presumption against bail where accused charged with attempted murder –
applicant
must show special or exceptional circumstances favouring the grant of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – Bail – Statutory presumptions –presumption against bail where accused charged with attempted murder –applicantmust show special or exceptional circumstances favouring the grant ofbail – circumstances must be unusual or uncommon –inordinate delaymay be special or exceptional – delay needs to be shown to be inordinate,not simply quantified – Bail Act 1992 (ACT), s 9CHUMAN RIGHTS – Whether special or exceptional circumstancesrequirement for bail applicants charged with attempted murder is compatible withHuman Rights Act 2004 (ACT), s 18(5).HUMAN RIGHTS – Requirement that Territory laws be interpretedin a way compatible with human rights is not a “special”interpretationrule and does not permit remedial interpretation – HumanRights Act 2004 (ACT), s 30.HUMAN RIGHTS – Requirement that Territory laws be interpretedin a way compatible with human rights – Interaction with requirementtointerpret Territory laws to give effect to legislative purpose –
determination of whether inconsistency with human rights
can be justified
– whether interpretation or justification should be attempted first
– Human Rights Act 2004 (ACT), ss 28, 30
Legislation Act
2001 (ACT), s 139.
STATUTORY INTERPRETATION – Requirement to prefer
interpretation that best achieves legislative purpose – identification of
relevant legislative
purpose – Legislation Act 2001 (ACT), s 139.
Judgment (472 paragraphs)
[1]
In the matter of an application for bail by Isa Islam [2010] ACTSC 147 (19 November 2010)
[2]
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
[3]
In the matter of an application for bail by Isa Islam
CRIMINAL LAW - Bail - Statutory presumptions - presumption against bail where accused charged with attempted murder - applicant must show special or exceptional circumstances favouring the grant of bail - circumstances must be unusual or uncommon - inordinate delay may be special or exceptional - delay needs to be shown to be inordinate, not simply quantified - Bail Act 1992 (ACT), s 9C
[6]
HUMAN RIGHTS - Whether special or exceptional circumstances requirement for bail applicants charged with attempted murder is compatible with Human Rights Act 2004 (ACT), s 18(5).
[7]
HUMAN RIGHTS - Requirement that Territory laws be interpreted in a way compatible with human rights is not a "special" interpretation rule and does not permit remedial interpretation - Human Rights Act 2004 (ACT), s 30.
[8]
HUMAN RIGHTS - Requirement that Territory laws be interpreted in a way compatible with human rights - Interaction with requirement to interpret Territory laws to give effect to legislative purpose - determination of whether inconsistency with human rights can be justified - whether interpretation or justification should be attempted first - Human Rights Act 2004 (ACT), ss 28, 30; Legislation Act 2001 (ACT), s 139.
[9]
STATUTORY INTERPRETATION - Requirement to prefer interpretation that best achieves legislative purpose - identification of relevant legislative purpose - Legislation Act 2001 (ACT), s 139.
European Convention for the Protection of Human Rights and Fundamental Freedoms. Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
International Covenant on Civil and Political Rights. Opened for signature 19 December 1966. 999 UNTS 1716 ILM 386 (entered into force 23 March 1976), Art 9(3)
[90]
Jack Dearden and Warwick Jones, 'Homicide in Australia: 2006-2007 National Homicide Monitoring Program annual report' (Monitoring Report No 1, Australian Institute of Criminology, January 2009)
[91]
UK Law Commission Report, Bail and the Human Rights Act 1998, Report No 269 (2001)
[92]
(2) Under s 32(2) of the Human Rights Act 2004 (ACT), the Court is satisfied, for the reasons set out in In the Matter of an Application for Bail by Isa Islam[2010] ACTSC 147, that s 9C of the Bail Act 1992 (ACT) is not consistent with the human right recognised in s 18(5) of the Human Rights Act, being that "Anyone who is awaiting trial must not be detained in custody as a general rule".
[93]
1․ This judgment sets out my reasons for refusing a bail application made by Isa Islam, who has been charged with attempted murder. It also contains a declaration that s 9C of the Bail Act 1992 (ACT) (which applies to bail applications by people charged with murder, attempted murder, and several other ACT offences carrying maximum penalties of life imprisonment) is inconsistent with the human right recognised in s 18(5) of the Human Rights Act 2004 (ACT) that "Anyone who is awaiting trial must not be detained in custody as a general rule". The declaration has no effect on the operation of s 9C, which continues to operate in accordance with previous interpretations of that provision. The declaration will be brought to the attention of the Attorney-General, who will be obliged to present it to the Legislative Assembly and, at a later date, to present to the Legislative Assembly a written response to the declaration. Any change to the Bail Act will be a matter for the Legislative Assembly.
2․ In the course of this judgment, I have concluded:
[94]
(a) that s 30 of the Human Rights Act 2004 is an "ordinary" interpretation provision rather than a "special" provision or one providing for remedial interpretation (at [126․] below);
(b) that s 30 should be applied as part of the ordinary process of statutory interpretation, in conjunction with s 139 of the Legislation Act 2001 (ACT) and any other applicable common law or statutory principles of interpretation (at [232․] to [235․] below);
(c) that the ordinary processes of statutory interpretation, including s 30, should be applied in the interpretation of a provision of ACT legislation, with the aim of finding a meaning for a provision that is both human rights-compatible and consistent with purpose, before any attempt is made under s 28 of the Human Rights Act to justify a meaning for the provision that is incompatible with human rights (at [232․] to [235․] below);
(d) that the steps by which those processes are undertaken should be as set out at [236․] below;
[95]
3․ Mr Islam applied for bail on 21 May 2010. His application was adjourned several times to allow proper consideration of the issues raised in his bail application. On 13 August 2010 I refused his application on the ground that no special or exceptional circumstance favouring the granting of bail had been identified and that s 9C of the Bail Act accordingly precluded me from considering whether bail could properly be granted in accordance with s 22 of that Act. In dealing with Mr Islam's application I indicated that, because of the nature and significance of some of the issues that had been raised in the application, I would provide written reasons for my decision. These are those reasons.
[96]
4․ Mr Islam was arrested on 4 July 2009 and charged initially with three offences, being intentionally inflict grievous bodily harm, assault occasioning actual bodily harm, and intentionally and unlawfully using an offensive weapon likely to endanger human life. The indictment dated 10 December 2009, however, added a charge of attempted murder. Mr Islam has been in custody since his arrest in July 2009, and is currently held in the Alexander Maconochie Centre.
