Re Application for Bail by Islam

In the matter of an application for bail by Islam, the applicant sought release from custody while awaiting trial for the offence of attempted murder. The case was heard in the Supreme Court of the Australian Capital Territory, where the primary issue was whether the statutory presumption against bail, as outlined in the Bail Act 1992 (ACT), could be overridden in light of the applicant's significant delay in bringing the application. Additionally, the court considered whether the requirement for special or exceptional circumstances to be demonstrated for bail applicants charged with attempted murder was compatible with the Human Rights Act 2004 (ACT).

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.