McIver v Australian Capital Territory; Williams v Australian; Capital Territory
[2024] ACTSC 112
•17 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McIver v Australian Capital Territory; Williams v Australian Capital Territory |
Citation: | [2024] ACTSC 112 |
Hearing Date: | 17 July 2023 |
Decision Date: | 17 April 2024 |
Before: | Curtin AJ |
Decision: | (1) The stay order made by McWilliam AsJ in Williams v Australian Capital Territory [2023] ACTSC 18 on 10 February 2023 is lifted on and from 15 June 2023 to the date of this judgment for the limited purpose of the filing and determination of the plaintiffs’ applications in proceeding dated 6 April 2023 and any matters incidental thereto. (2) Mr McIver’s application in proceeding dated 6 April 2023 is dismissed. (3) In relation to Mr Williams’ application in proceeding dated 6 April 2023, Mr Williams is granted leave to proceed with his claims in these proceedings under the Human Rights Act 2004 (ACT) as pleaded in his Further Amended Statement of Claim dated 29 June 2023 limited to declaratory relief in accordance with the findings and holdings in this judgment. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – Application for extension of time to commence claim under the Human Rights Act 2004 (ACT) – where limitation period expired – consideration of proper principles to apply for extension of time in absence of mandatory considerations – whether refusal to grant extension of time constitutes summary dismissal – application of principles referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 STATUTES – INTERPRETATION – Consideration of Human Rights Act 2004 (ACT) – whether compensation or damages may be awarded against a public authority under the Human Rights Act 2004 (ACT) – whether damages excluded as a remedy by s 40C(4) of the Human Rights Act 2004 (ACT) – whether s 18(7) of the Human Rights Act 2004 (ACT) provides a freestanding cause of action – meaning of ‘unlawful detention’ in s 18(7) of the Human Rights Act2004 (ACT) |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 Human Rights Amendment Act 2008 (ACT) |
Cases Cited: | AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003 (Jon Stanhope, Attorney-General) Human Rights (Private Entity) Declaration 2010 (No 1) (ACT) Human Rights (Private Entity) Declaration 2010 (No 2) (ACT) Human Rights (Private Entity) Declaration 2012 (ACT) Human Rights (Private Entity) Declaration 2012 (No 2) (ACT) Human Rights (Private Entity) Declaration 2012 (No 3) (ACT) Human Rights (Private Entity) Declaration 2013 (ACT) International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) |
Parties: | Derek Joseph Williams ( Plaintiff) Anthony Daniel McIver ( Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel P Tierney ( Plaintiffs) H Younan SC with P Bindon ( Defendant) |
| Solicitors Ken Cush & Associates ( Plaintiffs) ACT Government Solicitor ( Defendant) | |
File Numbers: | SC 233 of 2022 SC 477 of 2022 |
Introduction
The meaning of ‘rights’
Enforceable rights
Human rights
Background
The relevant provisions of the Human Rights Act 2004 (ACT)
Mr McIver’s pleaded claim and its background
Mr Williams’ pleaded claim and its background
The plaintiffs’ submissions
The principles to apply to an application to extend time under the HRA
The meaning of ‘unlawful’ in s 18(7) of the HRA
Does s 40C(4) of the HRA prevent an award of damages (or compensation) for breach of s 18(7)?
Does s 18(7) of the HRA create a freestanding cause of action separate and distinct from pt 5A?
Explanation for the delay in commencing HRA proceedings – Mr Williams
Explanation for the delay in commencing HRA proceedings – Mr McIver
The defendant’s submissions
The principles to apply to an application to extend time under the HRA
The meaning of ‘unlawful’ in s 18(7) of the HRA
Does s 40C(4) of the HRA prevent an award of damages (or compensation) for breach of s 18(7)?
Does s 18(7) create a freestanding cause of action separate and distinct from pt 5A?
The exercise of discretion
The plaintiffs’ submissions in reply
The principles of statutory construction
Is a claim for damages available under the Human Rights Act?
Discussion and decision
Decisions on remaining matters
The principles to apply to an application to extend time under the HRA
The meaning of ‘unlawful detention’ in s 18(7) of the HRA
The exercise of the discretionMr McIver
Mr Williams
Costs
Orders
CURTIN AJ:
Introduction
1․These are two applications made under s 40C(3) of the Human Rights Act 2004 (ACT) (HRA) for extensions of time to sue the defendant for alleged breaches of the plaintiffs’ human rights under the HRA.
2․The applications raise for decision four main matters, the latter three being questions of statutory interpretation.
3․The first matter is the proper principles to apply to an application for an extension of time under s 40C(3) of the HRA.
4․The second is the meaning of the phrase ‘unlawfully detained’ in s 18(7) of the HRA.
5․The third is whether compensation or damages may be awarded against a public authority sued pursuant to pt 5A of the HRA because of the terms of s 40C(4) of the HRA.
6․The fourth is whether s 18(7) of the HRA provides a freestanding cause of action separate and distinct from the operation of the HRA.
7․The third and fourth matters frame the central issue, which is whether the Supreme Court of the ACT may award compensation (or damages) under the HRA to a person whose human rights were infringed by a public authority.
8․The HRA was initially enacted in 2004. It has been subsequently amended. One amending act was the Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) which came into force on 12 December 2023 after my decisions on these applications were reserved. This amended the HRA by, inter alia, inserting a new
s 40C(3A), which was consequentially renumbered to s 40C(4): see Legislation Act 2001 (ACT) (Legislation Act) s 116(1)(o).9․The purpose of the new s 40C(4) is to identify the proper respondent to proceedings commenced under pt 5A of the HRA. The effect of this insertion triggered editorial amendments to the numbering of the balance of s 40C so that the old ss 40C(4), 40C(5) and 40C(6) are now ss 40C(5), 40C(6) and 40C(7) respectively. To avoid needless complication and possible confusion, in this judgment I shall use the section numbering in the HRA as it was before this amendment so that the numbering in this judgment is the same as the numbering used in earlier authorities which considered the HRA and which require consideration in this judgment.
The meaning of ‘rights’
10․In this judgment I shall distinguish between two types of ‘rights’.
Enforceable rights
11․The first category of ‘rights’ is that familiar to lawyers and courts in Australia and are what I will call enforceable rights. That is, a citizen may approach a court and obtain orders to enforce an enforceable right if it has been infringed. Some enforceable rights are creatures of the common law and equity, some have been created by statute. The latter I shall refer to in this judgment as ‘enforceable statutory rights’.
Human rights
12․The second category of ‘rights’ more familiar to European lawyers is ‘human rights’. The United Nations Office of the High Commissioner for Human Rights (the OHCHR) describes ‘human rights’ (see ‘What are human rights?’, United Nations Office of the High Commissioner for Human Rights (Web Page) < as follows:
Human rights are rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color [sic], religion, language, or any other status.
(Emphasis added.)
13․In quoting that passage, I should not be seen as entering into a philosophical debate about what human rights are: see Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 (Lewis) at 333 [446]. I am simply pointing out (as a piece of the wider context relevant to statutory interpretation) that the use of the word ‘rights’ by the United Nations OHCHR in the two treaties to which I will come, and which were the parents of the human rights set out in the HRA, was different to how that word is used when referring to ‘rights’ created by states.
14․So described, these ‘human rights’ are not, in and of themselves, enforceable statutory rights for damages. They may become so, but only if and when a state passes legislation making a human right an enforceable statutory right for damages. As will become apparent later in this judgment, the rights in the HRA are enforceable in a limited way against public authorities, such as obtaining declaratory relief, but this does not extend to the granting of damages to a person whose human rights were infringed.
15․I make that distinction between the two ways the word ‘rights’ is used to try and avoid any confusion that may arise if I were to simply refer to ‘rights’. That word is ambiguous in the context of these applications.
16․In summary, for the reasons set out below, it is my opinion that:
(a)the proper principles to apply to an application for an extension of time under pt 5A of the HRA are those set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley);
(b)‘unlawful detention’ in s 18(7) of the HRA refers to the authority to detain, not the conditions of detention;
(c)s 40C(4) of the HRA excludes damages as a remedy for a claim brought against a public authority under pt 5A of the HRA; and
(d)s 18(7) of the HRA is not a freestanding enforceable statutory right.
17․This judgment is broadly structured to first set out the background to the applications, then the pleadings, the statutory provisions, and the parties’ submissions, before turning the decisions I have to make and the reasons why I made them. I shall from time to time deal with certain submissions earlier in the judgment where it is convenient to do so.
Background
18․At the time of the relevant events, the two plaintiffs were prisoners held at the Alexander Maconochie Centre (the AMC). The defendant in both matters is the Australian Capital Territory (the Territory).
19․In different ways explained in more detail later in this judgment, the two plaintiffs allege that the Territory breached their human rights under the HRA whilst held at the AMC. In relation to those breaches, the plaintiffs seek various declarations, compensation, and damages.
20․There are about 11 other prisoners at the AMC who have commenced similar proceedings in this Court.
21․The 13 or so cases (collectively, the cohort cases) have been travelling together for case management purposes.
22․All but two of the cohort cases were commenced after delivery of judgment in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 (Davidson) on 21 April 2022.
23․In Davidson, it was agreed between the parties that the defendant in that case, the Director-General, Justice and Community Safety Directorate (the Director-General), was a public authority for the purposes of the HRA.
24․Relevant for these applications is that in Davidson it was held that the Director-General had breached the plaintiff’s human rights under s 19(1) of the HRA. Justice Loukas-Karlsson held at 83:
[416] The plaintiff correctly submitted that in denying the plaintiff access to the open air and an adequate space to exercise, the defendant had acted in a way that was incompatible with the plaintiff’s human rights contrary to s 40B(1)(a) of the Human Rights Act. Further, the plaintiff correctly submitted that the evidence at the hearing revealed that the defendant failed to give proper consideration to the plaintiff’s human rights contrary to s 40B(1)(b) of the Human Rights Act.
…
[418] I therefore find that the defendant has acted inconsistently with the plaintiff’s human right pursuant to s 19(1) and has contravened its obligation in s 40B of the Human Rights Act. The plaintiff is therefore entitled to a declaration pursuant to s 40C, as set out below in dealing with the final issue.
