deprived of his life by [State] authorities.’23 The Committee has identified limited purposes for which the application of lethal force may be permissible, namely, self-defence or defence of others, or to effect the arrest or prevent the escape of the persons concerned.24 Article 2(2) of the ECHR expressly recognises the same purposes;25 no other circumstance for depriving life is permitted outside these categories. For example, a loss of life occurring as a result of using lethal force for the sole purpose of defending property will amount to an arbitrary deprivation of life.
The strict legality requirement means that a loss of life resulting from actions based in procedures other than those established in law will be an arbitrary deprivation of life. It is important to note that a loss of life resulting from even lawful actions may constitute an arbitrary deprivation if the law in question does not satisfy the requirement of strictly controlling and limiting the circumstances for depriving life. For example, in Guerrero v Columbia, the Human Rights Committee made it clear that the use of force by the Columbian police could not be justified simply on the basis that it was taken in accordance with the law. The relevant law itself violated the right to life because it did not sufficiently conform to the requisite standard of protection.26
Necessary and strictly proportionate
A deprivation of life resulting from the use of force permitted by law for a limited purpose will still require a further condition to be satisfied before it can be considered to be justifiable in accordance with the right to life. The deprivation must also be shown to be necessary in the circumstances to accomplish the purpose. The European Court of Human Rights described the relationship between purpose and necessity as follows:
[The recognition of limited purposes for the use of force] does not primarily define instances where it is permitted intentionally to kill an individual, but describes situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes [recognised].
The principle of proportionality is central to the idea of necessity:
Above all, the test of necessity includes an assessment as to whether interference with [the right to life] was proportionate to the legitimate aim pursued.27
In particular, the force used must be strictly proportionate...
Whether the use of force in a particular instance is ‘strictly proportionate’ requires an assessment of:
The nature of the aim pursued, the dangers to life and limb inherent in the situation and the degree of risk that the force employed might result in loss of life. …28
It also requires looking behind the action to the operational context that gave rise to it:
[C]onsideration [must be given] not only [to] the actions but also [to] the surrounding circumstances including such matters as the planning and control of the actions... The Court must scrutinise not only whether the force used was strictly proportionate to the aim … but also whether the operation was planned and controlled so as to minimise, to the greatest extent possible, recourse to lethal force.29
The European Court has found violations of the right to life because of deficient operational planning and control in a number of cases. For example, in McCann v UK, the Court found that the right to life had been violated because inadequate consideration had been given to evaluating the accuracy of intelligence before transmitting it to a point where recourse to lethal force became automatic. In Gulec v Turkey,30 the Court found that the right to life had been violated when police fired guns to disperse demonstrators: the unavailability of less lethal means of crowd control was considered to be ‘incomprehensible and unacceptable’. In Ergi v Turkey,31 the European Commission was able to reasonably infer deficient operational control because the State was unable to provide plausible evidence on the planning and conduct of the operation.
The ‘strictly proportionate’ test therefore has important implications for public authorities in terms of ensuring the proper planning and control of its operations, as well as the adequacy of the training provided to its agents (police officers, prison officers, and the like).
international standards on the use of force
Specific and detailed guidance on the use of force is set out in:
UN Code of Conduct for Law Enforcement Officials (see in particular Article 3)
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
These instruments are not binding in international law but they reflect internationally accepted standards on the use of force. The standards expressed reinforce and elaborate upon the principles of necessity and proportionality discussed above.
As noted above, the right to life not only obliges the State to refrain from taking life arbitrarily, but also requires the State to take appropriate steps to protect the life of those within its jurisdiction.
In its widest sense, the obligation to take appropriate steps means that the State must, as its primary duty, establish a framework of laws, procedures and enforcement mechanisms that will, as far as reasonably practicable, protect life.32 This includes making effective provisions in the criminal law to deter the commission of offences against the person and establishing law-enforcement machinery for the prevention, suppression, and sanctioning of breaches of criminal law.33 It also includes regulating activities, whether public or not, in which the right to life may be at stake.34 The regulations should govern the licensing, setting up, operation, security and supervision of the activity, and take practical measures to ensure the effective protection of individuals, whose lives might be endangered by the inherent risks posed by the activity.35
The obligation applies in a variety of situations, most notably in the contexts of (i) law enforcement; (ii) prison and custodial settings; and (iii) health care.