[97]
5․ Mr Islam has not previously applied for bail, but bail was formally refused at his initial appearances in the Magistrates Court. Because there had been no previous application for bail, Mr Islam was not affected by the requirement in s 19(5) of the Bail Act to establish a change in circumstances, or the availability of fresh evidence or information, before his application could be heard.
[98]
Need to show special or exceptional circumstances
[99]
6․ Because he has been charged with attempted murder, Mr Islam's application is subject to the presumption against bail set out in s 9C of the Bail Act (set out in Appendix A to this judgment). To rebut that presumption he is required to show that there are special or exceptional circumstances favouring the granting of bail. The test of "special or exceptional circumstances" for bail applications has been interpreted as requiring the court to find circumstances affecting the applicant that are in some way unusual or uncommon (see In the matter of an application for bail by RebeccaMassey[2008] ACTSC 145 (Massey [No. 1]) at [7] and [8], and In the matter of an application for bail by Timothy Noel Allen[2009] ACTSC 64 (Allen) at [9] and [10]).
7․ In Allen, I made the following comments about delay as a special or exceptional circumstance:
[100]
29. There are two possible meanings for "delay" in this context, and the distinction is not always clearly drawn. In normal use, "delay" generally has a negative connotation, conveying the impression of time lost beyond the time ordinarily required for an activity.
>
> ...
>
> 31. However, in this context, "delay" sometimes seems to be used to refer simply to the period that will in the normal course of events elapse between the bail applicant's arrest and his or her trial. In one sense, whether the word "delay" is used according to a dictionary meaning does not matter - what matters is whether the timeframes for which "delay" is used as shorthand can amount to special or exceptional circumstances. However, if "delay", a word with generally negative connotations, is routinely accepted as a synonym for "elapsed time", there is a risk that potential elapsed time will be treated as a special or exceptional circumstance when there is nothing special or exceptional about it, and so as to nullify the clear legislative intention that a grant of bail in certain categories of cases should not be the norm.
[101]
8․ The only matter relied on by Mr Islam to establish special or exceptional circumstances was what counsel described as the delay in bringing him to trial. At the point when this application was made, Mr Islam had been in custody for 10 months. His trial had been tentatively set down for two weeks in June 2011, which would have been 23 months after he was charged. Before the hearing of the application concluded, Mr Islam's trial was rescheduled to start in November 2010 as a result of the appointment of Acting Judges to the ACT Supreme Court.
9․ However, even before the trial was rescheduled, the only submission made in relation to the existence of special or exceptional circumstances favouring the grant of bail was that the 10 months that Mr Islam had already been in custody was too long and that the 23 months that would elapse between his arrest and the date originally set down for his trial was far too long. No effort was made to bring the case within the concept of inordinate delay referred to in Allen and In the matter of an application for bail by Rebecca Massey [No. 2][2009] ACTSC 70 (Massey [No 2]). There was no argument that the delays affecting criminal trial listings in the ACT Supreme Court affected Mr Islam in any unusual way. Nor was any attempt made to establish that the delays generally affecting remand prisoners or any sub-class of them were inordinate so as to amount to special or exceptional circumstances for all such prisoners.
11․ Instead, in reliance on the Human Rights Act, counsel for Mr Islam mounted a challenge to the operation of s 9C of the Bail Act.
12․ Where in a proceeding in the Supreme Court a question arises involving the application of the Human Rights Act, and the Territory is not a party to the proceeding, notice of the proceeding must generally be given to the Attorney-General and the Human Rights Commission (Human Rights Act,s 34). Rather than arguing about whether the Director of Public Prosecutions (DPP) represents the Territory for this purpose, the applicant gave notice to the Attorney-General and to the Human Rights Commission.
13․ The Attorney-General intervened in the application, and was represented by counsel who provided detailed and helpful written and oral submissions. The Human Rights Commissioner, participating in the hearing as amicus curiae, provided written submissions and indicated a willingness to appear at the hearing if required. The Human Rights Commissioner's submissions provided information about previous consideration in the ACT and elsewhere of the issues that would arise in determining the challenge, without suggesting any particular approach to any of those issues, and did not address Mr Islam's bail application as such; neither I nor any party saw a need to seek oral submissions from the Commissioner.
[104]
14․ The applicant's argument can be summarised as follows:
[105]
(a) Section 9C of the Bail Act on its face conflicts with s 18(5) of the Human Rights Act, because of the requirement to show special or exceptional circumstances for bail applicants covered by s 9C. Section 22 of the Bail Act specifies rational criteria for a decision whether to grant bail, but s 9C, read with s 9G of the Bail Act, specifies a threshold to be met before those rational criteria can be considered.
(b) The conflict with s 18(5) arises because the effect of s 9C is to create a "general rule" that the class of accused persons covered by s 9C are to be held in custody.
(c) Section 30 of the permits legislation to be read so as to be consistent with human rights, as long as that reading does not defeat the purpose of the legislation. That permission is not "defeated by the text" of the legislation, and "a human rights compliant construction would not be prevented by the text of the legislation, but only by a fundamental inconsistency with the purpose of the underlying legislation".
[106]
15․ Counsel for the applicant initially submitted also that s 9C had been impliedly repealed by the Human Rights Act, but later declined to press that submission because s 9C had been re-enacted since the Human Rights Act was enacted in 2004 (see Criminal Code (Serious Drug Offences) Amendment Act 2004 (ACT), Schedule 1, amendment [1.2]).
16․ Two fundamental issues concerning the operation of the Human Rights Act arose in this application, as follows:
[109]
(a) What is the process by which a court should consider a claim that a provision of a Territory law is inconsistent with human rights (the process question)?
(b) In considering a human rights-based challenge to a provision of a Territory law, what approach should the court take to interpreting the provision (the interpretation question)?
[110]
17․ It will be convenient to answer the interpretation question before considering the process question. Before considering either of these questions, however, it is necessary to make several general comments about the operation of the Human Rights Act, and about statutory interpretation, especially in the human rights context.
18․ The Human Rights Act, in Pt 3, sets out and recognises a series of human rights for individuals. The primary source of those rights is identified as the International Covenant on Civil and Political Rights (Opened for signature 19 December 1966. 999 UNTS 1716 ILM 386 (entered into force 23 March 1976)) (ICCPR). With one exception, each section in Pt 3 (ss 8 to 27) deals with a specific right or group of rights. The other section in that Part is s 28, which, importantly, permits human rights to be limited by Territory laws, but only to the extent of "reasonable limits ... that can be demonstrably justified in a free and democratic society" (s 28(1)).
