Re Application for Bail by Islam
[2010] ACTSC 147
•19 November 2010
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Isa Islam |
Citation: | [2010] ACTSC 147 |
Hearing Date: | 19 November 2010 |
Decision Date: | 19 November 2010 |
Before: | Penfold J |
Decision: | Application refused. |
Catchwords: | CRIMINAL LAW – Bail – Statutory presumptions – presumption against bail where accused charged with attempted murder – applicant must show special or exceptional circumstances favouring the grant of bail – circumstances must be unusual or uncommon – inordinate delay may be special or exceptional – delay needs to be shown to be inordinate, not simply quantified – Bail Act 1992 (ACT), s 9C HUMAN RIGHTS – Whether special or exceptional circumstances requirement for bail applicants charged with attempted murder is compatible with Human Rights Act 2004 (ACT), s 18(5). HUMAN RIGHTS – Requirement that Territory laws be interpreted in a way compatible with human rights is not a “special” interpretation rule and does not permit remedial interpretation – Human Rights Act 2004 (ACT), s 30. HUMAN RIGHTS – Requirement that Territory laws be interpreted in a way compatible with human rights – Interaction with requirement to interpret Territory laws to give effect to legislative purpose – determination of whether inconsistency with human rights can be justified – whether interpretation or justification should be attempted first – Human Rights Act 2004 (ACT), ss 28, 30; Legislation Act 2001 (ACT), s 139. STATUTORY INTERPRETATION – Requirement to prefer interpretation that best achieves legislative purpose – identification of relevant legislative purpose – Legislation Act 2001 (ACT), s 139. |
Legislation Cited: | Acts Interpretation Act 1901 (Cth), ss, 15A, 15AA Acts Interpretation Act 1915 (SA), s 22 Acts Interpretation Act 1931 (Tas), s 8A Acts Interpretation Act 1954 (Qld), s 14A Adoption Act 1993 (ACT), s 15 Bail Act 1976 (UK), s 25(1) Bail Act 1977 (Vic), ss 4, 13 Bail Act 1978 (NSW), s 9C Bail Act 1985 (SA), s 10A Bail Act 1992 (ACT), ss 6, 9A, 9C, 9D, 9E, 9F, 9G, 19(5), 22 Basic Law of the Hong Kong Special Administrative Region of the People’s Region of the Republic of China, art 87(2) Canadian Charter of Rights and Freedoms (Canada Act 1982 (UK) c 11, sch B pt I), s 11(e) Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 32, 32(1), 36(2) Constitution (Cth), ss 54, 55 Constitution of the Republic of South Africa 1996 (South Africa), ss 35(1)(f), 36 Crimes Act 1900 (ACT), s 14 Crimes Act 1900 (NSW), ss 27-30 Crimes Act 1914 (Cth) Crimes Legislation Amendment Act 2008 (ACT) Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT), Sch 1 Criminal Code 2002 (ACT), Ch 6 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1977 (South Africa), s 60(11)(a) Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 5 Firearms and Ammunition Ordinance (Hong Kong), Cap 238, s 20 Hong Kong Bill of Rights, arts 11(1), 10 Human Rights Act 1998 (UK), ss 3, 3(1) Human Rights Act 2004 (ACT), ss 18, 28, 30, 32, 33, 34, 35, 36, 40B, 40C Human Rights Amendment Act 2008 (ACT) Human Rights Amendment Bill 2007 (ACT) Interpretation Act (NT), s 62A Interpretation Act 1984 (WA), s 18 Interpretation Act 1987 (NSW), s 33 Interpretation of Legislation Act 1984 (Vic), s 35(a) Judiciary Act 1903 (Cth), s 68 Leases (Commercial and Retail) Act2001 (ACT), s 52 Legislation Act 2001 (ACT), ss 4, 7, 16, 120, 138, 139 Magistrates Court Act 1930 (ACT), s 90AB Misuse of Drugs Act 1975 (NZ), s 6(6) Narcotic Control Act, RSC 1970 (Canada), s 8 New Zealand Bill of Rights Act 1990 (NZ), ss 4, 5, 6, 35(c) Rent Act 1977 (UK) |
Cases Cited: | Attorney-General for Victoria v The Commonwealth (1945) 71 CLR 237 Dlamini v The State [1999] ZACC 8 Dunstan v Director of Public Prosecutions [1999] FCA 921 HKSAR v Lam Kwong Wai [2006] HKCFA 84 In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 In the matter of an application for bail by RebeccaMassey [2008] ACTSC 145 In the matter of an application for bail by SA [2010] ACTSC 114 K-Generation v Liquor Licensing Court (2009) 237 CLR 501 Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9 Lim v Gregson [1989] WAR 1 R (on the application of Wilkinson) v Inland Revenue Commissioners [2006] 1 All ER 529 R v Fearnside [2009] ACTCA 3 R v Momcilovic (2010) 265 ALR 751 R v Morales [1992] 3 SCR 711 R v Pearson [1992] 3 SCR 665 Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 Sextus v Trinidad and Tobago, HRC, Communication No 818/1998, UN Doc CCPR/C/72/D/818/1998 (2001) Webster v South Australia (2003) 87 SASR 17 |
Texts Cited: | ACT Bill of Rights Consultative Committee, ACT Parliament, Towards an ACT Human Rights Act (2003) ACT Law Reform Commission, Report No 19 on Bail, Report No 19 (2001) Australian Capital Territory, Hansard, Legislative Assembly, 4 March 2008, 391 (Simon Corbell, Attorney-General) Australian Capital Territory, Hansard, Legislative Assembly, 6 December 2007, 4028 (Simon Corbell, Attorney-General) Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’(2008) 6 New Zealand Journal of Public and International Law 59 European Convention for the Protection of Human Rights and Fundamental Freedoms. Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) Explanatory Statement for the Bail Amendment Bill 2003 (ACT) Explanatory Statement for the Human Rights Bill 2003 (ACT) International Covenant on Civil and Political Rights. Opened for signature 19 December 1966. 999 UNTS 171 6 ILM 386 (entered into force 23 March 1976), Art 9(3) Jack Dearden and Warwick Jones, ‘Homicide in Australia: 2006-2007 National Homicide Monitoring Program annual report’ (Monitoring Report No 1, Australian Institute of Criminology, January 2009) UK Law Commission Report, Bail and the Human Rights Act 1998, Report No 269 (2001) |
Parties: | Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) |
Representation: | Counsel J Hiscox ( Crown) S Gill ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Number: | SCC 340 of 2009 |
PENFOLD J:
THE COURT ORDERED THAT:
(1)The application for bail was refused.
THE COURT DECLARES THAT:
(2)Under s 32(2) of the Human Rights Act 2004 (ACT), the Court is satisfied, for the reasons set out in In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147, that s 9C of the Bail Act 1992 (ACT) is not consistent with the human right recognised in s 18(5) of the Human Rights Act, being that “Anyone who is awaiting trial must not be detained in custody as a general rule”.
Summary
1․This judgment sets out my reasons for refusing a bail application made by Isa Islam, who has been charged with attempted murder. It also contains a declaration that s 9C of the Bail Act 1992 (ACT) (which applies to bail applications by people charged with murder, attempted murder, and several other ACT offences carrying maximum penalties of life imprisonment) is inconsistent with the human right recognised in s 18(5) of the Human Rights Act 2004 (ACT) that “Anyone who is awaiting trial must not be detained in custody as a general rule”. The declaration has no effect on the operation of s 9C, which continues to operate in accordance with previous interpretations of that provision. The declaration will be brought to the attention of the Attorney-General, who will be obliged to present it to the Legislative Assembly and, at a later date, to present to the Legislative Assembly a written response to the declaration. Any change to the Bail Act will be a matter for the Legislative Assembly.
