McIver v ACT - [2024] ACTCA 36

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	McIver v ACT
Citation:	[2024] ACTCA 36
Hearing Date:	12 November 2024
Decision Date:	17 December 2024
Before:	Mossop, Loukas-Karlsson and Rangiah JJ
Decision:	See [167]
Catchwords:	CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether s 18(7) of Human Rights Act 2004 (ACT) creates freestanding cause of action for compensation or damages – clear legislative intention not to create freestanding cause of action – no right to damages impliedly created where one did not previously exist – held no directly enforceable entitlement to damages or compensation established CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether "unlawfully ... detained" in s 18(7) of Human Rights Act 2004 (ACT) covered circumstances where detention was lawfully justified by sentence of imprisonment but there was a breach of the law in relation to conditions of detention – applicants assert conditions of detention breached Human Rights Act and Corrections Management Act 2007 (ACT) – held "unlawfully ... detained" relates to the legal justification for the deprivation of liberty and does not extend to any breaches of the law relating to the conditions of the detention
Legislation Cited:	Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39(4) Corrections Management Act 2007 (ACT), ss 12, 44(2), 45, Ch 6 Crimes (Sentencing) Act 2005 (ACT), ss 64, 72 Discrimination Act 1991 (ACT) Human Rights Act 2004 (ACT), ss 5, 7, 10, 14(1)(b), 18, 19, 20(1), 23, 28, 30, 32, 33, 34, 37, 38, 40, 40A, 40B, 40C, 40D, Pts 2, 3, 4, 5, 5A, 6 Human Rights Amendment Act 2008 (ACT) Human Rights Bill 2003 (ACT) Justice and Community Safety Legislation Amendment Act 2024 (ACT), s 11 Legislation Act 2001 (ACT), ss 126, 132, 139, 141, 142 New Zealand Bill of Rights Act 1990 (NZ)
Cases Cited:	Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486 Brown v Australian Capital Territory [2020] ACTSC 70; 350 FLR 417 Carr v Western Australia [2007] HCA 47; 232 CLR 138 Connelly v Transport Accident Commission [2024] VSCA 20; 73 VR 257 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Deng v Australian Capital Territory (No 3) [2022] ACTSC 262; 372 FLR 227 DPP v Alexander (a pseudonym) [2024] ACTSC 161 Eastman v The Australian Capital Territory [2019] ACTSC 280; 14 ACTLR 195 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48; 3 ACTLR 127 Harrison v Melham [2008] NSWCA 67; 72 NSWLR 380 House v The King (1936) 55 CLR 499 Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 McIver v The King [2023] ACTCA 48; 20 ACTLR 303 Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 69 ALJR 8 Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 R v A2 [2019] HCA 35; 269 CLR 507 R v McIver; R v Williams [2021] ACTSC 227 R v McIver [2022] ACTSC 206 R v Williams [2017] ACTSC 298 Slieman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor [2009] NSWSC 304 Star Aged Living Limited v Lee [2024] QCA 1 State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134 SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor [2016] NSWSC 8; 307 FLR 357 Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 Waldron v O’Callaghan [2024] VSCA 196 Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20 Williams v The Queen [2018] ACTCA 4; 83 MVR 505
Texts Cited:	ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act, (May 2003) Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard), 18 November 2003 Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) Corrections Management (Separate Confinement) Operating Procedure 2022 (ACT) Explanatory Statement, Human Rights Amendment Bill 2007 (ACT) Explanatory Statement, Human Rights Bill 2003 (ACT) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Parties:	Anthony Daniel McIver ( Applicant) Derek Joseph Williams ( Applicant) Australian Capital Territory ( Respondent)
Representation:	Counsel K Foley SC with J McComish ( Applicants) H Younan SC with P Bindon ( Respondent)
Solicitors Ken Cush and Associates ( Applicants) ACT Government Solicitor ( Respondent)
File Numbers:	ACTCA 9 of 2024 ACTCA 10 of 2024
Decision Under Appeal:	Court/Tribunal: ACT Supreme Court Before: Curtin AJ Date of Decision: 17 April 2024 Case Title: McIver v Australian Capital Territory; Williams v Australian Capital Territory Citation: [2024] ACTSC 112

THE COURT:

Introduction

1․These applications for leave to appeal are brought by two prisoners at the Alexander Maconochie Centre (AMC). They seek leave to challenge the decision of a judge of the court (the primary judge) made in relation to applications for an extension of time in which to bring proceedings under the Human Rights Act 2004 (ACT) (HR Act): McIver v Australian Capital Territory; Williams v Australian Capital Territory [2024] ACTSC 112.
2․Section 40C(2) of the HR Act provides that a person may start proceedings in the Supreme Court against a public authority which is alleged to have acted in a way that is incompatible with a human right. Section 40C(3) provides that such a proceeding “must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise”. In each of the two cases, the applicants sought an extension of time under s 40C(3). In the case of Mr McIver, an extension of time was refused. In the case of Mr Williams, an extension of time was granted in relation to only some of the relief sought.
3․The principal issues before the primary judge related to the interpretation of s 18(7) of the HR Act. That subsection provides:
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

4․The argument before the primary judge raised two issues in relation to s 18(7):
(a)whether it gave rise to a freestanding cause of action for compensation or damages, notwithstanding the lack of power to award damages under s 40C of the HR Act; and
(b)whether the reference to “unlawfully … detained” covered circumstances in which the detention of the prisoner was lawfully justified by the sentence of imprisonment but there was a breach of the law in relation to the conditions of detention.

5․The primary judge determined both of these issues adversely to the applicants. The applicants now seek to challenge those findings and also the primary judge’s exercise of discretion in relation to whether or not to grant an extension of time in which to commence proceedings. There are a number of other cases pending in the court that would be affected by the determination of the legal issues arising upon these applications.
6․For the reasons that follow, the primary judge’s determination of the two issues relating to s 18(7) was correct and there was no error in the exercise of the discretion as to whether to make an order extending time. In the circumstances, leave to appeal should be granted to each of the applicants, but their appeals should be dismissed.

Background to Mr McIver’s claim

7․Mr McIver commenced proceedings against the Australian Capital Territory on 30 November 2022. He was, at that time (and still is), a convicted prisoner. However, between 11 September 2020 and 28 January 2021, he was an accused person detained on remand. On 9 September 2021, he was found not guilty of the two offences with which he had been charged: R v McIver; R v Williams [2021] ACTSC 227.
8․However, in the period prior to the acquittal, from 11 September 2020 until 28 January 2021, he was detained in a way that meant that he was not segregated from convicted prisoners. On 28 January 2021, a convicted prisoner entered his cell and assaulted him. He subsequently assaulted that other detainee: R v McIver [2022] ACTSC 206.
9․His pleading alleged that the Territory caused him to be detained in breach of his human rights and in breach of the Corrections Management Act 2007 (ACT) (CM Act). He alleged that the Territory had not treated him with humanity and respect for the inherent dignity of the human person as required by s 19(1) of the HR Act by placing him in cell sleeping accommodation which he did not occupy by himself. He claimed that the Territory had breached its obligations in s 19(2) of the HR Act and s 44(2) of the CM Act by not segregating him from convicted prisoners. He alleged that the Territory had failed to treat him in a way that was appropriate for a person who had not been convicted, as required by s 19(3) of the HR Act. Those contraventions of the HR Act and the CM Act were alleged to amount to a breach of s 18(2) of the HR Act, which required that deprivation of liberty be “in accordance with the procedures established by law”, and, hence, were unlawful within the terms of s 40B of the HR Act. It was then alleged that s 18(7) of the HR Act made the Territory liable to pay compensation in relation to that unlawful detention but that the Territory had not done so. Two declarations were sought, as well as compensation under s 18(7) of the HR Act.
10․By application in proceeding dated 6 April 2023, Mr McIver sought an order nunc pro tunc permitting him to commence the proceedings after the expiry of the one‑year limitation period set by s 40C(3) of the HR Act. That application was heard, along with a similar application by Mr Williams, on 17 July 2023. On 17 April 2024, the primary judge dismissed that application, effectively ending the proceedings.

Background to Mr Williams’ claim

11․Mr Williams commenced proceedings on 15 July 2022. He was and is a convicted prisoner: R v Williams [2017] ACTSC 298; Williams v The Queen [2018] ACTCA 4; 83 MVR 505. At various times between 2019 and 2021, Mr Williams was placed in the Management Unit of the AMC, as distinct from one of the other accommodation areas of the prison. The last date on which he was so detained was 15 January 2021. He alleged that the structure of his cell within the Management Unit was such that he did not have access to at least one hour a day of the “open air” and was not adequate for at least one hour a day of exercise. He alleged that this involved a breach of s 45 of the CM Act and involved breaches of s 19(1), 18(1)-(2), and 10(1)(b) of the HR Act. He also alleged that the detention of him in this part of the AMC constituted the tort of false imprisonment. He contended that he was entitled to compensation pursuant to s 18(7) of the HR Act, as well as damages for false imprisonment at common law.
12․Those aspects of his claim which raised breaches of the HR Act were stayed on 13 February 2023 by McWilliam AsJ (as her Honour then was), until an order was made under s 40C(3) permitting them to proceed, notwithstanding the expiry of the one-year limitation period set out in that section: Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20.
13․By application in proceeding dated 6 April 2023, Mr Williams sought an order permitting the stayed parts of his case to proceed notwithstanding the expiry of the limitation period. That application was heard by the primary judge on 17 July 2023, along with that of Mr McIver, and determined on 17 April 2024. The stay was lifted so as to permit Mr Williams to seek a declaration that the Territory had, by detaining him in breach of s 45(1) of the CM Act, breached his human rights, and a declaration that the Territory had, as a result of the breach of s 45, breached his human rights under s 19(1). However, an extension was not granted for a declaration that the breach of s 45(1) was “unlawful” or a declaration relating to a provision of a now repealed operating procedure for the AMC that related to time in the open air and exercise.

