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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
McIver v ACT [2024] ACTCA 36
Case
[2024] ACTCA 36
Decision Date
CaseChat Overview and Summary
The applicants, McIver and others, brought proceedings against the Australian Capital Territory (ACT) in the Supreme Court of the ACT. The dispute concerned the interpretation and application of the *Human Rights Act 2004* (ACT), specifically whether a breach of human rights entitlements could give rise to a freestanding cause of action for damages or compensation. The applicants also contended that their detention, while lawfully justified by a sentence of imprisonment, was rendered unlawful by breaches of the law relating to the conditions of their detention, contrary to section 18(7) of the *Human Rights Act*.
The Court was required to determine two primary legal issues. First, whether section 18(7) of the *Human Rights Act 2004* (ACT) created a freestanding cause of action for compensation or damages for breaches of human rights. Second, whether the phrase "unlawfully ... detained" in section 18(7) encompassed situations where the initial deprivation of liberty was lawful, but subsequent conditions of detention breached the *Human Rights Act* and the *Corrections Management Act 2007* (ACT).
The Court held that section 18(7) of the *Human Rights Act 2004* (ACT) does not create a freestanding cause of action for compensation or damages. The Court reasoned that there was no clear legislative intention to create such a right, and that a right to damages would not be impliedly created where one did not previously exist. Regarding the second issue, the Court determined that "unlawfully ... detained" in section 18(7) refers to the legal justification for the deprivation of liberty itself, and does not extend to breaches of the law concerning the conditions of detention. Therefore, the applicants had not established a directly enforceable entitlement to damages or compensation.