25․Justice Loukas-Karlsson made a number of declarations (see Davidson at 87-88 [439]) but refused the plaintiff’s application for his sentence to be backdated to account for the 63 days during which his human rights had been breached.
26․Most of the cohort cases were commenced after, and generally speaking, because of, the above findings in Davidson. The problem with this was that all of the cohort cases were commenced outside of the limitation period provided for doing so in the HRA.
27․Under s 40C(3) of the HRA, a proceeding brought against a public authority under
s 40C(2)(a) of the HRA must be commenced not later than one year after the day (or last day) the act complained of happened i.e. the act constituting the breach of human rights, unless the court otherwise orders.28․In the cohort cases, the Territory contended that each case had been commenced out of time. For various reasons, the plaintiffs in the cohort cases disagreed with that contention, submitting that their claims were not governed by pt 5A of the HRA and thus not subject to the time limit in s 40C(3).
29․To resolve various legal arguments which arose out of that dispute, one of the cohort cases, being Mr Derek Williams’ case, was selected with the consent of the parties to have those legal arguments determined. Accordingly, the Territory filed an application seeking orders that the HRA cause of action pleaded by Mr Williams be stayed.
30․Associate Justice McWilliam (as her Honour then was) heard and determined that application in Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20 (Williams).
31․In Williams at 23 [6], her Honour noted the parties’ position (in all of the cohort cases plus two others) that her Honour’s judgment would bind them all. Her Honour said:
Accordingly, it has been agreed between the parties that the outcome of this application will also determine the outcome of the Territory’s application made in each of the aforementioned matters.
32․Her Honour decided four issues.
33․The first issue was whether the Territory was a “public authority” under the HRA. The Territory argued that it was a public authority, the plaintiff argued that it was not. Her Honour held that the Territory was a public authority.
34․The second issue was whether the claim brought by the plaintiff was a proceeding to which the time limit in s 40C of the HRA applied. Her Honour held that it was a proceeding to which the time limit in s 40C of the HRA applied.
35․The third issue was whether it was appropriate to determine any question of time limitation as a separate preliminary issue before a defence had been filed or in advance of a substantive hearing. Her Honour held that it was appropriate to determine the question separately.
36․The fourth issue was whether, depending on how those issues were determined, it was appropriate to grant a stay. Her Honour held that it was appropriate to grant a stay.
37․Her Honour made the following orders at 36 [87]:
(1) Pursuant to r 40(1)(g) of the Court Procedures Rules 2006 or the inherent jurisdiction of the Court, that part of the plaintiff’s claim which is founded upon a statutory cause of action brought under the Human Rights Act 2004 is stayed until:
a. the plaintiff applies to the Court for an order otherwise under s 40C(3) of the said Act; and
b. the Court makes such an order.
38․Subsequently, each plaintiff in the balance of the cohort cases filed an application for an extension of time pursuant to s 40C(3) of the HRA, as contemplated by her Honour’s orders.
39․Sensibly, the parties kept the cohort cases together for case management purposes and they came before me as a group to hear and determine their applications for extensions of time under the HRA.
40․At that time, I raised with the parties the questions raised in this judgment, and by consent of the cohort parties, Mr Anthony McIver’s and Mr Williams’ cases were selected to determine those questions.
41․I took the view that the then operative pleadings filed by Mr McIver and Mr Williams were not as useful as they could have been in identifying the causes of action relied on. Because they would be test cases, on 15 June 2023 I invited the two plaintiffs to consider their pleadings and to file and serve any proposed amended statement of claim they may wish to rely on by 29 June 2023. The two plaintiffs adopted that course. Mr McIver filed an Amended Statement of Claim and Mr Williams filed a Further Amended Statement of Claim.
42․The filing of those two documents was not in breach of the stay order made by McWilliam AsJ on 10 February 2023 because, having made the order for filing and service of the amended pleadings, I impliedly lifted the stay to allow that to happen. Having said that, and to avoid any possible misunderstandings, I shall make an order retrospectively lifting the stay for that purpose.
43․Therefore, before me for decision are Mr McIver’s and Mr Williams’ applications for an extension of time under s 40C(3) of the HRA. The plaintiffs in the balance of the cohort cases accepted before me that they would be bound by my decision in this case.
44․I should note that all parties, and correctly with respect, accepted that the terms of
s 40C(3) of the HRA required the Court to be persuaded that an extension of time should be granted. That is, an extension of time was not something that could be granted simply because the parties might consent to it.
The relevant provisions of the Human Rights Act 2004 (ACT)
45․Section 10(1)(b) of the HRA says:
10 Protection from torture and cruel, inhuman or degrading treatment etc
(1)No-one may be—
…
(b)treated or punished in a cruel, inhuman or degrading way.
…
46․Section 18 of the HRA says:
18 Right 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.
…
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
…
47․Section 19(1) of the HRA says:
19 Humane 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.
48․Finally, ss 40-40D of the HRA say:
40 Meaning 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.
40A Meaning 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.
40B Public 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.
40C Legal 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 Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5)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.
(6)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
40D Other 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.
Mr McIver’s pleaded claim and its background
49․From around 1 December 2020 to 28 January 2021, Mr McIver said he was detained in Sentenced Cells A Unit 1 (SU1) at the AMC pursuant to an order for remand, and as a non-convicted detainee pursuant to the provisions of the Corrections Management Act 2007 (ACT) (CMA).
50․Mr McIver alleged that by accommodating him in SU1 whilst on remand, the Territory failed to segregate him from convicted detainees, contrary to s 44(2) of the CMA. That section says:
44 Treatment of convicted and non-convicted detainees
…
(2)The director‑general must also ensure that convicted detainees are accommodated separately from non-convicted detainees.
…
51․During his detention on remand, Mr McIver was held with a mix of convicted and non-convicted detainees. Mr McIver shared a cell with a convicted detainee. During this period, other convicted and non-convicted detainees were freely able to enter Mr McIver’s cell and mix with Mr McIver in common areas.
52․On 28 January 2021, Mr McIver was assaulted by a convicted person in SU1.
53․On 24 June 2022, at the conclusion of a five-day trial, a jury found Mr McIver guilty of one count of recklessly inflicting grievous bodily harm. Mr McIver pleaded guilty to making a demand with a threat to endanger the health, safety or physical wellbeing of a person, possessing a knife without a reasonable excuse in a public place, and using a carriage service to menace, harass or offend.
54․On 16 August 2022, Mr McIver was convicted and sentenced by Mossop J to imprisonment for those offences: see R v McIver [2022] ACTSC 206 (R v McIver).
55․During the sentencing hearing, Mr McIver contended that the assault perpetrated on him whilst in SU1 had occurred because of the Territory’s breach of s 44(2) of the CMA, that that breach was a breach of Mr McIver’s human rights, and that any sentence should be reduced because of that fact.
56․In R v McIver, Mossop J noted at [52] that:
[P]ersons detained in custody in the ACT are to be detained in a manner consistent with the obligations imposed upon the executive government by the Human Rights Act…
57․Justice Mossop held that prima facie Mr McIver’s human rights had been breached. His Honour said:
[53] The offender in the present case was housed in accommodation at the AMC which mixed sentenced and remand prisoners. He was at all relevant times a remandee. The victim of his offending, who had earlier assaulted him, was a sentenced prisoner. Section 19(2) of the Human Rights Act provides that the offender, being a remandee, “must be segregated from convicted people, except in exceptional circumstances”. No exceptional circumstances or inconsistent law was pointed to which might avoid a contravention of s 19(2) either by reason of the terms of that provision or by operation of s 28 of the Human Rights Act. There was a causal link between the offender’s offending and his incarceration with sentenced prisoners because it was a sentenced prisoner who attacked him and against whom he retaliated. …
[54] In my view, the circumstances of mixing of sentenced and remand prisoners and the prima facie breach of his right under s 19(2) of the Human Rights Act are matters which may be taken into account in sentencing the offender. …
58․Critically for the present case, at [54] Mossop J rejected the submission made by Mr McIver that the breach of the HRA (which related to his conditions of detention) had the effect that the sentence of imprisonment imposed was not a sentence for an offence committed in "lawful custody" for the purposes of s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). His Honour held at [54] that s 64(2)(e):
[S]hould not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention…
59․Mr McIver appealed his sentence to the Court of Appeal, taking issue, inter alia, with his Honour’s holding that a breach of Mr McIver’s human rights did not render his custody ‘unlawful’ for the purposes of s 64(2)(e) of the Sentencing Act.
60․At the time these present applications were heard by me, the Court of Appeal’s decision on Mr McIver’s appeal had not been delivered. It was subsequently delivered on 19 December 2023: see McIver v The King [2023] ACTCA 48; 20 ACTLR 303 (McIver v The King).
61․Relevantly for the applications before me, the Court of Appeal rejected Mr McIver’s contention that Mossop J had misinterpreted s 64(2)(e) of the Sentencing Act.
62․The Court of Appeal summarised Mr McIver’s contention in McIver v The King at 312 [43], as follows:
The appellant contended before the primary judge, and on appeal, that because the conditions of his incarceration breached s 19(2) of the Human Rights Act, he was not in “lawful custody” at the time of the commission of the offence of recklessly inflict grievous bodily harm.
63․The Court of Appeal dismissed this ground of appeal, holding that “lawful custody” in
s 64 (and s 72) of the Sentencing Act meant custody that is authorised by law, and did not encompass any breach by the defendant of any obligations it had relating to the conditions of detention.64․Importantly, part of the Court of Appeal’s holding in McIver v The King at 316 [64] was that:
In summary, we consider that the words “lawful custody” in ss 64 and 72 of the Sentencing Act should be read in accordance with their ordinary meaning: that is, detention which is authorised by law. As the appellant's detention was authorised by ss 16 and 18 of the Sentence Administration Act, it follows that he was in “lawful custody” within the meaning of ss 64 and 72 of the Sentencing Act.
65․Mr McIver’s statement of claim and proposed amended statement of claim in the case before me are confusing documents and do not follow the requirements of pleadings to clearly identify the causes of action relied on and the material facts relevant to each element of each cause of action.
66․Nevertheless, it is tolerably clear that Mr McIver relies solely on a claimed breach of his human rights under the HRA.