Relevant statutory provisions

14․The HR Act was enacted in 2004. It was subject to significant amendments in 2008 as a result of the Human Rights Amendment Act 2008 (ACT) (2008 Amendment). It was the 2008 Amendment that inserted Pt 5A of the HR Act, which allowed for orders to be made by the Supreme Court against public authorities, where the authority had acted in a way that was incompatible with human rights or failed to give proper consideration to a relevant human right when making a decision.
15․The statutory provisions relevant to the issues before the court are contained within the HR Act and the CM Act. The most relevant provisions of the HR Act are set out below. Since the decision of the primary judge, there have been amendments to and renumbering of s 40C of the HR Act. Most significantly, what were previously ss 40C(4) and (5) have now become ss 40C(6) and (7). The version of the provisions which is set out below is the version that was in force at the time that the primary judge made his decision. Although the amendments and renumbering are not of any substantive significance for the outcome of the appeal, it is easier to understand what occurred below and in previous cases if the references in these reasons are uniformly to the terms of the HR Act as it was at the time that the primary judge gave his decision, namely, 17 April 2024, unless otherwise indicated.
16․The most relevant provisions of the HR Act are as follows.
10Protection from torture and cruel, inhuman or degrading treatment etc
(1)No-one may be—
(a)tortured; or
(b)treated or punished in a cruel, inhuman or degrading way.

(2)No-one may be subjected to medical or scientific experimentation or treatment without their free consent.
…
18Right to liberty and security of person
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(3)Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against them.
(4)Anyone who is arrested or detained on a criminal charge—
(a)must be promptly brought before a judge or magistrate; and
(b)has the right to be tried within a reasonable time or released.

(5)Anyone who is awaiting trial must not be detained in custody as a general rule, but their release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
(6)Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
(8)No-one may be imprisoned only because of the inability to carry out a contractual obligation.
19Humane treatment when deprived of liberty
(1)Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2)An accused person must be segregated from convicted people, except in exceptional circumstances.
Note An accused child must also be segregated from accused adults (see s 20 (1))

(3)An accused person must be treated in a way that is appropriate for a person who has not been convicted.
…
23Compensation for wrongful conviction
(1)This section applies if—
(a)anyone is convicted by a final decision of a criminal offence; and
(b)the person suffers punishment because of the conviction; and
(c)the conviction is reversed, or they are pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

(2)If this section applies, the person has the right to be compensated according to law.
(3)However, subsection (2) does not apply if it is proved that the nondisclosure of the unknown fact in time is completely or partly the person’s own doing.
…
Part 5AObligations of public authorities
40Meaning of public authority
(1)Each of the following is a public authority:
(a)an administrative unit;
(b)a territory authority;
(c)a territory instrumentality;
(d)a Minister;
(e)a police officer, when exercising a function under a Territory law;
(f)a public employee;
(g)an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).

(2)However, public authority does not include—
(a)the Legislative Assembly, except when acting in an administrative capacity; or
(b)a court, except when acting in an administrative capacity.

40AMeaning of function of a public nature
(1)In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:
(a)whether the function is conferred on the entity under a territory law;
(b)whether the function is connected to or generally identified with functions of government;
(c)whether the function is of a regulatory nature;
(d)whether the entity is publicly funded to perform the function;
(e)whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.

(2)Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.
(3)Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:
(a)the operation of detention places and correctional centres;
(b)the provision of any of the following services:
(i)   gas, electricity and water supply;
(ii)     emergency services;
(iii)    public health services;
(iv)    public education;
(v)     public transport;
(vi)    public housing.

40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.

(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

(3)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
40CLegal proceedings in relation to public authority actions
(1)This section applies if a person—
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.

(2)The person may—
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.

(3)A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4)The respondent to a proceeding started under subsection (2) (a) is—
(a)if the public authority is a public authority mentioned in section 40 (1) (a) to (e) or (g)—the public authority; or
(b)if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or
(c)if the public authority is any other public employee—the Territory; or
(d)if the public authority is an entity for whom a declaration is in force under section 40D—the entity.

(5)The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(6)This section does not affect—
(a)a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b)a right a person has to damages (apart from this section).
Note See also s 18 (7) and s 23.

(7)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
40DOther entities may choose to be subject to obligations of public authorities
(1)An entity that is not a public authority under section 40 may ask the Minister, in writing, to declare that the entity is subject to the obligations of a public authority under this part.
(2)On request under subsection (1), the Minister must make the declaration.
(3)The Minister may revoke the declaration only if the entity asks the Minister, in writing, to revoke it.
(4)A declaration under this section is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.

17․The most relevant provisions of the CM Act are ss 12(1)(e), 44 and 45:
12Correctional centres—minimum living conditions
(1)To protect the human rights of detainees at correctional centres, the director‑general must ensure, as far as practicable, that conditions at correctional centres meet at least the following minimum standards:
…
(e)detainees must have reasonable access to the open air and exercise;

…
44Treatment of convicted and non-convicted detainees
(1)Without limiting section 14 (Corrections policies and operating procedures), the director‑general must make a corrections policy or operating procedure providing for different treatment of convicted detainees and non-convicted detainees.
Example
a corrections policy or operating procedure, in accordance with the following rules of the United Nations Standard Minimum Rules for the Treatment of Prisoners, for non-convicted detainees to be able to—
·procure food at own expense (r 87)
·be offered work but not be obliged to work (r 89)
·procure reading and writing material at own expense (r 90)
·visit and be treated by own doctor at own expense (r 91)

(2)The director‑general must also ensure that convicted detainees are accommodated separately from non-convicted detainees.
(3)For chapter 10 (Discipline)—
(a)a detainee’s entitlement in relation to treatment in detention includes anything expressed to be an entitlement in a corrections policy or operating procedure made for subsection (1); and
(b)subsection (2) is taken to provide an entitlement for each detainee in relation to accommodation.

(4)However, the director‑general may give directions for different accommodation of a non-convicted detainee if the director‑general suspects, on reasonable grounds, that is necessary to ensure the safety of the detainee or anyone else.
Example
Remandee J has served various sentences for violence offences, has an aggressive personality and enjoys bullying other people. The director‑general suspects that other remandees detained with J are highly vulnerable in comparison with J. The director‑general decides that J should be accommodated with convicted offenders.
(5)In this section:
convicted detainee means a detainee whose detention is because of the detainee’s conviction of an offence.
45Access to open air and exercise
(1)The director‑general must ensure, as far as practicable, that detainees—
(a)have access to the open air for at least 1 hour each day; and
(b)can exercise for at least 1 hour each day.

(2)The standards under subsection (1) may both be satisfied during the same hour on any day.
(3)For chapter 10 (Discipline), this section is taken to provide an entitlement for each detainee in relation to access to the open air and exercise.

Is there a separately enforceable right?

What was proposed?

18․Central to the contentions of the applicants were the two issues outlined at [4] above. Having conducted a review of the previous cases, the primary judge found, contrary to the submissions of the applicants, that s 18(7) did not provide a freestanding entitlement to compensation or damages which avoided the limitation in s 40C(5). He also found that the reference to “unlawfully … detained” in s 18(7) did not apply in circumstances where a sentenced prisoner was detained in conditions which breached an applicable legal requirement regulating those conditions.
19․The applicants contend that both of these conclusions were wrong. In order to assess these submissions, it is necessary first to review previous authorities relevant to the interpretation of s 18(7).

Previous cases

20․The arguments in relation to whether or not s 18(7) provides a legally enforceable right to compensation are relatively well trodden ground, both in relation to the HR Act as initially enacted, as well as after the 2008 Amendment.
21․In Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78, Gray J had to consider the position prior to the 2008 Amendment. The case involved admitted false imprisonment but a claim for compensation under s 18(7) was added. Gray J ultimately decided that s 18(7) provided an enforceable right to compensation. In reaching that conclusion, he made the following points:
(a)The HR Act did not contain any equivalent to Art 2, cl 3 of the International Covenant on Civil and Political Rights (ICCPR), which provided that any person whose rights or freedoms were violated shall have an “effective remedy”: Morro at [18]-[19].
(b)The HR Act did not contain any provision equivalent to s 3 of the New Zealand Bill of Rights Act 1990 (NZ), which provided that the Bill of Rights Act “applies” to acts done by the legislative, executive or judicial branches of the government of New Zealand: Morro at [20].
(c)He referred (at [21]-[22]) to clear statements to the Legislative Assembly to the effect that no new remedy or cause of action was created in relation to the rights set out in Pt 3 of the Human Rights Bill 2003 (ACT):
(i)The Explanatory Statement to the Bill provided:
The Bill does not incorporate Article 2 of the Covenant because the bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
(ii)The Chief Minister, in his presentation speech, said (see Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard), 18 November 2003 at 4248-4249):
And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.
…
The bill I introduced today does not create a new right of action against a public authority … My government considers that at this time creating a new right of action would not be appropriate.

(d)He said that the words of ss 18(7) and 23(2) “are apt to declare a remedy by way of compensation in the circumstance predicated in those subsections”: Morro at [28], [32].
(e)He rejected a submission that the structure of the HR Act denied a substantive application to s 18(7). It was submitted that the substantive effect of the Act was that Pts 4 and 5 apply those rights outlined in Pt 3 to Territory laws and provide for parliamentary scrutiny of future laws. His Honour said “That would give a forced and unnatural operation to a very specific provision that provides for compensation where a right has been infringed”: Morro at [33].
(f)Notwithstanding the absence of the word “enforceable”, which appears in Art 9, cl 6 of the ICCPR, his Honour thought that the effect was consistent with s 18(7) providing such an enforceable right and, hence, making the word unnecessary: Morro at [34].
(g)He referred to a statement concerning the limits upon the use to be made of parliamentary statements as to the operation of legislation: Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 69 ALJR 8 at [11]; Harrison v Melham [2008] NSWCA 67; 72 NSWLR 380 at [12]-[16], [168], which emphasised that the obligation upon courts is to determine what is meant by the words that Parliament actually used. He found that the statements of the Chief Minister were “not consistent with at least the apparent meaning of s 18(7) of the [HR Act] which on its face gives a statutory right to compensation”: Morro at [38].
(h)He found (at [39]) that it was not necessary to decide whether a more general remedy could be implied in relation to the rights in the HR Act, saying:
It is enough that amongst the general purposes of the [HR Act] reflected in the long title is the protection of human rights. A specific provision in the [HR Act] which gives effect to the protection of a particular right by providing for compensation in the event of it being breached gives effect to that expressed purpose, in my view, should be interpreted accordingly.