19․ Part 4 explains what can be done with or about the human rights recognised in Pt 3. requires Territory laws to be interpreted in a way that is compatible with human rights. permits international law and the judgments of foreign and international courts and tribunals to be considered in interpreting human rights.
[113]
(c) section 40B(2) of the Human Rights Act, which excludes from the definition of "public authority" a court, except when the court is acting in an administrative capacity; and
(d) the proposition that deciding a bail application, when done by the Supreme Court is "a judicial act done in the exercise of judicial power" (Webster v South Australia[2003] SASC 347; (2003) 87 SASR 17 at [23], Doyle CJ at [23] in dissent, but not apparently in relation to this particular proposition).
[114]
24․ The interpretation question identified in [16․] above relates to the operation of s 30 of the Human Rights Act (the interpretation provision) and the process question also identified in [16․] above relates to the interaction between that section and s 28 of that Act (the justification provision).
[115]
25․ Counsel for the Attorney-General pointed out that the Human Rights Act permits, or even encourages, the consideration of relevant international law and the judgments of foreign and international courts and tribunals in the interpretation of human rights. She also emphasised, however, that any use of such material needed to be made very carefully and to take full account of the differences in the way human rights are described in different instruments and different jurisdictions, and also of the form and content of challenged provisions and their counterparts in other jurisdictions. As she said, while the comparative jurisprudence can be of assistance, ultimately the decision in this case is whether s 9C of the Bail Act of the ACT is compatible with s 18(5) of the Human Rights Act of the ACT. This is clearly correct, and must be kept well in mind particularly because, as will appear, there are some distinctive aspects of ACT legislation that may have real significance for the operation of the Human Rights Act, as well as for the help that can be obtained from previous consideration of roughly similar legislation by other courts. Even where the ACT legislation is not idiosyncratic but simply different from the "equivalent" legislation of other jurisdictions, it may produce quite different outcomes from those in other jurisdictions, especially when assessed against the ACT's particular recognition of the various human rights.
26․ This is a convenient point to note that the language of the is not itself particularly careful. requires Territory laws to be interpreted in a way that is "compatible" with human rights and provides for the making of a declaration of "incompatibility" but, for a reason that is not apparent to me, whether that declaration can be made depends on whether the Territory law is "consistent" with a human right. has its own drafting peculiarity, in that it permits reasonable "limits" on human rights but the reasonableness of a "limit" is to be considered having regard to various characteristics of the "limitation". Despite normal statutory interpretation principles, no argument was made, and I have not taken the view, that in either case the different words used were intended to mean different things.
[116]
Statutory interpretation and legislative purpose
[117]
27․ The argument in this case raised several issues relating to statutory interpretation, with a particular focus on legislative purpose and its role in interpretation. The following general comments set the context for the more specific and detailed discussion about these matters that will be required.
28․ The concept of legislative or statutory purpose is one that generates much discussion in certain contexts. Legislative purpose is sometimes treated as referring to the purpose of the legislature rather than the purpose of the legislation, giving rise to arguments about whether a legislature can have a single identifiable purpose, given that many members of a legislature may have voted against the legislation concerned, many of those who voted for it may not have read it, and among those who both read the legislation and voted for it there are probably a range of different views about what it means. A legislative system means that the legislature as an institution rather than a group of individuals has enacted the legislation. If it is necessary to think in terms of the purpose of the legislature rather than the purpose of the legislation, then the legislature must be taken to have had, in enacting legislation, the purpose that can be discerned from the legislation itself and the context in which it was enacted. That context extends to the relevant parliamentary debates and other explanatory material of various kinds, but it does not, in my view, extend to consideration of what individual legislators were thinking. A search for legislative purpose clearly permits consideration of more than just the text of the legislation, but it does not require what will clearly be a fruitless search for a common intention that all or the necessary majority of legislators both held and could have articulated in similar terms when the legislation was enacted. The suggestion that such a search is necessary, or that its inherent inability to provide an answer creates some kind of obstacle to sensible purposive statutory interpretation, is a distraction from a meaningful task that is engaged in effectively by courts and others on a regular basis. It may be that in many cases the expression "statutory purpose" is a less distracting and therefore preferable one.
29․ A comparison of several provisions requiring legislation to be interpreted by reference to human rights is central to the arguments in this case. The relevant provisions are set out in to this judgment; they are:
(c) s 6 of the New Zealand Bill of Rights Act 1990 (NZ) (the NZ Bill of Rights);
(d) s 3(1) of the Human Rights Act 1998 (UK) (the UK Human Rights Act).
[119]
30․ Provisions requiring legislation to be interpreted by reference to legislative purpose (purposive interpretation provisions) are also relevant, and the following provisions are set out in Appendix A:
31․ Some of the human rights-based interpretation provisions refer to legislative purpose as well as to human rights (eg s 30 of the Human Rights Act and s 32(1) of the Victorian Charter). Provisions for testing whether legislation that is incompatible with human rights is nevertheless justified may also refer to legislative purpose (eg s 28 of the Human Rights Act and s 7 of the Victorian Charter, which are also set out in Appendix A). The New Zealand provisions (ss 5 and 6 of the NZ Bill of Rights, also set out in Appendix A) make no reference to legislative purpose.
32․ Two different forms of provisions referring to legislative purpose can be identified; some provisions refer to the legislation's own purpose (eg s 30 of the Human Rights Act, s 139 of the Legislation Act and s 32 of the Victorian Charter) and some provisions distinguish between the purpose of a provision of an Act and the purpose of the Act (eg s 35 of the Victorian Interpretation Act and s 15AA of the Commonwealth Interpretation Act. This is a distinction that needs to be further explored.
[122]
33․ Section 139 of the Legislation Act, the ACT's basic purposive interpretation provision, refers to preferring the meaning of an Act that would best achieve the purpose of the Act. The combined effect of the definitions of "Act" and "provision" (respectively found in ss 7 and 16 of the Legislation Act) is that each of those references to "Act" may be a reference to "a provision of an Act" or even "any words or anything else that forms part of the Act".
34․ There is thus a question about s 139, which seems to have at least three possible meanings:
[123]
(d) it may require a provision of an Act to be interpreted having regard only to the purpose of that provision;
(e) it may require (or permit) regard to be had in interpreting a provision of an Act to the purpose of the Act or the purpose of any other specific component of the Act;
(f) it may require (or permit) all possible purposes to be taken into account in interpreting any provision or other part of an Act.