67․The section he relies on to obtain damages is s 18(7) of the HRA, with breaches of
ss 18(2) and 19(1)-(3) of the HRA being the matters relied on which he alleges amounted to unlawful detention under s 18(7).68․He pleads that:
Pursuant to Section 18(7) of the HRA the defendant is liable to pay compensation in respect of the plaintiff’s unlawful detention.
69․The relief sought is relief by way of various declarations and compensation pursuant to s 18(7) of the HRA together with interest and costs.
70․Of significance is that Mr McIver does not plead any absence of lawful authority for his detention.
Mr Williams’ pleaded claim and its background
71․On 23 February 2017, Mr Williams pleaded guilty to eight indicatable offences and eleven related summary offences and was sentenced to full-time imprisonment: see R v Williams [2017] ACTSC 298.
72․Mr Williams appealed that decision to the Court of Appeal.
73․On 27 February 2018, the Court of Appeal dismissed the appeal, but amended the sentence in respect of the culpable driving offence: see Williams v The Queen [2018] ACTCA 4; 83 MVR 505.
74․For various periods commencing from 26 December 2019 to 15 January 2021, Mr Williams was placed in solitary or separate confinement in the Management Unit (the MU) of the AMC.
75․He pleaded that, to put it simply, whilst so confined he did not have access to at least one hour of open air and exercise each day. He alleges that this was in breach of various sections of the CMA and other applicable policies, operating procedures, and directions applying to the AMC, specifically the:
(a)Corrections Management (Human Rights) Policy 2010 (ACT);
(b)Corrections Management (Detainee Disciplinary) Policy 2012 (ACT);
(c)Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019 (ACT);
(d)Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT);
(e)Corrections Management (Management of Segregation and Separate Confinement) Policy 2019 (ACT); and
(f)Corrections Management (Management Unit) Policy 2011 (ACT)
(defined collectively in the pleadings as the CM Provisions).
76․The CM Provisions related in one way or another to the conditions of his detention.
77․In turn, Mr Williams alleged that these breaches of the CM Provisions were breaches of his human rights and particularly ss 10(1)(b), 18(1)-(2) and 19(1) of the HRA.
78․The section he relies on to obtain damages is s 18(7), with breaches of
ss 10(1)(b), 18(1)-(2), and 19(1) being the matters relied on which he alleges amounted to unlawful detention pursuant to s 18(7).79․Mr Williams seeks various declarations, general compensatory damages, compensation pursuant to s 18(7) of the HRA, aggravated damages, exemplary damages, interest, and costs.
80․As with Mr McIver, Mr Williams does not plead any absence of lawful authority for his detention.
The plaintiffs’ submissions
The principles to apply to an application to extend time under the HRA
81․The plaintiffs submitted that a refusal of an extension of time constitutes, in substance, summary dismissal of the plaintiffs’ HRA claims. Therefore, the submission continued, the principles to apply should be those applied in summary dismissal applications, and that if their pleaded cases were arguable, they should be allowed to proceed.
82․They submitted that, applying those principles, I should not examine the merits of their claims beyond the question of whether they were arguable.
83․The plaintiffs drew my attention to Perera v Genworth Financial Mortgage Insurance Pty Ltd (t/as Genworth) [2017] NSWCA 19; 94 NSWLR 83, in which Leeming JA summarised the authorities on summary dismissal. In that case, Leeming JA said at 92 [30] that the test has been variously described as being:
[“S]o obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action” and “be manifest that to allow [the pleadings] to stand would involve useless expense”. …
84․The plaintiffs submitted that the counterpart of the stringency by which summary dismissal may be applied is the importance of jurisdiction being made available by courts wherever possible. What the plaintiffs mean by that is that it is important that parties’ claims are heard by courts on the merits rather than being summarily dismissed.
85․The plaintiffs submitted that, as a general proposition, even where a component of a cause of action involves a novel proposition which is identifiable as a potential incremental development of the existing common law, it would not be appropriate for the Court to prevent a plaintiff from a hearing on the merits in relation to that novel proposition. Inconsistently with that submission, the plaintiffs also submitted that “the claims which the plaintiffs seek to advance do not involve strictly novel claims for relief.”
86․The plaintiffs submitted that:
It is well established that, both at a threshold level and as a matter of construction, the HRA must be construed “in the broadest possible way”.
87․I think what was being conveyed was that the plaintiffs should not be summarily refused the right to argue at a fully contested hearing their claims under the HRA because it is a piece of beneficial legislation.
88․In conclusion, the plaintiffs submitted that their HRA claims were arguable, and were not so untenable, manifestly groundless, or so weak as to justify (on a summary dismissal basis) a refusal of their applications for extensions of time.
89․They submitted that there were conflicting authorities (at least on the point whether
s 18(7) of the HRA created a freestanding enforceable statutory right) and therefore that conflict should be resolved at a final hearing rather than on these interlocutory applications.90․The plaintiffs submitted that their claims were “unarguably arguable” and thus not manifestly groundless or one of the other descriptors mentioned by Leeming JA.
91․As will become clear, I do not accept the plaintiffs’ submission as to the proper principles to apply on these applications. I will come to those reasons in due course, but I should immediately mention that in relation to s 18(7) of the HRA, whilst I accept that there are conflicting obiter statements in earlier authorities, there is one authority, Lewis, in which the ratio included the holding that s 18(7) of the HRA did not create a freestanding enforceable statutory right.
92․In those circumstances, I should follow Lewis unless persuaded it is clearly wrong. For the reasons set out below, I am not persuaded of that; I consider Lewis was correctly decided.
The meaning of ‘unlawful’ in s 18(7) of the HRA
93․The plaintiffs submitted that ‘unlawful' should be given its ordinary English meaning such as "not conforming to, permitted by, or recognised by law or rules" or "contrary to, or forbidden by law, especially criminal law".
94․The plaintiff submitted that unlawful detention for the purposes of s 18(7) includes detention which is specifically proscribed by other provisions of the HRA (such as under ss 18(1)-(2), 19(2) and 40B), or which fails to conform with another statutory provision (such as one of the CM Provisions), or which is legally tainted, such as by a breach of public law principles.
95․They submitted that applying s 18(7) "in the broadest possible way" (because it is beneficial legislation) means that the term ‘unlawful’ cannot be assigned a narrow or constricted operation.
96․The plaintiffs cited R v McIver. In that case, Mossop J found a prima facie breach of Mr Mclver's human rights under s 19(2) of the HRA because Mr McIver, as a remandee, was housed with sentenced prisoners. Nevertheless, his Honour held that there was no breach of s 64(2)(e) of the Sentencing Act (which concerned “lawful custody”) by reason of a breach of s 19(2) of the HRA. At [54], his Honour did not accept Mr McIver’s submission that a breach of s 19(2) of the HRA:
has the effect that the sentence on the charge of recklessly inflicting grievous bodily harm is not a sentence for an offence committed in “lawful custody” within the meaning of s 64(2)(e) of the Crimes (Sentencing) Act. That section should not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention…
97․The plaintiffs emphasised the word “may” in the last sentence of that quote.
98․The plaintiffs submitted that Mossop J was not asked to consider, and did not consider, other dimensions of unlawfulness, such as non-compliance with s 44(2) of the CMA, the application of s 40B of the HRA, relevant Australian common law authority, or the scope of the remedial operation of s 18(7) of the HRA as including "a residual area of operation", which they submitted had been identified by Refshauge J in Lewis.
99․Mr Williams (but not Mr McIver, because he made no such claim) submitted that, perhaps more significantly, there was established authority in Australia to support his pure common law claim for false imprisonment. It was submitted that the viability of Mr Williams' claim for false imprisonment was significantly enhanced by the highly prescriptive nature of the statute controlling segregation of prisoners, in this case, the mandatory effect of s 45(1) of the CMA. I do not see the relevance of this submission given that Mr Williams’ false imprisonment claim is not a claim under the HRA (which is what I am concerned with in these applications), was not stayed by Williams AsJ, and no extension of time is required for it to proceed.
100․Mr Williams submitted that in Davidson, Loukas-Karlsson J found that s 19(1) of the HRA had been breached because of the failure of the defendant to comply with s 45(1) of the CMA. Mr Williams noted that her Honour found that non-compliance with
s 45(1) of the CMA resulted in a declaration that the policy which purported to modify how that obligation could be met was held to be invalid. He submitted that that finding spoke clearly to the unlawfulness of detention.101․Mr Williams submitted that his claim at common law was undoubtedly arguable. As a claim in trespass, it was for the Territory to prove lawful authority. This submission was irrelevant to the issues to be determined on these applications because the common law claim for false imprisonment is not a claim made under the HRA, was not stayed by Williams AsJ, and no extension of time is required for it to proceed.
102․The plaintiffs seemed to submit that because the onus is on a defendant to prove lawful authority in a common law claim for false imprisonment, the Territory therefore bore the onus of proving lawful detention for the purposes of s 18(7) in each of their cases. No authority was cited to support this submission, and no developed submission was made to support it. That point has never been raised in any of the other cases dealing with
s 18(7) and I see no reason why the Territory should bear the onus. The usual rule is that he who asserts must prove, and whilst there is much common law history behind a defendant bearing the onus in a case concerning the tort of false imprisonment, no such history exists for s 18(7). I do not accept this submission. If a plaintiff alleges that they were unlawfully detained per s 18(7) of the HRA, the onus of proving the same rests on the plaintiff.103․The plaintiffs’ central submission essentially was that any breach of any statutory or other obligation by the Territory relating to the conditions of detention rendered the detention ‘unlawful’ for the purposes of s 18(7): see T 22.15-19.
104․The plaintiffs drew my attention to Beazley JA’s judgment in State of New South Wales v McMaster [2015] NSWCA 228; 91 NSWLR 666, in which her Honour was said to have provided a definition of the word ‘unlawful’ at common law at 705 [202]. This submission was incorrect. There was no finding as to the meaning of the word ‘unlawful’ at common law. Her Honour simply provided a dictionary definition in the cited passage. All that her Honour said was:
As a matter of ordinary English, the word “unlawful” means “contrary to law; prohibited by law; illegal”: Oxford English Dictionary. …
105․In that case, the NSW Court of Appeal was concerned with the meaning of the word ‘unlawful conduct’ when used in s 52 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) which relevantly says that a person does not incur a liability arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding was ‘unlawful’.
106․Their Honours held that ‘unlawful conduct’ for the purposes of the statutory defence of self-defence in s 52 was not limited to criminal conduct but also applied to tortious conduct.
