Williams v Director-General of the Justice and Community Safety Directorate
[2025] ACTSC 396
•4 September 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Williams v Director-General of the Justice and Community Safety Directorate |
Citation: | [2025] ACTSC 396 |
Hearing Date: | 17, 23 February 2023, 6 – 10 March 2023, 30 May 2023 |
Decision Date: | 4 September 2025 |
Before: | McWilliam J |
Decision: | The plaintiff is entitled to declaratory relief to the effect that the use of force and strip search to which she was subjected on 11 January 2021 at the Alexander Maconochie Centre was conduct incompatible with her rights under the Human Rights Act. |
Catchwords: | HUMAN RIGHTS – PRISON AUTHORITIES – detainee on remand – refusal of request for funeral leave – whether conduct incompatible with human rights – right to enjoy culture and maintain cultural and kinship ties – right to privacy HUMAN RIGHTS – PRISON AUTHORITIES – detainee on remand – planned use of force – strip or body search – whether conduct incompatible with human rights – right to humane treatment while deprived of liberty – right to protection from degrading treatment – right to privacy – right to appropriate treatment for person on remand EVIDENCE – PRIVILEGES – PARLIAMENTARY PRIVILEGE principles applying in the Territory – functional connection required – objective test – where statute required report to be laid before Legislative Assembly – where statutory purpose for scrutiny by Legislative Assembly – functional connection established – privilege attached EVIDENCE – PRIVILEGES – Human Rights Commission Act 2005 (ACT), ss 73 and 75 – whether privilege against exposure to civil penalty applied – whether letter notifying complaint constituted an exercise of statutory coercive power to request information – where letter in response provided information voluntarily – no privilege attached STAUTORY CONSTRUCTION – Human Rights Act 2004 (ACT), s 40B(1)(b) – proper consideration – whether higher test imposed than that at common law – ordinary common law principles apply STATUTORY CONSTRUCTION – Human Rights Commission Act 2005, ss 45(2), 72 and 73 – scope of power to request documents – whether statutory power to obtain information limited to a coercive power contained in s 73 of the Act WORDS & PHRASES – Human Rights Act 2004 (ACT), s 40B(1)(b) – “proper consideration” – manner in which “proper” qualifies consideration PRACTICE AND PROCEDURE – HUMAN RIGHTS PROCEEDINGS – operation of Court Procedures Rules 2006, rr 33 and 34 – where proceeding commenced by application – appropriateness of pleadings in circumstances where complex factual and legal issues involved – whether Territory appropriate defendant |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24, pt III Bill of Rights 1688 (UK) art 9 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 10(b), 22(1) Corrections Management (Detainee Requests & Complaints) Policy 2019, cl 4.4 Corrections Management (Detainee Requests and Complaints) Operating Procedure 2019, cls 1.2, 5.1 Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019 Corrections Management (Management of At-Risk Detainees) Policy 2019, cls 4, 8.9, 11.1, 11.7, 11.9 Corrections Management (Searching) Policy 2010 Corrections Management (Use of Force and Restraint) Policy 2020, cls 4, 5.2, 5.3, 5.4, 6, 8, 9, 10 Corrections Management Act 2007 (ACT) ss 7, 9, 107, 108, 113, 113A, 113B, 113C, 114, 115, 126, 137, 138, 139, 140, 141, 142, 208, 209, 222, 223(3), pts 9.4, 9.7, 12.2, divs 9.4.1, 9.4.3, 9.4.4 Court Procedures Rules 2006 (ACT) (Republication No 64) rr 407A, 407B Court Procedures Rules 2006 (ACT) rr 33(2), 34(2), 218, 220, 6022 Crimes (Sentence Administration) Act 2005 (ACT) s 149(2) Custodial Inspector Act 2017 (ACT) ss 6, 17, 18(c), 25(4), 29, 30, Dictionary Discrimination Act 1991 (ACT) Evidence Act 2011 (ACT) ss 56, 59, 76, 135 Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) Human Rights Act 2004 (ACT) ss 10(1), 12, 19(1), 19(3), 27, 28, 30, 36, 40, 40B, 40C, sch 1 Human Rights Commission Act 2005 (ACT) (Republication No 33) ss 45, 75 Human Rights Commission Act 2005 (ACT) ss 14, 15, 42, 45, 47, 72, 73, 74, 75, divs 4.2, 4.4 Human Rights Commission Amendment Act 2023 (ACT) Inspector of Correctional Services Act 2017 (ACT) ss 6, 9, 17, 18(1)(c), 25(4), 27, 28, 29, 30, pt 3 Justice and Community Safety Legislation Amendment Act 2025 (ACT) Legislation Act 2001 (ACT) ss 126(4), 127, 142, 146, Dictionary Migration Act 1958 (Cth) s 5(1) Monitoring of Places of Detention Legislation Amendment Act 2024 (ACT) Parliamentary Privileges Act 1987 (Cth) s 16 |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Allan v United Kingdom [2002] IX Eur Court HR 41 Amann Aviation Pty Ltd v The Commonwealth (1988) 19 FCR 223 Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; 48 VR 129 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 Blacktown City Council v Hocking [2008] NSWCA 144 BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 Brown v Director-General of the Justice and Community Safety Directorate [2021] ACTSC 320; 364 FLR 155 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Carrigan v Cash [2017] FCAFC 86 Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 Castles v Secretary, Department of Justice [2010] VSC 310; 28 VR 141 Cenbauer v Croatia [2006] III Eur Court HR 261 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 Certain Children v Minister for Families [2016] VSC 796; 51 VR 473 Crime and Corruption Commission v Carne [2023] HCA 28; 97 ALJR 737 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Deng v Australian Capital Territory [2024] ACTCA 10 Dixon v Todd (1904) 1 CLR 320 Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 Egan v Willis [1998] HCA 71; 195 CLR 424 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48; 3 ACTLR 127 HJ (a pseudonym) v Independent Broad-Based Anti‑Corruption Commission [2021] VSCA 200; 64 VR 270 In the Matter of The Board of Inquiry into Disability Services [2002] ACTSC 28; 167 FLR 262 Ireland v The United Kingdom (1978) 25 Eur Court HR (ser A) Islam v Director-General Justice and Community Safety Directorate(No 3) [2016] ACTSC 27 Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22 Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Jones v Dunkel (1959) 101 CLR 298 Kalashnikov v Russia [2002] VI Eur Court HR 93 Knight v General Manager, HM Prison Barwon [2017] VSC 135 Kunstler v Kunstler [1969] 1 WLR 1506 Martin v Taylor [2000] FCA 1002 Millard v Collins [2021] ACTSC 216 Millington v Peach (No 2) [2025] ACTSC 21 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; 106 FCR 426 Minogue v Thompson [2021] VSC 56 Momcilovic v R [2011] HCA 34; 245 CLR 1 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Nicolae Virgiliu Tănase v Romania (European Court of Human Rights, Grand Chamber, Application No 41720/13, 25 June 2019) Novoselov v Russia (European Court of Human Rights, First Section, Application No 66460/01, 2 June 2005) PLA and Puncernau v Andorra [2004] VIII Eur Court HR 179 PlaintiffM1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Płoski v Poland (European Court of Human Rights, Fourth Section, Application No 26761/95, 12 November 2002) Pretty v United Kingdom [2002] III Eur Court HR 155 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v A2 [2019] HCA 35; 269 CLR 507 R v Chaytor [2010] UKSC 52; 1 AC 684 R v Collaery (No 6) [2020] ACTSC 164 R v Roy (No 3) [2025] ACTSC 5 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Rich v Howe [2017] VSC 483 Rowley v O’Chee [2000] Qd R 207 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 Soenen v Thomas [1983] 8 CCC (3d) 224 Stewart v Ronalds [2009] NSWCA 277; 76 NSWLR 99 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 T v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 24724/94, 16 December 1999) The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 Thompson v Minogue [2021] VSCA 358; 67 VR 301 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105; 41 FCR 89 Tyrer v United Kingdom (1980) 26 Eur Court HR (ser A) Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 University of New South Wales v Moorhouse (1975) 133 CLR 1 V v United Kingdom [2000] 7 BHRC 659 Wainwright v United Kingdom [2006] X Eur Court HR 223 Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 Y.F. v Turkey [2003] IX Eur Court HR 171 Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 Zurich Australian Insurance Limited v CIMIC Group Limited & Ors [2024] NSWCA 229; 115 NSWLR 297 |
Texts Cited: | 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, Human Rights Bill 2003 (ACT) Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 50th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) Human Rights Committee, Views: Communication No 1184/2003, 86th sess, UN Doc CCPR/C/86/D/1184/2003 (27 April 2006) Human Rights Committee, Views: Communication No 511/1992, 52nd sess, UN Doc CCPR/C/49/D/511/1992 (8 November 1994) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Joint Committee on Parliamentary Privilege, Parliamentary Privilege (House of Lords paper 43-1, House of Commons paper 214-1, Session 1998-99) Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) |
Parties: | Julianne Francis Williams (Plaintiff) Director-General of the Justice and Community Safety Directorate (First Defendant) Jon Peach (Second Defendant) A Corrective Services Officer (redacted) (Third Defendant) ACT Human Rights Commission (Intervenor) |
Representation: | Counsel M Dennis SC, P Tierney ( Plaintiff) H Younan SC, N Oram ( Defendants) S Fitzgerald (Intervenor) |
| Solicitors Ken Cush & Associates ( Plaintiff) ACT Government Solicitor ( Defendants) ACT Human Rights Commissioner (Intervenor) | |
File Number: | SC 480 of 2021 |
Contents
The application
Summary of the result
The parties
The nature of the statutory cause of action
The appropriate respondent to the Application
The procedure for bringing a complaint under the Human Rights Act before the court
The conduct the subject of complaint
The issues
The evidence
Inferences to be drawn from CCTV and handheld camera footage
Jones v Dunkel inferences
Credit findings after delay
The plaintiff’s cultural heritage
The plaintiff’s status in the AMC in January 2021
The plaintiff’s involvement in, and efforts to attend, her grandmother’s funeral on 12 January 2021
A breakdown in the progress of the Leave Application occurs
The 11 January scuttle to facilitate an escort
The second defendant’s decision and the basis of the refusal of funeral leave
A concern arises about the plaintiff’s intention to self-harm
The treatment of the plaintiff at the CSU
A decision to use force to facilitate a strip search is made
The use of force is implemented
The plaintiff initiates a surrender and negotiate response to the conduct
The conduct of the strip search in the bathroom
The Human Rights Act
General principles in interpreting human rights
General principles in interpreting other laws which interact with human rights
The court’s task in evaluating whether conduct of a public authority is or was in breach of a human right
The court’s task in determining whether a public authority failed to give “proper consideration” to the human right identified in making a decision
The right to protection from cruel, inhuman or degrading treatment
Humane treatment when deprived of liberty
The right to privacy
The right to enjoy culture and maintain cultural and kinship ties
What was the content of the human rights identified?