22․However, in light of the fact that damages were recoverable at common law for false imprisonment, Gray J found that those damages gave full effect to the statutory right to compensation: Morro at [139], and, hence, no additional damages or compensation were required.
23․Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134 was an application for summary judgment. The plaintiff claimed that he had a right to compensation under s 18(7) and that his entitlement to compensation only accrued when he became aware, as a result of judicial determination, that his imprisonment had been unlawful. The conduct alleged to have given rise to the right to compensation under s 18(7) occurred prior to the 2008 Amendment. The plaintiff relied upon the earlier decision in Morro.
24․Because of the reliance upon Morro, Penfold J considered the decision in some detail. Penfold J said that the statements in Morro as to the operation of s 18(7) were obiter dicta. Her Honour said that Gray J made no finding that the statutory cause of action had been made out and found that any entitlement under s 18(7) could be remedied by recourse to an action in tort for wrongful imprisonment. She said that Gray J did not reach any explicit conclusion about the relationship between damages for false imprisonment and compensation under s 18(7). Her Honour found that “[t]he only conclusion that was a necessary step in his reasoning was that any remedy given by s 18(7) could be provided by the existing action in tort”: Strano at [30].
25․However, more fundamentally, her Honour indicated that she was not convinced that s 18(7) created a separate statutory cause of action: Strano at [31]. That was for five reasons.
26․First, no additional remedy was necessary to be implied where the general law already provided such a remedy.
27․Second, the assumption that ss 18(7) and 23 operate in the same way because they both provide a right to compensation did not have “any substantial basis”, having regard to their different language and that they approached their topics in different ways.
28․Third, the proposition that the two provisions “appear on their faces to provide for remedies” was no more convincing than the alternative proposition that they “appear on their faces” to require that ACT law provides for compensation for breach of the specified rights: Strano at [34].
29․Fourth, that reading s 18(7) so that it did not create a statutory right to compensation would fail to give effect to the tenor of Art 9, cl 6 was not of “any particular significance”. There was “no reason why ACT legislation should be assumed to give full effect to any particular international instrument, especially one to which the ACT is not a party”: Strano at [35].
30․Fifth, Gray J had not given any reasons for the proposition (at [35] in Morro) that when the Territory, which was not a State Party to the ICCPR, legislated to give effect to that provision, it was not merely declaratory but intended to give effect to a substantive remedy.
31․Her Honour also pointed out that the approach that Gray J took to the use of extrinsic materials assumed that they were inconsistent with the text of the legislation, a view which, her Honour said, “[she did] not find convincing”: Strano at [42].
32․Her Honour summarised her position in quite forthright terms (at [45]):
45.In summary, the difficulty that I have with Gray J’s reasoning is that his Honour, without any proper consideration of the text of s 18(7) or the legislative context of that provision, without any consideration of the extrinsic materials that are under the Legislation Act available for interpretation purposes, and without offering any explanation of his conclusion by reference to the text of s 18(7), adopted a particular interpretation of that provision and then relied on that unexplained interpretation to reject the extrinsic material as inconsistent with the text as he had already interpreted it.

33․Her Honour then pointed out (at [47]-[48]) that s 18(7) sat within a section that conferred a variety of rights that gave substance to the right to liberty and security of person set out in s 18(1). All of those rights were, to a greater or lesser degree, protected by laws of the ACT. There was scope for interpreting those laws to enhance the protection they provided to achieve greater consistency or compatibility with s 18 or, as a last resort, declaring that law to be incompatible with the HR Act. “To that extent, s 18(7) appears to have no different significance from that of any of the other provisions of s 18”: Strano at [48].
34․Her Honour said that the approach of the plaintiff in the case before her depended upon the proposition that a provision mentioning compensation had a different status and operation from provisions mentioning other matters. Her Honour said that she had heard no explanation as to why that would be correct. The mere reference to “compensation”, in her Honour’s view, “establishes nothing”: Strano at [49].
35․Finally, her Honour said that the specification of what can be done with the rights set out in the HR Act, and the absence of recognition that those rights create new rights of action, had to be taken into account in interpreting the various provisions of the HR Act that set out particular rights. The statements made in the extrinsic material disregarded by Gray J “may become relevant, in that they are in fact consistent with the overall structure and content of the Human Rights Act”: Strano at [50].
36․Her Honour made it clear that she did not adopt Gray J’s conclusion or reasoning but recognised that she did not need to make any finding about whether the s 18(7) cause of action existed in order to determine the case before her. She could determine the case before her by making the assumption that it did. For that reason, her Honour’s comments on the point are clearly obiter dicta. Her Honour ultimately concluded that, whatever the nature of the plaintiff’s claim, it was filed after the expiry of the applicable limitation period and could not be maintained.
37․Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 was heard before, but decided after, Strano. The plaintiff had been arrested and imprisoned as a result of the negligence of employees of the Territory working within the court system who had failed to accurately communicate to the Australian Federal Police the bail conditions applicable to the plaintiff. In addition to making a claim in negligence, the plaintiff also sought to claim compensation pursuant to s 18(7) of the HR Act.
38․Mossop AsJ (as his Honour then was) found (at [213]) that the claim in negligence was made out and awarded damages. For reasons which are not necessary to describe in detail, even if s 18(7) gave rise to a freestanding entitlement to compensation, his Honour found (at [227]-[234]) that the claim could not succeed. However, Mossop AsJ considered (at [235]-[257]) whether or not, following the 2008 Amendment, there was a freestanding entitlement to compensation that was distinct from any entitlement at common law. The points made in Monaghan were:
(a)Both Morro and Strano related to the form of the HR Act prior to the 2008 Amendment: Monaghan at [236].
(b)Following the 2008 Amendment, the nature of the remedy that could be granted was both defined and limited by s 40C(4), which provided that the Supreme Court could “grant the relief it considers appropriate except damages”.
(c)However, s 40C(5)(b) provided that the section did not affect “a right a person has to damages (apart from this section)” and the note under that subsection provided “Note See also s 18 (7) and s 23.”
(d)That note could be taken into account as extrinsic material: Monaghan at [237].
(e)The note and the terms of the Explanatory Statement for the 2008 Amendment (Explanatory Statement, Human Rights Amendment Bill 2007 (ACT)) were consistent with the legislature having amended the HR Act on the assumption that s 18(7) provided a separate enforceable right to damages, even though Morro was only decided subsequently: Monaghan at [237], [243].
(f)The indication in the note and Explanatory Statement was inconsistent with the extrinsic material at the time of the enactment of the HR Act, in particular, the Explanatory Statement and the presentation speech of the Chief Minister: Monaghan at [238]-[240].
(g)The review of the HR Act in June 2006 had recommended including a direct duty on public authorities to comply with human rights but a bar on any new rights to compensation arising from breach, following the model recently adopted in Victoria which was in s 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic): Monaghan at [241]-[242].
(h)The legislative history of the Bill that led to the 2008 Amendment did not indicate there was any recognition of, or support for, any implication of a freestanding right that might be drawn from the inclusion of the note or the Explanatory Statement: Monaghan at [244]-[254].
(i)If the only provision was s 40C(4), then the natural interpretation of the Act would have been that any remedy for breach of the rights in the Act would have been one which did not involve the award of damages. However, the existence of s 40C(5)(b) makes the more natural reading of the Act one which permits the rights stated in ss 18(7) and 23 to be directly enforced. That was because of the reference in s 40C(5) to “apart from this section” as opposed to “apart from this Act” and the terms of the note after para (b). It was really the latter that gave force to the contention that ss 18(7) and 23 provided freestanding rights: Monaghan at [255]-[256].

(j)Because of the limited argument made by the parties in that case, the conclusion reached earlier in the decision at [234] that s 18(7) would not have provided a remedy in the circumstances of the case, and because of the conclusion reached that any compensation would not extend beyond those available at common law, it was not essential to reach a conclusion as to whether or not s 40C permitted recovery of compensation under s 18(7) and his Honour did not do so: Monaghan at [257].

39․Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 involved a claim by a plaintiff who had earlier succeeded in obtaining a declaration that a decision to place him in full-time custody was invalid. In addition to a common law claim for false imprisonment, he made a claim based on s 18(7). As his imprisonment occurred in January 2009, the post-2008 Amendment HR Act applied.
40․Refshauge J commenced his consideration of s 18(7) by pointing out (at [434]-[438]) that the HR Act followed the report of a consultative committee which proposed a “dialogue model”. That involved the process by which the courts made a declaration of incompatibility. That was incorporated into the HR Act. Refshauge J pointed out (at [443]) that in debate on both the original bill and the bill for the 2008 Amendment, there were many references to the absence of any right to damages. He characterised the HR Act (at [449]) as recognising rights, rather than creating them, and that many of the rights in the HR Act are already recognised in the Territory (at [453]‑[454]). He interpreted the provisions of Pt 3 of the HR Act as not “intended to amend or change the law” but rather to “state, or … to declare, the rights which are to be respected, protected and promoted in the Territory”: Lewis at [458].
41․Having regard to the existence of the remedy of the tort of false imprisonment, his Honour concluded that s 18(7) had not, in the circumstances of the case, been breached. That was because, by reason of the common law, the plaintiff had an entitlement to compensation as required by s 18(7): Lewis at [467]-[468].
42․The fact that the HR Act involved “setting standards by which legislation is to be judged and construed and Executive action is to be reviewed” meant that the rights were not subject to legislative undermining by implied repeal by inconsistent legislation: Lewis at [469]-[472].
43․Refshauge J did not consider that the terms of s 40C(5) and the terms of the note were sufficient to outweigh the approach that he had adopted or the inconsistent extrinsic material: Lewis at [473].
44․In relation to the 2008 Amendment, his Honour thought that the introduction of s 40C, which provided for victims of breaches of rights set out in in the HR Act to have a remedy but not damages, was consistent with the absence of such remedies in the unamended HR Act: Lewis at [516]. He reiterated that the extrinsic materials were, with one exception, all pointing directly away from there being a freestanding public law remedy for breaches of the rights in Pt 3 of the HR Act. As to the note to s 40C(5), he said (at [519]): “This seems to me to be too weak a reed to weave into a remedy as contended for by [counsel for the plaintiff]”.
45․Finally, his Honour referred (at [520]) to the maxim ubi jus ibi remedium, “where there is a right, there is a remedy”. He considered that the maxim could be applied except where, on consideration of the whole of the HR Act, it appeared that no such right was intended to be given. He considered that when the HR Act as a whole and the permissible extrinsic material were analysed, the HR Act could not be construed as providing the public law remedy suggested: Lewis at [526]-[528]. Alternatively, he articulated the narrower conclusion that the maxim was not applicable because, in the circumstances of this case, there was a remedy available, namely the tort of false imprisonment.
46․Elkaim J gave some brief consideration to the operation of s 18(7) in the course of his reasons in Eastman v The Australian Capital Territory [2019] ACTSC 280; 14 ACTLR 195, a decision in which his Honour found that an enforceable right to compensation was to be derived from s 23 of the HR Act. So far as s 23 was concerned, his Honour accepted that it created a freestanding cause of action, reasoning from the immediate text of the subsection in a way that was consistent with Gray J in Morro. He said (at [56]‑[57]):
56.Thus the defendant submitted that if s 23(2) created a new statutory cause of action it had to say a lot more than it did, it had to create a framework stipulating, for example, whose benefit the action is for, the type of damages that can be recovered and the means of enforcement.
57.The difficulty with the submission is to understand what else besides creating a cause of action the words “the person has the right to be compensated” could mean. The right is given and must be capable of being enforced. Unlike the United Kingdom no section in ACT legislation imposes an obligation on a statutory body to pay compensation.