107․I do not find that authority to be of any assistance in this case. The Civil Liability Act is a completely different statute, it has a different purpose to the HRA, and the HRA does not include any concept of ‘unlawful conduct’ in the sense used in the Civil Liability Act.
108․The plaintiffs also cited a number of authorities in other jurisdictions which address the question whether prison authorities may act in such a way that the prisoner’s detention is regarded as false imprisonment.
109․In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1 (Campbell), White J discussed various authorities and said at 87 [436] that the question whether persons lawfully imprisoned may sue for the tort of false imprisonment by reason of their unlawful placement in a particular prison or in part of a prison had produced different judicial responses. His Honour said the modern view in the United Kingdom was that the unlawful placement of a prisoner within a prison does not provide the basis for a claim of unlawful imprisonment, but that it was accepted (see Campbell at [442]) that there may be circumstances in which a prisoner subjected to a form of unauthorised confinement within a prison may be able to sue for false imprisonment.
110․The plaintiffs also cited New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 (NSW v TD), in which the NSW Court of Appeal held that the tort of false imprisonment was established when a person ordered to be detained at a hospital as a result of mental illness was instead detained in a prison hospital which had not been gazetted as a hospital.
111․Those two cases are directed to whether the tort of false imprisonment was committed, not the question whether the detention was unlawful within the meaning of ‘unlawful detention’ in the ACT’s HRA. I do not find them of any assistance in the face of existing ACT authority on the meaning of ‘unlawful detention’ (to which I will come later in this judgment).
112․Another authority cited by the plaintiffs was Sleiman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor [2009] NSWSC 304, in which a prisoner challenged his detention in segregation and sought administrative law relief. In that case, Adams J said at [34] that the debate focused on whether the prisoner:
had a right to what has been called in some cases “residual liberty”, unlawful interference with which rendered his imprisonment unlawful and therefore compensable by damages.
113․Again, that case was concerned with the tort of false imprisonment and not the meaning of ‘unlawful detention’ in the HRA. I do not find it of any assistance.
114․So far as those cases address the tort of false imprisonment, they may assist Mr Williams’ common law claim for false imprisonment (but not Mr McIver, who makes no such claim). But simply because those cases address the word ‘unlawful’ in their different legal contexts does not mean they bear on the meaning of the composite phrase ‘unlawful detention’ in the statutory regime of the HRA, particularly when that phrase has been consistently interpreted by previous judges of this Court to involve the question of authority to detain rather than the conditions of detention (simpliciter), and where neither plaintiff has pleaded any lack of authority in the Territory to detain them.
115․No submissions were advanced by the plaintiffs supporting their interpretation of ‘unlawful detention’ based on the matters the High Court said were relevant to statutory interpretation (to which I will come in due course).
Does s 40C(4) of the HRA prevent an award of damages (or compensation) for breach of s 18(7)?
116․On the assumption that any claim under s 18(7) must be brought under pt 5A of the HRA, the plaintiffs submitted that s 40C(4) of the HRA was “undoubtedly qualified” by s 40C(5), citing Mossop AsJ (as his Honour then was) in Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 (Monaghan) at 362 [255] (which was obiter). They submitted that an orthodox contextual approach to statutory construction made it untenable to contend otherwise, citing Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 (Graham) at 288-289 [25] and 289 [28], applied in Davidson at 36-37 [179].
117․I note that both Graham and Davidson in turn cited and relied upon the judgment of Kiefel CJ, Nettle and Gordon JJ (which constituted a majority) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL), wherein their Honours said at 368 [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(Citations omitted.)
118․No detailed submission was made on the text or context of the HRA, and no submissions were made by the plaintiffs as to the HRA’s policy or purpose other than the general submission that it was beneficial legislation.
119․In substance, the plaintiffs adopted a literal approach to interpretation and relied on Mossop AsJ’s obiter observations in Monaghan which they submitted favoured their interpretation of the section.
120․The literal approach to interpretation has been rejected by the High Court for many years: see R v A2 [2019] HCA 35; 269 CLR 507 (R v A2) at 520-521 [32] per Kiefel CJ and Keane J (Nettle and Gordon JJ agreeing at 554 [148], Bell and Gageler JJ making the same point in substance at 545 [124]); SZTAL at 368 [14]. I will address those passages from R vA2 later in this judgment.
121․The plaintiffs submitted that, as Mossop AsJ found in Monaghan, the more natural reading of s 40C(5)(b) of the HRA is to permit the rights stated in ss 18(7) and 23 of the HRA to be directly enforced without regard to whether or not there was an overlapping common law right. However, the plaintiffs did not address the matters Mossop AsJ referred to in the same judgment which did not favour the plaintiffs’ interpretation.
Does s 18(7) of the HRA create a freestanding cause of action separate and distinct from pt 5A?
122․The plaintiffs submitted that s 18(7) of the HRA provides a freestanding enforceable statutory right (or cause of action) entitling a person to sue a public authority for damages for its breach irrespective of and free from the provisions of pt 5A of the HRA.
123․The plaintiffs relied on Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan) as to the principles to apply to statutory interpretation, and on Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 (Morro) in support of their submission that s 18(7) of the HRA provides a freestanding enforceable statutory right.
124․The plaintiffs recognised that the Presentation Speech when the HRA was first enacted (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003 (Jon Stanhope, Attorney-General)), and then when amended in 2008 to add pt 5A (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 6 December 2007 (Simon Corbell, Attorney-General)), were rather explicit in conveying that the HRA was not intended to create enforceable statutory rights, but correctly pointed out that the words of the Attorney-General or a Minister in a Presentation Speech must not be substituted for the text of the law, citing Re Bolton; Ex parte Beane (1987) 162 CLR 514.
125․The plaintiffs cited Monaghan, and particularly 358-359 [237] and 362 [255], wherein Mossop AsJ expressed an obiter view that s 18(7) may amount to a freestanding enforceable statutory right, although there were considerations to the contrary which had not been the subject of submissions from the parties.
126․The plaintiffs cited Eastman v Australian Capital Territory [2019] ACTSC 280; 14 ACTLR 195 (Eastman) and submitted that Elkaim J had no difficulty in finding that the plain terms of s 23 of the HRA, said to be an analogous provision to s 18(7), amounted to a freestanding enforceable statutory right. Justice Elkaim found that s 23 had been breached by the defendant in that case and awarded Mr Eastman $7,020,000 in compensation for that breach.
127․The plaintiffs submitted that the upshot of the cases they cited was that the existence of a cause of action based on the proposition that s 18(7) was a freestanding enforceable statutory right was “unarguably arguable”. This submission picked up the plaintiffs’ reliance on their summary dismissal principles submissions and was to the effect that if their HRA claims were at least arguable then the applications for extensions of time should be granted and should not be, in substance, summarily dismissed.
128․The plaintiffs drew my attention to the fact that Lewis was appealed to the Court of Appeal: see Lewis v Australian Capital Territory [2019] ACTCA 16. The plaintiffs submitted that the Court of Appeal left open the question of whether s 18(7) gave rise to a freestanding remedy. In that case, the Court of Appeal said at [73]:
The Court does not consider it necessary to decide whether or not the HRA provides a separate right to damages, distinct from the tort of unlawful imprisonment. This is for two reasons: firstly, this question will be better decided in a case where the only available, or asserted, remedy is one arising from the HRA, and secondly, and more importantly for present purposes, because any damages that might have been awarded pursuant to s 18(7) would face precisely the same obstacle as the common law damages, namely the imposition on the claim of the inevitability that the appellant would have been sent to prison notwithstanding the unlawfulness of the SAB’s actions, as identified by the primary judge.
129․The plaintiffs submitted that the decision in Lewis, insofar as it stands for the proposition that s 18(7) is not a freestanding right to compensation, is plainly wrong. They submitted that Refshauge J erred by not giving due consideration to the words of the HRA, erroneously went straight to the extrinsic materials, and then engaged in a balancing exercise between the words of s 40C(5) of the HRA and the extrinsic materials. The plaintiff submitted that in any event, Refshauge J’s decision on that point was obiter, and I am not compelled to follow it.
130․The plaintiffs further submitted that Lewis also stands for the proposition that there is some “residual operation” to s 18(7) of the HRA even if, on its proper interpretation, the section does not create a freestanding enforceable statutory right.
131․As I understood the submission, the plaintiffs were submitting that where there is some form of breach of the HRA that constitutes unlawfulness, but the Court is not satisfied of unlawfulness for the tort of false imprisonment, s 18(7) can provide a statutory remedy to fill that gap. That is, s 18(7) provides a right, and the general law would otherwise provide a remedy.
132․What Refshauge J said on that point in Lewis at 346 was:
[528] This is the first basis on which I find that the maxim should not be applied. On my analysis of the Human Rights Act as a whole, including, in this case, extrinsic material permissible for working out the meaning of the Act, I do not consider it can be construed as providing for the public law remedy suggested.
[529] In the event that this is too wide a conclusion, it seems to me that there is no basis for finding a remedy on the basis of this maxim for a breach of s 18(1) or (2) of the Human Rights Act. There is a remedy- the tort of false imprisonment provides one. There is, in this case, no basis for the finding of the required pre-condition to finding such a remedy exists or should be implied, namely that there is no remedy for the right.
[530] Again, should there be a residual area of operation, namely that a breach of the right to be arbitrarily detained, being wider that the requirement for which the tort of false imprisonment is a remedy, namely that the imprisonment be unlawful, so that this breach is not so remediable, then that does not apply in this case for there is no doubt that the imprisonment of Mr Lewis was unlawful.
133․I must confess that I had difficulty understanding the plaintiffs’ submission. In any event, the submission fails because Refshauge J did not hold that there existed any “residual operation”.
134․In Lewis at 346 [528], his Honour rejected the proposition that the maxim ‘where there is a right, there is a remedy’ (set out at 345 [520]) should be applied. One reason for rejecting the proposition was given at 346 [528], and a second reason was given at 346 [529].
135․At 346 [530], all that his Honour was saying was that if his Honour was wrong at 346 [528]-[529], and assuming there was this so-called residual area of operation, then that residual area of operation did not apply because there was no doubt that the imprisonment of Mr Lewis was unlawful.