The statutory framework limiting the plaintiff’s rights
General provisions directed to protection of human rights
Specific provisions dealing with the conduct the subject of complaint
Policies giving content to the rights limited by law
‘At-Risk’ Policy
Searching Policy
Use of Force Policy
Issue 1: Was the Funeral leave decision a breach of any of the human rights relied upon by the plaintiff?
Section 27 and the right to enjoy cultural practices and maintain kinship ties
Section 12(a) - The right to no unlawful and arbitrary interference with family
Sections 19(1) and 19(3) – The right to treatment with humanity and respect for inherent dignity when deprived of liberty, including appropriate treatment when detained on remand
Issue 2: Was the lack of a review of the Funeral leave decision a breach of the plaintiff’s human rights?
Issue 3: Was the use of force on 11 January 2021 conduct incompatible with the plaintiff’s human rights?
Issue 4: Was the strip search in the cell conduct incompatible with the plaintiff’s human rights?
Issue 5: Was the strip search or body search in the CSU bathroom conduct incompatible with the plaintiff’s human rights?
Evidentiary issues: The parliamentary privilege dispute
What is meant by parliamentary privilege?
The source of the privilege in the Territory
Principles applying to questions of parliamentary privilege
The requirement for a functional connection, objectively considered
Was there a functional connection here?
The competing arguments
Consideration
Evidentiary issues: The response letter dispute
What relief follows from the findings of a breach of human rights?
Costs
Conclusion and Orders
McWILLIAM J:
1․The Human Rights Act (2004) (ACT) (Human Rights Act) is a law that applies to every person in the Territory. It deals with things many take for granted, such as the right to life, the protection from torture or cruel, inhuman or degrading treatment, the right to freedom from slavery – things so basic that it is hard to believe the Territory needs a law to spell them out. Yet this law is significant, not only for those who are already able to play the game of navigating societal and communal interactions and administrative requirements; it is for those who are just trying to get to the field in the first place. And sometimes, it is a prism through which social justice issues speak; a lawful means of saying to those in power, you have got to do better for those people.
2․This is a claim about human rights brought by the plaintiff, Ms Julianne Williams, a Ngunnawal woman who was detained on remand at the Alexander Maconochie Centre (AMC) from 12 September 2020 pending the resolution of criminal charges. The proceeding concerns two incidents that happened while she was detained.
3․As to the first incident, while in custody on 6 January 2021, the plaintiff learned that her grandmother had died. In the days leading up to the funeral, the plaintiff attempted to seek leave from the AMC to attend the funeral, which was to be held on 12 January 2021. Her request was unsuccessful, and the funeral occurred without the plaintiff being physically present or otherwise being able to view the funeral proceeding from the AMC.
4․The second incident arose out of the first. The plaintiff was notified of the outcome of her request on 11 January 2021 and was not informed about any opportunity to review that decision. Upon learning she would not be permitted to travel to attend the funeral, the plaintiff’s mental health deteriorated. She was transferred to the Crisis Support Unit (CSU) within the AMC on 11 January 2021. While in that unit, she was subjected to the use of force for the purpose of carrying out either a strip or a body search, which is alleged to have been first attempted in her cell but ultimately carried out in the bathroom. Those are the essential facts which have brought the plaintiff to court.
The application
5․By originating application filed on 18 November 2021 and amended on 13 July 2022 (Application), the plaintiff sought declarations under s 40C of the Human Rights Act that each of the named defendants breached her human rights in a number of ways. She alleged breaches of her right to protection from inhuman and degrading treatment, her right to privacy, her right to humane treatment and preservation of her inherent dignity as a human being, and her right as an Aboriginal woman to maintain her connection to culture and kinship ties.
6․The plaintiff sought the following declaratory relief:
(a)A declaration pursuant to s 40C of the Human Rights Act that the first and second defendants breached the plaintiff’s human rights under ss 10(1), 12(a), 19(1), 19(3) and 27(2) of the Human Rights Act; and
(b)A declaration pursuant to s 40C of the Human Rights Act that the third defendant breached the plaintiff’s human rights under ss 10(1), 12(a), 19(1) and 19(3) of the Human Rights Act.
7․The declarations sought against the defendants were divided because the human rights alleged to have been breached arose out of separate conduct.
8․The plaintiff also sought costs.
Summary of the result
9․It should be stated at the outset of this judgment that it is a complex, difficult and often thankless job to manage and work in the Territory’s prison and corrective services force. This case demonstrates that difficult decisions must be made by those staff under pressure, both temporal and otherwise. However, at the heart of those decisions there lies a significant responsibility to maintain respect for the rights and liberty of individuals detained by the Territory, however curtailed those rights or liberties may be by the fact of incarceration.
10․For the reasons that follow, the plaintiff has established that aspects of the conduct that occurred on 11 January 2021 were incompatible with her right to be treated humanely, her right to privacy, her right as a person on remand to be treated in an appropriate way, and her right to protection from degrading treatment, and the court will grant declaratory relief accordingly.
The parties
11․The first defendant is the Director-General of the Justice and Community Safety Directorate. The Justice and Community Safety Directorate (Directorate) is the department of the ACT Government which has a range of responsibilities corresponding to its name. These include the responsibility for the management of the AMC pursuant to the provisions of the Corrections Management Act 2007 (ACT) (Corrections Act). The Director-General is the public official (that is, the statutory office holder) who is given the primary functions of managing and operating corrective services under the Corrections Act. This includes the operation of the AMC.
12․The second defendant is Mr Jon Peach. At the relevant time, Mr Peach was the Commissioner for ACT Corrective Services (ACTCS). ACTCS is part of the Directorate. Among other things, he was responsible for the management of the AMC. The Commissioner for ACTCS sits at the head of ACTCS and, relevantly, has responsibility for custodial operations. He was the person who made the decision to refuse the plaintiff’s request to attend her grandmother’s funeral.
13․The third defendant was a Correctional Officer (CO) at the AMC at the relevant time. The third defendant had the role of Area Manager – Operations. In that role, the third defendant was responsible for admissions, visitors, the security team, the gatehouse, the management unit, and any escorts from the AMC. She was the person who authorised the use of force on the plaintiff and the conduct of the strip or body search.
14․The ACT Human Rights Commissioner (Intervenor) was joined to the proceedings on 18 March 2022 by order of Elkaim J, following an application pursuant to s 36 of the Human Rights Act. That section allows the Intervenor to intervene in court proceedings that involve the application of the Human Rights Act (with leave of the court). The Human Rights Commissioner is the head of the ACT Human Rights Commission (HR Commission).
The nature of the statutory cause of action
15․The Application sought relief solely under s 40C of the Human Rights Act. The cause of action is thus a statutory one, created by ss 40B and 40C of the Human Rights Act. The operative part of the section is s 40B(1):
40BPublic authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
16․It can be seen that there are two limbs. The first is substantive. The second is procedural. This was discussed in Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 (Certain Children (No 2)) at [177], and confirmed in Thompson v Minogue [2021] VSCA 358; 67 VR 301 (Thompson) at [79] in relation to an equivalent section of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter). The plaintiff relies on both limbs in this Application. What constitutes ‘proper consideration’ is discussed separately below.
17․Section 40B(2) provides for circumstances where the section does not apply. They are immaterial to the present dispute.
18․Section 40C(1) and (2) then create a right to bring a proceeding in the Supreme Court:
40CLegal proceedings in relation to public authority actions
(1) This section applies if a person—
(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2) The person may—
(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person's rights under this Act in other legal proceedings.
The appropriate respondent to the Application
19․In my view and subject to hearing from the parties, the Territory was the proper defendant in lieu of the second and third defendants. Under s 223(3) of the Corrections Act, any civil liability that would attach to a person who has exercised a function under the Corrections Act or has otherwise been involved in the administration of the Corrections Act instead attaches to the Territory if the act or omission was done honestly and without recklessness for the Corrections Act. That is the case here.
20․Reinforcing that view, subsequent to the hearing, the Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) (HR Complaints Amendment Act) has brought about a number of amendments to the Human Rights Act. Section 40C(5) of the Human Rights Act in its current form stipulates who the appropriate respondent to a proceeding brought under s 40C is (emphasis added):
(5) The respondent to a proceeding started under subsection (2)(a) is—
(a) if the public authority is a public authority mentioned in section 40(1)(a) to (e) or (g)—the public authority; or
(b) if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or
(c) if the public authority is any other public employee—the Territory; or
(d) if the public authority is an entity for whom a declaration is in force under section 40D—the entity.
21․Understanding that section requires an understanding of the definition of “public authority”, which is set out in s 40 of the Human Rights Act:
40Meaning of public authority
(1) Each of the following is a public authority :
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a Minister;
(e) a police officer, when exercising a function under a Territory law;
(f) a public employee;
(g)an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).
(2) However, public authority does not include—
(a) the Legislative Assembly, except when acting in an administrative capacity; or
(b) a court, except when acting in an administrative capacity.