The positive obligation to protect life in the context of law enforcement is likely to extend beyond putting in place an effective criminal justice system.36
The European jurisprudence has established that the obligation to protect life also requires the police and other protective authorities to take, in certain well-defined circumstances, preventative operational measures to protect an individual whose life is at risk from the acts of a third party.
Protecting persons at risk
The obligation to protect persons at risk will not arise vis-à-vis every claimed risk to life:
[B]earing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a … requirement to take operational measures to prevent that risk from materialising.37
The risk must be ‘real and immediate’ and it must (or should) be known to the authorities:
[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party.
The requisite standard for assessing the authorities’ actions (or failure to act) is one of reasonableness:
The Court does not accept … that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. … Such a rigid standard must be considered to be incompatible with the requirements of [the right to life]. …[H]aving regard to the [fundamental] nature of the right [to life], it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.38
In acting to protect persons at risk, the authorities must also ensure that they act consistently with other protected rights:
[T]he police [must] exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the [the right to liberty and security of the person and the right to privacy].
Building on these principles, the UK Court of Appeal has held that witnesses fall into a particular category of vulnerable persons who are entitled to a greater degree of protection from the authorities relative to that afforded to members of the public generally.39 This is because, by virtue of being a witness, they are exposed to the potential risk by the authorities themselves.40 The threshold of ‘real and immediate’ risk must therefore be assessed in that context.41 The Court considered that the discharge of these obligations was not a disproportionate or unrealistic burden on the authorities.42
A duty to warn
The obligation to protect persons at risk of harm extends to life-threatening situations (such as environmental hazards) that are known (or ought to be known) to public authorities. In such circumstances, the authorities have a duty to warn persons who are likely to be at risk from the danger.43 The duty also applies to imminent, clearly identifiable natural hazards, and especially to recurring calamities affecting a distinct area developed for human habitation.44
The duty to warn could also extend to situations where health authorities know that an individual patient is putting another identifiable person at risk, for example, if a doctor is aware that a patient is knowingly exposing his or her partner to HIV infection. The International Guidelines on HIV/AIDS and Human Rights 45 has provided guidance to on how to reconcile the difficult conflict of interests which arise in such circumstances, with respect to the duty of confidentiality.46
Conversely, public authorities may be obliged to withhold information to protect a person at risk of violence. For instance, the authorities would be obliged not to disclose information about the whereabouts of persons released from prison where there was a real risk of retributive violence leading to their death.47
Prison and custodial settings
It is well-established in human rights jurisprudence that prisoners and persons held in custody are a category of vulnerable persons, whose lives the State has a particular obligation to protect.
Providing adequate health care
The Human Rights Committee has found that the right to life extends to provision of health care at least within the context of custodial settings. It has asserted that the State is ‘responsible for the life and well-being of its detainees,’ and has a positive duty to maintain an adequate standard of health for detainees:
[I]t is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection … the essential fact remains that the State party by arresting and detaining individuals takes responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility.
The Committee has also said that the conditions of detention must comply with the standards required by the right to life, which includes ‘the prevention of the spread of disease and the provision of appropriate medical treatment to persons who have contracted diseases, either in prison or prior to their detention.’48 In a human rights audit of correctional facilities conducted by the ACT Human Rights Commissioner tabled in 2007, the Commissioner recommended that a pilot program for a needle and syringe exchange with provision for safe disposal of needles should be developed for the new Alexander Maconochie Centre (‘AMC’) prison, to respect detainees’ right to life and achieve equivalence with needle-syringe programs available in the Canberra community.49 A needle-syringe program has not yet been implemented at the new prison, but the ACT Government has committed to consider the issue following a review of the first 18 months of operation of the AMC.50
Protecting against risk of harm
The European jurisprudence has also established persons in custody as a particular class of vulnerable person who may be at risk of harm.51 Accordingly, the authorities are under a positive obligation to take appropriate steps to identify and address such risks. In Edwards v UK, the European Court of Human Rights found that the right to life had been violated when the failure by the authorities involved (medical profession, police, prosecution and court) to pass on information to prison authorities about a potentially violent prisoner, and the inadequacy of the screening process on the prisoner’s arrival at the prison, resulted in the death of the prisoner’s cellmate.