Explanation for the delay in commencing HRA proceedings – Mr Williams
136․The relevant last day the act complained of happened (per s 40C(3) of the HRA) to Mr Williams was 15 January 2021.
137․On 10 November 2021, he retained solicitors.
138․On 16 January 2022, the 12-month period provided for by s 40C(3) of the HRA expired.
139․On 21 April 2022, the judgment in Davidson was published.
140․On 15 July 2022, Mr Williams commenced his proceedings in this Court. At that point in time, his legal advisors contended that the defendant in this case was not a “public authority” for the purposes of the HRA, and hence the HRA part of the proceedings were not subject to the 12-month limitation period found in s 40C(3). McWilliam AsJ found otherwise in Williams on 10 February 2023.
141․In an affidavit affirmed by Mr Mark Barrow, Mr Williams’ solicitor, on 6 April 2023, Mr Barrow said that the suggestion that the Territory was a “public authority” for the purposes of s 40C of the HRA was not clear prior to the decision of McWilliam AsJ in Williams because:
(a)the definition of “public authority” under s 40(1) of the HRA appeared to be exhaustive;
(b)the Territory was not listed as a public authority in s 40(1), and it seemed curious to Mr Barrow that the ACT Legislative Assembly had not included the Territory in s 40(1), as if the Legislative Assembly had intended for the Territory to be included as a public authority for the purposes of the HRA, it would have expressly included the Territory within s 40(1); and
(c)the Territory did not appear to Mr Barrow to obviously come within the definition under s 40(1)(g).
142․Mr Barrow said that for those reasons, he did not consider that the limitation period in
s 40C(3) applied to Mr Williams’ proceedings.
Explanation for the delay in commencing HRA proceedings – Mr McIver
143․The relevant last day the act complained of happened to Mr McIver was 28 January 2021.
144․On 29 January 2022, the 12-month period provided for by s 40C(3) of the HRA expired.
145․On 21 April 2022, the judgment in Davidson was published.
146․On 30 August 2022, he retained solicitors.
147․On 30 November 2022, Mr McIver commenced his proceedings in this Court. At that point in time, his legal advisors contended that the Territory in this case was not a public authority for the purposes of the HRA, and hence his proceedings were not subject to the 12-month limitation period found in s 40C(3). McWilliam AsJ found otherwise on 10 February 2023 in Williams.
148․In another affidavit affirmed by Mr Barrow on 6 April 2023, Mr Barrow identified the same reasons outlined above at [142] for why he did not consider that the limitation period in
s 40C(3) applied to Mr McIver’s proceedings.149․No explanation was given for the delay in commencing proceedings between the end of the limitation period and first retaining solicitors, other than that he did not know anything about human rights and did not know he had to commence a claim in Court within one year of the assault on him.
The defendant’s submissions
The principles to apply to an application to extend time under the HRA
150․The Territory submitted that the relevant principles to apply were those applied in many different areas of the law in circumstances where an extension of time was sought and the exercise of the discretion was unfettered, and that I could consider, inter alia, the merits of the plaintiffs’ claims beyond whether they were merely arguable. They submitted that it was permissible for me to, if necessary, examine the plaintiffs’ claims in detail and, if I decided they were hopeless, refuse the leave sought.
151․The Territory submitted that an unfettered discretion to grant leave for a claim to proceed outside a statutory timeframe is found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That section was considered in the ‘classic authority’ of Hunter Valley. In that case, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point, the three principal ones being any explanation for the delay, any prejudice to the respondent or other parties, and the prospects of success (i.e. merits) of the proceeding if leave were granted.
152․The Territory submitted that the considerations articulated in Hunter Valley had been repeatedly endorsed and applied in decisions of this Court. For example, on the question of whether the Court's discretion should be exercised to grant an extension of time to appeal, the Territory cited Merrilees v The Queen [2014] ACTCA 10, R v Meyboom [2012] ACTCA 2; 256 FLR 450, Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1, Vojneski v The Queen [2015] ACTCA 44, Steel Contracts Pty Limited v Simons t/as Little Lifter, Poiner and Adjudicate Today Pty Limited [2014] ACTSC 146, and Endresz v Commonwealth of Australia [2020] ACTCA 48.
153․The Territory drew my attention to Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 (Tu'uta), in which the High Court considered the power to extend time under s 477A(2) of the Migration Act 1958 (Cth) (Migration Act). That section, like s 40C(3) of the HRA, provides no express mandatory considerations a court is to take into account in considering whether to extend time.
154․In Tu'uta at 825-826, the plurality said:
[18] However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
[19] It follows that the Full Court in DHX17 was wrong to say that “the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(Citations omitted, emphasis added.)
155․Counsel also drew my attention to the judgment of Mortimer J (as her Honour then was) in Stepien v Department of Human Services [2018] FCA 1062 at [21], in which her Honour observed that:
Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court's core function.
156․The Territory drew my attention to Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 (Ezekiel-Hart v Reis (No 2)) wherein Crowe AJ declined to make an order extending time under s 40C(3) of the HRA. His Honour said:
[82] This provision certainly contains a broader discretion than that under s 21B. The court is required to consider all of the relevant circumstances paying particular attention to the length of the delay in commencing proceedings, the explanation for that delay and any prejudice which might have been suffered by the defendants. It is relevant, in my view, to also consider the strength, or weakness, of the case propounded by the plaintiff. All of this is to be done in the context of the rationale for the imposition of a time limit in the first place (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552-3.
[83] In the absence of full information as to the evidence in support of the plaintiff’s claims under the HRA I might well have given the plaintiff the benefit of the doubt and extended time under sub-s 40C(3) to 6 November 2017. In particular, I note that there would be no apparent prejudice for the defendants flowing from the time between the relevant causes of action accruing and the commencement of proceedings, or indeed, the hearing of the claims. However, for the reasons which follow I have concluded that the plaintiff’s claims under the HRA against all three defendants are hopeless and must fail. In that context I refuse the plaintiff’s application to extend time under sub-s 40C(3).
(Emphasis added.)
157․The Territory submitted that, contrary to the submission of the plaintiffs, it is not necessary for the Territory to demonstrate that the relief sought is unarguably not available. It submitted that the plaintiffs' reliance on the principles pertaining to summary dismissal was inapt.
158․The Territory submitted that in summary dismissal applications, a defendant bears the onus of persuading the court that proceedings, which have been properly commenced, should not proceed to trial in the usual way, and should be disposed of early. This is in contradistinction to cases such as the present in which the plaintiffs commenced their respective HRA claims outside the statutory time limit. Therefore, it was the plaintiffs who required the grant of leave in order to proceed and therefore they bore the onus of persuading the Court that it was in the interests of justice to grant them the indulgence sought. That submission picks up the general maxim that he who asserts must prove.
159․The Territory submitted that the plaintiffs' reliance on the "importance of jurisdiction being made available by courts wherever possible" was misplaced because the legislature had expressly limited the Court's jurisdiction through s 40C(3) of the HRA. It was for the plaintiffs to demonstrate why that statutory limit should not apply in their respective cases.
160․The Territory submitted that it did not submit that the novelty of the propositions put by the plaintiffs should compel a decision adverse to the plaintiffs. Rather, it submitted that a novel proposition is different from an untenable proposition, and that the plaintiffs’ HRA cases were untenable.
The meaning of ‘unlawful’ in s 18(7) of the HRA
161․The Territory submitted that the plaintiffs’ HRA claims for damages, based on s 18(7), were untenable because the allegations made could not amount to ‘unlawful detention’ within the meaning of that concept in s 18(7).
162․The Territory, correctly with respect, submitted that the question was not what was the meaning of ‘unlawful’, but rather what was the meaning of the composite phrase ‘unlawful detention’ for the purposes of s 18(7).
163․The Territory submitted that a person's confinement or accommodation in a particular part of a prison will only render their detention unlawful if something about that confinement or accommodation so changes the nature of the detention as to take it beyond the scope of the authority to take and keep custody of the person. Attention is directed in this regard to the legal authority for the custody, and the relevant enquiry is whether there is, in substance, a new or different detention.
164․The Territory submitted that whilst each plaintiff relied on different human rights, CM Provisions, and other matters to found a breach of s 18(7), those human rights, CM Provisions, and other matters, all related to the plaintiffs’ conditions of detention, rather than whether there was authority to detain, and s 18(7) only related to the authority to detain.
165․The Territory pointed out that neither plaintiff had pleaded that there was any lack of authority to detain either of them.
166․Rather, the Territory submitted that the plaintiffs’ pleadings related to the conditions of detention and not whether the various breaches of human rights, CM Provisions, and other matters so changed the nature of their detention as to take their detentions beyond the scope of the authority to take and detain them.
167․The Territory rejected the plaintiffs’ contention that any breach of any statute or other obligation could or would amount to unlawful detention.
168․The Territory submitted that, contrary to the plaintiffs’ submissions, the finding in Davidson did not speak clearly to the unlawfulness of detention when non-compliant with s 45(1) of the CMA. There was no finding of ‘unlawful detention’ for the purposes of
s 18(7) in Davidson.169․The Territory submitted that Mossop AsJ rejected a similar argument in Monaghan. In Monaghan, Mossop AsJ described the plaintiff’s chain of reasoning in that case as essentially being that because of contraventions of ss 18(1) and 18(2) of the HRA, the police officers engaged in conduct which was ‘unlawful’ under s 40B of the HRA and therefore the arrest and detention of the plaintiff was ‘unlawful’ for the purposes of
s 18(7).170․In analysing that chain of reasoning in Monaghan, Mossop AsJ needed to determine the relationship, if any, between ss 18(1), 18(2) and 18(7), and whether ‘arbitrary’ arrest or detention in s 18(1), or deprivation of liberty otherwise than in accordance with the “procedures established by law” in s 18(2), could amount to ‘unlawful’ arrest or detention for the purposes of s 18(7).