47․It was pursuant to s 23 that the plaintiff ultimately recovered in excess of $7 million.
48․In relation to s 18(7), Elkaim J referred to the decisions in Morro and Strano, but did not need to resolve the difference between these decisions because he did not think the threshold for the possible application of s 18(7) had been met in the circumstances of the case before him.
49․In Brown v Australian Capital Territory [2020] ACTSC 70; 350 FLR 417 at [102]-[109], Murrell CJ was addressing a claim of unlawful detention and referred to the decisions in Morro, Strano, Monaghan and Eastman, but had found that the plaintiff’s arrest and detention was not unlawful, so it was unnecessary to determine whether s 18(7) created a freestanding cause of action.
50․Similarly, in Deng v Australian Capital Territory (No 3) [2022] ACTSC 262; 372 FLR 227 at [219]-[254], Loukas-Karlsson J addressed a claim of unlawful detention and the question whether s 18(7) of the HR Act gave rise to a freestanding cause of action for compensation. Her Honour reviewed the decisions in Morro, Strano, Monaghan, Eastman, Lewis and Brown, as well as commentary on Art 9 of the ICCPR, and concluded, like Murrell CJ in Brown, that it was unnecessary to determine the issue because the detention in question was not unlawful.

The primary judge’s reasons

51․Given the nature of the interpretive exercise and the summary of the reasoning in the earlier authorities just undertaken, it is not necessary to set out the reasoning of the primary judge in any detail. His Honour considered that the approach articulated in Lewis was correct and provided additional reasons, beyond those provided by Refshauge J for reaching the same result.

Decision

52․His Honour was correct in concluding that s 18(7) of the HR Act does not create a freestanding right to compensation. That conclusion can be reached as a relatively straightforward exercise in statutory interpretation undertaken in a manner consistent with the statements of the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at 39 and R v A2 [2019] HCA 35; 269 CLR 507 at [58]. It can be reached by sequentially considering the following matters:
(a)the text of s 18(7);
(b)the immediate context of s 18(7);
(c)the structure of the original HR Act as a whole;
(d)the extrinsic materials relevant to the original HR Act;
(e)a conclusion as to the original HR Act;
(f)the text of Pt 5A;
(g)the extrinsic materials relating to Pt 5A; and
(h)a conclusion as to the amended HR Act.

53․Proceeding in these stages allows the text of the subsection to be considered in its total context and an interpretation given to the language used that best achieves the purpose of the Act as required by s 139 of the Legislation Act 2001 (ACT).

The text of s 18(7)

54․Section 18(7) provides:
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

55․Plainly, the section articulates a “right”. It makes no reference to a remedy. It refers to “compensation”, rather than damages. It does not include the word “enforceable” as exists in Art 9, cl 6 of the ICCPR, from which it is derived.

The immediate context of s 18(7)

56․Section 140 of the Legislation Act requires that, when working out the meaning of s 18(7), that provision must be read in the context of the Act as a whole. That context includes both the immediate context provided by the other parts of s 18 (which is addressed under this heading) as well as the other provisions of the Act and the structure of the Act as a whole (addressed under the next heading).
57․The immediate context of the subsection is the series of rights in the other paragraphs of s 18. As with their antecedents in the ICCPR, these are carefully formulated, each addressing a discrete right. The subject matters of the paragraphs make it clear that they address matters which are otherwise dealt with by Territory law, including the common law, Territory statutes, and Commonwealth Acts applying in the Territory. Whilst the rights set out extend beyond the criminal process, they address the circumstances in which a person may be deprived of liberty: s 18(2), rights of persons who are arrested to be told why they have been arrested: s 18(3), and to be promptly brought before a judge or magistrate: s 18(4), a general right to bail: s 18(5), and a right to apply to a court to decide the lawfulness of detention and an entitlement to release if the detention is not lawful: s 18(6). Finally, there is also the right not to be imprisoned only because of an inability to carry out a contractual obligation: s 18(8).
58․When the provisions of the section as a whole are examined in the context of Territory law as it existed at the time of its enactment, it is clearly unlikely that these provisions were intended to be directly actionable. That is because the subject matters were already dealt with by existing statutory provisions applying in the Territory or by common law doctrines. Further, there is nothing in the terms of s 18 which would indicate that s 18(7), of all of the various paragraphs of the section, should be an independently actionable right when the rights in the other paragraphs were not.

The structure of the original HR Act as a whole

59․Section 5 of the HR Act defined human rights as meaning “the civil and political rights in part 3”. Section 7 described that “This Act is not exhaustive of the rights an individual may have under domestic or international law.” Examples (which have effect according to ss 126 and 132 of the Legislation Act) of other rights following s 7 refer to “rights under the Discrimination Act 1991 or another Territory law”, “rights under the ICCPR not listed in this Act”, and “rights under other international conventions”. Importantly, the examples make it clear that the concept of “rights”, when used in the HR Act, extend beyond rights which were directly enforceable under Territory law because they are stated in the example to include rights under the ICCPR not listed in the HR Act and rights under other international conventions. The fact that the HR Act identified “rights” in a manner that did not address or require their enforceability would tend against an interpretation reliant upon the maxim “where there is a right, there is a remedy”. Because the HR Act recognises as “rights” both those which are enforceable and those which are plainly not, the maxim cannot be safely assumed to apply.
60․Following the definition of human rights in Pt 2 of the HR Act, Pt 3 sets out the various civil and political rights. The nature of the rights described in Pt 3 are such that it is not possible to reasonably argue that they are all directly enforceable because they are specified in statute and identified as rights. In no previous proceeding has that been contended to be the case and this would be directly contrary to the “dialogue model” adopted in the HR Act. Like the rights in the various paragraphs of s 18, it is clear that some of the rights set out in Pt 3 are given effect by existing statutes applying in the Territory or common law doctrines, either in whole or in part.
61․There is nothing in the provisions of Pt 3 of the HR Act which would indicate that, of all of the various rights in that part, ss 18(7) or 23 have a special status that would differentiate them from the other rights. The fact that they deal with the topic of “compensation” is not given, by the terms of the HR Act, any special status that would indicate that those rights, as distinct from all others, are directly enforceable. Nor is there any reason, external to the HR Act, that would indicate that the subject matter of “compensation” is uniquely adapted to enforceability that could justify such a conclusion. The mere fact that courts, in other contexts, routinely make awards of damages and, hence, are familiar with damages as a remedy, is insufficient to indicate that statutory statements of rights relating to compensation, as distinct from those which refer to any other subject matter, should be treated as enforceable in the courts.
62․The existence of s 28 within Pt 3, which provided: “Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society” does not enhance the case for direct enforceability. Rather, the statement in s 28 (which appears at the end of a long list of rights) that they may be limited by Territory laws is the only provision in Pt 3 which addresses any aspect of their application in the real world. The only limited manner in which application is addressed is to indicate that the rights stated may be qualified by certain Territory laws. Section 28 is notable because of the fact that it does not address any aspect of the implementation of the rights in Pt 3 other than stating the abstract proposition that those rights are subject to limitation by Territory laws.
63․It is Pts 4, 5 and 6 that provide the means by which the human rights identified in Pt 3 are given effect. The HR Act would have been easier to understand if it had simply said explicitly that the rights in Pt 3 are to be given effect pursuant to Pts 4, 5 and 6 of the HR Act. However, even though the HR Act does not say that explicitly, when regard is had to the nature of the rights created, the terms of those rights, the structure of the HR Act, and the subject matter of the various parts of the HR Act, it is clear that this is how the HR Act was intended to work.
64․Part 4 provided the interpretation provision in s 30 and the potential to make a declaration of incompatibility in s 32. Both of those are means by which the rights in Pt 3 may be given effect. The process involved in a declaration of incompatibility (ss 32-34) clearly reflects the dialogue model that was intended to be implemented by the HR Act. However, it is significant that a declaration of incompatibility is expressly stated to “not affect … the rights or obligations of anyone”: s 32(3)(b). In other words, one of the express mechanisms for implementation of the rights set out in the HR Act specifically excludes any effect on the rights or obligations of anyone. In that context, it is difficult to see how it would be possible to imply a cause of action directly arising from the rights in Pt 3 that did affect rights by creating an obligation to pay damages.
65․Part 5 related to scrutiny of new laws of the Legislative Assembly. It required a compatibility statement to be prepared: s 37 and requires consideration of human rights issues by the relevant standing committee of the Legislative Assembly: s 38.
66․Part 6 established the position of Human Rights Commissioner. The functions of that Commissioner are identified as:
(a)to review the effect of Territory laws, including the common law, on human rights and report to the Attorney-General;
(b)to provide education about human rights and the HR Act;
(c)to advise the Attorney-General on anything relevant to the operation of the HR Act.

67․When Pts 4, 5 and 6 of the HR Act are considered, it is apparent that the HR Act was intended to provide incremental, institutional means by which it was hoped that Territory laws would, over time, come to reflect the rights articulated in the HR Act. To the extent that they did not, the processes under the HR Act would expose that issue and allow a democratically accountable decision to be made by the Legislative Assembly. The institutional requirements of those parts of the HR Act relating to the conduct of the Attorney‑General, the Legislative Assembly and the Human Rights Commissioner would necessarily have the effect of increasing awareness and consideration of the human rights set out in the HR Act.
68․It is very clear, when the structure of the HR Act as a whole is examined, that the human rights set out in Pt 3 were intended to be standards against which statutes and the common law are to be assessed and interpreted in the ways set out in the HR Act, rather than directly enforceable rights.