22․Public employee is defined in the Legislation Act 2001 (ACT) (Legislation Act) as:
(a)A public servant; or
(b)A public sector member; or
(c)A person employed by a territory instrumentality.
23․As made clear by the Application, the second defendant and the third defendant were each sued in their capacity as a ‘public authority’ and were each a ‘public employee’. Neither was the statutory office holder. Applying the current s 40C(5)(c), the respondent named should have been the Territory.
24․Given that the first respondent was the statutory office holder for the Executive of the Territory and the joint representation of all the defendants, I have taken the view that the Territory’s position was properly before the court. Accordingly, even if the second and third defendants were incorrectly included, this issue has not prevented the court deciding the proceeding: r 218 of the Court Procedures Rules 2006 (ACT) (Rules).
25․However, there may be a significant consequence for any declaratory relief and who the declaration should bind. There remains utility even at this stage of the proceeding in substituting the Territory for the second and third defendants. This may be done pursuant to r 220 of the Rules, which permits an order including an appropriate or necessary party at any stage of the proceeding.
The procedure for bringing a complaint under the Human Rights Act before the court
26․The plaintiff and the defendants were at odds as to whether the proceeding should properly have been brought as an originating claim, rather than by an originating application.
27․The defendants argued that the proceeding should have been commenced by originating claim, relying on r 33(2) of the Rules, which provides for a default position subject to a territory law providing otherwise.
28․The plaintiff relied on r 34(2) of the Rules, which provides that a proceeding must be started by originating application if a territory law requires or allows a person to apply to the court for an order or another kind of relief (which s 40C of the Human Rights Act plainly does), and the law does not state the kind of originating process to be used. That was the case here, in that the Human Rights Act is silent on the point.
29․In Millard v Collins [2021] ACTSC 216, Elkaim J considered the interaction between rr 33 and 34 of the Rules and concluded at [27] that it is open to a plaintiff to commence a human rights proceeding by either originating process.
30․His Honour was there considering rr 407A and 407B of the Rules, concerning what the plaintiff must state when bringing a proceeding under the Human Rights Act. Those rules have since been repealed (on 1 July 2023) and are now located (in substance) in r 6022 of the Rules. The wording of r 6022 confirms that a party may make a claim via either an originating application or an originating claim (accompanied by a statement of claim), but in either case, certain matters must be set out, being:
(a)the human right relied on, including the content of the right and any particular aspect of the right relied upon;
(b)the facts on which the party relies to assert that the Human Rights Act applies to the proceeding;
(c)the breach of the human right identified and the details of the breach; and
(d)the relief sought.
31․The choice under the Rules to permit litigants to commence a human rights proceeding by way of originating application or originating claim recognises the diverse range of circumstances which may bring a person seeking to enforce their human rights to court. The Rules attempt to facilitate those who may not have ready access to a lawyer and whose case may be factually straightforward or confined to a question of law or principle. In this way, the Rules accommodate access to justice issues, so that a requirement to plead a case is not itself seen as a barrier to a person enforcing their human rights.
32․Here, the proceeding involved a complex factual matrix likely to be contested, as well as numerous breaches of human rights, some of which overlapped. The application of the law to the facts was not straightforward (as evidenced by the Intervenor’s involvement and the submissions made by the parties) and all parties were legally represented from the outset. In such circumstances, it was preferable or convenient for the proceeding to either start or continue according to pleadings, to ensure clarity as to what the issues were and precisely what conduct was alleged to amount to a breach of the human rights specified.
33․The procedural choices made by the parties in the present case (either the plaintiff in the manner in which the proceeding was commenced, or the defendants who equally could have sought for the case to be pleaded out) had a consequence, in that the manner in which the proceeding unfolded was to plunge the parties and the court into a wide-ranging enquiry of the policies and procedures at the AMC and the implementation of them with regard to applications for leave to attend funerals and strip or body searches.
34․It also led to each party criticising the other. For example, the plaintiff criticised the defendants for the failure to call witnesses said to be relevant to a particular breach or issue, giving rise to a number of submissions that Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) inferences ought to be drawn. In turn, the defendants argued a lack of notice as to how some issues constituted a breach of the Human Rights Act (with regard to alleged systematic failures or the lack of any review of the decision to refuse funeral leave).
35․More significantly, because the issues were not defined by pleadings, the amount of evidence that was collectively adduced by the parties was unconfined, with two thousand pages of documentary evidence (affidavits and exhibits) in addition to extensive oral evidence. Hundreds of pages of submissions were filed and were accompanied by thousands of pages of authorities. The Intervenor’s bundle of authorities alone ran to six volumes. That in turn has an impact on the court and judicial resources that are then required to consider and decide the case.
36․It is appreciated that parties are seeking to assist the court by providing the most comprehensive and thorough examination of the evidence and authorities as their resources permit, and it should be clear from these reasons that considerable assistance has been derived from the parties’ efforts. However, whatever material is put before the court needs to be sifted through and considered by the judicial officer hearing the case. The conduct under scrutiny was submitted to amount to 22 breaches of human rights. Apart from the two that were not pressed by closing submissions, they have all been considered. The scattergun approach to claims under the Human Rights Act is to be discouraged. Closer attention to the content of the particular right at the initial stage (brought about by the discipline of a pleading) may have assisted in ascertaining whether those rights were truly engaged.
37․Here, the unconfined approach to the issues, and the evidence that was then considered necessary to address them, contributed in part to the regrettably considerable delay in the parties receiving judgment. This is not intended to direct the responsibility for discharging the judicial function in a timely manner away from the court. It is to encourage parties to think about how they can best assist the court to discharge that function given the heavy workload placed on judges in a smaller jurisdiction. In any contested litigation, but particularly sizeable and complex matters such as this one, vigilance is required as to what it was about the conduct that is the subject of complaint that was incompatible with the human right identified and whether the amount of material being filed will assist the decision-maker to determine the real issues in dispute, or whether it is intended to demonstrate (either to the court or a client) that no stone was left unturned factually or legally.
38․The reasons that follow focus on the conduct that I understood to be the plaintiff’s case on each right said to have been breached under the Human Rights Act, as identified in the Application. That does not mean that the totality of the material before the court was not considered. It is to explain why many of the issues ventilated during the hearing – such as whether policies were followed or whether different policies should have been in place, whether staffing at the AMC on a weekend was adequate, or expert evidence about the potential for injury to the plaintiff – have been either eschewed or referred to without detail in these reasons, because such aspects of this proceeding ultimately were not necessary to traverse in my path of reasoning in order to decide this case.
The conduct the subject of complaint
39․There are five matters the subject of complaint. They are as follows:
(a)While incarcerated, a decision was made by the first and second defendants to deny the plaintiff a request to attend her grandmother’s funeral (Funeral leave decision). In the way the plaintiff closed her case, this conduct was said to be a breach of the following rights under the Human Rights Act:
1․ The right of a person who belongs to an ethnic, religious or linguistic minority to enjoy their culture with other members of the minority: s 27(1).
2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).
3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).
4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).
(The Application also raised s 10(1) of the Human Rights Act but the plaintiff properly did not press that right in respect of this complaint in closing argument.)
(b)The first and second defendants did not facilitate a review of that decision or notify the plaintiff she had a right of review (Failure to review). Again, in the way that the plaintiff closed her case, this conduct was said to be a breach of the following rights under the Human Rights Act:
1․ The distinct cultural right of Aboriginal peoples to maintain cultural heritage and distinctive spiritual practices, observances and kinship ties: s 27(2).
2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).
3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).
4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).
(Again, the Application also raised s 10(1) of the Human Rights Act but the plaintiff properly did not press that right in respect of this complaint in closing argument.)
(c)The third defendant made a decision, which was implemented, to use force against the plaintiff while she was detained at the CSU at the AMC (Use of force). This conduct was said to be a breach of the following rights under the Human Rights Act:
1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).
2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).
3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).
4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).
(d)The first defendant (as a result of conduct by the third defendant) attempted to strip search or body search the plaintiff while in the cell at the CSU (the cell search). This conduct was said to be a breach of the following rights under the Human Rights Act:
1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).
2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).
3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).
4․ The right of persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).
(e)The first defendant (as a result of conduct by the third defendant) conducted a body search of the plaintiff in the bathroom at the CSU (the bathroom search).
1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).
2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).
3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).
4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).
The issues
40․Whether those five matters breached any of the plaintiff’s human rights respectively form the five overarching issues for determination. If any of the breaches alleged is established, then there is a further issue as to what relief ought to follow.
41․In addition, there were two vigorously contested evidentiary rulings for which reasons were reserved at the time (as they involved matters of statutory construction that were not straightforward). The first arose from the operation of s 25(4) of the Inspector of Correctional Services Act 2017 (ACT) (ICS Act) which led to the rejection of a report prepared by the Inspector of Correctional Services on a different ground, that of parliamentary privilege (privilege ruling). That statute has since been replaced by the Custodial Inspector Act 2017 (ACT) (Custodial Inspector Act), by virtue of the Monitoring of Places of Detention Legislation Amendment Act 2024 (ACT) which came into force on 18 September 2024. The statutory provisions that were in question at the time of the ruling are markedly different now.
42․The second was the admission of a letter of response from the second defendant to the ACT Discrimination Commissioner dated 22 February 2021 (response letter). The dispute about that evidence related to a different privilege available under the Human Rights Commission Act 2005 (ACT) (HRC Act), a statute which has also been amended since the hearing and those amendments are part of the reasons dealing with the ruling below.
The evidence
43․The evidence included numerous affidavits from corrections officers, some of which were cross-examined, along with affidavits from each of the second and third defendant who were both cross-examined. There was expert evidence before the court addressed to Aboriginal culture and sorry business. There was further expert medical evidence regarding the plaintiff’s health condition. Before dealing with the facts found on the evidence, it is necessary to explain how I have treated some categories of evidence.