171․Associate Justice Mossop rejected the plaintiff’s chain of reasoning. His Honour said at 358:
[233] Accepting that “arbitrary” is a term which extends beyond unlawfulness to unreasonable conduct, is it possible, by the chain of reasoning outlined above, to convert s 18(7) from requiring compensation for unlawful detention to an obligation which requires compensation for lawful but unreasonable detention. However, in my view, it is not permissible to achieve this transformation by the chain of reasoning contended for by the plaintiff. That is because s 18(7) must be read in the context of the other provisions of s 18, particularly s 18(1) and (2). The text of s 18(7) refers to “unlawful”, not to “arbitrary”, arrest and detention. That is in a context where s 18(1) refers to the distinct concept of arbitrariness. The use of different words is a strong indication that the entitlements under the subsection are of different content. Similarly, in s 18(2) the absence of compliance with “procedures required by law” may or may not render arrest or detention unlawful but it is unlawfulness that is the touchstone in s 18(7). Because of the different language used in the subsections of s 18, it would be inconsistent with the text and structure of s 18 to permit the reference in s 40B to convert the rights in s 18(7) from that which is stated in the subsection to something else. That is particularly so when the purpose of the exercise is not to obtain a remedy under Pt 5A of the Act, in which s 40B appears, but a freestanding remedy outside the scope of Pt 5A.
[234] In the light of the above, because the arrest and detention of the plaintiff by the members of the AFP was legally justified and hence not unlawful, s 18(7) would not, even if it provided a free standing cause of action, provide a remedy in this case.
172․That chain of reasoning is similar to the plaintiffs’ chain of reasoning here in that the plaintiffs submitted that by various breaches of the HRA and the CM Provisions (which relate to the conditions of detention rather than the authority to detain) the Territory “unlawfully…detained” the plaintiffs within the meaning of that term in s 18(7).
173․The Territory submitted that Mr McIver had mounted essentially the same argument in R v McIver.
174․I have outlined the salient passages from that case and the subsequent decision by the Court of Appeal (McIver v The King) above. It is pertinent to note, however, that that case dealt with whether a breach of human rights meant that Mr McIver was not in “lawful custody” for the purposes of ss 64 and 72 of the Sentencing Act, and not whether those breaches amounted to ‘unlawful detention’ for the purposes of s 18(7) of the HRA.
175․Be that as it may, coherence in the law should be maintained if an interpretation to achieve those ends is reasonably available: see Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 at 252 [255] 160 per Callinan J. Coherence would be promoted if “lawful custody” in the Sentencing Act and ‘unlawful detention’ in s 18(7) of the HRA bore consistent meanings.
176․The Territory drew my attention to Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43, in which the visa of a Syrian national (AJL20) had been cancelled by the Minister for Immigration and Border Protection on character grounds under s 501(2) of the Migration Act and he was therefore placed in immigration detention as an unlawful non-citizen pursuant to s 189(1) of that Act. After five years in detention, AJL20 commenced a proceeding in the Federal Circuit Court (which was subsequently transferred to the Federal Court) seeking an order that he be released from detention. The primary judge found that AJL20 had not been removed from Australia “as soon as reasonably practicable” as required by s 198(6) of the Migration Act and ordered that AJL20 be released forthwith and, subsequently, made a declaration that his detention was unlawful: see AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549. The Commonwealth’s appeal to the Full Court of the Federal Court was removed to the High Court.
177․The critical issue was the lawfulness of the detention. The Commonwealth contended that the respondent’s detention under s 189(1) of the Migration Act was lawful because it was authorised and required by s 196(1) of the Migration Act. The respondent argued that s 196(1) did not authorise the Executive to detain an unlawful non-citizen where its officers had failed to remove the unlawful non-citizen from Australia as soon as reasonably practicable as required by s 198(6) of the Migration Act.
366․To my mind, all that the terms of s 40C(5)(b) are conveying is that, whilst damages are not an available remedy for a proceeding brought pursuant to s 40C, s 40C does not prevent any non-s 40C right to damages. That is, if there is a right to damages against a public authority for breach of a person’s human rights outside of s 40C (because s 40C(4) excludes damages), then s 40C does not interfere with that (outside) right.
367․This interpretation is consistent with the purpose of the section as outlined in the Explanatory Statement to the Human Rights Amendment Bill 2007, which included the following statement at 7:
Sub-section 40C(4) provides that the Court may grant such relief it considers appropriate in relation to the unlawful act, except for damages. However, sub-section 40C(5) makes clear that if the same conduct is independently unlawful and compensable, this section does not take away that right to damages.
(Emphasis added.)
368․I also place some importance on the use of the word “damages” in ss 40C(4)-(5), but not the words “compensation” or “compensated”, and the use of the words “compensation” in s 18(7) and “compensated” in s 23, but not the word “damages”. Those two words only appear in those sections of the HRA and nowhere else.
369․At first, I thought that those differences were immaterial, and that the use of the different words in the HRA was simply loose language. However, on reflection I do not think that that is so.
370․The Territory made the following submission about the differences between the two words:
It is noted that both terms "damages" and "compensation" are used in the relevant extrinsic materials referred to … above, and that the plaintiffs use both terms in their pleadings. "Damages is the term commonly given to monetary awards granted by a court, to compensate a party for loss suffered (although damages can be awarded for purposes other than to compensate, for example to punish or vindicate). "Compensation" may be a broader term that includes damages, but also encompasses monetary relief that is available via avenues other than courts (for example, a statutory scheme such as workers compensation), or other forms of relief that a court may grant aside from monetary awards.
(Citations omitted.)
371․The words “compensation” and “compensated” appear in arts 9(5) and 14(6) of the ICCPR, from which ss 18(7) and 23 came, respectively. The word “damages” or “damage” does not appear in the ICCPR at all.
372․The word “damages” is however frequently used in the Territory when referring to that remedy as being available for breach of an enforceable right, such as a tort, or a breach of contract.
373․That textual difference seems to me a further indication that s 18(7) (and s 23) was (were) intended to be a recognition of certain human rights (together with the other human rights in the HRA) because it used the words “compensation” and “compensate” taken from the (non-enforceable) ICCPR and neither of those sections use the word “damages”.
374․It seems to me more probable that when pt 5A was inserted, it used the word “damages” because it was addressing a well-known legal remedy in the Territory and it was making it clear that that legal remedy was not available against public authorities, whilst also making it clear that s 40C would not affect a right to damages that existed outside that section. As s 18(7) (and s 23) did not refer to a right to damages, it (they) was (were) textually irrelevant to s 40C. That brings me back to the purpose I perceive the human rights in ss 18(7) and 23 to have, namely, standard setting.
375․That is, whilst the standard set in ss 18(7) and 23 was compensation, that standard is yet to be met (which is parliament’s prerogative). Parliament made clear that “damages” was not an available remedy in s 40C(4), as was made clear in much of the extrinsic material.
376․This distinction between “damages” and “compensation” seems a fine one, but as Mossop AsJ noted in Monaghan at 358 [233]:
The use of different words is a strong indication that the entitlements under the subsection are of different content. …
377․I think that ss 40C(4) and 40C(5)(b) work together this way. Section 40C(4), in terms, excludes any remedy in damages in proceedings brought against a public authority under s 40C(2). Section 40C(5)(b) means that s 40C (not just s 40C(4) alone) does not affect a right a person has to damages apart from (or ‘but for’) s 40C. Since
s 40C includes ss 40C(1)-(3), what is being conveyed is that if a person is able to sue a public authority for breach of the person’s human rights otherwise than in a proceeding commenced pursuant to s 40C(2), then s 40C is no bar in those other proceedings to that person obtaining damages.378․Even if s 40C(5)(b) was regarded as ambiguous, I would prefer the interpretation I believe it should have. That is because the majority of the High Court said in R v A2 at 522 [37], after referring to Alcan and other cases:
None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
(Citations omitted, emphasis added.)
379․Another matter of context is the complete lack of reference in the HRA to the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) or the inclusion of provisions which appear in the Wrongs Act, and which one would think would be included in the HRA if the latter provided for claims for damages for personal injury (as the plaintiffs allege in these applications).
380․The Wrongs Act addresses many issues which arise in claims for damages for physical and mental injury in the ACT (which may arise under s 18(7) of the HRA if it created an enforceable statutory right to damages), including apologies, survival of actions on death, compensation to relatives claims, restrictions on damages including restrictions on mental harm, pre-court procedures and, most particularly perhaps, the liability of public authorities: see Wrongs Act ch 8.
381․It seems strange to me, if the HRA was to provide an enforceable statutory right to damages, that nothing would be said about those sorts of issues in the HRA, or at least there be some reference to the applicability (or not) of the Wrongs Act.
382․It is a similar situation in relation to the extension of time provision in
s 40C(3) of the HRA.383․Under the HRA, time begins to run from the date the last act complained of happens. Yet, the plaintiff may be unaware within that time of the occurrence of damage such as, for example, mental harm. It seems incongruous to me that, if the construction for which the plaintiffs contend is correct, that time would begin running from the date of breach for a claim for mental harm caused by a breach of the HRA rather than running from the date of the occurrence of damage (as is the case in tort).
384․It is true that in those circumstances a plaintiff could seek an extension of time under
s 40C(3), but there are no considerations set out in the HRA similar to those set out in
s 36 of the Limitation Act 1985 (ACT) (Limitation Act). Why the HRA would be silent on those matters if there were enforceable statutory rights to damages under the HRA is difficult to see.385․Further still, if the plaintiffs are correct and they may sue the Territory for personal injuries for breach of their human rights, it would appear that, prima facie, s 36(1) of the Limitation Act would apply, because it says:
36 Personal injuries
(1)This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.
…
386․Section 36 of the Limitations Act provides for extensions of time for claims for personal injuries and the matters to be considered. Yet, there is no reference to s 36 in the HRA and, in particular, it is not mentioned in s 40C(3).
387․Given those complications, I think the better view is that the absence of mention of the Wrongs Act in the HRA (or insertion of appropriate equivalent provisions in the HRA) points contextually toward the conclusion that damages are not available under the HRA for a breach of a person’s human rights by a public authority.
388․In addition, the HRA does not provide for the postponement of the limitation period of 12-months if the plaintiff is under a disability. Such a provision exists in the Limitation Act, but it only applies to limitation periods fixed by that Act: see Limitation Act s 30(1)(b).
389․Another matter to consider is the problem identified in Monaghan at 362 [257]. The problem raised was the position of individual AFP officers who might be sued under s 18(7) (if that section provided a freestanding right to damages) where the cause of action was not one in tort and hence the AFP officers would be personally liable because they would not have the benefit of s 64B of the Australian Federal Police Act 1979 (Cth). Section 64B(1) says:
64BLiability for wrongful acts of members
(1)The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties as such a member or a protective service officer in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member or the protective service officer.