2․In the course of this judgment, I have concluded:
(a)that s 30 of the Human Rights Act 2004 is an “ordinary” interpretation provision rather than a “special” provision or one providing for remedial interpretation (at [126] below);
(b)that s 30 should be applied as part of the ordinary process of statutory interpretation, in conjunction with s 139 of the Legislation Act 2001 (ACT) and any other applicable common law or statutory principles of interpretation (at [232] to [235] below);
(c)that the ordinary processes of statutory interpretation, including s 30, should be applied in the interpretation of a provision of ACT legislation, with the aim of finding a meaning for a provision that is both human rights-compatible and consistent with purpose, before any attempt is made under s 28 of the Human Rights Act to justify a meaning for the provision that is incompatible with human rights (at [232] to [235] below);
(d)that the steps by which those processes are undertaken should be as set out at [236] below;
(e)that the process of a justification inquiry under s 28 of the Human Rights Act should be as described at [240] to [250] below, and should involve considering the questions set out at [247] below;
(f)that there is no meaning for s 9C of the Bail Act 1992 that is compatible with the human right recognised in s 18(5) of the Human Rights Act (at [333] and [334] below);
(g)that there is no meaning for s 9C that can be justified under s 28 of the Human Rights Act (at [382] to [385] below);
(h)that s 9C accordingly continues to carry the meaning that it has been given in the ACT until now (at [386] below);
(i)that s 9C is incompatible with the human right recognised in s 18(5) of the Human Rights Act (at [403] below).
Introduction
3․Mr Islam applied for bail on 21 May 2010. His application was adjourned several times to allow proper consideration of the issues raised in his bail application. On 13 August 2010 I refused his application on the ground that no special or exceptional circumstance favouring the granting of bail had been identified and that s 9C of the Bail Act accordingly precluded me from considering whether bail could properly be granted in accordance with s 22 of that Act. In dealing with Mr Islam’s application I indicated that, because of the nature and significance of some of the issues that had been raised in the application, I would provide written reasons for my decision. These are those reasons.
Background
4․Mr Islam was arrested on 4 July 2009 and charged initially with three offences, being intentionally inflict grievous bodily harm, assault occasioning actual bodily harm, and intentionally and unlawfully using an offensive weapon likely to endanger human life. The indictment dated 10 December 2009, however, added a charge of attempted murder. Mr Islam has been in custody since his arrest in July 2009, and is currently held in the Alexander Maconochie Centre.
Jurisdiction to deal with bail application
5․Mr Islam has not previously applied for bail, but bail was formally refused at his initial appearances in the Magistrates Court. Because there had been no previous application for bail, Mr Islam was not affected by the requirement in s 19(5) of the Bail Act to establish a change in circumstances, or the availability of fresh evidence or information, before his application could be heard.
Need to show special or exceptional circumstances
6․Because he has been charged with attempted murder, Mr Islam’s application is subject to the presumption against bail set out in s 9C of the Bail Act (set out in Appendix A to this judgment). To rebut that presumption he is required to show that there are special or exceptional circumstances favouring the granting of bail. The test of “special or exceptional circumstances” for bail applications has been interpreted as requiring the court to find circumstances affecting the applicant that are in some way unusual or uncommon (see In the matter of an application for bail by RebeccaMassey [2008] ACTSC 145 (Massey [No. 1]) at [7] and [8], and In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 (Allen) at [9] and [10]).
7․In Allen, I made the following comments about delay as a special or exceptional circumstance:
29. There are two possible meanings for “delay” in this context, and the distinction is not always clearly drawn. In normal use, “delay” generally has a negative connotation, conveying the impression of time lost beyond the time ordinarily required for an activity.
...
31. However, in this context, “delay” sometimes seems to be used to refer simply to the period that will in the normal course of events elapse between the bail applicant’s arrest and his or her trial. In one sense, whether the word “delay” is used according to a dictionary meaning does not matter—what matters is whether the timeframes for which “delay” is used as shorthand can amount to special or exceptional circumstances. However, if “delay”, a word with generally negative connotations, is routinely accepted as a synonym for “elapsed time”, there is a risk that potential elapsed time will be treated as a special or exceptional circumstance when there is nothing special or exceptional about it, and so as to nullify the clear legislative intention that a grant of bail in certain categories of cases should not be the norm.
8․The only matter relied on by Mr Islam to establish special or exceptional circumstances was what counsel described as the delay in bringing him to trial. At the point when this application was made, Mr Islam had been in custody for 10 months. His trial had been tentatively set down for two weeks in June 2011, which would have been 23 months after he was charged. Before the hearing of the application concluded, Mr Islam’s trial was rescheduled to start in November 2010 as a result of the appointment of Acting Judges to the ACT Supreme Court.
9․However, even before the trial was rescheduled, the only submission made in relation to the existence of special or exceptional circumstances favouring the grant of bail was that the 10 months that Mr Islam had already been in custody was too long and that the 23 months that would elapse between his arrest and the date originally set down for his trial was far too long. No effort was made to bring the case within the concept of inordinate delay referred to in Allen and In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (Massey [No 2]). There was no argument that the delays affecting criminal trial listings in the ACT Supreme Court affected Mr Islam in any unusual way. Nor was any attempt made to establish that the delays generally affecting remand prisoners or any sub-class of them were inordinate so as to amount to special or exceptional circumstances for all such prisoners.
10․No matters other than delay were argued.
Challenge under Human Rights Act
11․Instead, in reliance on the Human Rights Act, counsel for Mr Islam mounted a challenge to the operation of s 9C of the Bail Act.
12․Where in a proceeding in the Supreme Court a question arises involving the application of the Human Rights Act, and the Territory is not a party to the proceeding, notice of the proceeding must generally be given to the Attorney-General and the Human Rights Commission (Human Rights Act, s 34). Rather than arguing about whether the Director of Public Prosecutions (DPP) represents the Territory for this purpose, the applicant gave notice to the Attorney-General and to the Human Rights Commission.
13․The Attorney-General intervened in the application, and was represented by counsel who provided detailed and helpful written and oral submissions. The Human Rights Commissioner, participating in the hearing as amicus curiae, provided written submissions and indicated a willingness to appear at the hearing if required. The Human Rights Commissioner’s submissions provided information about previous consideration in the ACT and elsewhere of the issues that would arise in determining the challenge, without suggesting any particular approach to any of those issues, and did not address Mr Islam’s bail application as such; neither I nor any party saw a need to seek oral submissions from the Commissioner.
The applicant’s argument
14․The applicant’s argument can be summarised as follows:
(a)Section 9C of the Bail Act on its face conflicts with s 18(5) of the Human Rights Act, because of the requirement to show special or exceptional circumstances for bail applicants covered by s 9C. Section 22 of the Bail Act specifies rational criteria for a decision whether to grant bail, but s 9C, read with s 9G of the Bail Act, specifies a threshold to be met before those rational criteria can be considered.
(b)The conflict with s 18(5) arises because the effect of s 9C is to create a “general rule” that the class of accused persons covered by s 9C are to be held in custody.
(c)Section 30 of the Human Rights Act permits legislation to be read so as to be consistent with human rights, as long as that reading does not defeat the purpose of the legislation. That permission is not “defeated by the text” of the legislation, and “a human rights compliant construction would not be prevented by the text of the legislation, but only by a fundamental inconsistency with the purpose of the underlying legislation”.
(d)Sections 9C and 9G reveal only their mechanical operation but not “the purpose of the underlying legislation”. That purpose must be inferred.
(e)If the purpose is to reinforce the seriousness of the charges covered by s 9C and the caution that should be exercised in determining a bail application where such a charge has been laid, that purpose would not be defeated by interpreting s 9C as not imposing a separate obstacle to the granting of bail.
(f)If the purpose is to ensure that generally those charged with s 9C offences are held in custody pending trial, then s 18(5) could “ameliorate” the operation of s 9C “without completely removing its effect”, by recognising that under s 18(5) there should not be such a general rule and therefore the rule “ought to be restricted or read down”—the applicant did not specify the nature of that proposed reading down, but seemed to imply a reading down to impose a less stringent threshold test in applying the requirement to find special or exceptional circumstances. This would not, however, remove the general rule and therefore there would still be a direct conflict between s 18(5) on the one hand and ss 9C and 9G on the other, such that a declaration of inconsistency should be made.
(g)The delay in this case would be adequate to satisfy s 9C read as imposing a lower threshold.
15․Counsel for the applicant initially submitted also that s 9C had been impliedly repealed by the Human Rights Act, but later declined to press that submission because s 9C had been re-enacted since the Human Rights Act was enacted in 2004 (see Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT), Schedule 1, amendment [1.2]).
Operation of Human Rights Act
16․Two fundamental issues concerning the operation of the Human Rights Act arose in this application, as follows:
(a)What is the process by which a court should consider a claim that a provision of a Territory law is inconsistent with human rights (the process question)?
(b)In considering a human rights-based challenge to a provision of a Territory law, what approach should the court take to interpreting the provision (the interpretation question)?