[124]
35․ Section 30 of the Human Rights Act requires "a Territory law" to be interpreted, so far as is possible, "consistently with its purpose". Like "Act", as mentioned in [33․] above and for similar reasons (ss 7 and 16 of the Legislation Act, together with the definitions of "Territory law" and "law, of the Territory" found in the Dictionary to that Act), "Territory law" may mean "a provision of an Act" or "any words or anything else that forms part of the Act". The question raised in [34․] above about which legislative purposes may be considered in interpreting a provision of an Act also arises in relation to interpreting a provision of a Territory law under s 30.
36․ Section 28 of the Human Rights Act has a slightly different operation, in that it is concerned with the purpose of a limitation sought to be justified under the section. It says that in deciding whether a limit on human rights is justified, the purpose of the limitation, the relationship between the limitation and its purpose, and whether there is any less restrictive means reasonably available to achieve the limitation's purpose, must all be considered. This provision does not appear to raise the uncertainty identified in relation to s 139 of the Legislation Act and s 30 of the Human Rights Act, but it raises another issue. The limitation in question may be a limitation on human rights that has been identified by the court as a result of a challenge, rather than something obvious on the face of the Act or necessarily intended by the legislature in the form in which it is identified by the court. This means that establishing the purpose of the limitation (as distinct from the purpose of the legislation that effects it) may in some cases be problematic.
[125]
15AA Regard to be had to purpose or object of Act
[126]
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
In the interpretation of a provision of an Act or subordinate instrument -
[129]
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
41․ The specific reference to interpreting a provision of an Act by reference to the purpose underlying the Act is a fairly clear indication that individual provisions are to be interpreted by reference to their broader context. This avoids the question raised at [34․] and [35․] above of whether a provision may be interpreted only by reference to its own purpose or also by reference to a purpose discerned from another legislative unit. Perhaps more importantly, it also eliminates the difficulty of trying to interpret a provision by reference to its own purpose, which cannot sensibly be discerned without at least some interpretation of the provision itself.
[131]
What is the significance of legislative purpose?
[132]
42․ Provisions in the form of s 15AA of the Commonwealth Interpretation Act and s 35(a) of the Victorian Interpretation Act (at [38․] and [39․] above), which might be described as orthodox purposive interpretation provisions, require a construction of a provision that promotes the purpose underlying the Act to be preferred to one that does not.
43․ Section 139 of the Legislation Act, however, again takes a different approach. It says nothing about the status of meanings that do not promote the legislative purpose (by inference, they are simply unavailable); instead, it requires adoption of the meaning that best achieves the legislative purpose. That is, unlike the orthodox purposive interpretation provisions, it does not just distinguish preferred meanings from other meanings but specifies exactly which meaning, determined by reference to legislative purpose, is to be adopted.
44․ Section 30 of the Human Rights Act gives a different significance to legislative purpose. Under that section, interpretation of Territory laws in a way compatible with human rights is required "so far as it is possible to do so consistently with [the law's] purpose". This provision seems to operate in a way that is closer to the orthodox purposive interpretation provisions than to s 139 of the Legislation Act; that is, as long as a meaning is consistent with the relevant legislative purpose, it may be adopted so as to achieve compatibility with human rights. There is no requirement that only the meaning that best achieves the legislative purpose may be adopted in the interests of compatibility with human rights. Section 32 of the Victorian appears to operate in the same way.
[133]
The legislative unit to which the Human Rights Act should be applied
[134]
45․ At [35․] above I have noted that s 30 of the Human Rights Act refers to the interpretation of a Territory law having regard to "its purpose", and that this, combined with the operation of the Legislation Act, raises questions about exactly which purposes may be considered for that interpretation process. The reference to the purpose of a limitation in s 28 of the Human Rights Act may raise similar questions about which purposes can be examined.
46․ At different points and with different aims, counsel for Mr Islam, counsel for the DPP and counsel for the Attorney-General all said that the focus in this case should be on the Bail Act as a whole. Mr Islam sought to have the interpretation of s 9C constrained only by the purpose of the Bail Act as a whole, while the DPP and the Attorney-General both said that compatibility with s 18(5) of the Human Rights Act should be tested only against the Bail Act as a whole. That latter submission was made in the context of the reference in s 18(5) to a "general rule", and will be addressed when I consider the human rights implications of s 9C. The former submission, that the only legislative purpose relevant in interpreting s 9C is the purpose of the as a whole, requires a response that may have a broader significance for the application of
[135]
53․ Finally, it is appropriate to note that ACT legislation is subject to a power of remedial interpretation for the purpose of ensuring that it does not exceed the legislative powers of the Legislative Assembly. Section 120 of the Legislation Act (which is set out in Appendix A to this judgment) reflects the approach, if not the words, of s 15A of the Acts Interpretation Act 1901 which refers to the Constitution; in summary, s 120 says that if a provision of an Act would otherwise be interpreted as exceeding the legislative powers of the Legislative Assembly, the provision is valid to the extent to which it does not exceed power. That is, a court may interpret the provision so that it has only the operation that it could validly have by reference to the scope of the Legislative Assembly's powers. By analogy with s 15A of the Acts Interpretation Act, this power presumably includes the power to examine legislation "to see whether there is any divisible part of the legislation for which support can be found" (Attorney-General for Victoria v The Commonwealth[1945] HCA 30; (1945) 71 CLR 237 at 267, Dixon J). However the power is not unlimited and in particular it does not permit courts to exercise legislative power ( ; at 676, Evatt and McTiernan JJ).
[136]
54․ It is apparent that the words of the several interpretation provisions that are relevant in assessing ACT legislation for its compatibility with human rights raise a variety of complex questions (even before those provisions are examined in the context of human rights jurisprudence more broadly). Such questions will be addressed as they arise at various points in the following inquiry.
[137]
55․ Before attempting to apply the Human Rights Act to challenged legislation, it is also useful to consider in general terms the respective roles of the courts and the legislature under that Act.
[138]
Incompatible legislation will continue in operation
[139]
56․ First, it is clear that under the Human Rights Act the role of the courts, while important, remains subordinate to the role of the legislature. A court can (within certain constraints) interpret a provision to be consistent with human rights; this may involve a choice between two or more meanings with different levels of efficacy in achieving the legislative purpose, or a finding that an apparent inconsistency with a human right can be justified. Failing a meaning that is consistent with human rights, the court may make a declaration of incompatibility. In each case the legislation continues to operate, and to operate in a way that is at least consistent with the legislative purpose.