The extrinsic materials relevant to the original HR Act

69․It is uncontroversial that, of the variety of statutory regimes relating to human rights that might have been adopted, the HR Act involves what is referred to as the “dialogue model”. As pointed out in Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48; 3 ACTLR 127 at [73] and Lewis at [434], the report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act, (May 2003), falls within the scope of extrinsic material to which regard may be had in interpreting the HR Act. That report explains the dialogue model as follows (at 61):
To create a dialogue, the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act. It should then be a matter for the legislature to determine whether or not to amend the legislation so that it conforms to the Human Rights Act.
70․The extrinsic materials proximate to the original enactment of the HR Act put it beyond doubt that the purpose of the HR Act did not extend to creating directly actionable rights which would give rise to a cause of action that did not exist prior to its enactment. That is demonstrated by the terms of the Explanatory Statement for the Human Rights Bill and the presentation speech of the Chief Minister.
71․The Explanatory Statement included the following:
Overview of Bill
The main purpose of this Bill is to recognise fundamental civil and political rights in Territory law. In particular, the Bill ensures that, to the maximum extent possible, all Territory statutes and statutory instruments are interpreted in a way that respects and protects the human rights set out in Part 3 of the Bill.
The Bill also promotes respect for and protection of human rights in the development of new law and increases transparency about the consideration of human rights in parliamentary procedures.
(Emphasis added.)
72․In describing the rights in Pt 3, the Explanatory Statement provided:
The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
73․There was nothing in the Explanatory Statement that suggested that the rights in Pt 3 of the HR Act were intended to be directly actionable. In those circumstances, it necessarily follows that there was nothing in the Explanatory Statement that suggested that, of all the rights specified in Pt 3 of the HR Act, only ss 18(7) and 23 were intended to be directly actionable.

74․The presentation speech given by the Chief Minister was extensive. A significant portion of it is set out below with emphasis added because it makes very clear that the Minister intended that the Bill did not establish any new cause of action but, instead, pursued the goal of advancing human rights in a number of other ways. Those ways reflected a careful compromise between competing interests and approaches to the protection of human rights. The Chief Minister said (Hansard at 4246-4250, emphasis added):
The object of this bill is to give recognition in legislation to basic rights and freedoms. It is a clear and unequivocal commitment by this government and by this community about those values that bind us together as a democratic, multicultural and rights-respecting people. By passing this bill we commit ourselves to minimum standards in our law making. It is a bottom line, a floor below which we should not fall.
Some are nervous about the impact of this law. Let me say this: rights exist in a social context that is well recognised in international human rights law, but it is too frequently lost in debate which exaggerates the scope and impact of rights. Some human rights are absolute. The right not to be tortured is one such right. I am sure no-one in this Assembly would disagree with that proposition. But the covenant does not permit the use of human rights as a pretext to violate the rights of others. We have taken care to reflect this principle in our bill and to ensure that restrictions on rights do not go further than is necessary.
I am aware that some will say that this bill does not go far enough. There are many who want to see economic, social and cultural rights enshrined in law, but I have to say to you, “Let us at least begin.” Let us begin with what is well accepted in the rest of the common law world. The world has moved on from the Magna Carta. Let us begin by incorporating the work done 60 years ago at the formation of the United Nations. This bill may not be exhaustive of all rights, but it is a beginning. I have already announced that economic, social and cultural rights will form part of the social plan. This issue can be looked at as part of a review of the Human Rights Act in the future.
Mr Speaker, I now turn to some of the major features of the bill. The first is individual civil and political rights. First, this bill will recognise in legislation fundamental rights and freedoms drawn from the International Covenant on Civil and Political Rights. Consequently, rights such as equality before the law, the protection of family life and children, personal freedoms such as freedom of religion, thought conscience and expression, the right not to be arbitrarily detained, the right to a fair trial and so forth, will be interpreted and applied in the ACT context.
To achieve that goal the bill requires that all ACT statutes and statutory instruments must be interpreted and applied so far as possible in a way that is consistent with the human rights protected in the act. Unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. Decision makers in all government areas will have to incorporate consideration of human rights into their decision-making process, and a statutory discretion must be exercised consistently with human rights unless legislation clearly authorises an administrative action regardless of the human right.
As I have already said, some rights, such as the right not to be tortured, are absolute. Other rights must be balanced against the rights of others. Limitations on a fundamental right must be read as narrowly as possible. By drawing on the International Covenant on Civil and Political Rights, we are able to ensure that the principles in the bill are interpreted in a way that is coherent with established human rights law.
In practice, decision makers and others authorised to act by a territory statue in the courts and tribunals must take account of human rights when interpreting the law. If an issue concerning the interpretation of human rights arises, that issue can be raised in the context of criminal or civil proceedings. In practice, the opportunity to raise the issue will only arise where there is already provision for a proceedings in a court or tribunal.
The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.
If, in the ordinary course of litigation, the question is raised in the Supreme Court about whether a territory law is consistent with human rights and the Supreme Court is unable to conclude that the law is consistent, the court will have the power to issue a declaration of incompatibility. The bill is abundantly clear that a declaration does not invalidate either primary or subordinate legislation. Nor would it make the operation or enforcement of the law invalid or in any way affect the rights or obligations of anyone.
The purpose of the declaration is to alert the government and the Assembly and indeed the community to an issue of incompatibility. It is appropriate that this power be vested only in the higher court which has a supervisory function over lower courts and tribunals, although all courts and tribunals are engaged in the process of interpretation of our laws.
If the government is not a party to the proceedings, the court must notify me, as Attorney-General, if it is considering making a declaration. This is to guarantee that the government has the opportunity to put argument if the attorney considered it necessary to do so in the same way that currently exists when constitutional law questions are raised. If a declaration is issued it will be presented to the Assembly, and within six months the attorney will provide a written response also for presentation to the Assembly. A declaration does not bind the government or the Assembly to change primary or subordinate legislation. Nor would we expect that a declaration would be issued except in relatively rare cases.
The facility for a declaration of incompatibility is a vital component of the dialogue model this bill seeks to establish. While preserving parliamentary sovereignty, the declaration will function as a signal to the government and the Assembly. It will make an important contribution to rational and coherent debate about human rights issues.
As Attorney-General, I will also have the discretion to intervene in any proceedings before any ACT court and certain ACT tribunals where a question concerning the application of the Human Rights Act arises. In practice, the discretion to intervene will only be exercised where there is a public interest in doing so.
The bill does not take away the power of the Assembly to pass laws that are inconsistent with human rights as set out in the Human Rights Act. However, as Attorney-General, I would be required to scrutinise all government bills to ensure they are consistent with fundamental human rights. A statement of compatibility for publication in the Assembly will be issued. If it is necessary to limit or depart from human rights standards we will explain why it is necessary to do so.
The scrutiny of bills committee or another committee nominated by the Speaker is obliged to report to the Assembly about human rights issues raised by bills presented to the Assembly. This will apply to both government and non-government bills. To ensure the business of the Assembly is not disrupted or subjected to unnecessary delays if for practical reasons either the government or the scrutiny of bills committee fails to report before legislation is considered, this will not effect the validity of laws passed by the Assembly. I want to assure you that this is not a backdoor way out of our obligations. I have no doubt that, if such a situation did arise, members would make their feelings known about it.
The bill also establishes the office of Human Rights Commissioner. By making the Discrimination Commissioner the Human Rights Commissioner, we avoid an unnecessary proliferation of institutions. The Human Rights Commissioner will have several functions, namely, to review territory law, conduct education programs and report to the Attorney-General on any matter relating to the Human Rights Act.
The commissioner will also have a right of intervention in proceedings that concern the interpretation and application of the act. However, this right may only be exercised with the leave of the court or tribunal. Again it is expected the commissioner’s intervention powers will be exercised sparingly and only in cases where there is a significant public interest at stake.
There will be a consequential amendment to the Annual Reports (Government Agencies) Act 1995 requiring government departments and authorities to include a statement describing measures taken to respect, protect and promote human rights. This will promote a more conscious consideration of human rights issues by territory authorities.
I have outlined the key components of this bill. It is also incumbent on me to clarify what this bill will not do so as to avoid any confusion in the media, among members of this chamber or in the wider community.
The bill I introduced today does not create a new right of action against a public authority on the ground that conduct is inconsistent with human rights as recommended by the consultative committee. My government considers that at this time creating a new right of action would not be appropriate. However, an action that is allegedly based on an incorrect interpretation of the law will be open to judicial review and administrative law remedies. These remedies are already available.
Nor will the Human Rights Act allow complaints to the Human Rights Commissioner. The government agrees with the consultative committee that involving the Human Rights Commissioner in complaints handling would conflict with the primary responsibility of the courts and tribunals to interpret ACT law.
As part of our ongoing commitment to exploring how human rights protection can be strengthened, we have included an obligation to review and report to the Assembly within five years of the commencement of the bill. This doesn’t preclude us from looking at matters early in the life of the act and, as a statute of the parliament, if it is necessary to make amendments we have the ability to do so, subject of course to the agreement of the Assembly.
The bill that I present today is the very first human rights legislation in this jurisdiction or anywhere in Australia. We have had the benefit of being able to draw on the experience of comparable jurisdictions such as New Zealand, the UK and Canada to create a model that is uniquely our own, one that is appropriately adapted to the special circumstances of the ACT but which is consistent with fundamental human rights principles.
The government’s model will not encourage unnecessary litigation, but it will ensure that human rights are taken into account when developing and interpreting all ACT laws. It will promote a dialogue about human rights within the parliament, between the parliament and the judiciary, and, most importantly, within the Canberra community. It will also serve to educate us and foster respect for the rights of others and greater understanding of our responsibilities towards each other. By enshrining the values of inclusiveness and decency in our law, we are laying a solid foundation for human rights protection in the ACT—at home, at work, at school and in our neighbourhoods.
This is a carefully crafted bill that has been the subject of extensive consultation in the community and within government. I commend this bill to the Assembly, and I look forward to a fruitful debate in the Assembly during the first session of 2004.
75․The terms of this speech may be taken into account as extrinsic materials informing the legislative purpose of the enacted provisions: Legislation Act, ss 141, 142, Table 142 item 5. The speech is significant because it strongly reinforces the interpretation of the HR Act that is apparent from its text and structure as outlined earlier in these reasons. The emphasised portions of the speech make the following points clear:
(a)the measures in the HR Act were targeted at interpretation of the law, setting standards by which new laws could be judged, and processes relating to the enactment of new laws which would encourage the assessment of those laws by reference to human rights standards;
(b)the enactment of the rights was not intended to establish any new cause of action, even though the rights could be relied upon in otherwise available judicial review proceedings; and
(c)the HR Act was not expected to result in an increase in litigation and the rights established would only be raised in litigation that was otherwise on foot.