Inferences to be drawn from CCTV and handheld camera footage
44․The evidence also included video footage of the use of force against the plaintiff on 11 January 2021 and stills derived from that footage. In that regard, I have exercised caution in interpreting photographic evidence (including the CCTV and handheld camera footage), in accordance with the authorities to that effect: Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20]-[28] and the cases there-cited, including Blacktown City Council v Hocking [2008] NSWCA 144 (Blacktown) at [8]-[11] and [167]-[170]. Although not dealing with cases involving human rights, the reasoning is about fact-finding from visual records in civil cases and applies equally here.
45․Ultimately, it was not in dispute that force was used on the plaintiff, nor was the nature or manner of that force used. Accordingly, this is not a case where it was necessary to determine any factual issue using the visual evidence as the sole means for a particular finding: c.f. Blacktown at [169] per Tobias JA. There is no doubt that such evidence may be used as an aid to determine which of the explanations given by the various witnesses appears to be most worthy of acceptance (following Blacktown at [167] per Tobias JA) and this is at times how I have used the evidence.
46․The following factual findings are made on the balance of probabilities as to what happened over the course of 6-11 January 2021. There were many versions of the same events given, with each witness remembering what occurred through their own lens and recall ability. There was no one witness that I generally preferred or considered to be more reliable than another. As will be seen, there are specific parts of the plaintiff’s evidence that I do not accept because I considered her memory to be unreliable when regard was had to the documentary evidence and evidence given by other witnesses, but there are also parts of the defendants’ evidence that fall into that category. Contrary to the plaintiff’s submissions, no findings of deliberate dishonesty are made in respect of any of the defendants’ witnesses.
Jones v Dunkel inferences
47․I have also not found it appropriate to draw inferences against the defendants in reliance upon the commonsense principle derived from Jones v Dunkel, which is that the “unexplained failure by a party ... to call witnesses ... may in appropriate circumstances lead to an inference that the uncalled evidence ... would not have assisted that party’s case”: RHG Mortgage Ltd v Ianni [2015] NSWCA 56 per McColl JA (Emmett JA and Sackville AJA agreeing) at [75]. Where the plaintiff sought that such an inference be drawn, it was not appropriate to draw the inference for one or other of the following two reasons:
(a)I was not satisfied that the inference was material, because I did not consider the balance of the evidentiary record to be equivocal (as to which see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [78]-[79]). For example, on the evidence as it was, I did not accept the evidence of another witness on the point and found the fact in issue in favour of the plaintiff, meaning that any inference in respect of a different witness fell away.
(b)The articulation of the case on systemic failures was not as clear as it ought to have been, given the submissions that were made about it, which meant that it could not fairly be said that the witness about which the inference was sought was one whom the defendant might have been expected to call. The simple explanation for why the witness was not called may have been that the person was not the decision-maker whose conduct was under question or that the person had since left the AMC and were not obviously a material witness in this case such as to warrant efforts to locate them.
48․Similarly, I did not draw a Jones v Dunkel inference in respect of the plaintiff in not initially referring to matters that might have been thought to be critical by the end of the hearing. She made herself available for cross-examination and I was not satisfied the proper explanation for the gaps in her evidence was due to a forensic choice not to present the evidence (due to a concern that it did not assist her case).
Credit findings after delay
49․To the extent that there are any concerns arising about credit findings made after such a lengthy delay between the hearing and the judgment, the findings as to credit derive from my views and notes made during the hearing and upon its conclusion, as well as having refreshed my memory from the transcript and the parties’ submissions in light of the legal principles to be applied to those facts. Judgments are iterative and the court’s consideration may be given to factual matters and questions of credit significantly earlier than the date of final judgment suggests.
50․What is set out is what I consider to be the most consistent thread to be drawn from the various accounts, what was recorded on the documents (including the CCTV and handheld camera footage), what the witnesses recalled, as well as reasons given to the plaintiff and later to the HR Commission for particular decisions.
The plaintiff’s cultural heritage
51․Starting with some uncontroversial facts, the plaintiff was born in NSW in 1983. Her mother is from Ngunnawal country and her father is from Wiradjuri country. She identifies as a Ngunnawal woman.
52․It was not disputed that the plaintiff belonged to an ethnic minority and had a strong connection to the Aboriginal culture. The plaintiff lived in Yass, Queanbeyan and the ACT during her childhood. She previously danced in an Aboriginal dance group named Fully Dreaming. She would attend schools and teach students about Aboriginal dance and culture. When the plaintiff visited Narrandera growing up, her father would take her yabbying and fishing on the Murrumbidgee River. Her father painted and made digeridoos, and he taught his family how to make didgeridoos. Her father would often take her into the bush to look for native plants and medicines. He took her rabbiting and taught her how to skin a rabbit. He taught the plaintiff stories of the dreaming, language and culture. The plaintiff learnt to speak Wiradjuri.
53․When the plaintiff was 21, she moved to Alice Springs to live with her father. She continued to dance, performing in many shows. She worked as an artist and trained with Indigenous artists in Alice Springs. She has had her artwork shown at exhibitions in Alice Springs and Canberra. In her paintings, she utilised stories passed down by her family.
54․It was also not disputed that the plaintiff had a strong personal connection to her paternal grandmother, who lived in Narrandera in NSW and was often visited by the plaintiff before she died. She had stayed with her grandmother for around two to three months every year growing up. The plaintiff was also assisted by her grandmother in raising her own daughter.
The plaintiff’s status in the AMC in January 2021
55․The plaintiff was a sentenced prisoner who had been released into the community on parole in August 2019. While on parole, the plaintiff was taken into custody on 11 September 2020 in relation to further charges. She was detained on remand at the AMC from 12 September 2020, pending the resolution of those charges.
56․Subsequently, on 3 March 2021, the plaintiff was found guilty of attempting to use a false document and was sentenced to three months’ full-time detention which was backdated to commence on 11 September 2020. Upon conviction, the parole order was automatically cancelled pursuant to s 149(2) of the Crimes (Sentence Administration) Act 2005 (ACT). Other charges were subsequently dealt with on 19 May 2021.
57․The consequence of this is that as at 6-11 January 2021, the plaintiff was technically a sentenced prisoner, not a detainee on remand. However, that fact arises from a retrospective operation of legislation. For the purposes of assessing the content of the plaintiff’s human rights and whether they were infringed, the assessment takes place as at the date of the conduct (and not by reference to subsequent events or automatic consequences pursuant to legislation). Accordingly, as at 6-11 January 2021, the plaintiff had the status of a detainee on remand.
58․The evidence disclosed that the plaintiff had physical and mental health challenges leading up to the incidents the subject of the proceedings. She was in segregation at the AMC from 1 January 2021 for disciplinary related issues, including an allegation of a serious assault of another detainee. These are relevant background context for what occurred, but I have endeavoured to avoid detailing health or other disciplinary matters in this judgment.
59․For the claims under consideration here, there was a real question as to whether the plaintiff’s conduct while in custody affected the assessment of her as a security risk for the purposes of considering her application for funeral leave or otherwise influenced the decision-making processes in respect of the conduct that occurred. This included the parties engaging on whether any assessment by the corrections officers involved was justified. On the facts that I have found, it has not been necessary to traverse all the evidence and submissions devoted to that topic.
The plaintiff’s involvement in, and efforts to attend, her grandmother’s funeral on 12 January 2021
60․On Wednesday 6 January 2021, the plaintiff learned that her paternal grandmother had died. She was upset and initially asked to be left alone. As she processed the news, she accepted peer support and moved to dealing with the question of attending the funeral.
61․The plaintiff was the first-born child of her father and the family’s representative. It was her responsibility to read the eulogy at her grandmother’s sorry business.
62․The third defendant was aware on 6 January that the plaintiff intended to apply for funeral leave. She advised the plaintiff to get the paperwork in as soon as possible.
63․The plaintiff filled out a Detainee Request Form colloquially called a “Bluey” (because the paper used is blue) with the assistance of an Indigenous Liaison Officer (ILO 1). It said:
Provide request details: Escort to my Grand mothers (sic) funeral in Narrandera…
64․ILO 1 then commented:
We would like to support this application for a funeral escort. ILO Barry Parker would attend if approved.
65․Next to Supervisor Comments the following words appear:
See attached application.
66․It is not clear when those words were written or who actually wrote them. Contact details for family members were written and that entry was signed by the person responsible on 6 January 2021.
67․There were other entries on the form dated 11 January (see below). However, that form was only part of the paperwork required. A “Prisoner Leave Application Form” (Leave Application) was also required.
68․The plaintiff believed that she filled out a second form on the same day applying for funeral leave. However, she said this all happened on 8 January, when she knew the funeral details. She believed that the date on the Bluey was wrong.
69․Heavy reliance was placed by the plaintiff on the writing on the Bluey that said: “see attached” as being evidence of the said Leave Application being attached on 6 January. I do not give those words the weight that the plaintiff did. The person filling out the entry on the form may well have intended to attach the document and that is why those words were written at the time the Bluey was completed. However, when it came to filling out the second form, it was clear that it could not yet be completed as the funeral details were unknown on 6 January. That there was intended to be a Leave Application attached, but that it was not yet attached, is consistent with the Bluey being left in a pigeonhole on 8 January (see below).
70․The relevant officer who wrote those words was not called to give evidence and the plaintiff was critical of that gap.
71․There is evidence of two forms filled out on that day. One was the Bluey relating to escort arrangements for the funeral. The other was a second Bluey for an “inter jail” visit.
72․The relevant documentary record for 6 January 2021 states:
Entered into CSU at 1300hr. Has had visits from ALO, MH and an external visitor. She has spoken to her Mum on the phone and filled in two blueys in regards to Escort arrangements for her Grans funeral and also an inter jail visit.
73․That record does not refer to filling in the Leave Application and there is no Leave Application dated 6 January 2021 (either partial or complete) in the records.