[140]
Legislature may overturn compatible meanings that are unacceptable
[141]
57․ If legislation has been interpreted to be human rights-compatible by adopting a meaning that is consistent with legislative purpose but not the meaning that best achieves the legislative purpose, it is then up to the legislature whether to re-enact the provision in a form such that the only available interpretation is the one that would best achieve the legislative purpose even if it is not human rights-compatible. If such legislation is introduced, Pt 5 of the Human Rights Act requires the human rights implications of the new legislation to be drawn to the attention of the legislature. Alternatively the legislature may choose to live with the meaning that has been determined by the court to be both human rights-compatible and consistent with legislative purpose.
58․ Where a declaration of incompatibility has been made, the Attorney-General must present a response to that declaration to the legislature, and the consequences of that process will be political and possibly legislative rather than judicial.
[142]
59․ Having noted the subordinate role of the courts, it is also necessary to bear in mind that in enacting the Human Rights Act, the legislature presumably contemplated that some legislation, whether existing or future, would not be compatible with human rights, and intended the courts to play a role in helping to identify, at least, existing legislation of that kind. The fact that the Human Rights Act was enacted without any full-scale review of existing ACT legislation means that the legislature had no basis for assuming that there was no incompatible legislation that had found its way onto the ACT statute book before human rights was directly significant in the preparation and enactment of legislation.
60․ On the other hand, there is nothing in s 30, nor in the explanatory material relating to either version of s 30 (at [88․] and [102․] below), to indicate a legislative expectation that, in the task of bringing ACT legislation into line with the human rights recognised in the Human Rights Act, the courts rather than the legislature would do most of the heavy lifting. This contrasts with the comments of Lord Steyn in the UK case of Ghaidan v Godin-Mendoza[2004] UKHL 30; [2004] 2 AC 557 (Ghaidan) at [46] (citations omitted) that:
[143]
Parliament had before it the mischief and objective sought to be addressed, viz the need 'to bring rights home'. The linch-pin of the legislative scheme to achieve this purpose was section 3(1). Rights could only be effectively brought home if section 3(1) was the prime remedial measure, and section 4 a measure of last resort. How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that 'in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility' and the Home Secretary said 'we expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention': It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.
[144]
Strained interpretations should not be adopted to achieve compatibility
[145]
61․ The fact that the courts are only one of the players in developing a society that recognises and protects human rights suggests that judges should be wary of straining the principles and processes of statutory interpretation too far in deciding whether a particular provision can be read so as to be consistent with human rights or whether it can only be dealt with by a declaration of incompatibility.
62․ The proposition that strained interpretations of legislation are undesirable is supported by the comments of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission(2009) 240 CLR 319 at [42]:
[146]
The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.
[147]
63․ Those comments were made in the context of determining constitutional validity rather than compatibility with human rights. The distinction between validity and human rights-compatibility has a broader significance in considering the operation of the Human Rights Act, which will need to be considered later (see [152․] to [199․] below).
64․ For the moment, however, I note that it could be argued that strained interpretations are more legitimate to protect human rights than to protect the validity of legislation that is on the brink of unconstitutionality, although the converse could also be argued. I am not, however, convinced that strained interpretations are a desirable or sustainable way of protecting human rights, and I consider French CJ's comments, in particular his Honour's references to the accessibility of the law and the accountability of Parliament to the electorate, to be equally applicable in the human rights context.
[148]
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
[149]
66․ Before s 30 can be applied in the interpretation of other legislation, its own meaning needs to be established. I have already commented on some aspects of the drafting of s 30 (at [35․] and [47․] above), but there is a bigger question to be resolved.
67․ Before considering the meaning of s 30 further, however, it is necessary to outline the relevant aspects of the UK case of Ghaidan which was central to much of Mr Islam's argument about the interpretation of s 30.
[150]
68․ Ghaidan involved a challenge to the Rent Act 1977 (UK) providing for the spouse of a protected tenant (defined as a person who was living with the tenant as his or her wife or husband) to become a statutory tenant by succession on the death of the protected tenant. Mr Godin-Mendoza had been the long-term homosexual partner of the tenant of a flat in London; after the tenant's death the landlord, Mr Ghaidan, sought possession of the flat, and Mr Godin-Mendoza resisted this on the ground that he was entitled to succeed to a tenancy of the flat as a statutory tenant.
69․ The House of Lords by a majority applied s 3 of the Human Rights Act 1998 (UK) to permit the Rent Act reference to "surviving spouse" to be read as including surviving homosexual partners.
70․ Section 3 is set out in Appendix A to this judgment. The important provision, s 3(1), is as follows:
[151]
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
[152]
71․ The Convention is the European Convention on Human Rights (European Convention for the Protection of Human Rights and Fundamental Freedoms. Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)). Under the UK Human Rights Act, the rights guaranteed by that Convention are enforceable in the UK courts.
72․ The House of Lords gave s 3 a very broad operation. Lord Nicholls of Birkenhead said at [29] to [33]:
[153]
29. It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships' House in R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 is an instance of this. The House read words into section 41 of the Youth Justice and Criminal Evidence Act 1999 so as to make that section compliant with an accused's right to a fair trial under article 6. The House did so even though the statutory language was not ambiguous.
>
> 30. From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.
>
> ...
>
> 32. ... Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect of primary and secondary legislation.
>
> 33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.
[154]
73․ Lord Rodger of Earlsferry said at [121] to [123]:
[155]
121. When the court spells out the words that are to be implied, it may look as if it is 'amending' the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
>
> 122. the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form.
>
> 123. Attaching decisive importance to the precise adjustments required to the language of any particular provision would reduce the exercise envisaged by section 3(1) to a game where the outcome would depend in part on the particular turn of phrase chosen by the draftsman and in part on the skill of the court in devising brief formulae to make the provision compatible with Convention rights. ... In enacting section 3(1), it cannot have been the intention of Parliament to place those asserting their rights at the mercy of the linguistic choices of the individual who happened to draft the provision in question. What matters is not so much the particular phraseology chosen by the draftsman as the substance of the measure which Parliament has enacted in those words. Equally, it cannot have been the intention of Parliament to place a premium on the skill of those called on to think up a neat way round the draftsman's language. Parliament was not out to devise an entertaining parlour game for lawyers, but, so far as possible, to make legislation operate compatibly with Convention rights. This means concentrating on matters of substance, rather than on matters of mere language.