76․Nothing in the presentation speech provides any support for the proposition that the rights or any breach of them would give rise to a new cause of action. The whole direction of the presentation speech reflects the incremental institutionalisation of human rights standards by which new laws may be judged and existing laws may be interpreted.
77․The applicants did not point to any other extrinsic materials which were said to support the contention that the HR Act as originally enacted was intended to create rights directly enforceable by action or, in relation to s 18(7) (or s 23), an enforceable action for compensation or damages.

Conclusion as to the original HR Act

78․Having regard to the terms of s 18(7) when read in the context of the other provisions of the HR Act, and having regard to the stated purpose of the legislation articulated in the most immediately significant extrinsic materials, there can be no doubt that the purpose of the legislation was not to make the rights in Pt 3 of the HR Act independently enforceable. Nor was it a purpose of the HR Act to create the rights stated in ss 18(7) and 23 as independently enforceable rights. There is no basis upon which those two rights could legitimately be selected from amongst the pool of rights in Pt 3 and given a differential operation by making them independently enforceable. The fact that those two rights, of all the rights in Pt 3, make reference to compensation as part of their subject matter does not provide a basis for rendering them independently enforceable when compared with other rights which do not make a reference to compensation. Having regard to the structure of the HR Act as a whole and, in particular, the defined and limited ways in which the rights stated in Pt 3 are to be given effect, there is no room for the operation of the maxim “where there is a right, there is a remedy”.
79․This conclusion is obviously to the contrary of that reached by Gray J in Morro. To the extent that the decision held that s 18(7) gave rise to a right enforceable by action, that decision was wrong.

The text of Part 5A

80․When it was inserted by the 2008 Amendment, Pt 5A provided, for the first time, a means by which the rights set out in Pt 3 could be directly enforced against public authorities.
81․Section 40B, for the first time, made it unlawful for a public authority to act in a way that was incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right.
82․Section 40C defined the ways in which a person who claimed that a public authority had acted unlawfully could deploy the human rights in Pt 3. At the time that s 40C was inserted into the HR Act, it provided that the person could start a proceeding against the public authority or rely on the person’s rights in other legal proceedings: s 40C(2). Where new proceedings were to be started, a limitation period was provided in s 40C(3). Section 40C(4) (equivalent to s 40C(5) as set out at [16] above) related to proceedings under subs (2) and permitted the grant of relief that the Supreme Court considered appropriate “except damages”. Section 40C(5) (equivalent to s 40C(6) set out at [16] above) provided that s 40C did not affect either:
(a)a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b)a right a person has to damages (apart from this section).

83․There was then the note (“Note See also s 18 (7) and s 23”) which falls into the category of extrinsic material and will be addressed below.
84․Section 40C(5)(a) preserved rights outside the HR Act to seek relief against a public authority. It extended to relief of any kind in relation to an act or decision of that authority. It thereby protected entitlements to relief of any sort based on any cause of action. It made it clear that the right to obtain relief under subs (4) was in addition to, and did not derogate from, other rights which the law provided.
85․Section 40C(5)(b) specifically preserved a right that a person had to damages outside s 40C. It avoided any implication arising from either the existence of the entitlement to bring proceedings under subs (2), or the exclusion of damages from the relief that may be granted in subs (4) that an entitlement to damages arising either elsewhere in the HR Act or outside the HR Act was qualified by s 40C. It is notable that para (b) (in contrast to para (a)) referred to rights apart from the section rather than apart from the HR Act, hence capturing within its scope rights that arose under the HR Act as well as rights outside the HR Act. Given that ss 18(7) and 23 both articulate rights to “compensation”, which could be seen as the equivalent of damages, the terms of para (b) leave open the argument that the drafter was intending to protect a freestanding right that existed under those provisions.
86․That is a possible implication to be drawn from the terms of the paragraph. It depends upon deriving significance from the contrast between the carveouts in para (a) (“otherwise than because of this Act”) and in para (b) (“apart from this section”). However, given that the language of para (b) mirrors the language that existed in the Victorian Charter of Human Rights and Responsibilities (s 39(4)), it may be that the distinction between the drafting of paras (a) and (b) is more attributable to its drafting history than to a deliberate decision to vary the scope of the respective carveouts.
87․Even if it is accepted that the rights in ss 18(7) and 23 are to be treated as the equivalent to a right to damages, the protection of those rights by para (b) does not carry with it a necessary implication that those rights are freestanding. It is equally consistent with a desire to ensure that the absence of damages as a remedy available under s 40C does not, by implication, qualify the terms of those rights in Pt 3 or affect the other ways in which those rights may be given effect without an award of damages. So far as rights to damages within the HR Act are concerned, those rights remain, even though the remedy of damages is not available under the HR Act. Insofar as the rights to damages exist outside the HR Act, they are unaffected by s 40C.

The extrinsic materials relating to Part 5A

88․The relevant extrinsic materials are the note following s 40C(5)(b), the terms of the Explanatory Memorandum that accompanied the Bill for the 2008 Amendment, and the statements made by the Minister at the time of the presentation of that Bill.
89․The note has been set out earlier. Consistently with the terms of s 40C(5)(b), the note referred to provisions within the HR Act as distinct from those outside the HR Act. If the note is referring to those provisions because they are preserved by the operation of s 40C(5)(b), then they would be consistent either with the rights being freestanding rights or not. That is because, as explained in relation to the legislative provision, that provision can be interpreted as designed to avoid any impact upon rights specified in the HR Act, whether or not they are directly enforceable.

117․During the course of oral argument, recognising the potential for the applicants’ formulation of the scope of s 18(7) to be extremely broad, counsel for the applicants provided alternative formulations. Senior counsel sought to draw a distinction between the conditions of the detention and the “legal character of the detention”. This contemplated some dividing line which would characterise certain conditions of detention as giving rise to unlawful detention but others as not. Although some reference was made to habeas corpus and false imprisonment cases, such as Slieman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor [2009] NSWSC 304 (detention in segregation); State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 (detention in a prison rather than a hospital) and SU v Commonwealthof Australia and anor; BS v Commonwealth of Australia and anor [2016] NSWSC 8; 307 FLR 357 (unlawful arrest and custody when liable to be held in immigration detention), as being circumstances which would fall on the unlawful detention side of the line, how that line might be determined was not made clear. Next, junior counsel suggested, by reference to those same cases, that the line could be drawn by reference to the way the tort of false imprisonment would determine unlawful detention. Finally, in oral submissions in reply, senior counsel for the applicants proposed, as an “organising principle that … the court may well find useful”, that there would be unlawful detention if a condition was infringed that “goes to the character of the deprivation of liberty” or where “the way that their liberty interests [have] been affected, is fundamentally altered”. Having regard to the formulation of this “organising principle”, it is not clear where it would draw the line between legally required conditions of detention which did not affect its lawfulness and those legally required conditions of detention which, if not complied with, would give rise to unlawful detention for the purposes of s 18(7).
118․For the purposes of this case, it is not necessary to determine the boundaries of a claim for false imprisonment at common law in order to use that to derive a generally applicable formulation of the meaning of the composite expression “unlawfully … detained” when enacted in 2004. What was significant for the present case was the manner in which the applicants’ claim had been put. The basis upon which their claim was put was that if conditions of detention involved a breach of one or other of the human rights outlined in Pt 3 of the HR Act, then that was “unlawful” by reason of s 40B (or possibly even without s 40B) and thereby rendered the applicants “unlawfully … detained”. Similarly, the contraventions of ss 44 and 45 of the CM Act, being breaches of statutory obligations on the part of the relevant director-general, would also render the applicants “unlawfully … detained”.
119․The statutory context provided by the other subsections in s 18, and the broader statutory context of the provisions of Pt 3 and other statutory provisions applicable in the Territory regulating the conditions of detention of detainees, all point very strongly against the interpretation contended for by the applicants. Allowing s 18(7) to extend beyond the lawful justification for the detention itself would give it an operation inconsistent with the position of s 18(7) in the HR Act as a whole. As pointed out earlier, there is nothing in the extrinsic materials which would indicate that s 18(7) was intended to operate as such a broad right going far beyond the lawfulness of the detention itself.
120․Further, insofar as counsel for the applicants suggested an organising principle which might allow classification of some human rights or other legally required conditions of detention as not rendering detention unlawful whereas others would render it unlawful, there is nothing in the HR Act that would permit such a distinction. It is not essential for the purposes of these reasons to express an opinion upon whether or how s 18(7) would apply in circumstances equivalent to those described in the three cases referred to earlier. It is sufficient to say that the conditions of detention relied upon in each of the present cases did not mean that the relevant applicant was “unlawfully … detained” for the purposes of s 18(7).
121․Related to this point, the applicants criticised the primary judge for failing to give some effect to the proposition that the legislation was beneficial and remedial legislation when deciding between competing interpretations of the expression “unlawfully … detained”. It was contended that, given the choice between a narrower interpretation of the meaning of unlawful detention and a broader interpretation of the meaning of unlawful detention, the fact that the legislation was of a beneficial character designed to protect persons who, by reason of their detention, were vulnerable, was a reason to adopt the broader interpretation. That is a submission which cannot be accepted. That submission falls into the error of assuming that the legislature intended to pursue a generally conceptualised beneficial goal at the expense of all other considerations: Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6]. The HR Act is a good example of an Act which has an undoubted beneficial character but where the legislature has implemented its beneficial goals with significant nuance, having regard to the variety of interests and considerations involved in the process of giving effect to human rights. Favouring a beneficial interpretation is an interpretive principle which has very little work to do in circumstances where the text and structure of the Act and the extrinsic materials are far better guides to the legislative purpose and the manner and method by which that purpose was pursued, and, hence, to the judicial implementation of the legislative command in s 139 of the Legislation Act. The same point can be made in relation to statements that rights in Pt 3 must be interpreted in “the broadest possible way”: see for example Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [79]. The uncritical application of any such principal is inconsistent with the statutory requirement of s 139 of the Legislation Act.
122․In the present case, no extrinsic material was pointed to by the applicants as indicating that the legislative purpose was one which was consistent with the interpretation for which they contended.
123․When s 18(7) is understood in the context of the act as a whole, there is no doubt that the reference to “unlawfully … detained” relates to the legal justification for the deprivation of liberty and does not extend to any breaches of the law relating to the conditions of the detention, as has been alleged in this case.