Protecting against risk of self-harm or suicide
Where the authorities know or ought to know that a particular prisoner or detainee poses a real and immediate risk of self-harm or suicide, they are obliged to take all reasonable steps to prevent that risk.
The obligation to take appropriate steps to prevent self-harm or suicide is likely to extend beyond detainees to include persons otherwise in the care and control of the State.
In Kilinc v Turkey,52 the European Court held that there had been a violation of the right to life when a conscript diagnosed with depression was declared fit for military service and subsequently took his own life when on duty. The Court found that the relevant authorities had not done everything in their power to protect against the risk which was ‘known as it was avoidable’. Significantly, the relevant domestic laws on conscription lacked clear guidance for the supervision of those whose fitness to perform military service was in doubt. In particular, they did not spell out the responsibilities of superiors required to deal with mentally ill conscripts. The Court considered the defective regulatory context to be a decisive factor in giving rise to the violation of the right to life.
In another example, the UK Court of Appeal has found that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient was a violation of the right to life.53 The Court considered the patient’s position to be:
…more akin to a person detained in prison than an ordinary patient in a hospital…receiving treatment for [mental health] problems…or otherwise.’ The critical factor was the vulnerability of both prisoners and [involuntary] patients...who ‘are under the control of the state in a way in which ordinary patients are not…[and] in a different way’. There was no reason to afford persons involuntarily detained…‘any less rights under [the right to life]…than those detained in prison.
The right to life extends to the public health sphere and imposes positive obligations on hospitals and health authorities to adopt appropriate measures for the protection of patients’ lives.54
It is arguable that the obligation to protect life may in certain limited circumstances require the State to fund a minimum level of health services or essential medication.55 At the least, health authorities have to account for resource-allocation and where life saving treatment is denied ‘…they must explain the priorities that have led them to decline to fund the treatment.’56
The right to life has implications for medical decision-making, particularly in the context of patients who are terminally ill. Health authorities are not under an absolute duty to protect a person’s life in circumstances when the person concerned is opposed to its continuance. Indeed, to passively allow a person to die may not be contrary to the right to life.57 However, the key difference lies between the withholding of life-sustaining treatment and positive steps to hasten death. The right to life does not include a right to die, or the right of a disabled person to get assistance in taking his or her own life.58 Patients’ consent to the withdrawal of medical services or assistance towards their death may not be determinative of whether the right to life has been violated.59 The determining factor will be whether it is in the best interests of the patient according to standard medical practice and relevant professional guidelines.60 In Australian Capital Territory v JT61 the Chief Justice confirmed that nutrition could not be withheld from a patient who strongly objected to being fed but did not have capacity to make this decision.62
The application of the right to life to patients in permanent vegetative state has been considered in several court cases. The right to life does not impose a duty in every case to take steps to keep a terminally ill patient alive by all means for an indefinite period.63 To withdraw artificial nutrition or hydration (ANH) from a comatose person may not amount to a violation of the right to life in circumstances where to continue ANH serves ‘absolutely no purpose other than the very short prolongation of the life of a dying patient who has slipped into his final coma and who lacks all awareness of what is happening.’64 This is likely to be the position also for competent persons who, previous to falling into a vegetative state, have expressed a wish to receive life-prolonging treatment until they die of natural causes.65
Health authorities may be implicated in a decision not to resuscitate or to deny life saving treatment to a disabled person based on the quality of life of someone with a severe disability.