[156]
74․ In summary, the House of Lords by a majority found that s 3 may require a court to depart not just from the unambiguous language of a provision but also from the intention of the Parliament that enacted it. Perhaps realising the risks implicit in such a conclusion, the Law Lords then sought to constrain that very broad power of "interpretation" by noting that it did not extend to going beyond interpretation into amendment; this would happen if the legislation were read so as:
[157]
(a) to go beyond a "fundamental feature" or the "underlying thrust" of the legislation (Lord Nicholls at [33]);
(b) not to "go with the grain" of the legislation (Lord Rodger at [121]);
(c) to be inconsistent with the scheme of the legislation or its essential principles (Lord Rodger at [121]); or
(d) to go beyond the scope or scheme of the legislation (Lord Rodger at [122]).
[158]
75․ The difficulties of determining what legislative purpose to use in applying a purposive interpretation provision (see [33․] to [41․] above) pale into insignificance beside the difficulties of working out the real meaning of the constraint referred to in so many different ways by the Law Lords, given that whatever the nature of the constraint, it does not relate to the text of the legislation and it does not include recourse to the intention of the legislature. It is all very well to disparage a practice of interpreting legislation by reference to the words actually chosen by the Parliament as providing "an entertaining parlour game for lawyers" (Lord Rodger at [123]), but the apparent alternative, to "interpret" by reference not to the words and not to the legislative intention but to some presumably free-standing characteristic of the legislation such as its fundamental features, underlying thrust or "grain", has an almost surreal quality to it.
76․ Lord Millett (at [97]), in dissent, noted:
[159]
I agree that the operation of section 3 does not depend critically upon the form of words found in the statute; the court is not engaged in a parlour game. But it does depend upon identifying the essential features of the legislative scheme; and these must be gathered in part at least from the words that Parliament has chosen to use. Drawing the line between the express and the implicit would be to engage in precisely that form of semantic lottery to which the majority rightly object.
[160]
77․ Nor do the suggestions made by the Law Lords about how the offending provision of the Rent Act should be applied seem apt to establish that "what matters is not the particular phraseology chosen by the draftsman [sic]". The several Law Lords concluded that the Rent Act definition of spouse could be read as referring to a person of either sex who had been living with the original tenant:
[161]
(a) in a "close and stable" relationship (Lord Nicholls at [7]);
(b) "as if they were his wife or husband" (Lord Steyn at [51]);
(c) in a "long-term" relationship (Lord Rodger at [127]); or
(d) in a "marriage-like" relationship (Baroness Hale of Richmond at [139]).
[162]
78․ These different formulations of the Rent Act provision (which would have been entirely unacceptable if used randomly by legislative drafters in drafting the provision) must have made the ongoing operation of that provision extremely difficult. Lord Millett (at [100]) noted a further difficulty with these attempts to "interpret" the relevant legislation when he said:
[163]
in support of their conclusion that the existing discrimination is incompatible with the Convention, there is a tendency in some of the speeches of the majority to refer to loving, stable and long-lasting homosexual relationships. It is left wholly unclear whether qualification for the successive tenancy is confined to couples enjoying such a relationship or, consistently with the legislative policy which Parliament has hitherto adopted, is dependent on status and not merit.
[164]
79․ As Lord Millett implies, marriages confer status of themselves irrespective of their quality, but the interpretation suggested by the majority Law Lords would hold homosexual couples to a different standard from that applied to married couples.
80․ The difficulty in applying the Rent Act provision as "interpreted" by the several Law Lords is especially significant since it appears that the provision determined rights as between property owners and tenants, and as such would not even have involved any particular administration by officials. Far from establishing that "the particular phraseology" does not matter, the Law Lords' approach to the Rent Act provision seems to provide a useful example of the risks of adopting a strained interpretation of legislation or providing a "counterintuitive judicial gloss" (or indeed a multiplicity of such glosses) that were identified by French CJ (quoted at [62․] above).
81․ The approach adopted in Ghaidan is a form of "remedial" interpretation, although it may go even beyond more orthodox remedial approaches (see [53․] above and [167․] below) and it is aimed not at preserving the validity of some version of the provision being interpreted but at ensuring that the provision gives effect to a particular overarching legislative purpose.
[165]
82․ Counsel for Mr Islam submitted that the Human Rights Act should be applied in relation to challenged ACT legislation in accordance with the approach taken in Ghaidan and specifically that s 30 of the Human Rights Act should be interpreted, in a similar way to the interpretation given to s 3(1) of the UK Human Rights Act in Ghaidan, to permit a court to adopt a meaning for challenged legislation that is not consistent with the relevant legislative purpose, if that is necessary to achieve compatibility with human rights.
83․ In Sheldrakev Director of Public Prosecutions[2005] 1 AC 268, Lord Bingham of Cornhill said in relation to an interpretation adopted in that case:
[166]
[53] Such was not the intention of Parliament when enacting [the relevant provision], but it was the intention of Parliament when enacting section 3 of the [Human Rights Act].
[167]
84․ In effect, Mr Islam submitted that in enacting s 30, the legislature intended to open up all prior ACT legislation for re-interpretation potentially inconsistent with the legislative intention in enacting it.
85․ I have already indicated my reasons for considering that the Ghaidan approach to statutory interpretation is undesirable. However, if the Ghaidan approach is in fact part of the law of the ACT, then it must be applied irrespective of its disadvantages, so it is necessary to consider whether that approach to statutory interpretation does apply in the ACT.
86․ Counsel for Mr Islam relied on the legislative history of s 30 to base his argument that the section should be given a meaning similar to that given to s 3(1) of the UK Human Rights Act in Ghaidan.
[168]
87․ The current s 30 was inserted in the Human Rights Act in 2008. Counsel for Mr Islam relied heavily on the Explanatory Statement for the amending Bill, to which I shall turn shortly. It is useful, however, to look first at the original form of s 30, which was as follows:
[169]
(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
(3) Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test).
(4) In this section:
working out the meaning of a Territory law means -
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
[170]
88․ The Explanatory Statement for the Human Rights Bill 2003 explained the original s 30 as follows:
[171]
Clause 30(1) introduces a new rule of statutory construction. The purpose of clause 30(1) is to recognise, to the maximum extent possible, the human rights set out in Part 3 in all other Territory statutes and statutory instruments. This rule requires that when working out the meaning of a Territory statute or statutory instrument an interpretation that is consistent with human rights must be applied in preference to any other interpretation.
>
> Clause 30(1) is subject to the purposive rule of construction set out in subclause 139(1) of the Legislation Act 2001. Subclause 139(1) requires that Territory laws must be interpreted in a way that best achieves the purpose of the Act. Consequently, the interpretation most beneficial to human rights will best achieve the purpose of the Bill.