74․Part of the relevant evidence on this point is also derived from ILO 1 and a corrections officer to whom I will refer as the CSU Supervisor, who features critically again below and appears to have had a rapport with the plaintiff. What was required to commence an application for funeral leave (according to the evidence of ILO 1, which I accept) were details of the date, time and place of the funeral. The inclusion of this information on the Leave Application was critical before it could be submitted. Among other uses, those details facilitate confirmation of the funeral with the relevant funeral home, assessment of the various security risks and consideration of what logistics would need to be put in place in order to facilitate the request. Their evidence confirms that the funeral details were not known on 6 January and that as a result, the Leave Application could not go forward for consideration.
75․The documentary evidence also accords with common sense, in that it is far more likely that on receiving the news on 6 January, the plaintiff would have taken immediate steps to start the process of applying for funeral leave, which was the date recorded on the Bluey and ultimately accepted by the plaintiff in closing submissions to be correct. The process of applying for funeral leave was a process which (on her own evidence) she had undertaken twice before in relation to funerals of other relatives, and she knew that such leave took time to organise.
76․The plaintiff may have started filling out a Leave Application, albeit on 6 January, and that is what she remembers, but it was plainly not completed as the plaintiff did not at that time know the funeral details. Alternatively, she may have misremembered what she ultimately did with a second ILO on 11 January as having been done on 8 January. Whatever the reason, when the documentary evidence is taken in its totality, the plaintiff’s memory as to the date she completed the Leave Application was shown to be unreliable.
77․Accordingly, I do not accept that the Application Form was completed on 6 January along with the Bluey, nor that it was attached incomplete and submitted or was subsequently lost. However, it is clear that the plaintiff had made staff at the AMC aware of the impending funeral and that escort arrangements would be required. On Thursday 7 January, the plaintiff still did not know the details of the funeral, but she had applied for day release to obtain funds from the bank to pay for the funeral.
78․Separately on 6 January, the plaintiff had been admitted to the CSU at 1pm and spoken with a mental health nurse at some time that afternoon. The record indicated that she told the nurse she had a razor blade and was prepared to use it if she were to remain in the CSU overnight. She said the razor was hidden where no one will find it.
A breakdown in the progress of the Leave Application occurs
79․The plaintiff believed that she told two corrections officers the details of the funeral on 7 January, namely that it was to be held in Narrandera and at the lawn cemetery, when they came to perform a segregation review.
80․From the documentary record, that segregation review occurred on Friday 8 January. The record includes the plaintiff’s mother telling ILO 2 that she only found out the details of the funeral on Friday 8 January. There were also two emails from one of the corrections officers who performed the segregation review to ILO 1. The first requested ILO 1 to confirm that the plaintiff’s grandmother had passed away that week, and the second requested her to confirm that the funeral was on Tuesday at 2pm and to “please confirm the place”. That second email was sent at 6:25pm on the Friday on a day when ILO 1 was on leave and was scheduled to be on leave over the next three days.
81․ILO 1’s evidence was that even though she was on leave on Friday 8 January, she responded to emails while on leave. She did respond to the first email sent to her. However, she did not respond to the second email requesting her to confirm the time and location of the funeral. ILO 1’s evidence (which I accept) was that this may have been because she did not see the second email as she was drafting a response to the first email. However, the position was that an ILO who was on leave was dealing with the issue late on a Friday evening, rather than any handover of the issue occurring at the AMC.
82․A separate point of significance of ILO 1 being on leave is that it provides a further reason why the plaintiff’s recollection that she filled out the Leave Application with ILO 1 in person on 8 January once the funeral details were known cannot be accepted.
83․The funeral was actually at 2:30pm. It is not to the point that there was half an hour difference in the time. That would have been remedied on confirmation. Regrettably, that did not occur over the weekend. Whether it could have occurred is thus a moot point.
84․There was a corrections officer copied into ILO 1’s correspondence. It was not apparent whether that was a matter of standard practice or whether that was because the particular corrections officer was working over the weekend and tasked with the duty of confirming the funeral. That officer did not give evidence in the proceeding.
85․Accordingly, by 6:25pm on Friday 8 January 2021, the details of the funeral were known by the plaintiff, and that officers at the AMC knew the date, general location (Narrandera) and approximate time of the funeral. However, there was a disconnect, in that even those details were not communicated to those responsible for actioning the request in terms of an escort.
86․Nothing was progressed over the weekend of 9-10 January. An ILO did not work over the weekend, but it is not only ILOs who can progress outstanding paperwork. The evidence of the second defendant was that other corrections officers were employed over the weekend and part of their role was to support all detainees throughout all periods. The lack of an ILO working over the weekend was not the issue. The issue was the lack of a handover to someone else to progress the request (if possible) over the weekend.
87․In that regard, I find that on this occasion, there was a breakdown in the process of facilitating requests by an Aboriginal detainee that was being handled by ILOs during the week. The uncompleted request was not handed over for management by a corrections officer with weekend duties.
88․The difficulty that emerges is that the plaintiff had a mistaken view that her paperwork was in order. That was not the case. The paperwork had been left in a pigeonhole over the weekend. It does not matter which one and the processes of the AMC in that respect were not identified by the plaintiff in her Application as being under the spotlight in this proceeding. The most obvious inference to draw from the placement of paperwork in a pigeonhole is not an inference of neglect, but rather that the officers involved knew that the plaintiff’s paperwork was incomplete and when they had confirmed the funeral details, they intended to insert them on the form or attach the confirmation and action the leave request.
89․The consequence was that by 10 January 2021 (two days before the date leave was required) no application for leave had in fact yet been made, the person who was best placed to support the request (either ILO 1 or a second ILO (ILO 2)) was not at the AMC over the weekend, and no one else had been specifically tasked with a follow-up over the weekend, in circumstances where the application for leave clearly required urgent consideration if it was to have any chance of success. Critically, over 8-11 January, nobody was yet factoring into the prison management logistics the personnel required on Tuesday 12 January to provide an escort to Narrandera for the plaintiff.
The 11 January scuttle to facilitate an escort
90․On the morning of 11 January, the third defendant arrived at work and checked the pigeonholes. She discovered the Bluey and observed that there was no Leave Application attached. She requested a ILO 2 to obtain the Leave Application from the plaintiff. The third defendant deposed to also finding the funeral information letter dated 11 January 2021 with the Bluey.
91․The defendants were critical of the plaintiff failing to adduce the email which confirmed details of the funeral. Equally though, there was no affidavit from ILO 2 as to how he came into possession of the letter from the funeral service provider.
92․I did not accept the evidence that the letter confirming the funeral details was in the pigeonhole when the third defendant arrived at work. The following surrounding evidence established the confirmation letter being obtained by ILO 2 following his visit to the plaintiff on the morning of 11 January:
(a)First, ILO 1 did not give evidence that after receiving the email late on Friday 8 January, she then contacted the funeral service provider. Her evidence was that she did not see that last email.
(b)Second, the case note that was contained in the third defendant’s own affidavit stated that ILO 2, “obtained the funeral service confirmation from the Funeral Director”.
(c)Third, the funeral letter was also dated 11 January, which makes it unlikely that it was sitting in the pigeonhole when the third defendant arrived at work and more likely that it was sent in response to ILO 2 actioning the third defendant’s request to confirm the funeral details.
93․In any event, I find that the Bluey and the completed Leave Application were first submitted on the morning of Monday 11 January 2021.
94․Things moved quickly from there. A request was made in respect of the ACT Victims Register to confirm whether there were any issues that needed to be considered in respect of any victim if the plaintiff were to attend the funeral. The answer came back promptly that there were no registered victims and no known concerns with the escort request.
95․The third defendant attended the Hume Health Centre within the AMC to seek advice on any medication risks to the plaintiff in undertaking the proposed travel. The response again was prompt, and she was advised that the health risk to the plaintiff due to the proposed travel could be managed by medication.
96․However, notwithstanding those two matters, the third defendant recommended that the plaintiff not be granted prisoner leave, writing on the Prisoner Leave Application:
Detainee has been displaying difficult behaviours in recent times. Funeral information was received with 24 hours notice, the funeral is a significant distance away and poses fatigue risk to staff.
97․That does not quite accord with what she wrote on the Detainee Request Form which was as follows:
Family are supportive of detainee attending funeral. Funeral notice/confirmation received 11/01 leaving 24 hours notice. Funeral is in Narrandera NSW.
98․In her affidavit, the third defendant maintained that she did not support the application for security reasons. In oral evidence, she said that the distance of the location had an impact on part of the recommendation but the fact that the location had not previously been assessed was not a fact. She denied that the security risk assessment that she completed had any bearing on her recommendation.
99․The plaintiff strongly contended that security was not a factor in refusing the funeral leave request. I have passed over that factual discrepancy as the third defendant was not the ultimate decision maker, the evidence did not rise as high as suggesting that her personal view fed into the thinking of the person who was (the second defendant), and it is largely overtaken by my factual findings in respect of later evidence.
100․That recommendation then went to Executive Support within the AMC and ultimately to the Deputy Commissioner, Custodial Operations at the AMC, who recommended to the second defendant that the plaintiff’s application to attend the funeral be refused.
The second defendant’s decision and the basis of the refusal of funeral leave
101․The second defendant’s decision was made quickly over a phone call with the Deputy Commissioner in the afternoon on 11 January 2021. The fact that it was made in that way was a product of the urgency arising from the funeral being scheduled to occur the following afternoon. Due to the location of the funeral being approximately four hours’ drive away, if leave were to be granted, the plaintiff would have needed to leave the AMC by approximately 10am the following morning.
102․The reasons recorded on the Leave Application were as follows:
Confirmation of funeral details rec’d on 11/01/21. Not operationally feasible to organise and facilitate this escort due to short notice and current officer staffing obligations.