The exercise of discretion

The approach of the primary judge

124․His Honour considered that the applicants’ claims under the HR Act for damages were futile because the HR Act does not provide a remedy in damages and there was no merit in the pleaded claims that the applicants were unlawfully detained within the meaning of s 18(7): primary judgment at [440]. He then had to consider whether to grant an extension of time in relation to those parts of the applicants’ claims under the HR Act that did not seek damages and were not based upon allegations of unlawful detention: primary judgment at [442].

Mr McIver

125․The relief initially claimed by Mr McIver was only compensation pursuant to s 18(7). On 29 June 2023, shortly before the hearing of his application for an extension of time, he amended his originating application so as to add claims for declarations:
(a)that he had been unlawfully detained in a non-segregated section of the AMC, in breach of s 44(2) of the CM Act and s 19(2) of the HR Act; and
(b)that his detention in that non-segregated area constituted a breach of his human rights under s 18(2) and 19(2) of the HR Act.

126․Consistent with his earlier findings, the primary judge found that the claim for the first of these declarations could not proceed because it was based upon an allegation that he was unlawfully detained and the interpretation of s 18(7) required to support that claim had been rejected.
127․So far as the second declaration was concerned, his Honour found that there was no pleading of any breach of s 18(2) (“No one may be deprived of liberty, except on grounds in accordance with the procedures established by law”) nor any clear pleading of the material facts said to establish the elements of any breach of this human right. This was a reference to the fact that the only pleading of a breach of s 18(2) was as a “further particular”. In relation to s 19(2), his Honour said that it only appears as a particular rather than as a pleading.
128․His Honour gave three reasons why he would not grant leave to Mr McIver to pursue the second declaration.
129․First, there was no proper pleading (as distinct from particulars) of the breaches of ss 18(2) and 19(2).
130․Second, Mossop J had already found in R v McIver that Mr McIver’s human rights had been breached by reason of the fact that he had been detained in a non-segregated section of the AMC, so another declaration to that effect would seem to be of no utility.
131․Third, there was no explanation as to why Mr McIver did not commence proceedings between the date of the last act complained of on 28 January 2021 and when he first instructed his present solicitors 18 months later. His Honour accepted that the time after he instructed his present solicitors was explained but said that no persuasive explanation was offered for the period of about six months which preceded that date and post-dated the expiry of the one-year limitation period. Further, there was no evidence led from Mr McIver’s previous solicitors about any advice, or lack thereof, in relation to a claim under the HR Act. He referred to Mr McIver’s evidence that he “didn’t know anything about human rights” until he retained his present solicitors and, after speaking to them, he “liked the idea that [he] could get some compensation”.
132․His Honour dismissed Mr McIver’s application for an extension of time.

Submissions – McIver

133․Mr McIver sought to challenge the decision in relation to both declarations.
134․So far as the first declaration was concerned, his challenge was dependent upon a breach of s 19(2) of the HR Act being capable of rendering his detention “unlawful detention”.
135․So far as the second claim for declaratory relief was concerned:
(a)Mr McIver criticised his Honour’s reliance upon the inadequacy of the pleading, saying that this was not a fundamental objection to the claim proceeding at all;
(b)Mr McIver said that the primary judge erred in relying upon the earlier finding of a “prima facie breach” of his right under s 19(2), in circumstances where no declaratory relief was sought or granted in those proceedings; and
(c)Mr McIver contended that there was a factual error in the finding that there was “no explanation provided by Mr McIver” to explain the 18‑month period between the act last complained of and his instructing lawyers to institute the proceedings. He pointed out that his evidence was not the subject of objection or cross-examination. In particular, the submissions relied upon Mr McIver’s evidence that he “didn’t know anything about human rights”.

Decision – McIver

136․The primary judge dealt with the first declaration on the basis that it was targeted at the allegation that he was “unlawfully … detained” by reason of a breach of s 44(2) of the CM Act and s 19(2) of the HR Act. That was clearly the case being propounded by Mr McIver in paragraphs 34-38 of his Amended Statement of Claim, as the declaration sought was a step along the way to a claim for compensation under s 18(7).
137․The submissions now made, which, in light of the rejection of the availability of compensation under s 18(7), seek to untether the declaration that he was “unlawfully … detained” from a claim under s 18(7), cannot be accepted. Read fairly and as a matter of substance in light of the pleaded claim, the point of this declaration was the establishment of unlawful detention for the purposes of the s 18(7) claim and, given the unavailability of that claim, the primary judge was clearly correct to refuse leave to pursue it.
138․So far as the second declaration is concerned, each of the matters relied upon can be addressed separately.
139․The primary judge was correct to criticise the adequacy of the pleadings. The only reference to s 18(2) in the pleadings is a single reference in the “Further Particulars” to paragraph 35, which appears intended only to pick up, as “procedures established by law”, those breaches pleaded in paragraph 34, namely, ss 19(1), (2), and (3) of the HR Act and s 44(2) of the CM Act. All the relevant content of those breaches are contained in particulars, rather than being tied back to earlier pleaded material facts. Having said that, the obscurity and unnecessary complexity of Mr McIver’s pleading was something which might have been remedied.
140․In relation to the earlier decision in R v McIver, Mr McIver is correct to point out that no declaration was made in that case and the finding was only of a “prima facie breach”. That is because, for the purposes of sentencing, the relevant director-general had not been given the opportunity to make submissions as to whether or not the provisions of the CM Act amounted to a limitation on the right under s 19(2) consistent with s 28 of the HR Act. Notwithstanding the preliminary nature of the conclusion, the reasons in R v McIver make it clear that the prima facie breach was taken into account in favour of Mr McIver when determining the appropriate sentence for the assault that he committed on the other prisoner: R v McIver at [51]-[54]. The Court of Appeal recognised that the apparent breach of Mr McIver’s human rights had been taken into account “in determining the weight to be given to general deterrence”: McIver v The King at [38]. It is true to say that there had not been a declaration of right that took into account the possibility that a limitation upon Mr McIver’s s 19(2) right might have existed within the CM Act. However, having regard to the treatment of the issue in R v McIver and the fact that Mr McIver received some benefit of the conclusion reached as to the existence of a prima facie breach of his right in the sentencing decision, his Honour did not err in concluding that “another declaration to that effect would seem to be of no utility”. No practical utility or additional vindication of the rights of Mr McIver by a further declaration was demonstrated.
141․Insofar as Mr McIver sought to distinguish between the finding of a prima facie breach in R v McIver and a formal declaration of a contravention of that provision which may be of significance for the dialogue model established by the HR Act, it should be noted that, subsequent to the primary judge’s decision, Mossop J found in May 2024, in the case of another prisoner, that a failure to segregate accused persons from convicted prisoners constituted a breach of s 19(2) and that the right in s 19(2) was not limited by the terms of s 44(2) of the CM Act: DPP v Alexander (a pseudonym) [2024] ACTSC 161. Like R v McIver, that case did not involve any formal declaration but did involve a finding that the applicant in that case was detained in circumstances that involved a breach of s 19(2). Consistent with the dialogue model, the Legislative Assembly then, in September 2024, amended s 44 so as to make it easier for the mixing of accused and segregated prisoners, thereby seeking to limit the s 19(2) right as contemplated by s 28: Justice and Community Safety Legislation Amendment Act 2024 (ACT), s 11. Although both of these matters occurred after the primary judge’s decision, they illustrate that if the decision that his Honour made had to be reconsidered, the case for an extension of time would have been weakened even further because the issue in relation to which a declaration had been sought had been addressed in another case and the legislation subsequently changed from the form applicable at the time in relation to which Mr McIver sought a declaration.
142․So far as the third matter relied upon by the primary judge, his Honour was correct to say that there was no explanation as to why Mr McIver did not commence proceedings between January 2021 and when he first instructed his present solicitors 18 months later. His Honour questioned the lack of evidence as to what advice Mr McIver had received from the solicitors representing him in the sentencing proceedings prior to his current solicitors visiting him in jail after he was sentenced and procuring instructions to investigate a claim for compensation. Although the evidence of Mr McIver that before he met with his current solicitors he did not know anything about human rights was not challenged, there was simply no evidence as to what advice had been given to Mr McIver by his earlier solicitors, notwithstanding that the human rights issue was clearly raised in the sentencing proceedings. There is always a forensic choice made in determining what evidence is put before the court on an extension of time application, with both minimalist and maximalist approaches to the explanation for the failure to commence proceedings, each carrying with them risks. The minimalist approach, as adopted in this case, carried with it the risk that the judge would not be given an adequate impression of the merits of the claim for an extension of time. That risk manifested itself. The absence of evidence about Mr McIver’s dealings with his earlier solicitors left it open to the primary judge to conclude that there was “no persuasive explanation … for the period of about six months which preceded” the date when he instructed his current solicitors.
143․The position of Mc McIver before the primary judge was, therefore:
(a)He required a discretionary extension of time in order for his claim to proceed.
(b)It was apparent from the manner in which Mr McIver’s claim was pleaded, that the principal relief sought was compensation pursuant to s 18(7).
(c)It was also apparent from the evidence that the motivation of Mr McIver in bringing further proceedings beyond the sentencing proceedings in which his non-segregation from convicted prisoners had already been addressed, was because “I liked the idea that I could get some compensation.”
(d)The primary judge found, correctly, that s 18(7) did not provide Mr McIver with a cause of action and, hence, that he could not recover compensation.
(e)His Honour had correctly identified that one of the declarations sought was dependent upon an interpretation of s 18(7) which he had rejected.
(f)There was, therefore, the possibility that the proceedings might continue in order to seek a bare declaration on a matter that had already been the subject of findings in the sentencing proceedings.

