McIver v ACT

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.