103․The second defendant was later asked by the ACT Discrimination Commissioner to explain (among other things) what consideration was given to the plaintiff’s cultural rights, including in relation to her cultural observances and kinship ties, when making the decision regarding the plaintiff’s attendance at her grandmother’s funeral and the decision for refusing funeral leave. The reasons he gave in that responding letter (which was the subject of one of the admissibility rulings discussed below) were:
Ms Williams first requested to attend the funeral on 6 January 2021, details about the service were not received until 11 January 2021, with the funeral being held on 12 January 2021 in New South Wales. ACTCS makes every practicable effort to support funeral escorts wherever possible, particularly for Aboriginal and Torres Strait Islander detainees. Unfortunately, Ms Williams’ request was ultimately declined on this occasion due to the short notice, distance, and staffing concerns.
104․This was supplemented by a “Timeline of events” which included the following dot points in the column relevant to 11 January 2021:
· The Detainee Request Form, funeral notice and prisoner leave application is provided to the Deputy Commissioner Custodial Operations (DCCO). The Operations Area Manager and DCCO discuss the staffing struggles, that the rosters were significantly short and that areas of the Alexander Maconochie Centre (AMC) had recently been locked-in due to the inability to fill posts with overtime
· The DCCO contacted the Commissioner, ACT Corrective Services (ACTCS) to discuss the situation. It was noted that the applicant was Indigenous and ACTCS’ desire to support attendance at funerals where possible. It was discussed that details and confirmation of the funeral had only been received that day and the only possible way to support he escort would be to lockdown portions of the detainee population in order to ensure that staff would be removed from a post and reassigned to the escort
· It was agreed that the escort could not be accomplished due to the short notice and current staffing obligations
105․In cross-examination, the second defendant distanced himself from the contents of that letter (which he signed), saying that it was prepared for him and did not reflect his personal deliberations. Unfortunately, he missed that there was no mention of the security risk assessment when he signed the letter, although the reference to staffing concerns did relate to the security concerns of staff in accompanying the plaintiff.
106․In affidavit and oral evidence, the second defendant expanded quite substantially on all the matters that apparently were taken into account in making the decision during the short phone call. He said that he considered:
(a)The relationship between the detainee and the deceased;
(b)The impact on the individual detainee – as this was a question of decency;
(c)In relation to Indigenous detainees, that there were wider notions of kinship and he recognised that family ties were much broader;
(d)His practice of approving applications where there was a kinship relationship subject to considerations of community safety or it being operationally impossible to facilitate the detainee attending the funeral;
(e)The public and community safety, which was always a priority consideration and involved consideration of the safety of the public, the detainee and the staff escorting the detainee, including not only the corrections officers but any ILO accompanying the escort;
(f)The detainee’s recent history of behaviour at the AMC as a predictor of the detainee’s behaviour when attending a funeral, which included violent conduct, threats and abusive behaviour towards staff and a failure to comply with directions;
(g)Advice from either the General Manager or Deputy Commissioner in relation to the running and good order of the AMC as to the impact of the approval of the leave, and a recommendation as to whether or not they thought that the leave should be approved.
107․In relation to the advice he received, the second defendant further explained that, as part of his reasoning process, he did not always accept that advice. He would weigh the impact of the operations of the AMC with that of cultural considerations, particularly kinship considerations for Indigenous detainees, and the threat to community, good order and security of the AMC. He stated that as Commissioner, he was in a position to take a broader consideration of the application beyond the direct impact of the request on the operations of the prison.
108․The carefully crafted and comprehensive reasons were set out in an affidavit prepared for the purpose of litigation (and confirmed in oral evidence), in circumstances where the second defendant knew the decision was the subject of scrutiny, and with full access to all the documentary records as to the plaintiff’s history and what had transpired in the lead up to the decision. They are all matters that a prudent decision maker would factor into any decision being made about an application by an Aboriginal detainee on remand for funeral leave, if that decision were being made in an ideal world with access to that full suite of information, and without any urgency or competing demands on time.
109․However, I do not accept that all those matters were in fact considered and weighed by the second defendant at the time he made the decision to refuse the plaintiff’s application for funeral leave in the brief phone call regarding the issue. The second defendant was a highly experienced decision-maker, and I accept that part of his experience included a general awareness and understanding about all those matters. Even so, it is one thing to know the matters that should be considered, and another to intellectually engage with the matters that ought to bear upon the decision in the heat of the moment when an urgent decision is being made over the telephone. His evidence was wishful thinking in that regard.
110․I consider that the more persuasive evidence as to the material reasons for the refusal is what was communicated to the plaintiff and to the Discrimination Commissioner at a time more proximate to the event in question.
A concern arises about the plaintiff’s intention to self-harm
111․The plaintiff was told by ILO 2 that her request for funeral leave had been refused at approximately 4:15pm. Her reaction to that news was not good. It suffices to state that she was crying, swearing and threatening self-harm by cutting her pacemaker out with a razor. One CO employed by the AMC completed a ‘Referral for An ‘At Risk’ Assessment’ Form. Another CO attended the plaintiff’s cell to observe the plaintiff (observing officer) and his evidence was that he attempted to deescalate her distress. An ILO visited the plaintiff’s cell, but she refused to speak with them.
112․During that time, the observing officer saw the plaintiff place a hand with toilet paper down her pants to her crotch area. The plaintiff was menstruating and attempting to attend to that without discussion with the male CO. However, in the context of the threats of self-harm that were occurring at the time, the officer did not appreciate that was a possible explanation for the conduct and instead became concerned that the plaintiff had secreted a razor blade (hence the need to wrap it in toilet paper).
113․Following the referral for an ‘At Risk’ assessment, Forensic Mental Health considered that it was in the plaintiff’s interests for her to be transferred to the CSU. An interim risk management plan was prepared at 5.50pm. The notes stated:
Client highly upset as not able to attend funeral, refusing to talk to mental health, threatening to pull out pacemaker.
114․The plaintiff refused to be transferred. She appeared exhausted. It is at that point that the third defendant was informed that the plaintiff refused to move to the CSU. She considered that the use of force may be necessary to move the plaintiff from the Special Care Centre (SCC) which was being used to accommodate women detainees to the CSU.
115․Around 6pm, the third defendant telephoned a doctor who was a visiting medical officer at the AMC (the VMO) prior to him leaving for the day. She discussed the plaintiff’s threats of self-harm, and the doctor agreed that given her distress, she would be safer, better monitored and better supported at the CSU.
116․The doctor was asked about the plaintiff’s physical condition and whether a pacemaker could be dislodged or damaged if force was used when she was moved. The third defendant initially gave evidence that she told the VMO that a use of force might be needed to extract the plaintiff from the SCC cell and take her to the CSU. She subsequently believed that she did not tell the doctor the reason for the use of force. I have rejected that later evidence as it was inconsistent with the doctor’s clear recollection and it was also inconsistent with the third defendant’s contemporaneous report (extracted below).
117․The VMO explained that pacemakers are usually removed surgically by specialists when required but are otherwise secure unless there is trauma to the pacemaker site, which should be avoided. There was some suggestion that there were questions about whether a razor could be used to cut out a pacemaker. The VMO did not recall that question being asked and I do not accept that was a topic of discussion between the third defendant and the doctor.
118․The plaintiff subsequently agreed to move from the SCC to the CSU shortly after 6pm without the use of force. As she was walking to the CSU (or when she arrived), she was told that she would need to undergo a strip search because she had threatened self-harm. Her response was to the effect that she would refuse to participate in that procedure.
The treatment of the plaintiff at the CSU
119․The plaintiff was assisted onto the cell bed by the CSU Supervisor and the observing officer. The plaintiff stated that she was very tired and wished to sleep.
120․The observing officer told the plaintiff that a strip search was required (which was his belief) but the plaintiff did not respond. The officer gave the plaintiff the option of the strip search occurring in the bathroom, to have a shower and pass the clothes to the female correctional officers conducting the search. The plaintiff declined to cooperate with the strip search when requested.
121․The observing officer and the CSU Supervisor then left. The observing officer spoke to the third defendant and made her aware that the plaintiff had refused a strip search. The observing officer also told her that he had seen the plaintiff put her hand down into her crotch and that she had possibly placed a weapon down her pants (being a razor blade).
A decision to use force to facilitate a strip search is made
122․Upon receiving the information that the detainee had threatened self-harm, had refused to participate in a strip search upon entry to the CSU (which she believed at the time was a mandatory procedure), was refusing to engage with the mental health team and the observing officer’s concern about a concealed razor blade, the third defendant (as the “Officer in Charge”) decided upon a course of action that involved the use of force to conduct a strip search, described as a non-compliant strip search, in the plaintiff’s cell in the CSU.
123․As to the third defendant’s belief that a strip search was mandatory, any such belief she had arose under the Corrections Management (Management of At-Risk Detainees) Policy 2019 (At-Risk Policy). That policy is discussed at [226]-[272] below as part of the limits informing the content of the plaintiff’s human rights at this point.
124․The following is what the third defendant wrote in an Incident Report Form on 11 January 2021 reporting what occurred. Because of its evidentiary importance, it is appropriate to extract the full account up to the point of decision:
On Monday 12th January 2021 I was rostered on duty as Operations Area Manager [from] 0730-1930 hours and [wish] to report the following:
14Commission’s functions
(1)The commission has the following functions:
(a)encouraging the resolution of complaints made under this Act, and assisting in their resolution, by providing an independent, fair and accessible process for resolving the complaints;
...
(d)identifying, inquiring into and reviewing issues relating to the matters that may be complained about under this Act;
(e)exercising any other function given to the commission under this Act or another Territory law.
…
430․Section 15 of the HRC Act states:
15Functions and human rights
The commission must act in accordance with the human rights under the Human Rights Act 2004 when exercising a function under this Act or a related Act.
431․Section 42 of the HRC Act specifies what complaints may be made under the HRC Act to the HR Commission. Relevantly, the section includes complaints about unlawful acts under the Discrimination Act 1991 (ACT). Such a complaint was made by the plaintiff to the HR Commission.
432․Section 45 of the HRC Act, as in force at the time of the incidents and the second defendant’s engagement with the HR Commission, set out the HR Commission’s obligations. They included (emphasis added):
45Commission’s obligation to be prompt and efficient
(1)The commission must deal with complaints promptly and efficiently.