>
> Where there is a choice between two interpretations and both interpretations best achieve the purpose of the statute or statutory instrument, the interpretation that is consistent with human rights must prevail.
>
> Clause 30(2) clarifies that if an interpretation that is consistent with human rights would have the affect [sic] of defeating the obvious purpose of the statute or statutory instrument the interpretation that is consistent with human rights will not prevail.
>
> The effect of clause 30 is that the courts, tribunals, decision makers and others authorised to act by a Territory statute or statutory instrument must take account of human rights when interpreting the law. A statutory discretion must be exercised consistently with human rights unless legislation intends to authorise administrative action regardless of the human right.
[172]
89․ I am not convinced that the explanation of s 30(2) given in the second paragraph of the Explanatory Statement quoted above was either coherent or correct.
90․ The first sentence seems to be correct. It is true that s 30(2) makes s 30(1) subject to s 139(1) of the Legislation Act.
91․ The second sentence is somewhat confusing, in its suggestion that all Territory laws must be interpreted in a way that best achieves the purpose of "the Act" (which is, grammatically, probably a reference to the Legislation Act) whereas in fact s 139(1) requires an Act to be interpreted in a way that best achieves its own purpose.
92․ The meaning of the third sentence, "Consequently, the interpretation most beneficial to human rights will best achieve the purpose of the Bill", is not at all clear. If it meant only that s 30(1) of the Human Rights Act was to be interpreted to best achieve the purpose of the Human Rights Act, then (subject to the uncertainties noted at [34․] above) the statement would seem to be unobjectionable but also unnecessary (as would s 30(2) itself be), because all ACT legislation is to be interpreted in accordance with the Legislation Act (including s 139) without that having to be specified expressly in the relevant Act (s 4, Legislation Act). It is possible that the words of the Explanatory Statement meant that of the should be read as implying that consistency with human rights would always be a purpose of an Act, and therefore that a human rights-compatible meaning must always be preferred, but such a meaning cannot be extracted from, or implied into, either s 30(1) or s 139(1). If, as I consider is correct, s 30(2) meant that the interpretation task directed by s 30(1) could be displaced by the interpretation direction given in s 139, then s 30(2) had a substantive significance but not one that promoted human rights at the expense of legislative purpose.
[173]
(e) first, that if there are two interpretations that best achieve the legislation's purpose (an unlikely case given the meaning of "best", but perhaps not impossible), the human rights-compatible one must be preferred; but
(f) secondly, if a human rights-compatible interpretation would "[defeat] the obvious purpose" of the legislation, then the human rights-compatible interpretation "will not prevail".
[174]
94․ The Explanatory Statement, however, avoided addressing the more difficult question, namely, if there is a meaning that is both compatible with human rights and also consistent with purpose, but there is another meaning that better or best achieves that purpose but is not compatible with human rights, which of those two meanings was to be preferred?
95․ As a matter of statutory interpretation the answer seems to have been fairly clear; s 30(1) was expressed to be subject to s 139, so s 139 would have operated to require the meaning that best achieved the purpose to be preferred. The effect of this would have been to exclude the possibility of preferring a meaning that was not the most effective in achieving the purpose but was both consistent with human rights and consistent with purpose. The only source of doubt about that analysis is the curious statement discussed at [92․] above as possibly intended to suggest that human rights compatibility should be assumed to be a purpose of all legislation, an interpretation I have rejected.
96․ Despite the uncertainties I have identified, it is clear that the original version of s 30 sought to add human rights compatibility into the process of interpreting legislation. However, the legislation (and the Explanatory Statement) also made it clear that if there was a conflict between human rights compatibility and legislative purpose, the legislative purpose would prevail, and the legislation (although less clearly the Explanatory Statement) also indicated, in my view, that in the event of a conflict, the intention was that human rights compatibility would give way not just to legislative purpose but to the "best" implementation of the legislative purpose. Whether that approach in fact deprived the original s 30 of any real significance is a question that need not be pursued at this stage.
[175]
97․ Section 30 of the Human Rights Act was replaced by the Human Rights Amendment Act 2008 (ACT), originally introduced as the Human Rights Amendment Bill 2007 (ACT).
98․ It is apparent that enacting the current version of s 30 was intended to change the relationship between that section and s 139 of the Legislation Act. The current s 30, which requires Territory laws to be interpreted, so far as it is possible to do so consistently with their purpose, in a way that is compatible with human rights, is not expressed to be subject to any other legislation; in particular, it is no longer expressed to be subject to s 139 of the Legislation Act. Instead, s 139 of the Legislation Act now includes a note as follows:
[176]
Note The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
[177]
99․ Although through the 2008 amendments it has abandoned the priority previously given to s 139, the legislature has not taken the next step and given s 30 an express priority over s 139. Rather, by the use only of the non-committal phrase "is also relevant to interpreting territory laws" about the Human Rights Act, the note reflects the form of the amended legislation in demonstrating a deliberate avoidance of any legislative statement about how the two provisions are intended to interact.
100․ How the current versions of the two provisions do interact will be considered further in due course. For the moment, this material provides the background to Mr Islam's submission about the interpretation of s 30 itself.
102․ Relevant parts of the 2007 Explanatory Statement are as follows:
[179]
The Human Rights Amendment Bill 2007 amends the Human Rights Act 2004 to:
>
> • clarify the interpretive rules so that a human rights consistent interpretation must prevail as far as is possible consistent with the purpose of underlying legislation;
>
> ...
>
> Clause 5 Interpretation of laws and human rights
>
> Sub-section 30(1) and (2)
>
> Clause 5 replaces the existing interpretative provision in the Human Rights Act 2004. It clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006. It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza [2004] UKHL 30; (2004) 2 AC 557 cited recently by the ACT Supreme Court in Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9.
[180]
103․ I note in passing that the reference in the introductory words above to "the purpose of underlying legislation" (emphasis added) appears to be an error and, having regard to Lord Nicholls' reference in Ghaidan at [33] to "the underlying thrust of the legislation being construed" (quoted at [72․] above), that the phrase should perhaps have read "the purpose underlying legislation".
104․ Counsel for Mr Islam submitted that the Explanatory Statement's general reference to "draw[ing] on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza" made clear the intention that, in effect, the new provision would draw in to the ACT's human rights approach the comments made in that case by Lord Nicholls (at [29] and [30]), which are quoted at [72․] above.