17․It will be convenient to answer the interpretation question before considering the process question. Before considering either of these questions, however, it is necessary to make several general comments about the operation of the Human Rights Act, and about statutory interpretation, especially in the human rights context.
Outline of Human Rights Act
18․The Human Rights Act, in Pt 3, sets out and recognises a series of human rights for individuals. The primary source of those rights is identified as the International Covenant on Civil and Political Rights (Opened for signature 19 December 1966. 999 UNTS 171 6 ILM 386 (entered into force 23 March 1976)) (ICCPR). With one exception, each section in Pt 3 (ss 8 to 27) deals with a specific right or group of rights. The other section in that Part is s 28, which, importantly, permits human rights to be limited by Territory laws, but only to the extent of “reasonable limits ... that can be demonstrably justified in a free and democratic society” (s 28(1)).
19․Part 4 explains what can be done with or about the human rights recognised in Pt 3. Section 30 requires Territory laws to be interpreted in a way that is compatible with human rights. Section 31 permits international law and the judgments of foreign and international courts and tribunals to be considered in interpreting human rights.
20․Section 32 provides that if the Supreme Court finds that a Territory law is not consistent with a human right, the Court may make a declaration of incompatibility. Importantly, s 32(3) provides that such a declaration does not affect the operation of the Territory law, or anyone’s rights or obligations. Section 33 requires a declaration of incompatibility, and a response from the Attorney-General, to be presented to the Legislative Assembly. Sections 34, 35 and 36 make provisions aimed at ensuring that all interested parties may be heard in any Supreme Court consideration of questions arising under the Human Rights Act.
21․Part 5 provides for pre-enactment scrutiny of legislation for consistency with human rights.
22․Part 5A makes it unlawful for public authorities as defined to act in ways that are incompatible with human rights or to fail to consider human rights properly in making decisions. Section 40C provides a method for individuals to challenge any such unlawful acts or failures.
23․Only Pts 3 and 4 of the Human Rights Act are directly relevant to Mr Islam’s application. The possible application of Pt 5A to a court considering a bail application was not raised except by the Attorney-General. Counsel for the Attorney-General mentioned it only for the purpose of rejecting such a possibility, relying on:
(c)section 40B(2) of the Human Rights Act, which excludes from the definition of “public authority” a court, except when the court is acting in an administrative capacity; and
(d)the proposition that deciding a bail application, when done by the Supreme Court is “a judicial act done in the exercise of judicial power” (Webster v South Australia (2003) 87 SASR 17 at [23], Doyle CJ at [23] in dissent, but not apparently in relation to this particular proposition).
24․The interpretation question identified in [16] above relates to the operation of s 30 of the Human Rights Act (the interpretation provision) and the process question also identified in [16] above relates to the interaction between that section and s 28 of that Act (the justification provision).
Statutory interpretation and human rights
25․Counsel for the Attorney-General pointed out that the Human Rights Act permits, or even encourages, the consideration of relevant international law and the judgments of foreign and international courts and tribunals in the interpretation of human rights. She also emphasised, however, that any use of such material needed to be made very carefully and to take full account of the differences in the way human rights are described in different instruments and different jurisdictions, and also of the form and content of challenged provisions and their counterparts in other jurisdictions. As she said, while the comparative jurisprudence can be of assistance, ultimately the decision in this case is whether s 9C of the Bail Act of the ACT is compatible with s 18(5) of the Human Rights Act of the ACT. This is clearly correct, and must be kept well in mind particularly because, as will appear, there are some distinctive aspects of ACT legislation that may have real significance for the operation of the Human Rights Act, as well as for the help that can be obtained from previous consideration of roughly similar legislation by other courts. Even where the ACT legislation is not idiosyncratic but simply different from the “equivalent” legislation of other jurisdictions, it may produce quite different outcomes from those in other jurisdictions, especially when assessed against the ACT’s particular recognition of the various human rights.
26․This is a convenient point to note that the language of the Human Rights Act is not itself particularly careful. Section 30 requires Territory laws to be interpreted in a way that is “compatible” with human rights and s 32(2) provides for the making of a declaration of “incompatibility” but, for a reason that is not apparent to me, whether that declaration can be made depends on whether the Territory law is “consistent” with a human right. Section 28 has its own drafting peculiarity, in that it permits reasonable “limits” on human rights but the reasonableness of a “limit” is to be considered having regard to various characteristics of the “limitation”. Despite normal statutory interpretation principles, no argument was made, and I have not taken the view, that in either case the different words used were intended to mean different things.
Statutory interpretation and legislative purpose
27․The argument in this case raised several issues relating to statutory interpretation, with a particular focus on legislative purpose and its role in interpretation. The following general comments set the context for the more specific and detailed discussion about these matters that will be required.
28․The concept of legislative or statutory purpose is one that generates much discussion in certain contexts. Legislative purpose is sometimes treated as referring to the purpose of the legislature rather than the purpose of the legislation, giving rise to arguments about whether a legislature can have a single identifiable purpose, given that many members of a legislature may have voted against the legislation concerned, many of those who voted for it may not have read it, and among those who both read the legislation and voted for it there are probably a range of different views about what it means. A legislative system means that the legislature as an institution rather than a group of individuals has enacted the legislation. If it is necessary to think in terms of the purpose of the legislature rather than the purpose of the legislation, then the legislature must be taken to have had, in enacting legislation, the purpose that can be discerned from the legislation itself and the context in which it was enacted. That context extends to the relevant parliamentary debates and other explanatory material of various kinds, but it does not, in my view, extend to consideration of what individual legislators were thinking. A search for legislative purpose clearly permits consideration of more than just the text of the legislation, but it does not require what will clearly be a fruitless search for a common intention that all or the necessary majority of legislators both held and could have articulated in similar terms when the legislation was enacted. The suggestion that such a search is necessary, or that its inherent inability to provide an answer creates some kind of obstacle to sensible purposive statutory interpretation, is a distraction from a meaningful task that is engaged in effectively by courts and others on a regular basis. It may be that in many cases the expression “statutory purpose” is a less distracting and therefore preferable one.
29․A comparison of several provisions requiring legislation to be interpreted by reference to human rights is central to the arguments in this case. The relevant provisions are set out in Appendix A to this judgment; they are:
(a)s 30 of the Human Rights Act 2004 (ACT);
(b)s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter);
(c)s 6 of the New Zealand Bill of Rights Act 1990 (NZ) (the NZ Bill of Rights);
(d)s 3(1) of the Human Rights Act 1998 (UK) (the UK Human Rights Act).
30․Provisions requiring legislation to be interpreted by reference to legislative purpose (purposive interpretation provisions) are also relevant, and the following provisions are set out in Appendix A:
(a)ss 138 and 139 of the Legislation Act 2001 (ACT);
(b)s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (the Victorian Interpretation Act);
(c)s 15AA of the Acts Interpretation Act 1901 (Cth) (the Commonwealth Interpretation Act).
31․Some of the human rights-based interpretation provisions refer to legislative purpose as well as to human rights (eg s 30 of the Human Rights Act and s 32(1) of the Victorian Charter). Provisions for testing whether legislation that is incompatible with human rights is nevertheless justified may also refer to legislative purpose (eg s 28 of the Human Rights Act and s 7 of the Victorian Charter, which are also set out in Appendix A). The New Zealand provisions (ss 5 and 6 of the NZ Bill of Rights, also set out in Appendix A) make no reference to legislative purpose.
32․Two different forms of provisions referring to legislative purpose can be identified; some provisions refer to the legislation’s own purpose (eg s 30 of the Human Rights Act, s 139 of the Legislation Act and s 32 of the Victorian Charter) and some provisions distinguish between the purpose of a provision of an Act and the purpose of the Act (eg s 35 of the Victorian Interpretation Act and s 15AA of the Commonwealth Interpretation Act. This is a distinction that needs to be further explored.
What is the relevant legislative purpose?
33․Section 139 of the Legislation Act, the ACT’s basic purposive interpretation provision, refers to preferring the meaning of an Act that would best achieve the purpose of the Act. The combined effect of the definitions of “Act” and “provision” (respectively found in ss 7 and 16 of the Legislation Act) is that each of those references to “Act” may be a reference to “a provision of an Act” or even “any words or anything else that forms part of the Act”.
34․There is thus a question about s 139, which seems to have at least three possible meanings:
(d)it may require a provision of an Act to be interpreted having regard only to the purpose of that provision;
(e)it may require (or permit) regard to be had in interpreting a provision of an Act to the purpose of the Act or the purpose of any other specific component of the Act;
(f)it may require (or permit) all possible purposes to be taken into account in interpreting any provision or other part of an Act.
