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,… |
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- Re Application for Bail by Islam [2010] ACTSC 147
- Case
- [2010] ACTSC 147
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the statutory presumption against bail, coupled with the need for special or exceptional circumstances to be shown, was consistent with the Human Rights Act 2004 (ACT). Specifically, the court had to ascertain if the statutory presumption and the special or exceptional circumstances requirement were compatible with the right to liberty and security of the person as protected under section 18(5) of the Human Rights Act 2004 (ACT). The court also needed to interpret the relevant statutory provisions in a manner that best achieved the purpose of the Act and in a way that was compatible with the human rights provisions of the Human Rights Act 2004 (ACT).
The court found that the statutory presumption against bail and the requirement for special or exceptional circumstances were not compatible with the human rights provisions of the Human Rights Act 2004 (ACT). The court declared the relevant sections of the Bail Act 1992 (ACT) to be inconsistent with the human right to liberty and security of the person. However, the court held that the requirement to interpret Territory laws in a way that was compatible with human rights did not permit a remedial interpretation. The court preferred an interpretation that best achieved the purpose of the Act, which in this case was the protection of public safety and the proper administration of justice. Consequently, the court refused the application for bail.
No orders were made in favour of the applicant.
Orders
Orders of the court
Application refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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 ActIn 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. 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.