(2)In particular, the commission must—
…
(c) unless subsection (4) applies—before considering the complaint, tell the complainant and the person complained about, in writing, that the complaint is to be considered; and
…
(4)Also, the commission need not give notice under subsection (2) to the person complained of if, because of subsection (3), it decides—
(a)not to consider the complaint; or
(b)not to consider the complaint further.
433․The significance of the emphasised words is that this is what the plaintiff and the Intervenor argued occurred with respect to the correspondence under consideration here – the HR Commission sent a notification of complaint letter under s 45(2) of the HRC Act (now s 45(3)) to the second defendant and invited a response “before considering the complaint”. The questions that were asked were by way of preliminary enquiry prefatory to considering the complaint, although not pursuant to the express power which was inserted as the new s 45(2) (as that provision did not exist at the time the request letter was sent).
434․The Justice and Community Safety Legislation Amendment Act 2025 (ACT) (which came into force on 27 February 2025) amended s 45 of the HRC Act. Among other things, the following was inserted:
(2) Without limiting subsection (1), the commission may make any preliminary inquiry it considers necessary and appropriate to decide how to deal with a complaint.
435․The HR Commission deals with complaints in accordance with div 4.2 of the HRC Act. Section 47 of the Act provides that:
(1)This division sets out how the commission deals with the complaints it receives.
(2)In summary, complaints may, but need not, go through the following steps:
(a)allocation;
(b)consideration;
(c)conciliation;
(d)closure;
(e)reporting.
(3)Complaints need not go through the steps mentioned in subsection (2) in the order they appear in that subsection.
…
436․For the “consideration” step, under div 4.4, and specifically s 72 of the HRC Act:
A consideration in relation to a complaint must be conducted in the way the commission decides, unless otherwise expressly provided by this Act.
437․The language used in this section provides the Commission with a broad power as to procedure when considering complaints.
438․Section 73 of the HRC Act grants the HR Commission power to ask for information, documents and other things and is extracted below (emphasis added):
73Power to ask for information, documents and other things
(1)This section applies if the commission believes, on reasonable grounds, that a person can provide information or produce a document or something else relevant to a consideration in relation to a complaint.
(2)The commission may, by written notice given to the person, require the person to provide the information or produce the document or other thing.
(3)The notice must state how, and the time within which, the person must comply with the requirement.
(4)A person commits an offence if—
(a)the person is required by a notice under this section to provide information to the commission for a consideration in relation to a complaint; and
(b)the person is not the complainant or the aggrieved person for the complaint; and
(c) the person fails to provide the information to the commission as required.
...
439․The remainder of the section provides for further offences and exceptions and non-compliance with notices issued under s 73(2). That is important because it demonstrates that s 73 is a coercive power, backed by the threat of sanction.
440․It is only in circumstances where a notice is sent pursuant to s 73(2) of the HRC Act that the statutory privilege contained in s 75 of the HRC Act applies. Section 75 is in the following terms (italics added):
75Privileges against self-incrimination and exposure to civil penalty
(1)This section applies if a person is required by a notice under section 73 to provide information or produce a document or other thing.
(2)This section also applies if—
(a)a person is attending before an interviewer in accordance with a requirement under section 74; and
(b)the interviewer requires the person to answer a question.
(3)However, this section does not apply to a person mentioned in subsection (1) or (2) if the information, document or other thing to be produced, or question asked, relates to a consideration of a complaint under division 5.3 (Health care worker code of conduct).
(4)The person cannot rely on the common law privileges against self‑incrimination and exposure to the imposition of a civil penalty to refuse to provide the information, produce the document or other thing or answer the question.
Note The Legislation Act, s 171 deals with client legal privilege.
(5)However, any information, document or other thing obtained, directly or indirectly, because of providing the information, the producing of the document or other thing, or the answering of the question is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for—
(a)an offence against this part; or
(b)any other offence in relation to the falsity of the information, document, other thing or answer.
441․The italicised words are those that were inserted by the Amendment Act and indicate how the privilege in s 75(4) became s 75(5) in its current form, without any change to the substance of the provision.
442․The opening words of the provision make it clear that the section only operates if the person is required to produce information.
443․The above statutory framework thus provides for the HR Commission to determine the appropriate process for dealing with a complaint. It requires the HR Commission to notify the person who is the subject of the complaint. It permits the HR Commission flexibility as to how to obtain information.
Other legislation providing context
444․The defendants also relied on s 222 of the Corrections Act as being context relevant to the investigative powers being construed under the HRC Act. That section is in the following terms (with emphasis added in s 222(3)(b)):
222Confidentiality
(1)In this section:
corresponding corrections law means a law of a State or another Territory declared to be a corresponding corrections law under section 225.
court includes a tribunal.
Note A tribunal includes any entity authorised to hear, receive and examine evidence (see Legislation Act, dict, pt 1).
divulge includes communicate.
person to whom this section applies means a person who—
(a)exercises, or has exercised, a function under this Act; or
(b)is, or has been, otherwise involved in the administration of this Act.
produce includes allow access to.
protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of—
(a)the exercise of a function under this Act by the person or someone else; or
(b)the involvement of the person, or someone else, in the administration of this Act.
(2)A person to whom this section applies commits an offence—
(a)if the person—
(i) makes a record of protected information about someone else; and
(ii) is reckless about whether the information is protected information about someone else; or
(b)if the person does something that divulges protected information about someone else and is reckless about whether—
(i) the information is protected information about someone else; and
(ii) doing the thing would result in the information being divulged to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(3)Subsection (2) does not apply if the record is made, or the information is divulged, by the person as follows:
(a)under this Act or another territory law;
(b)in relation to the exercise of a function under this Act or another territory law;
(c)for the Crimes (Sentencing) Act 2005, section 136 (Information exchanges between criminal justice entities);
(d)to a person exercising a function under, or otherwise involved in the administration of, a corresponding corrections law;
(e)to a law enforcement agency;
Note is defined in the dictionary.
(f)to an entity prescribed by regulation;
(g)otherwise in relation to the administration of this Act or another territory law.
(4)Subsection (2) does not apply to the divulging of protected information about someone—
(a)with the person’s consent; or
(b)if authorised by the director-general under subsection (5); or
(c)if the information only tells someone of the place where a detainee is held in detention; or
(d)if the information is disclosed under a regulation.
(5)The director-general may, in writing, authorise the divulging of protected information about a person if the director-general believes, on reasonable grounds, that divulging the information is—
(a) necessary to protect someone whose life or safety is in danger; or
(b) otherwise in the public interest.
445․Information about what occurred to the plaintiff in this case in relation to her unsuccessful request for funeral leave and the strip search falls plainly within the definition of “protected information” and the confidentiality provisions apply. The emphasis in s 222(3)(b) is to draw attention to an exception featuring in the statutory construction exercise that follows.
Parties’ submissions
Defendants’ submissions
446․The defendants submitted that the legislation and the power of the HR Commission to obtain information must be construed in the context of the scheme of laws that protect privacy of information, including any relevant privacy principles pursuant to s 12 of the Human Rights Act and s 222 of the Corrections Act. To divulge information such as that contained in the response letter voluntarily would incur a liability. As a result, the information must be divulged only through the compulsory process provided for by s 73 of the HRC Act, so as to obtain the protection pursuant to s 75 of the HRC Act.
447․The defendants relied upon a number of indicia supporting that construction:
(a)The HR Commission is given coercive powers, to request documents under s 73 and to require attendance under s 74.
(b)There are no other express provisions empowering the HR Commission to request information or documents for the purposes of considering a complaint.
(c)Section 75 expressly abrogates a fundamental right, being the privilege against self-incrimination. The carve out in s 75(4) (before the Amendment Act) is an exception to that.
(d)That the statutory scheme confines the HR Commission’s power to obtaining documents and information by coercion is consistent with the broader statutory obligations of confidentiality, as seen in s 222 of the Corrections Act, and supports the protection of the right to privacy under the Human Rights Act.
448․The defendants accepted that the contents of the letter here did not expressly state that it was a notice issued pursuant to s 73 and it uses language that invites a person to respond rather than requiring a person to respond. They argued that even if that was a technical deficiency, the response was still a request for documents and could only have been issued pursuant to s 73. It cannot be the case that a person who responds to a request for information that is bad in form loses the protection of the immunity provided by s 75(4) (before the Amendment Act) purely because of that defect or ambiguity in the notice.
449․The defendants argued that explicit reference was made in the notice to s 73, which supported an interpretation of the letter being one where coercive power to require the production of information and documents was being exercised.
Plaintiff’s and Intervenor’s submissions
450․It is convenient to deal with the positions of the plaintiff and the Intervenor together as they arrived at the same construction of the HRC Act and conclusion. The material submissions were:
(a)Sections 45 and 72 of the HRC Act, properly construed, were sufficient to give the HR Commission a broad power to inform itself however it wishes. This includes sending an initial invitation to respond to a complaint or by exercising coercive powers under ss 73 and 74.
(b)That construction is not affected by the statutory right to privacy and statutory obligations of confidentiality such as that provided by s 222 of the Corrections Act. Section 222(3)(b) of the Corrections Act provides a relevant exception which covers the present circumstances.
(c)The construction for which the defendants contended would mean that every initial communication from the HR Commission notifying a person of a complaint and requesting a response would be construed as the exercise of a coercive power to obtain information. That is not the proper construction of the requirement to notify a respondent of a complaint under s 45(3)(c) of the HRC Act.
451․The plaintiff and the Intervenor argued that the request letter was sent at the start of the conciliation process. It was sent pursuant to the power under s 72 of the HRC Act, giving the HR Commission the power to control the manner in which it considered complaints in the exercise of the function under s 14(1)(a) of encouraging their resolution.
452․The terms of the request letter make it clear it is an invitation to respond to the complaint, not a notice sent under s 73. There is nothing in the nature of compulsion in the request letter, and this is evident from the final paragraph that notes (but does not invoke) the coercive power available.