35․Section 30 of the Human Rights Act requires “a Territory law” to be interpreted, so far as is possible, “consistently with its purpose”. Like “Act”, as mentioned in [33] above and for similar reasons (ss 7 and 16 of the Legislation Act, together with the definitions of “Territory law” and “law, of the Territory” found in the Dictionary to that Act), “Territory law” may mean “a provision of an Act” or “any words or anything else that forms part of the Act”. The question raised in [34] above about which legislative purposes may be considered in interpreting a provision of an Act also arises in relation to interpreting a provision of a Territory law under s 30.
36․Section 28 of the Human Rights Act has a slightly different operation, in that it is concerned with the purpose of a limitation sought to be justified under the section. It says that in deciding whether a limit on human rights is justified, the purpose of the limitation, the relationship between the limitation and its purpose, and whether there is any less restrictive means reasonably available to achieve the limitation’s purpose, must all be considered. This provision does not appear to raise the uncertainty identified in relation to s 139 of the Legislation Act and s 30 of the Human Rights Act, but it raises another issue. The limitation in question may be a limitation on human rights that has been identified by the court as a result of a challenge, rather than something obvious on the face of the Act or necessarily intended by the legislature in the form in which it is identified by the court. This means that establishing the purpose of the limitation (as distinct from the purpose of the legislation that effects it) may in some cases be problematic.
37․These uncertainties are highlighted if the ACT provisions referring to legislative purpose are compared with purposive interpretation provisions enacted in other Australian jurisdictions which, with the exception of Queensland (s 14A of the Acts Interpretation Act 1954 (Qld)), take a slightly different approach.
38․Section 15AA of the Commonwealth Interpretation Act is as follows:
15AARegard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
39․Section 35(a) of the Victorian Interpretation Act is similar:
35Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
40․Other jurisdictions have purposive interpretation provisions in equivalent forms (see s 33 of the Interpretation Act 1987 (NSW), s 18 of the Interpretation Act 1984 (WA), s 22 of the Acts Interpretation Act 1915 (SA), s 8A of the Acts Interpretation Act 1931 (Tas), and s 62A of the Interpretation Act (NT)).
41․The specific reference to interpreting a provision of an Act by reference to the purpose underlying the Act is a fairly clear indication that individual provisions are to be interpreted by reference to their broader context. This avoids the question raised at [34] and [35] above of whether a provision may be interpreted only by reference to its own purpose or also by reference to a purpose discerned from another legislative unit. Perhaps more importantly, it also eliminates the difficulty of trying to interpret a provision by reference to its own purpose, which cannot sensibly be discerned without at least some interpretation of the provision itself.
What is the significance of legislative purpose?
42․Provisions in the form of s 15AA of the Commonwealth Interpretation Act and s 35(a) of the Victorian Interpretation Act (at [38] and [39] above), which might be described as orthodox purposive interpretation provisions, require a construction of a provision that promotes the purpose underlying the Act to be preferred to one that does not.
43․Section 139 of the Legislation Act, however, again takes a different approach. It says nothing about the status of meanings that do not promote the legislative purpose (by inference, they are simply unavailable); instead, it requires adoption of the meaning that best achieves the legislative purpose. That is, unlike the orthodox purposive interpretation provisions, it does not just distinguish preferred meanings from other meanings but specifies exactly which meaning, determined by reference to legislative purpose, is to be adopted.
44․Section 30 of the Human Rights Act gives a different significance to legislative purpose. Under that section, interpretation of Territory laws in a way compatible with human rights is required “so far as it is possible to do so consistently with [the law’s] purpose”. This provision seems to operate in a way that is closer to the orthodox purposive interpretation provisions than to s 139 of the Legislation Act; that is, as long as a meaning is consistent with the relevant legislative purpose, it may be adopted so as to achieve compatibility with human rights. There is no requirement that only the meaning that best achieves the legislative purpose may be adopted in the interests of compatibility with human rights. Section 32 of the Victorian Charter appears to operate in the same way.
The legislative unit to which the Human Rights Act should be applied
45․At [35] above I have noted that s 30 of the Human Rights Act refers to the interpretation of a Territory law having regard to “its purpose”, and that this, combined with the operation of the Legislation Act, raises questions about exactly which purposes may be considered for that interpretation process. The reference to the purpose of a limitation in s 28 of the Human Rights Act may raise similar questions about which purposes can be examined.
46․At different points and with different aims, counsel for Mr Islam, counsel for the DPP and counsel for the Attorney-General all said that the focus in this case should be on the Bail Act as a whole. Mr Islam sought to have the interpretation of s 9C constrained only by the purpose of the Bail Act as a whole, while the DPP and the Attorney-General both said that compatibility with s 18(5) of the Human Rights Act should be tested only against the Bail Act as a whole. That latter submission was made in the context of the reference in s 18(5) to a “general rule”, and will be addressed when I consider the human rights implications of s 9C. The former submission, that the only legislative purpose relevant in interpreting s 9C is the purpose of the Bail Act as a whole, requires a response that may have a broader significance for the application of s 30.
47․The first response is that, as already noted at [35] above, the reference in s 30 to legislative purpose is to the purpose of the “Territory law” that is being interpreted, whether that “Territory law” is in the particular case an Act, a section, or some other legislative unit. As also noted, it is not clear whether the structure of s 30 also permits interpretation of a “Territory law” (being, for instance, a section) by reference to the purpose of any larger “Territory law”, such as the Act, or the part of the Act, in which that section is located. However, I do not consider that there is any scope for reading s 30 as if it required consistency with legislative purpose to be tested, for a provision of an Act, by reference only to the purpose of the Act and not to the purpose of the provision.
48․Nor is there any basis for accepting that, as a matter of principle, the Human Rights Act can apply only to legislative purpose in relation to an Act as a whole.
49․There is nothing inherent about the structure or content of Acts such that they should be seen as organising the legislature’s pronouncements into units that have any absolute significance, either in general or in the human rights context in particular. Decisions about what matters are to be dealt with in a single Act, how many Acts are to be used to establish a scheme or implement a policy, and what level of detail is to be included in an Act are made by various different entities in various circumstances and for various reasons; for instance, legislative structures may reflect the allocation of policy or operational responsibilities within the executive, constitutional requirements (such as ss 54 and 55 of the Constitution (Cth)), or contemporary theories of legislative drafting that might, for instance, favour longer but comprehensive Acts or shorter but less self-contained Acts. I am not aware of any legislature which deliberately enacts legislation structured so as to have human rights significance only as a whole Act.
50․Another consideration is that many if not all Acts have multiple purposes. This may cause some difficulties in applying the orthodox purposive interpretation provision if an Act has conflicting or competing purposes (so that a meaning might promote one purpose but not promote another purpose). Those difficulties would be magnified in applying a requirement to prefer the “best” meaning for achieving “the” purpose (where each of multiple meanings might be the “best” meaning for one of those purposes) or applying a requirement to interpret legislation consistently with “its” purpose (where a human rights-compatible meaning might be consistent with one purpose but inconsistent with another purpose).
51․For those reasons, I do not see any basis for finding that s 28 or s 30 requires or permits the courts to interpret legislative provisions, or to assess their compatibility with human rights, having regard only to the purpose or operation of the legislation concerned at the highest or most general level, such as an Act as a whole.
52․That general conclusion is supported by a consideration of the Bail Act. The purpose of that Act as a whole appears to be to balance the need to ensure that accused persons turn up for their trials, the need to protect the community and the administration of justice, and the need to protect the right to liberty of persons who are presumed to be innocent. It is highly unlikely that, for the Bail Act or any of the many other Acts whose purpose is a balancing of competing rights, interests and expectations, s 30 invites a court to devise its own set of detailed rules by which that balance is struck. It makes far more sense to assume that the Human Rights Act invites the courts to look at the purpose and meaning of specific provisions, or provisions dealing with specific topics, against the general background of any higher level purpose (whether that is found by reference to the Act, a Chapter, Part or Division of an Act or indeed by reference to a group of Acts by which a policy or scheme is implemented), and to decide about the human rights implications of those provisions in that context.