144․Having regard to the fact that most of the claim had fallen away by reason of the primary judge’s findings on questions of law, the case for an extension of time was a slender one and, hence, it would not have taken much for the primary judge to reach the conclusion that he did. In those circumstances, it was clearly open to the primary judge to reach the conclusion that an order permitting the proceedings to be brought, notwithstanding the expiry of the limitation period, was not appropriate. Each of the factors referred to – the inadequacy of the pleadings, the earlier decision in R v McIver, and the absence of a cogent explanation as to what had occurred since the cause of action accrued – were all relevant considerations in determining whether or not to make an order permitting the proceedings to continue.

145․No error is disclosed in the discretionary decision of the primary judge relating to Mr McIver.

Mr Williams

146․In relation to Mr Williams, the primary judge noted that his tortious claim for false imprisonment had not been stayed by McWilliam AsJ in Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20 and was unaffected by the primary judge’s judgment.
147․Mr Williams sought three declarations:
(a)that detaining Mr Williams in breach of s 45(1) of the CM Act had breached his human rights;
(b)that detaining Mr Williams in breach of s 45(1) of the CM Act was unlawful; and
(c)that, pursuant to s 40C of the HR Act, the Territory had breached Mr Williams’ human rights under s 19(1) of the HR Act.

148․Section 45(1) of the CM Act is the provision that requires the relevant director‑general to “ensure, as far as practicable, that detainees … have access to the open air for at least 1 hour each day; and … can exercise for at least 1 hour each day”. Section 19(1) of the HR Act is the right to be treated with humanity and respect for the inherent dignity of the human person when deprived of liberty.
149․His Honour identified that the last day on which an act complained of occurred was 15 January 2021 and that Mr Williams first conferred with his present solicitors on 10 November 2021 (i.e. within the limitation period). Mr Williams said that he was not advised of any potential claim under the HR Act at any time before the expiration of the limitation period. That was because his solicitors had the erroneous view that the Territory was not a “public authority” for the purposes of s 40C of the HR Act and, hence, the 12-month limitation period had no application: see primary judgment at [141]. His Honour considered that this was “a sufficient explanation” in relation to the first declaration and, therefore, that claim should be allowed to proceed.
150․He said that the second declaration was futile for the reasons he had given earlier and should not be allowed to proceed.
151․So far as the third declaration which was sought, his Honour said that this related to two pleadings. The first (at paragraph 22B of the Further Amended Statement of Claim) was that cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) was incompatible with the plaintiff’s human rights under s 19(1) of the HR Act. His Honour pointed out that this clause ceased to have effect on 20 May 2022, when the Corrections Management (Separate Confinement) Operating Procedure 2022 (ACT) came into force. His Honour said, “It seems to me that there is no utility in having litigation about a policy that is no longer in force when the only relief sought is a declaration”: primary judgment at [463].
152․The second pleading (at paragraph 29 of the Further Amended Statement of Claim) pleaded that there was a breach of s 45(1) and that that breach operated as a breach of, or was incompatible with, s 19(1) of the HR Act. Because s 45(1) remained in operation, his Honour saw some utility in allowing that claim to proceed. His Honour was of the view that the HR Act was about standard-setting and “when the Territory is alleged to have breached those standards in relation to members of a generally powerless class of citizens, then those citizens should have the opportunity to ventilate their claim in court”: primary judgment at [466].
153․He therefore granted Mr Williams leave to proceed with his claims, limited to declaratory relief in accordance with the findings and holdings in his judgment.

Submissions – Williams

154․Mr Williams’ submissions contested the primary judge’s approach to the second declaration, saying that if the reason that it was rejected was because it related to infringement of s 18(7), that was incorrect because it concerned only a breach of s 45(1) of the CM Act. He then contended that seeking a declaration that a breach of the law was unlawful had utility and was the purpose of the dialogue model underlying the HR Act.
155․In relation to the third declaration, so far as the repealed separate confinement policy was concerned, he submitted that this was closely related to the breach of s 45 and that the fact that the statutory instrument may have been repealed was “irrelevant to the merit of the plaintiff’s claim”. It was said that a declaration has utility as a means of vindicating the claimant’s rights when relief such as mandamus or injunctive relief are unavailable.

Decision – Williams

156․Mr Williams had (and has) a common law claim for false imprisonment, which had not been stayed. That meant that whatever decision his Honour made, proceedings would remain on foot. His Honour granted leave to proceed with Mr Williams’ human rights claim insofar as it related to the first declaration sought, because his lawyers had taken what his Honour found was a “not unreasonable (but ultimately incorrect)” view of the state of the law.
157․The point of the second declaration was not clear. It also related to s 45. Whilst the first declaration would identify that by breaching s 45(1) there was a breach of Mr Williams’ human rights, the second declaration then sought to identify that detaining Mr Williams in breach of s 45(1) was “unlawful”. Insofar as a declaration of unlawfulness was being sought, this was a step along the way to obtaining compensation pursuant to s 18(7) and was, as the primary judge found, futile because s 18(7) did not provide a cause of action. Insofar as it said, in different words, that which was in substance addressed by the first declaration, it lacked utility. Mr Williams did not explain any practical utility of the second declaration over and above any utility of the first declaration in circumstances where s 18(7) did not provide a cause of action. Clearly enough, for the purposes of Mr Williams’ cause of action, the consistency of his treatment with s 45(2) of the CM Act needed to be determined. His position would not be improved by seeking multiple declarations addressing that issue.
158․So far as the third declaration is concerned, it was open to the primary judge to conclude that it was not appropriate to grant an order permitting an extension of time in relation to a policy which was no longer in effect but allowing a claim for a declaration relating to the operation of s 45(1) which remained in effect. The decision in relation to the repealed separate confinement policy occurred in the context of the earlier decision in Davidson which had considered the operation of that policy.
159․The conclusions reached by the primary judge in relation to the second and third declarations were even more clearly open to him because the earlier decision in Davidson (at [439]):
(a)had already made a declaration that the rear courtyard of the Management Unit at the AMC did not comply with s 45 of the CM Act; and
(b)had declared the subsequently repealed separate confinement policy to be invalid because of its inconsistency with s 45.

160․No error is disclosed in the discretionary decision of the primary judge relating to Mr Williams.

Alternative contention as to the correctness of the decisions

161․The applicants contended that a decision to make an order under s 40C(3) was subject to review on the correctness standard rather than by reference to House v The King (1936) 55 CLR 499. This was said to arise from the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 and the discussion of the standard of review at [16]-[28]. The applicants submitted that there was “conflicting appellate authority” about whether the correctness standard applied to statutory discretions about whether a claim can be brought, and referred to the decisions in Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 at [96]; Connelly v Transport Accident Commission [2024] VSCA 20; 73 VR 257 at [38]; Star Aged Living Limited v Lee [2024] QCA 1 at [95]; Waldron v O’Callaghan [2024] VSCA 196 at [43]-[44]. The argument was not developed by reference to the detail of those decisions, nor to the language of the statutory provision being applied in this case.
162․The applicants’ submission cannot be accepted. GLJ and the other authorities are simply examples of circumstances in which a particular statutory formulation is such as to determine that, rather than involving the exercise of discretion, a decision which may involve a component of evaluative judgment permits of only one outcome. The intermediate appellate decisions do not represent “conflicting appellate authority”, but, rather, are determinations that turn on the various different statutory contexts in which they were made. Because of their different statutory contexts, they shed little light upon the particular statutory question in this case, namely, the power to make an order permitting the proceedings that are commenced outside the one-year limitation period in s 40C(3). The language of that power “unless the court orders otherwise” provides no standard which would provide a foundation for a single answer. The decision clearly involves the exercise of a discretion. As a consequence, the standard of review is that in House v The King, as applied above. To the extent that decisions of other courts on different statutory provisions are of any relevance, this conclusion is consistent with the limitation decisions referred to by the applicants, Star Aged Living and Waldron v O’Callaghan.
163․In any event, if the correctness standard was applicable (or, indeed, if a House v The King error was established and the discretion needed to be re-exercised), the outcome would be no more favourable to the applicants than the one which was achieved before the primary judge.
164․In relation to Mr McIver, that was because, for the reasons referred to at [143] above and in light of the subsequent Supreme Court decision and legislative amendment described at [141] above, there was no longer any significant utility in the proceedings, apart from the potential to generate a costs order for the benefit of Mr McIver’s lawyers. It would not be appropriate to grant an extension of time to bring proceedings under the HR Act in those circumstances.
165․In relation to Mr Williams, having regard to the earlier decision in Davidson, the lack of utility in a declaration of “unlawfulness” having regard to the absence of a cause of action under s 18(7), and the declared invalidity and repeal of the earlier separate confinement policy as a result of the decision in Davidson, those declarations would lack utility other than as a tactical adjunct to the common law claim so as to protect Mr Williams’ costs position if he was otherwise unsuccessful. Given the lack of substantive utility in the declarations, it would not be appropriate to grant an extension of time to allow them to be pursued.

Disposition

166․Having regard to the course of authority amongst single judges of the Supreme Court relating to the operation of s 18(7) and the significance of the determination of the proper interpretation of s 18(7) for the applicants’ claims and the claims of other persons with proceedings currently on foot, it is appropriate to grant leave to appeal. However, each appeal must be dismissed.

Orders

167․The orders of the Court are as follows.
Proceedings ACTCA 9 of 2024 (McIver)
(1)Grant leave to appeal from the orders of the Supreme Court made on 17 April 2024.
(2)Dismiss the appeal.
(3)Direct that, unless the parties notify the Registrar of proposed consent orders in relation to costs by 17 January 2025, the parties are to exchange written submissions limited to not more than three pages and any evidence in relation to costs by 24 January 2025 and any written submissions in reply limited to not more than two pages by 31 January 2025 and, subject to any order to the contrary, the issue of costs will be determined on written submissions.
Proceedings ACTCA 10 of 2024 (Williams)
(1)Grant leave to appeal from the orders of the Supreme Court made on 17 April 2024.
(2)Dismiss the appeal.
(3)Direct that, unless the parties notify the Registrar of proposed consent orders in relation to costs by 17 January 2025, the parties are to exchange written submissions limited to not more than three pages and any evidence in relation to costs by 24 January 2025 and any written submissions in reply limited to not more than two pages by 31 January 2025 and, subject to any order to the contrary, the issue of costs will be determined on written submissions.

I certify that the preceding one hundred and sixty-seven [167] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 17 December 2024