…
390․As one can see, that provision is limited to torts, and prima facie would not seem to include breaching a person’s human rights (assuming s 18(7) provided a freestanding right).
391․I specifically sought a submission on that point from the plaintiffs but did not receive one. It is true that in the present case I am not dealing with AFP officers, but the point raised by Mossop AsJ in Monaghan remains a valid one to consider when interpreting this legislation.
392․On the face of it, this circumstance seems to me to be another matter of context pointing away from s 18(7) being a freestanding right. If s 64B did not pose the problem described by Mossop AsJ, the plaintiffs did not explain why that was so in the applications before me.
393․The high point of the extrinsic materials favouring the plaintiffs’ construction is the note to s 40C(5). As Mossop AsJ correctly pointed out at 362 [256] of Monaghan:
It is really the note which gives force to the contention that the Act, read as a whole, requires that ss 18(7) and 23 provide freestanding rights. The note constitutes extrinsic material which must be weighed against the other extrinsic material from Hansard which is indicative of the intention of the Legislative Assembly at the time of the original Act and the 2008 Amending Act.
394․In Lewis, Refshauge J said at 345 [519] that his Honour considered that that note was “too weak a reed to weave into a remedy”, a statement with which I agree taking into account what was said in R v A2 at 522 [37] about preferring the policy and the purpose of the provisions to the literal meaning of words where their literal meaning does not conform to the evident purpose or policy of the particular provision. Even more must this be the case when the best textual support for the plaintiffs’ contention is not part of the HRA but is a note.
395․In any event, to my mind, at its highest, the note to s 40C(5) is ambiguous, and is therefore not of any great significance.
396․What is of some significance is the word “also” in the note. The difference between “compensation” and “compensate” in ss 18(7) and 23 on the one hand, and the word “damages” in s 40C on the other, more easily explains the use of the adverb “also”, meaning ‘in addition’ or ‘too’, than if compensation/compensate and damages were used interchangeably.
397․If s 40C excludes any remedy of damages under pt 5A of the HRA, the use of the word “also” is readily explained by that interpretation. One would think that if the note meant to convey that ss 18(7) and 23 provided a remedy in damages, and those sections were excluded by s 40C(5)(b) from the operation of s 40C(4), the note would simply have said “See s 18(7) and s 23” and not “See also s 18(7) and s 23”.
398․Of course, whilst the note may be considered, it is not part of the HRA. To my mind, and to the extent it may assist the plaintiffs, it pales in comparison to the clear statements of purpose made in the Presentation Speeches, the other material referred to above, that referred to in Monaghan and Lewis, and the High Court’s statement in R v A2 at 522 [37] in terms of context and purpose.
399․The Explanatory Statement to the Human Rights Amendment Bill 2007 provides stronger support for the plaintiffs’ interpretation, wherein it said:
Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.
400․However, I read the second sentence in that quote more as an assumption than a statement of explanation. Sections 18(7) and 23 were both in the HRA as originally enacted, and so that particular statement is not explanatory of the amendments made by the 2008 Amending Act but rather an opinion by the draftsperson of the meaning of unamended sections of the HRA. As I read 358-359 [237] of Monaghan, Mossop AsJ seems to have read that sentence in the same way.
401․I shall now turn to two authorities which post-dated Lewis.
402․Sections 18(7) and 23 were examined in Eastman.
403․In that case, Mr Eastman sought compensation for wrongful conviction under
s 23(1) of the HRA and also claimed compensation under s 18(7). Justice Elkaim awarded compensation under s 23(1) for the wrongful conviction but found that there was no right to compensation under 18(7).404․In my view, s 23 requires some attention because it is the only other human right in the HRA which expresses the notion that on certain events a person should be entitled to compensation. Therefore, it seems to me that, when determining whether the very similar human right in s 18(7) does or does not create a freestanding enforceable statutory right, I should also consider this section. As the High Court said in R v A2 at 521 [33], context includes surrounding statutory provisions, what may be drawn from other aspects of the statute, and the statute as a whole.
405․His Honour’s reasons for finding that s 23 provided a freestanding cause of action were brief to say the least. In Eastman at 200-201 [13]-[16] and 207-208 [54]-[59], his Honour in substance held that the ordinary meaning of the words in that section meant that Mr Eastman was entitled to be awarded compensation for wrongful imprisonment under s 23 of the HRA by a court of competent jurisdiction.
406․The nub of his Honour’s reasoning is found at 207 [57], in which his Honour said:
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.
407․I shall return to that matter shortly.
408․The Territory’s alternative submission in Eastman was that s 23(2) of the HRA merely created an obligation on the Territory to provide a remedy for wrongful conviction and that this obligation was satisfied by the availability of act of grace payments under the Financial Management Act 1996 (ACT). His Honour rejected that submission, but I do not see any particular relevance of that issue to the issues before me.
409․In relation to s 18(7), Elkaim J said that he did not need to decide the contest over that section given the holding in relation to s 23: see Eastman at 223 [147]. Nevertheless, Elkaim J expressed the obiter view that s 18(7) was intended to address wrongful arrest and detention situations, normally treated as a common law tort, and, at 223 [153], said that there was no suggestion that Mr Eastman’s original arrest was unlawful.
410․Although this judgment is not concerned with s 23, that section is relevant in that it is expressed in similar terms to s 18(7), and in statutory interpretation, the whole of a statute should be considered.
411․After much consideration, and with the greatest of respect, I consider the holding in Eastman on s 23 to be plainly wrong. I shall explain why.
412․Justice Refshauge’s decision in Lewis, which would have been relevant even in relation to s 23, was cited to Elkaim J, but is not referred to or discussed in the judgment.
413․Monaghan was not cited or referred to, despite its apparent relevance to the
s 23 issue.414․Both of those omissions were unfortunate, given they both provide answers to the very question posed by Elkaim J at 207 [57] quoted above, namely answering the question “what else besides creating a cause of action the words ‘the person has the right to be compensated’ could mean”.
415․Both Lewis and Monaghan set out in detail the reasonably extensive extrinsic material which rather strongly suggested that the purpose of the HRA (including s 23) was different to that found by Elkaim J, which is important when s 139 of the Legislation Act requires the interpretation that best achieves the purpose of the HRA to be preferred to any other interpretation.
416․I also consider that Elkaim J erred in failing to consider context in the first instance as the High Court requires. It is true that R v A2 was handed down two days after Eastman, but what the High Court said in R v A2 was not new law. That approach had been the law since CIC Insurance in 1997.
417․I also consider there to be a want of reasoning or analysis by Elkaim J of the surrounding statutory provisions to s 23, what may be drawn from other aspects of the statute, and the statute as a whole. Further, there was no examination of the mischief the statute was intended to remedy.
418․I shall now turn to the final authority I should consider, and which was referred to me in submissions.
419․In Brown, the plaintiff spent 43 days in custody in the ACT for an assault erroneously said to have occurred in the Jervis Bay Territory when in fact it had happened just over the border in NSW.
420․The plaintiff claimed compensation for unlawful detention in the ACT and, alternatively, damages for false imprisonment.
421․Chief Justice Murrell held that the plaintiff’s detention in the ACT was lawful: see Brown at 426 [77]. In relation to the meaning of ‘unlawful detention’ in s 18(7) of the HRA, her Honour said at 427-428:
[84] I do not accept that the s 18(7) term “unlawful detention” can be defined by reference to conduct that is neither expressly authorised nor expressly prohibited by law. The expression “unlawful” implies something more than legal neutrality.
[85] In any event, for present purposes, it is unnecessary to decide the limits of s 18(7) “unlawful detention” because where-as in the present case-detention is expressly authorised or required by law, the detention is lawful, not unlawful.
422․Chief Justice Murrell referred with evident approval to Monaghan, Eastman, and Lewis on this point at 428-429 [87]-[93] and held at 430:
[100] As stated above, in this case the actions of individual magistrates, the Court, and the Director-General were not unlawful. They were lawfully justified, if not lawfully required. They accorded with the procedures established by law for bringing a person before the Court to answer an allegation that the person had committed an offence that fell within the Court’s jurisdiction (including the Court’s territorial jurisdiction).
[101] Consequently, the plaintiff’s claim under s 18(7) of the HRA fails at the threshold.
423․Having so concluded, Murrell CJ did not need to decide whether s 18(7) provided a freestanding cause of action: see Brown at 430 [102]-[108]. Her Honour dismissed the claim for false imprisonment: see Brown at 431 [119].
424․Therefore, in conclusion, in my view, s 18(7) of the HRA does not create a freestanding right. I read Lewis to the same effect.
425․In relation to ss 40C(4)-(5), it is my view that s 40C excludes any right to damages for claims made against public authorities under pt 5A. Section 40C(5)(b) does not have the effect of excepting ss 18(7) and 23 from the prohibition in s 40C(4).
Decisions on remaining matters
The principles to apply to an application to extend time under the HRA
426․In my view, the Territory’s submission that the principles to apply are those which were applied in Ezekiel-Hart v Reis (No 2) and were described in Hunter Valley is correct for four reasons.
427․First, the decision of Ezekiel-Hart v Reis (No 2) is a decision of another single judge of this Court, and I should depart from it only if I consider it plainly wrong. I do not consider it plainly wrong. Indeed, I think it is plainly correct.
428․Second, in Tu’uta, Kiefel CJ, Gageler, Keane and Gleeson JJ said at 824 [13]:
In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. …
(Citations omitted.)
429․Equally, s 40C(3) does not contain any mandatory considerations a judge must consider in deciding whether to extend time and, as the High Court pointed out, the principles in Hunter Valley are well established as being applicable in such circumstances.
430․Third, the considerations referred to in Hunter Valley are commonly applied in extension of time applications in other areas of the law. I see no warrant for not applying them here.
431․Fourth, whilst the plaintiffs are correct in observing that the refusal of an application to extend time would effectively bring that part of the plaintiffs’ proceedings to an end, that circumstance is the same in other areas of the law where extensions of time are sought and refused.