Powers of remedial interpretation
53․Finally, it is appropriate to note that ACT legislation is subject to a power of remedial interpretation for the purpose of ensuring that it does not exceed the legislative powers of the Legislative Assembly. Section 120 of the Legislation Act (which is set out in Appendix A to this judgment) reflects the approach, if not the words, of s 15A of the Acts Interpretation Act 1901 which refers to the Constitution; in summary, s 120 says that if a provision of an Act would otherwise be interpreted as exceeding the legislative powers of the Legislative Assembly, the provision is valid to the extent to which it does not exceed power. That is, a court may interpret the provision so that it has only the operation that it could validly have by reference to the scope of the Legislative Assembly’s powers. By analogy with s 15A of the Acts Interpretation Act, this power presumably includes the power to examine legislation “to see whether there is any divisible part of the legislation for which support can be found” (Attorney-General for Victoria v The Commonwealth (1945) 71 CLR 237 at 267, Dixon J). However the power is not unlimited and in particular it does not permit courts to exercise legislative power (R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 676, Evatt and McTiernan JJ).
Statutory interpretation – summary
54․It is apparent that the words of the several interpretation provisions that are relevant in assessing ACT legislation for its compatibility with human rights raise a variety of complex questions (even before those provisions are examined in the context of human rights jurisprudence more broadly). Such questions will be addressed as they arise at various points in the following inquiry.
Role of courts and legislature
55․Before attempting to apply the Human Rights Act to challenged legislation, it is also useful to consider in general terms the respective roles of the courts and the legislature under that Act.
Incompatible legislation will continue in operation
56․First, it is clear that under the Human Rights Act the role of the courts, while important, remains subordinate to the role of the legislature. A court can (within certain constraints) interpret a provision to be consistent with human rights; this may involve a choice between two or more meanings with different levels of efficacy in achieving the legislative purpose, or a finding that an apparent inconsistency with a human right can be justified. Failing a meaning that is consistent with human rights, the court may make a declaration of incompatibility. In each case the legislation continues to operate, and to operate in a way that is at least consistent with the legislative purpose.
Legislature may overturn compatible meanings that are unacceptable
57․If legislation has been interpreted to be human rights-compatible by adopting a meaning that is consistent with legislative purpose but not the meaning that best achieves the legislative purpose, it is then up to the legislature whether to re-enact the provision in a form such that the only available interpretation is the one that would best achieve the legislative purpose even if it is not human rights-compatible. If such legislation is introduced, Pt 5 of the Human Rights Act requires the human rights implications of the new legislation to be drawn to the attention of the legislature. Alternatively the legislature may choose to live with the meaning that has been determined by the court to be both human rights-compatible and consistent with legislative purpose.
58․Where a declaration of incompatibility has been made, the Attorney-General must present a response to that declaration to the legislature, and the consequences of that process will be political and possibly legislative rather than judicial.
The courts’ intended role
59․Having noted the subordinate role of the courts, it is also necessary to bear in mind that in enacting the Human Rights Act, the legislature presumably contemplated that some legislation, whether existing or future, would not be compatible with human rights, and intended the courts to play a role in helping to identify, at least, existing legislation of that kind. The fact that the Human Rights Act was enacted without any full-scale review of existing ACT legislation means that the legislature had no basis for assuming that there was no incompatible legislation that had found its way onto the ACT statute book before human rights was directly significant in the preparation and enactment of legislation.
60․On the other hand, there is nothing in s 30, nor in the explanatory material relating to either version of s 30 (at [88] and [102] below), to indicate a legislative expectation that, in the task of bringing ACT legislation into line with the human rights recognised in the Human Rights Act, the courts rather than the legislature would do most of the heavy lifting. This contrasts with the comments of Lord Steyn in the UK case of Ghaidan v Godin-Mendoza [2004] 2 AC 557 (Ghaidan) at [46] (citations omitted) that:
Parliament had before it the mischief and objective sought to be addressed, viz the need ‘to bring rights home’. The linch-pin of the legislative scheme to achieve this purpose was section 3(1). Rights could only be effectively brought home if section 3(1) was the prime remedial measure, and section 4 a measure of last resort. How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that ‘in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility’ and the Home Secretary said ‘we expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention’: It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.
Strained interpretations should not be adopted to achieve compatibility
61․The fact that the courts are only one of the players in developing a society that recognises and protects human rights suggests that judges should be wary of straining the principles and processes of statutory interpretation too far in deciding whether a particular provision can be read so as to be consistent with human rights or whether it can only be dealt with by a declaration of incompatibility.
62․The proposition that strained interpretations of legislation are undesirable is supported by the comments of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [42]:
The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.
63․Those comments were made in the context of determining constitutional validity rather than compatibility with human rights. The distinction between validity and human rights-compatibility has a broader significance in considering the operation of the Human Rights Act, which will need to be considered later (see [152] to [199] below).
64․For the moment, however, I note that it could be argued that strained interpretations are more legitimate to protect human rights than to protect the validity of legislation that is on the brink of unconstitutionality, although the converse could also be argued. I am not, however, convinced that strained interpretations are a desirable or sustainable way of protecting human rights, and I consider French CJ’s comments, in particular his Honour’s references to the accessibility of the law and the accountability of Parliament to the electorate, to be equally applicable in the human rights context.
Interpretation under s 30
The interpretation question
65․Section 30 of the Human Rights Act says:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
66․Before s 30 can be applied in the interpretation of other legislation, its own meaning needs to be established. I have already commented on some aspects of the drafting of s 30 (at [35] and [47] above), but there is a bigger question to be resolved.
67․Before considering the meaning of s 30 further, however, it is necessary to outline the relevant aspects of the UK case of Ghaidan which was central to much of Mr Islam’s argument about the interpretation of s 30.
Ghaidan v Godin-Mendoza
68․Ghaidan involved a challenge to the Rent Act 1977 (UK) providing for the spouse of a protected tenant (defined as a person who was living with the tenant as his or her wife or husband) to become a statutory tenant by succession on the death of the protected tenant. Mr Godin-Mendoza had been the long-term homosexual partner of the tenant of a flat in London; after the tenant’s death the landlord, Mr Ghaidan, sought possession of the flat, and Mr Godin-Mendoza resisted this on the ground that he was entitled to succeed to a tenancy of the flat as a statutory tenant.
69․The House of Lords by a majority applied s 3 of the Human Rights Act 1998 (UK) to permit the Rent Act reference to “surviving spouse” to be read as including surviving homosexual partners.
70․Section 3 is set out in Appendix A to this judgment. The important provision, s 3(1), is as follows:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
71․The Convention is the European Convention on Human Rights (European Convention for the Protection of Human Rights and Fundamental Freedoms. Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)). Under the UK Human Rights Act, the rights guaranteed by that Convention are enforceable in the UK courts.
72․The House of Lords gave s 3 a very broad operation. Lord Nicholls of Birkenhead said at [29] to [33]:
29. It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships’ House in R v A (No 2) [2002] 1 AC 45 is an instance of this. The House read words into section 41 of the Youth Justice and Criminal Evidence Act 1999 so as to make that section compliant with an accused’s right to a fair trial under article 6. The House did so even though the statutory language was not ambiguous.
30. From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.
...
32. ... Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect of primary and secondary legislation.
33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.
73․Lord Rodger of Earlsferry said at [121] to [123]:
121. When the court spells out the words that are to be implied, it may look as if it is ‘amending’ the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
122. the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form.
123. Attaching decisive importance to the precise adjustments required to the language of any particular provision would reduce the exercise envisaged by section 3(1) to a game where the outcome would depend in part on the particular turn of phrase chosen by the draftsman and in part on the skill of the court in devising brief formulae to make the provision compatible with Convention rights. ... In enacting section 3(1), it cannot have been the intention of Parliament to place those asserting their rights at the mercy of the linguistic choices of the individual who happened to draft the provision in question. What matters is not so much the particular phraseology chosen by the draftsman as the substance of the measure which Parliament has enacted in those words. Equally, it cannot have been the intention of Parliament to place a premium on the skill of those called on to think up a neat way round the draftsman’s language. Parliament was not out to devise an entertaining parlour game for lawyers, but, so far as possible, to make legislation operate compatibly with Convention rights. This means concentrating on matters of substance, rather than on matters of mere language.