Medical decisions concerning children
Human rights jurisprudence recognises that parents have the right to be involved in important decisions concerning their children.66 However, the right of parents to make decisions on appropriate medical treatment does not extend to decisions that endanger the life or health of the child.67 It also follows that competing rights, for example, the right to manifest religious or cultural beliefs (eg. the beliefs of Jehova’s Witnesses regarding blood transfusions), could not be used to deny a child the right to life-saving or other essential treatment.68
the procedural duty to investigate deaths
As noted above, the right to life has been interpreted to impose a procedural duty on the State to conduct an effective investigation into any death occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have (or may have) been breached.69
The duty to investigate will therefore be triggered where, for example, a person is killed by an agent of the State (such as a police officer);70 or dies while in the care, custody or control of a public authority (such as in a hospital, mental ward, police watchhouse or prison).71 The duty also applies if a person is killed or dies through the negligence or omission of a public authority.72 The duty may also extend to a situation where the right to life is engaged (because someone’s life is at risk) even if the person did not die.73
The failure to conduct an effective investigation will constitute a violation of the right to life, notwithstanding proof of compliance with the substantive obligations not to take life arbitrarily and to protect life.74
The duty to investigate has particular relevance for the conduct of coroners’ inquests.
European Court jurisprudence has formulated six conditions for an effective investigation which will satisfy the right to life. These are summarised in Jordan v UK:75
State initiative: The State must act of its own motion to initiate an investigation into the death, rather than leaving it to the deceased’s family to bring proceedings.
Independence: Those carrying out the investigation must be independent from those implicated in the death. They must be institutionally independent, as well as demonstrate their independence in practice.
Effectiveness: The investigation must be capable of leading to a determination of whether the action taken by State authorities was justified in the circumstances, to a determination of the culpability of those responsible for the death. This is an obligation of process rather than result.
Promptness: The investigation must take place promptly and must proceed with reasonable expedition.
Transparency: The investigation must be open to public scrutiny to a degree sufficient to provide accountability in the circumstances of the case.
Family Participation: The family of the deceased must be involved in the inquiry to the extent necessary to safeguard his or her legitimate interests.
In the UK, the obligation to ensure proper family participation has been interpreted to mean that the family must be provided with legal representation where it is likely to be necessary to ensure an effective investigation.76 The family must also be provided with relevant material and given the opportunity to cross-examine witnesses.77
Further, the UK courts have held that a coroner’s inquest conducting the investigation should not be limited to ‘how’ the death happened in the sense of ‘by what means’: it must also assess ‘in what circumstances’.78 This includes whether and to what extent systemic failings were a factor in the death.79 Moreover, when deciding whether to resume an inquest, a coroner must consider whether the State’s duty to investigate in accordance with the right to life had been complied with.80 The Human Rights Commission’s power to intervene in proceedings is taken to extend to inquests.81 The investigative requirement, however, has not been interpreted to operate retrospectively.82
The law in this fact sheet is correct as of June 2010. If you have any comments concerning this fact sheet, please contact us: email email@example.com; phone (02) 6205 2222.
What are the rights protected in the Human Rights Act 2004?
Section 8 Recognition and equality before the law
Section 9 Right to life
Section 10(1) Prohibition against torture and cruel, inhuman or degrading treatment
Section 10(2) Right to consent to medical treatment
Section 11 Protection of the family and children
Section 12 Protection of privacy and reputation
Section 13 Freedom of movement
Section 14 Freedom of thought, conscience, religion and belief
Section 15 Freedom of peaceful assembly and association
Section 16 Freedom of expression
Section 17 Right to participate in public life
Section 18 Right to liberty and security of the person
Section 19 Right to humane treatment when deprived of liberty
Section 20 Rights of children in the criminal process
Section 21 Right to a fair trial
Section 22 Rights in criminal proceedings
Section 23 Right to compensation for wrongful conviction
Section 24 Protection against double jeopardy
Section 25 Protection against retrospective criminal laws
Section 26 Freedom from forced work
Section 27 Rights of minorities
where to go for further information
HUMAN RIGHTS COMMISSION
(02) 6205 2222
TTY: (02) 6205 1666
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Canberra ACT 2601
Legislation and Policy Branch
ACT Department of Justice and Community Safety
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Tel: 6205 3310
ACT Human Rights Commission
ACT Government's human rights website
ACT Human Rights Act Research Project
Human rights: human lives – a handbook for public authorities (United Kingdom)