The meaning of ‘unlawful detention’ in s 18(7) of the HRA
432․In Monaghan at 357-358 [232]-[234] and Lewis at 330 [431]-[433], it was found that in order to prove a breach of s 18(7), there must be, in cases such as this, unlawful detention of the relevant kind. Breaches of other provisions of the HRA, in and of themselves, were insufficient to satisfy s 18(7). As Refshauge J said in Lewis at 330 [433]:
Thus, I reject the contention by Mr Lewis that a breach of s 18(1) of the Human Rights Act will by itself entitle a plaintiff to compensation as stated under s 18(7). …
433․Therefore, the plaintiffs must show that their detention was unlawful within the meaning of s 18(7) so as to be captured by that provision.
434․A mere breach of ss 18(1) or 18(2) (or the other sections of the HRA pleaded by the plaintiffs) is not sufficient, in and of itself, to establish a breach of s 18(7), which is the plaintiffs’ pleaded cases.
435․Rather, there must be some act or omission which, even if it satisfies ss 18(1) or 18(2) or other sections relied on, also satisfies the requirement in s 18(7) that the detention or arrest be unlawful.
436․‘Unlawful detention’ in s 18(7) must be considered as a composite phrase. The subject matter of the section is ‘unlawful detention’, that is, a particular type of detention. The cases referred to above refer to that type of detention as being one for which there was no lawful authority. It does not mean detention that is authorised but during which something ‘unlawful’ happens, such as a breach of a human right or a CM Provision.
437․That conclusion is supported by Monaghan, Lewis, and Eastman, in which Elkaim J said at 223-224:
[153] Returning to the scope of s 18(7), there is no suggestion that the plaintiff’s original arrest was unlawful.
[154] Although it is possible to argue that the conviction was unlawful because s 18(2) says no person may be deprived of liberty “except on the grounds and in accordance with the procedures established by law”, the contrary argument is that the trial ran according to law.
[155] His detention was a product of his conviction. It was the only lawful course open consequent upon that conviction.
438․That conclusion is also supported by Brown, in which Murrell CJ said at 427-428:
[82] The plaintiff submitted that the term “unlawful” should be distinguished from the term “illegal”; that “illegal detention” means detention that is expressly prohibited by law but, for the purposes of s 18(7) of the HRA, “unlawful” detention extends to other detentions that are neither expressly authorised nor expressly prohibited by law, including “arbitrary” detention within the meaning of s 18(1) and detention otherwise than on the grounds and in accordance with the procedures established by law, as proscribed by s 18(2) of the HRA.
[83]. Further, the plaintiff submitted that s 18(1) “arbitrary detention” extends to a detention that is “tainted in a manner which can attract remedial consequences” (to adopt the plaintiff’s expression).
[84] I do not accept that the s 18(7) term “unlawful detention” can be defined by reference to conduct that is neither expressly authorised nor expressly prohibited by law. The expression “unlawful” implies something more than legal neutrality.
[85] In any event, for present purposes, it is unnecessary to decide the limits of s 18(7) “unlawful detention” because where—as in the present case—detention is expressly authorised or required by law, the detention is lawful, not unlawful.
(Emphasis added.)
The exercise of the discretion
439․In determining whether to grant an extension of time, I am entitled to examine the merits of the claims, including whether the relief by way of damages, as claimed by the plaintiffs, is futile. As was said in Tu’uta at 822 [4]:
The primary judge did not err in dismissing the extension of time application. His Honour was entitled to exercise the power in s 477A(2) by forming the view that the substantive application lacked merit in the manner recorded in his Honour’s reasons.
440․For the reasons set out earlier in this judgment, I consider that the plaintiffs’ claims under the HRA for damages are futile because the HRA does not provide them a remedy in damages, and there is no merit in the pleaded claims that the plaintiffs were unlawfully detained.
441․The plaintiffs do not rely on (i.e. plead) any lack of authority to detain, and the alleged breaches of s 18(1) and other provisions of the HRA relied upon, in and of themselves, have been authoritatively determined in earlier decisions of the Court to be insufficient to amount to ‘unlawful detention’ in s 18(7).
442․That leaves for consideration whether I should allow the parts of the plaintiffs’ HRA proceedings that do not seek damages and are not based on allegations of unlawful detention to proceed.
Mr McIver
443․Mr McIver’s latest pleading seeks two declarations, namely that:
(1)in December 2020 and January 2021, the plaintiff was unlawfully detained by the defendant in a non-segregated section of the Alexander Maconochie Centre in breach of s 44(2) of the Corrections Management Act 2007 (ACT) and s 19(2) of the Human Rights Act 2004 (ACT); and
(2)the detention of the plaintiff by the defendant in December 2020 and January 2021 in a non-segregated section of the Alexander Maconochie Centre constituted a breach of the plaintiff's human rights under ss 18(2) and 19(2) of the Human Rights Act2004 (ACT).
444․The first of those two declarations may not proceed because it is based on an allegation that he was unlawfully detained. For the reasons I have given, that claim is futile.
445․Turning to the second declaration sought, s 18(2) of the HRA says:
18 Right to liberty and security of person
…
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
…
446․However, there is no pleading of any breach of s 18(2) nor any pleading (in any clear way) of the material facts said to be relevant to establishing the elements of any alleged breach of this human right. It is only mentioned as a ‘further particular’.
447․Section 19(2) of the HRA says:
19 Humane treatment when deprived of liberty
…
(2)An accused person must be segregated from convicted people, except in exceptional circumstances.
…
448․Again, it only appears as a particular and not a pleading.
449․I would not grant leave to Mr McIver to pursue the second declaration for the following reasons.
450․First, there are no proper pleadings (as distinct from particulars) pleading breaches of
ss 18(2) and 19(2).451․Second, Mossop J found in R v McIver that Mr McIver’s human rights had been breached by reason of the fact 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.
452․Third, there was no explanation provided by Mr McIver as to why he did not commence proceedings between the last date of the act complained of (28 January 2021) and when he first instructed his present solicitors some 18 months later (30 August 2022). The time after he instructed his present solicitors was explained, but 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 referred to in s 40C(3) of the HRA.
453․Mr McIver was represented at his sentencing hearing before Mossop J on 16 August 2022. I infer that he was legally represented for some time prior to that date, but no evidence was led from Mr McIver’s previous solicitors about any advice, or lack thereof, in relation to any claim under the HRA.
454․Mr McIver says in his affidavit 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”.
455․I am not satisfied that ignorance of the HRA is a persuasive reason to extend time, especially in circumstances where Mr McIver had access to legal advice from his previous solicitors and no evidence is led about what, if any, legal advice was provided to Mr McIver about the HRA by those solicitors.
Mr Williams
456․Mr Williams has pleaded a tortious claim for false imprisonment. That claim was not stayed by McWilliam AsJ and is unaffected by this judgment.
457․Mr Williams’ latest pleading seeks three declarations, namely that:
(1)detaining the plaintiff in breach of s 45(1) of the Corrections Management Act 2007 (ACT) breached the plaintiff’s human rights;
(2)detaining the plaintiff in breach of s 45(1) of the Corrections Management Act 2007 (ACT) was unlawful; and
(3)pursuant to s 40C of the Human Rights Act 2004 (ACT), the defendant has breached the plaintiff’s human rights under s 19(1) of the Human Rights Act 2004 (ACT).
458․Section 45(1) of the CMA says that the Director‑General must ensure, as far as practicable, that detainees have access to the open air for at least one hour each day and can exercise for at least one hour each day.
459․The last day on which an act is complained of by Mr Williams is 15 January 2021. He first conferred with his present solicitors on 10 November 2021, and was not advised of any potential claim under the HRA at that time or before the expiration of the one year limitation period under s 40C(3) of the HRA because of the not unreasonable (but ultimately incorrect) views his solicitors had as to the state of the law at that time.
460․In my view, a sufficient explanation has been provided in relation to the first declaration, and that claim should be allowed to proceed.
461․The second declaration is futile for the reasons I have given earlier and should not be allowed to proceed.
462․The third declaration is the relief sought in relation to two pleadings.
463․The first is paragraph 22B of the Further Amended Statement of Claim which says 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 HRA to be treated with humanity and with respect for the inherent dignity of the human person. Clause 4.3 ceased to have effect on 20 May 2022 when the Corrections Management (Separate Confinement) Operating Procedure 2022 (ACT) came into force, which did not contain the old cl 4.3. 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.
464․The second pleading underlying the third declaration is paragraph 29 of the Further Amended Statement of Claim. It pleads, in substance, that the Territory breached s 45(1) of the CMA, and that breach operated as a breach of, or was incompatible with, s 19(1) of the HRA. Section 45(1) remains in operation, and I see some utility in allowing that claim for a declaration to proceed.
465․The Territory submitted that while it may be accepted that vindication of a right may justify the grant of a declaration, no reasons were advanced by Mr Williams as to why it is appropriate to make a declaration in the circumstances of this case.
466․Be that as it may, in my view the declarations mentioned should proceed because, as Refshauge J and I agree, the HRA is 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.
467․Prisoners are punished for their crimes by being incarcerated according to the standards set by parliament (e.g. s 45(1) of the CMA) and governments, not some lesser standard. It is important, I think, for the Territory to be held to the standards it set under the HRA for all the reasons advanced in the Explanatory Statements, Presentation Speeches, and other extrinsic materials discussed above.
468․I will not make an order about it in this judgment as I have not heard from the parties, but I would think it useful going forward if Mr Williams’ pleading was further amended so that his pleaded case accords with the findings and holdings in this judgment.
Costs
469․Ordinarily costs follow the event, but these were two test cases brought on behalf of a number of other plaintiffs.
470․I will hear the parties on costs.
Orders
471․I make the following orders:
(1)The stay order made by McWilliam AsJ in Williams v Australian Capital Territory [2023] ACTSC 18 on 10 February 2023 is lifted on and from 15 June 2023 to the date of this judgment for the limited purpose of the filing and determination of the plaintiffs’ applications in proceeding dated 6 April 2023 and any matters incidental thereto.
(2)Mr McIver’s application in proceeding dated 6 April 2023 is dismissed.
(3)In relation to Mr Williams’ application in proceeding dated 6 April 2023, Mr Williams is granted leave to proceed with his claims in these proceedings under the Human Rights Act 2004 (ACT) as pleaded in his Further Amended Statement of Claim dated 29 June 2023 limited to declaratory relief in accordance with the findings and holdings in this judgment.
| I certify that the preceding four hundred and seventy-one [471] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Associate: Date: |
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