74․In summary, the House of Lords by a majority found that s 3 may require a court to depart not just from the unambiguous language of a provision but also from the intention of the Parliament that enacted it. Perhaps realising the risks implicit in such a conclusion, the Law Lords then sought to constrain that very broad power of “interpretation” by noting that it did not extend to going beyond interpretation into amendment; this would happen if the legislation were read so as:
(a)to go beyond a “fundamental feature” or the “underlying thrust” of the legislation (Lord Nicholls at [33]);
(b)not to “go with the grain” of the legislation (Lord Rodger at [121]);
(c)to be inconsistent with the scheme of the legislation or its essential principles (Lord Rodger at [121]); or
(d)to go beyond the scope or scheme of the legislation (Lord Rodger at [122]).
75․The difficulties of determining what legislative purpose to use in applying a purposive interpretation provision (see [33] to [41] above) pale into insignificance beside the difficulties of working out the real meaning of the constraint referred to in so many different ways by the Law Lords, given that whatever the nature of the constraint, it does not relate to the text of the legislation and it does not include recourse to the intention of the legislature. It is all very well to disparage a practice of interpreting legislation by reference to the words actually chosen by the Parliament as providing “an entertaining parlour game for lawyers” (Lord Rodger at [123]), but the apparent alternative, to “interpret” by reference not to the words and not to the legislative intention but to some presumably free-standing characteristic of the legislation such as its fundamental features, underlying thrust or “grain”, has an almost surreal quality to it.
76․Lord Millett (at [97]), in dissent, noted:
I agree that the operation of section 3 does not depend critically upon the form of words found in the statute; the court is not engaged in a parlour game. But it does depend upon identifying the essential features of the legislative scheme; and these must be gathered in part at least from the words that Parliament has chosen to use. Drawing the line between the express and the implicit would be to engage in precisely that form of semantic lottery to which the majority rightly object.
77․Nor do the suggestions made by the Law Lords about how the offending provision of the Rent Act should be applied seem apt to establish that “what matters is not the particular phraseology chosen by the draftsman [sic]”. The several Law Lords concluded that the Rent Act definition of spouse could be read as referring to a person of either sex who had been living with the original tenant:
(a)in a “close and stable” relationship (Lord Nicholls at [7]);
(b)“as if they were his wife or husband” (Lord Steyn at [51]);
(c)in a “long-term” relationship (Lord Rodger at [127]); or
(d)in a “marriage-like” relationship (Baroness Hale of Richmond at [139]).
78․These different formulations of the Rent Act provision (which would have been entirely unacceptable if used randomly by legislative drafters in drafting the provision) must have made the ongoing operation of that provision extremely difficult. Lord Millett (at [100]) noted a further difficulty with these attempts to “interpret” the relevant legislation when he said:
in support of their conclusion that the existing discrimination is incompatible with the Convention, there is a tendency in some of the speeches of the majority to refer to loving, stable and long-lasting homosexual relationships. It is left wholly unclear whether qualification for the successive tenancy is confined to couples enjoying such a relationship or, consistently with the legislative policy which Parliament has hitherto adopted, is dependent on status and not merit.
79․As Lord Millett implies, marriages confer status of themselves irrespective of their quality, but the interpretation suggested by the majority Law Lords would hold homosexual couples to a different standard from that applied to married couples.
80․The difficulty in applying the Rent Act provision as “interpreted” by the several Law Lords is especially significant since it appears that the provision determined rights as between property owners and tenants, and as such would not even have involved any particular administration by officials. Far from establishing that “the particular phraseology” does not matter, the Law Lords’ approach to the Rent Act provision seems to provide a useful example of the risks of adopting a strained interpretation of legislation or providing a “counterintuitive judicial gloss” (or indeed a multiplicity of such glosses) that were identified by French CJ (quoted at [62] above).
81․The approach adopted in Ghaidan is a form of “remedial” interpretation, although it may go even beyond more orthodox remedial approaches (see [53] above and [167] below) and it is aimed not at preserving the validity of some version of the provision being interpreted but at ensuring that the provision gives effect to a particular overarching legislative purpose.
Applicant’s submissions
82․Counsel for Mr Islam submitted that the Human Rights Act should be applied in relation to challenged ACT legislation in accordance with the approach taken in Ghaidan and specifically that s 30 of the Human Rights Act should be interpreted, in a similar way to the interpretation given to s 3(1) of the UK Human Rights Act in Ghaidan, to permit a court to adopt a meaning for challenged legislation that is not consistent with the relevant legislative purpose, if that is necessary to achieve compatibility with human rights.
83․In Sheldrakev Director of Public Prosecutions [2005] 1 AC 268, Lord Bingham of Cornhill said in relation to an interpretation adopted in that case:
[53] Such was not the intention of Parliament when enacting [the relevant provision], but it was the intention of Parliament when enacting section 3 of the [Human Rights Act].
84․In effect, Mr Islam submitted that in enacting s 30, the legislature intended to open up all prior ACT legislation for re-interpretation potentially inconsistent with the legislative intention in enacting it.
85․I have already indicated my reasons for considering that the Ghaidan approach to statutory interpretation is undesirable. However, if the Ghaidan approach is in fact part of the law of the ACT, then it must be applied irrespective of its disadvantages, so it is necessary to consider whether that approach to statutory interpretation does apply in the ACT.
86․Counsel for Mr Islam relied on the legislative history of s 30 to base his argument that the section should be given a meaning similar to that given to s 3(1) of the UK Human Rights Act in Ghaidan.
Legislative history – the original s 30
87․The current s 30 was inserted in the Human Rights Act in 2008. Counsel for Mr Islam relied heavily on the Explanatory Statement for the amending Bill, to which I shall turn shortly. It is useful, however, to look first at the original form of s 30, which was as follows:
(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
(2) Subsection (1) is subject to the Legislation Act, section 139.
(3) Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test).
(4) In this section:
working out the meaning of a Territory law means—
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
88․The Explanatory Statement for the Human Rights Bill 2003 explained the original s 30 as follows:
Clause 30(1) introduces a new rule of statutory construction. The purpose of clause 30(1) is to recognise, to the maximum extent possible, the human rights set out in Part 3 in all other Territory statutes and statutory instruments. This rule requires that when working out the meaning of a Territory statute or statutory instrument an interpretation that is consistent with human rights must be applied in preference to any other interpretation.
Clause 30(1) is subject to the purposive rule of construction set out in subclause 139(1) of the Legislation Act 2001. Subclause 139(1) requires that Territory laws must be interpreted in a way that best achieves the purpose of the Act. Consequently, the interpretation most beneficial to human rights will best achieve the purpose of the Bill.
Where there is a choice between two interpretations and both interpretations best achieve the purpose of the statute or statutory instrument, the interpretation that is consistent with human rights must prevail.
Clause 30(2) clarifies that if an interpretation that is consistent with human rights would have the affect [sic] of defeating the obvious purpose of the statute or statutory instrument the interpretation that is consistent with human rights will not prevail.
The effect of clause 30 is that the courts, tribunals, decision makers and others authorised to act by a Territory statute or statutory instrument must take account of human rights when interpreting the law. A statutory discretion must be exercised consistently with human rights unless legislation intends to authorise administrative action regardless of the human right.
89․I am not convinced that the explanation of s 30(2) given in the second paragraph of the Explanatory Statement quoted above was either coherent or correct.
90․The first sentence seems to be correct. It is true that s 30(2) makes s 30(1) subject to s 139(1) of the Legislation Act.
91․The second sentence is somewhat confusing, in its suggestion that all Territory laws must be interpreted in a way that best achieves the purpose of “the Act” (which is, grammatically, probably a reference to the Legislation Act) whereas in fact s 139(1) requires an Act to be interpreted in a way that best achieves its own purpose.
92․The meaning of the third sentence, “Consequently, the interpretation most beneficial to human rights will best achieve the purpose of the Bill”, is not at all clear. If it meant only that s 30(1) of the Human Rights Act was to be interpreted to best achieve the purpose of the Human Rights Act, then (subject to the uncertainties noted at [34] above) the statement would seem to be unobjectionable but also unnecessary (as would s 30(2) itself be), because all ACT legislation is to be interpreted in accordance with the Legislation Act (including s 139) without that having to be specified expressly in the relevant Act (s 4, Legislation Act). It is possible that the words of the Explanatory Statement meant that s 139(1) of the Legislation Act should be read as implying that consistency with human rights would always be a purpose of an Act, and therefore that a human rights-compatible meaning must always be preferred, but such a meaning cannot be extracted from, or implied into, either s 30(1) or s 139(1). If, as I consider is correct, s 30(2) meant that the interpretation task directed by s 30(1) could be displaced by the interpretation direction given in s 139, then s 30(2) had a substantive significance but not one that promoted human rights at the expense of legislative purpose.