453․If the purpose of the letter was to invoke the coercive power under s 73, it was so deficient in form as to fail to achieve that intention.
454․Insofar as s 222 of the Corrections Act is engaged in its application to the factual circumstances here, s 222(3)(b) applies as a clear exception to the confidentiality obligation. Any divulging of information in response to a non-coercive request by the HR Commission in considering a complaint is one that relates to “the exercise of a function under another territory law”. That is because the functions of the HR Commission include inquiring into and encouraging the resolution of complaints: see s 14 of the HRC Act set out at [429] above.
Ruling – the response letter was admissible
455․I ruled that the letter was admissible, accepting the submissions of the plaintiff and the Intervenor that I considered to be material to the question of construction and have summarised above. Applying the same principles of statutory construction as those set out at [162]-[163] above, I determined first, that there was an implied power to obtain information through invitation and not exclusively by the exercise of coercive power; and second, that such a power was exercised in the circumstances of this case.
456․The words of s 45 of the HRC Act require the commission to deal with complaints “promptly and efficiently” and notify a respondent to the complaint of the fact that a complaint has been made. Section 72 facilitates that mandate, permitting the HR Commission to consider the complaint “in the way the commission decides”
457․These sections should be construed as permitting the seeking of information by invitation if that is the way the HR Commission decides will best further its prompt and efficient mandate. They do not expressly exclude non-coercive requests for information and the purpose of the Act as a whole is best promoted by such a construction.
458․In terms of the notification requirement in s 45, the purpose of notifying the respondent is plainly one of procedural fairness; that is, to enable the person a fair opportunity to be heard on the issues. The statutory context supporting that construction is that the HR Commission’s functions, which include encouraging the resolution of complaints and providing “a fair” and accessible process for resolution of complaints: s 14 of the HRC Act. They also include identifying, inquiring into and reviewing issues relating to those complaints.
459․Without going into yet another area of legal discourse on the question of procedural fairness, it is shaped by the words of the statute in which the obligation arises. Here, a fair process would include making the respondent to a complaint aware of the issues identified by the HR Commission as arising for consideration of the complaint and giving the respondent the opportunity to comment or make submissions or otherwise respond. Although such an opportunity may be given later in the process of consideration, the process is expressly flexible by virtue of s 72. There is nothing in the HRC Act to prevent the HR Commission from giving the person the opportunity to provide information as part of carrying out its statutory obligation of notification. Indeed, it is more efficient to send one letter rather than two.
460․Given the prompt, efficient, flexible and fair process that is woven into the statutory fabric of the HRC Act, there was no basis for construing the exercise of that the HR Commission’s power to be one of coercive investigative powers only, even taking into account the broader statutory context of the HRC Act and the privacy considerations that extend to statutory obligations in other legislation.
461․I am fortified in that reading of the HRC Act by the amendments that were subsequently made. The context in which the preliminary inquiry power (now s 45(2), set out at [434] above) now sits includes the mandatory obligation to deal with complaints promptly and efficiently (s 45(1)) and the flexibility afforded in permitting the HR Commission to make the inquiries “it considers necessary and appropriate”.
462․As to the request letter itself, it was plainly not a letter issued pursuant to s 73 of the HRC Act. It was an initial letter of notification accompanied with an invitation to respond, backed by a thinly veiled threat that if the HR Commission were ignored, a compulsory notice was likely to follow.
463․As the response letter was not provided pursuant to a compulsory notice under s 73, the privilege under s 75(5) of the HRC Act did not apply. Accordingly, the response letter was admissible in the proceeding.
What relief follows from the findings of a breach of human rights?
464․As discussed in Islam (2018) at [73] and the cases there-cited, the determination of appropriate relief requires a balancing process guided by four objectives:
(a)Addressing the wrong occasioned by the contravention of the Human Rights Act that has been established;
(b)Deterring future violations;
(c)Making an order that can be complied with; and
(d)Ensuring fairness to all those who might be affected by the relief.
465․The Human Rights Act is directed to protecting human rights. Accordingly, where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end: see Islam (2018) at [71] and the cases there-cited.
466․Here, the conduct was isolated to a specific period that had passed. Accordingly, if a breach of the Human Rights Act was established, the only relief sought was the discretionary remedy of declaratory relief. Guidance on the exercise of the power to grant declaratory relief is provided by a number of established principles, which should not be elevated to rigid restraints on a discretionary decision of this nature. They are not controversial and have been set out in various ways in many different authorities. I have set them out again here primarily for the benefit of the plaintiff, who may be unfamiliar with the considerations that feed into the court’s discretion to grant the relief she sought.
467․First, the discretion to make a declaration is wide: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 9 per Gibbs J. Although it is neither possible nor desirable to fetter the discretion to grant declaratory relief by laying down rules as to the manner of its exercise, the discretion is to be exercised judicially: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.
468․Second, declaratory reliefshould be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts: Egan at [5]. In Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 the Full Court of the Federal Court said at [8]:
… The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. …
469․Third, there must be some utility in granting the declaration: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307.
470․Fourth, the court must be satisfied that the making of the declarations sought is appropriate, even where parties have jointly proposed the relief. Because a declaration is a judicial act, it ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412. Whether it will be appropriate to grant such relief depends upon the requirements of justice in the particular case: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470.
471․Consistent with those principles and applying Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438, declaratory relief may thus be refused where:
(a)The applicant does not have a real interest in the issue;
(b)The issue is not real but hypothetical or theoretical (see also Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448);
(c)The relief would fail to resolve the issues between the parties; or
(d)There is no proper contradictor.
472․The difference between a “real” or “theoretical” issue was discussed in Martin v Taylor [2000] FCA 1002 at [27]. What constitutes a proper contradictor was discussed in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 at [14]-[16]. Neither of those matters are in issue here.
473․Fifth, save in the case of a representative action (not this case), a declaration binds only the parties to the proceeding: see Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 at 133-134. Ordinarily, a court will not make a declaration that certain rights or obligations exist, or do not exist, without the persons whose rights or obligations are in question being a party to the proceedings: Kunstler v Kunstler [1969] 1 WLR 1506 at 1509; and The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 at 392.
474․Here, it is appropriate to grant declaratory relief for the following reasons:
(a)The plaintiff does not have another remedy.
(b)Past infringements of human rights may give rise to declaratory relief even without other legal consequences: Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 at [21].
(c)In the context where the limits on the Human Rights Act involve a discretionary exercise of public power, under a provision that authorises officers to impose detrimental consequences on a class of person who are generally not well-equipped to look after their own interests, the court should be slow to allow actions taken in excess of power to pass without comment or consequence, such that a broad approach to the availability of declaratory relief should be taken: Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 (Islam (2022)) at [67].
(d)Even if practices may have changed in the intervening period, there remains a public interest in defining and publicising the type of conduct that constitutes a contravention: see Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 at [95], cited in a human rights context in Islam (2022) at [64], which was in turn cited in Zurich Australian Insurance Limited v CIMIC Group Limited & Ors [2024] NSWCA 229; 115 NSWLR 297 at [588].
(e)At the very least, a declaration is appropriate to signify the court’s disapproval of the relevant conduct: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105; 41 FCR 89 at 100, cited in Islam (2022) at [64].
475․The real question is who the declaration ought to bind. In my view, for reasons expressed at [19]-[25] above, the declaration should be made against the Territory in lieu of the second and third defendants.
Costs
476․The plaintiff has succeeded in her statutory claim. Applying the guiding principle in the exercise of the court’s discretion, she is entitled to her costs. It is appropriate that such an order be made, subject to first ensuring that the declaratory relief is granted against the appropriate party (with the appropriate costs liability attaching to the party), and to any party making an application for a different costs order within seven days of the publication of these reasons.
Conclusion and Orders
477․I cannot leave this case without observing that this was a very challenging plaintiff, personally facing difficult circumstances. This created a confluence of policy and management issues at the AMC that escalated to a crisis point. The law, and the courts who implement it with the tacit reflection of community expectation, do not require perfection from those entrusted with the management of detainees. That is recognised in the severity considerations when evaluating conduct through the prism of protecting human rights. I have found that the circumstances of this case brought about conduct that was unlawful under the Human Rights Act. However, it cannot be extrapolated from these findings alone that the policies and procedures at the AMC in managing risk, security, logistics and challenging situations are deficient in protecting human rights for members of the community who are detained, nor that the corrections officers systemically disregard the human rights of detainees. If there is anything to take away from the conduct that occurred, it is that those who are applying the policies and their requirements daily need all the support they can get from those who lead them, the detainees they manage and the community they protect.
478․For the above reasons, the plaintiff is entitled to the following declaratory relief:
(a)A declaration that the use of force on the plaintiff on 11 January 2021 was incompatible with the plaintiff’s human rights under ss 19(1) and 19(3) of the Human Rights Act;
(b)A declaration that the attempted strip search of the plaintiff in the cell at the Crisis Support Unit (CSU) on 11 January 2021 was conduct incompatible with:
1․ the plaintiff’s rights to humane and appropriate treatment while deprived of liberty on remand, under ss 19(1) and 19(3) of the Human Rights Act,
2․ the plaintiff’s right to privacy under s 12 of the Human Rights Act, and
3․ the plaintiff’s right to protection from degrading treatment under s 10 of the Human Rights Act; and
(c)A declaration that the conduct of a strip search in the bathroom at the CSU on 11 January 2021 was conduct incompatible with:
1․ the plaintiff’s right to humane and appropriate treatment while deprived of liberty on remand, under ss 19(1) and 19(3) of the Human Rights Act, and
2․ the plaintiff’s right to privacy under s 12 of the Human Rights Act.
479․As the final orders are subject to the potential substitution of the Territory as a party to the proceeding in lieu of the second and third defendants, I will make the following order:
(1)The parties are directed to bring in short minutes of order giving effect to these reasons within seven days.
| I certify that the preceding four hundred and seventy-nine [479] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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