93․The next paragraphs of the Explanatory Statement conveyed the position more clearly:
(e)first, that if there are two interpretations that best achieve the legislation’s purpose (an unlikely case given the meaning of “best”, but perhaps not impossible), the human rights-compatible one must be preferred; but
(f)secondly, if a human rights-compatible interpretation would “[defeat] the obvious purpose” of the legislation, then the human rights-compatible interpretation “will not prevail”.
94․The Explanatory Statement, however, avoided addressing the more difficult question, namely, if there is a meaning that is both compatible with human rights and also consistent with purpose, but there is another meaning that better or best achieves that purpose but is not compatible with human rights, which of those two meanings was to be preferred?
95․As a matter of statutory interpretation the answer seems to have been fairly clear; s 30(1) was expressed to be subject to s 139, so s 139 would have operated to require the meaning that best achieved the purpose to be preferred. The effect of this would have been to exclude the possibility of preferring a meaning that was not the most effective in achieving the purpose but was both consistent with human rights and consistent with purpose. The only source of doubt about that analysis is the curious statement discussed at [92] above as possibly intended to suggest that human rights compatibility should be assumed to be a purpose of all legislation, an interpretation I have rejected.
96․Despite the uncertainties I have identified, it is clear that the original version of s 30 sought to add human rights compatibility into the process of interpreting legislation. However, the legislation (and the Explanatory Statement) also made it clear that if there was a conflict between human rights compatibility and legislative purpose, the legislative purpose would prevail, and the legislation (although less clearly the Explanatory Statement) also indicated, in my view, that in the event of a conflict, the intention was that human rights compatibility would give way not just to legislative purpose but to the “best” implementation of the legislative purpose. Whether that approach in fact deprived the original s 30 of any real significance is a question that need not be pursued at this stage.
The current s 30
97․Section 30 of the Human Rights Act was replaced by the Human Rights Amendment Act 2008 (ACT), originally introduced as the Human Rights Amendment Bill 2007 (ACT).
98․It is apparent that enacting the current version of s 30 was intended to change the relationship between that section and s 139 of the Legislation Act. The current s 30, which requires Territory laws to be interpreted, so far as it is possible to do so consistently with their purpose, in a way that is compatible with human rights, is not expressed to be subject to any other legislation; in particular, it is no longer expressed to be subject to s 139 of the Legislation Act. Instead, s 139 of the Legislation Act now includes a note as follows:
Note The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
99․Although through the 2008 amendments it has abandoned the priority previously given to s 139, the legislature has not taken the next step and given s 30 an express priority over s 139. Rather, by the use only of the non-committal phrase “is also relevant to interpreting territory laws” about the Human Rights Act, the note reflects the form of the amended legislation in demonstrating a deliberate avoidance of any legislative statement about how the two provisions are intended to interact.
100․How the current versions of the two provisions do interact will be considered further in due course. For the moment, this material provides the background to Mr Islam’s submission about the interpretation of s 30 itself.
Explanatory Statement for the 2008 amendment
101․Mr Islam’s submission relied on the Explanatory Statement for the Human Rights Amendment Bill 2007.
102․Relevant parts of the 2007 Explanatory Statement are as follows:
The Human Rights Amendment Bill 2007 amends the Human Rights Act 2004 to:
• clarify the interpretive rules so that a human rights consistent interpretation must prevail as far as is possible consistent with the purpose of underlying legislation;
...
Clause 5 Interpretation of laws and human rights
Sub-section 30(1) and (2)
Clause 5 replaces the existing interpretative provision in the Human Rights Act 2004. It clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006. It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza (2004) 2 AC 557 cited recently by the ACT Supreme Court in Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9.
103․I note in passing that the reference in the introductory words above to “the purpose of underlying legislation” (emphasis added) appears to be an error and, having regard to Lord Nicholls’ reference in Ghaidan at [33] to “the underlying thrust of the legislation being construed” (quoted at [72] above), that the phrase should perhaps have read “the purpose underlying legislation”.
104․Counsel for Mr Islam submitted that the Explanatory Statement’s general reference to “draw[ing] on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza” made clear the intention that, in effect, the new provision would draw in to the ACT’s human rights approach the comments made in that case by Lord Nicholls (at [29] and [30]), which are quoted at [72] above.
105․In R v Fearnside [2009] ACTCA 3 (Fearnside), Besanko J, with whom Gray P and I agreed, held at [87] that s 30 in its current form does not “authorise and require the Court to take the type of approach taken by the House of Lords in Ghaidan”. He expanded on this conclusion at [89]:
In its present form, s 30 appears to give the Court a broader power to adopt an interpretation of a Territory law which is consistent with a relevant human right. I am conscious of the fact that discussing the matter in the abstract is of limited assistance. Nevertheless, I think s 30 would enable a Court to adopt an interpretation of a legislative provision compatible with human rights which did not necessarily best achieve the purpose of that provision or promote that purpose, providing the interpretation was consistent with that purpose. On the other hand, I do not think s 30 authorises and requires the Court to take the type of approach taken by the House of Lords in Ghaidan. There is no reference to purpose in s 3(1) of the United Kingdom Act and the primary constraint in that subsection is stated in terms of what is or is not possible. By contrast, under s 30 in the [Human Rights Act] the purpose or purposes of the legislative provision must be ascertained through well-established methods, and the interpretation adopted by the Court must be consistent with that purpose or those purposes.
106․Besanko J at [90] rejected the proposition that the Ghaidan approach was adopted by the Explanatory Statement to the Human Rights Amendment Bill 2007 or by the Court of Appeal in Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9 (Kingsley’s Chicken). I would add the following comments to what was said in Fearnside.
Textual comparison – s 30 (ACT) and s 3(1) (UK)
107․First, as Besanko J pointed out, the UK provision does not mention legislative purpose. If achieving the Ghaidan position was in fact the legislature’s intention in replacing s 30 in 2008, it is curious that the new s 30 contains the express reference to the purpose of the law concerned that distinguishes it in a significant respect from s 3(1) of the UK legislation and from the interpretation that has been given to that latter provision.
Significance of source of delay
393․The DPP submission noted that the only source of potentially inordinate delay in Mr Islam’s trial was the time that would elapse between the setting down of the matter for trial and the date set down for that trial to begin.
394․In particular, counsel for the DPP emphasised that the delay in bringing Mr Islam to trial related to listing backlogs in the ACT Supreme Court and was not caused by the Australian Federal Police or by the DPP.
395․This comment presumably alludes to my finding in Massey [No. 2] that the work of bringing Ms Massey to trial was not being done at a reasonable pace. Significant delays in bringing an accused person to trial that are caused by prosecution failings may well amount to special or exceptional circumstances. However, this is not because the prosecution is to be punished for its failings but because such failings mean that the normal processes of bringing a matter to trial are not happening at a reasonable pace. Significant delay caused by the conduct of the accused bail applicant or his or her lawyers may be much less likely to produce special or exceptional circumstances, but again this does not reflect the punishment of the bail applicant; in such a case it simply means that the bail applicant cannot generally rely on delays that he or she has caused.
396․However, the role of prosecution failures in establishing inordinate delay does not mean that an inordinate delay arising in the absence of fault on the part of the DPP and the AFP cannot amount to special or exceptional circumstances.
397․It may be generally inappropriate to see a bail application as an adversarial proceeding, and in particular to see it as a contest between the bail applicant and the DPP or the AFP. As the discussion of the purpose of s 9C suggests, if a bail application is a contest at all, it is a contest between the rights of the applicant and the needs and interests of the community as a whole. If that is correct, then delays that are within community control (such as the delays caused by general under-resourcing of the justice system) cannot be dismissed as “beyond everyone’s control” and therefore not a basis for a finding of inordinate delay (see also my comments in In the matter of an application for bail by SA [2010] ACTSC 114 at [54]).
398․On the other hand, if a bail application is not a contest, then apart from any delay that is the applicant’s responsibility, the source of delay may be irrelevant. The only real question may be whether there is genuine “delay” (as distinct from simply the passage of the time needed to do what has to be done before trial) and whether that delay has become inordinate. That is, if there has been or appears likely to be delay beyond that required by the normal processes or beyond the normal standards, the fact that neither the DPP nor the AFP is at fault is irrelevant.
Declaration of incompatibility
399․Being satisfied that s 9C is not consistent with the human right recognised in s 18(5) of the Human Rights Act, I must consider the option of making a declaration of incompatibility under s 32(2). No submissions were made about whether, if I did find that s 9C could not be interpreted to be consistent with human rights, and could not be justified, I should make such a declaration; rather, this was assumed to be the inevitable result of such a finding.
400․I can think of no reason, having made a finding of inconsistency, for not making a declaration of incompatibility. The declaration has no legal significance for the application or operation of the relevant provision but its significance as a step in the “dialogue” involving the courts, the executive and the legislature (if three parties can have a dialogue), should not be overlooked. The “dialogue” model was proposed in the Report of the ACT Bill of Rights Consultative Committee, ACT Parliament, Towards an ACT Human Rights Act (2003) and referred to by the Attorney-General in his speech on the introduction of the Human Rights Amendment Bill 2007 (Australian Capital Territory, Hansard, Legislative Assembly, 6 December 2007, 4028 (Simon Corbell, Attorney-General)). Relevantly, the approach is that “the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act”.
401․There may be an argument that the making of the formal declaration is not a judicial function. Without addressing that possibility, I note that the declaration, while expressed in a form reflecting the relevant provision of the Human Rights Act, is in content no more than a re-statement of a conclusion of incompatibility reached at the end of one of the steps in the process of interpreting s 9C in order to determine Mr Islam’s bail application
402․The Human Rights Act does not provide any guidance on the form of a declaration of incompatibility. The declaration made by the Victorian Court of Appeal following its decision in Momcilovic simply followed the wording of the relevant Victorian provision (s 36(2) of the Victorian Charter), so I shall adopt the same approach, although with the addition of a reference to my reasons for making the declaration.
403․Accordingly, I make the following declaration:
(1)Under s 32(2) of the Human Rights Act 2004 (ACT), the Court is satisfied, for the reasons set out in In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147, that s 9C of the Bail Act 1992 is not consistent with the human right recognised in s 18(5) of the Human Rights Act, being that “Anyone who is awaiting trial must not be detained in custody as a general rule”.
| I certify that the preceding four hundred and three [403] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold Associate: Date: 18 April 2024 |
Appendix A—Relevant legislation
ACT legislation
Bail Act 1992 (ACT)
9CBail for murder and certain serious drug offences
(1)This section applies to a person accused of—
(a)murder; or
(b)an offence against any of the following provisions of the Criminal Code, chapter 6 (Serious drug offences):
…
NoteA reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).
(2)A court or authorised officer must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3)However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—
(a)for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b)for a child—the matters mentioned in section 23 (Criteria for granting bail to children).
9GSpecial or exceptional circumstances
(1)This section applies if a court or authorised officer is required under this part to be satisfied of the existence of special or exceptional circumstances favouring the grant of bail to a person.
(2)A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.
(3)Also, the court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of the special or exceptional circumstances.
Examples for s (3)
1 Damien is before the court charged with having committed an aggravated robbery. He has earlier been charged with having committed aggravated robbery. Section 9D applies and there is a presumption against bail unless there are special or exceptional circumstances. Damien argues that there are special circumstances as he needs to support his child, he may lose his job and he may lose an opportunity to take up public housing. The court considers that the circumstances are not special or exceptional. Bail is not granted and the criteria in section 22 are not considered.
2 Jason is facing similar charges. Jason has had a car accident before his arrest for the second offence. His kidneys are damaged requiring dialysis every 3 days. Jason argues that his need for regular treatment and his reduced mobility mean that he is highly unlikely to abscond. The court considers these circumstances are special or exceptional. The court then considers the criteria in section 22 in deciding whether to grant bail.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Criteria for granting bail to adults
In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a)the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii)interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including—
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c)the likely effect of a refusal of bail on the person’s family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).
Human Rights Act 2004 (ACT)
Right to liberty and security of person
Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
Anyone who is arrested or detained on a criminal charge—
(a) must be promptly brought before a judge or magistrate; and
(b) has the right to be tried within a reasonable time or released.
Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.
Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
No-one may be imprisoned only because of the inability to carry out a contractual obligation.
Human rights may be limited
Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Declaration of incompatibility
(1)This section applies if—
(a)a proceeding is being heard by the Supreme Court; and
(b)an issue arises in the proceeding about whether a Territory law is consistent with a human right.
(2)If the Supreme Court is satisfied that the Territory law is not consistent with the human right, the court may declare that the law is not consistent with the human right (the declaration of incompatibility).
(3)The declaration of incompatibility does not affect—
(a)the validity, operation or enforcement of the law; or
(b)the rights or obligations of anyone.
(4)The registrar of the Supreme Court must promptly give a copy of the declaration of incompatibility to the Attorney-General.
Legislation Act 2001 (ACT)
Act to be interpreted not to exceed legislative powers of Assembly
(1)An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
(2)Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly—
(a)the provision is valid to the extent to which it does not exceed power; and
(b)the remainder of the Act is not affected.
(3)Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision’s application to other matters is not affected.
(4)This section is in addition to any provision of the Act itself.
(5)This section is a determinative provision.
(Notes omitted)
Meaning of working out the meaning of an Act
In this part:
working out the meaning of an Act means—
(a)resolving an ambiguous or obscure provision of the Act; or
(b)confirming or displacing the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)finding the meaning of the Act in any other case.
Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
NoteThe Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
Legislation from other jurisdictions
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Human rights—what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3)This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
New Zealand Bill of Rights Act 1990 (NZ)
Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or r evoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Constitution of the Republic of South Africa Act 1996 (South Africa)
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
Canadian Charter of Rights and Freedoms (Canada)
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Human Rights Act 1998 (UK)
Interpretation of legislation
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
This section –
(a)applies to primary legislation and subordinate legislation whenever enacted;
(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
Appendix B—The human right to bail
European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 5(3) provides that a person arrested “shall be brought promptly before a judge ... and shall be entitled to trial within a reasonable time or to release pending trial”.
Canadian Charter of Rights and Freedoms
Section 11(e) provides that a person charged with an offence has the right “not to be denied reasonable bail without just cause”.
Constitution of the Republic of South Africa Act 1996
Section 35(f) provides that a person arrested for allegedly committing an offence has the right “to be released from detention if the interests of justice permit, subject to reasonable conditions”.
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Section 21(6) provides that “a person awaiting trial must not automatically be detained in custody, but his or her release may be subject to guarantees to attend ... for trial”.
Appendix C—Relevant bail provisions in other Australian jurisdictions
| Jurisdiction | Provisions | Method of applying “special or exceptional circumstances” tests |
| NSW | Bail Act 1978, ss 9C, 9D | For murder, bail is not to be granted unless the court “is satisfied that exceptional circumstances justify the grant of bail”. Bail for “repeat offenders” (a person charged with a “serious personal violence offence” who has a previous conviction for a serious personal violence offence) is not to be granted unless the court “is satisfied that exceptional circumstances justify the grant of bail”. Attempted murder is a serious personal violence offence. |
| Victoria | Bail Act 1977, ss 4 and 13 | For treason and murder, bail shall not be granted unless the court “is satisfied that exceptional circumstances exist which justify” the grant of bail. |
| Queensland | Bail Act 1980, ss 13 and 16(3)(b) | For offences carrying life or indefinite sentences, bail may only be granted in the Supreme Court, and shall be refused unless the defendant shows cause why detention in custody is not justified. If bail is granted, the court must state its reasons for granting bail. |
| Western Australia | Bail Act 1982, s 15, Sch 1, Clauses 3A and 3C | For murder, and for various other serious offences allegedly committed while the person was at conditional liberty in respect of another serious offence, bail shall be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody, and that bail may properly be granted having regard to the matters to be considered in any bail application. Attempted murder is a “serious offence”. |
| South Australia | Bail Act 1985, s 10A | For various offences including manslaughter caused during police pursuits, and causing bushfires, but not apparently murder, bail is not to be granted unless “the applicant establishes the existence of special circumstances” justifying release on bail. |
| Tasmania | Bail Act 1994 | No statutory provisions relating to the grant of bail in respect of specific offences. |
| Northern Territory | Bail Act, s 7A | For murder, treason, serious drug offences, serious sexual offences, and serious violence offences allegedly committed within 5 years after a finding of guilt on an earlier serious violence offence, a person is not to be granted bail unless he or she satisfies the court that bail should not be refused. |
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