105․ In R v Fearnside[2009] ACTCA 3 (Fearnside), Besanko J, with whom Gray P and I agreed, held at [87] that s 30 in its current form does not "authorise and require the Court to take the type of approach taken by the House of Lords in Ghaidan". He expanded on this conclusion at [89]:
[181]
In its present form, s 30 appears to give the Court a broader power to adopt an interpretation of a Territory law which is consistent with a relevant human right. I am conscious of the fact that discussing the matter in the abstract is of limited assistance. Nevertheless, I think s 30 would enable a Court to adopt an interpretation of a legislative provision compatible with human rights which did not necessarily best achieve the purpose of that provision or promote that purpose, providing the interpretation was consistent with that purpose. On the other hand, I do not think s 30 authorises and requires the Court to take the type of approach taken by the House of Lords in Ghaidan. There is no reference to purpose in s 3(1) of the United Kingdom Act and the primary constraint in that subsection is stated in terms of what is or is not possible. By contrast, under s 30 in the [Human Rights Act] the purpose or purposes of the legislative provision must be ascertained through well-established methods, and the interpretation adopted by the Court must be consistent with that purpose or those purposes.
[182]
106․ Besanko J at [90] rejected the proposition that the Ghaidan approach was adopted by the Explanatory Statement to the Human Rights Amendment Bill 2007 or by the Court of Appeal in Kingsley's Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited[2006] ACTCA 9 (Kingsley's Chicken). I would add the following comments to what was said in Fearnside.
[183]
107․ First, as Besanko J pointed out, the UK provision does not mention legislative purpose. If achieving the Ghaidan position was in fact the legislature's intention in replacing s 30 in 2008, it is curious that the new s 30 contains the express reference to the purpose of the law concerned that distinguishes it in a significant respect from s 3(1) of the UK legislation and from the interpretation that has been given to that latter provision.
108․ Section 3(1) requires legislation to be read and given effect in a way which is compatible with human rights "so far as it is possible to do so", and Ghaidan says that it may be "possible" under that section to ignore both the text of the legislation and the "intention of the Parliament which enacted the legislation" (discussed at [74․] above).
109․ Section 30, in contrast, explicitly limits interpretation under that section to Territory laws being interpreted "so far as is possible to do so consistently with [the] purpose" of the Territory law. I do not consider that the s 30 mention of the purpose of the law concerned, in the context of the ACT statute book's focus on legislative purpose as set out in s 139 of the Legislation Act, can reasonably be read as a reference only to the scheme, scope, essential principles or "grain" of the legislation, to the extent that those words as used in Ghaidan refer to characteristics of the legislation that can be distinguished from legislative purpose but, apparently, need not or possibly cannot be discerned from either the text or that legislative purpose.
[184]
Inconsistent legislative purpose to prevail over human rights
[185]
110․ Secondly, the Explanatory Statement for the Human Rights Amendment Bill 2007 itself specifies that an interpretation consistent with human rights must prevail "unless the law is intended to operate in a way that is inconsistent with the right in question". This seems to be directly in conflict with the Ghaidan view that it may be possible to "depart from the intention of the Parliament which enacted the legislation" in order to achieve consistency with human rights. The Explanatory Statement clearly implies that a law that is intended to operate in a way that is inconsistent with a human right is to have that inconsistent operation, not that the inconsistent operation can be interpreted away.
[186]
111․ I am satisfied that the reference to Ghaidan in the Explanatory Statement does not justify ignoring the reference in s 30 to the purpose of the law.
112․ This, however, is not in so many words Mr Islam's submission; rather, counsel says that the reference to the purpose of the Territory law in s 30 provides the answer to the question posed by Lord Nicholls as "how far, and in what circumstances, section 3 requires a court to depart from the intention of the Parliament which enacted the legislation" (at [30], quoted at [72․] above). If I have understood the submission correctly, the exchange as proposed by the applicant would for the ACT be as follows:
[187]
Question: How far, and in what circumstances, does [s 30] require a court to depart from the intention of the enacting Parliament?
>
> Answer: So far as it is possible to do so consistently with the purpose of the Territory law being interpreted.
[188]
113․ This exchange only produces a substantive answer if "the intention of the enacting Parliament" and "the purpose of a Territory law" are potentially different, and the effect of counsel's argument is that "the purpose of the law" in s 30 is intended to be a reference to what was described in Ghaidan as the scheme, scope, essential principles or "grain" of the legislation (depending on your choice of Law Lord). I have already indicated at [109․] above that I do not consider this an available interpretation of s 30.
114․ Secondly, as explained at [28․] above, I do not consider that "the intention of the enacting Parliament" has any sensible meaning that differs from the purpose of the legislation as discerned from its text and the context of its enactment.
115․ A further answer to counsel's submission depends on the difference I have identified between the purpose of a provision and the purpose of the Act or other larger legislative unit. As noted, that distinction is explicit in orthodox purposive interpretation provisions in Australian legislation (see [37․] to [41․] above); if "purpose" could sensibly be given the meaning contended for by counsel (being something different from the intention of the enacting legislature), then a provision in the form of the orthodox purposive interpretation provision could be read so that the meaning of a provision could be determined having regard to the scheme, scope, essential principles or "grain" of the larger legislative unit and irrespective of the legislature's intention. Section 30, however, does not clearly provide that option - the purpose to be considered is, grammatically, the purpose of the provision being interpreted, although, as discussed at [34․] above, considering both the purpose of the provision in question and a higher-level purpose may be available under the ACT provisions. However, the fact that such an application of s 30 may be available, under a provision that, read literally, does not provide for it, is not a sound basis on which to find that the reference to Ghaidan in the Explanatory Statement was a direction to read s 30 as if it had expressly drawn a distinction in the nature of that relied on in the orthodox purposive interpretation provision between a provision and the higher-level purpose of the legislation in which it is found.
[189]
116․ Finally, given the reliance that counsel for Mr Islam placed on the paragraph from the 2007 Explanatory Statement, it is appropriate also to consider the context in which Ghaidan was, as noted in the Explanatory Statement, "cited recently by the ACT Supreme Court in Kingsley's Chicken".
117․ In Kingsley's Chicken, the Court of Appeal (Higgins CJ, Connolly and Spender JJ) considered the meaning of the terms "offer" and "accepts" as used in the Leases (Commercial and Retail) Act 2001 (ACT), dealing in particular with the proposition that those words should be given their technical meanings under contract law. The Court said at [48] to [53]:
[190]
48. It seems to us that to confine the terms 'offer' and 'accepts' to their technical contractual meaning would substantially subvert the legislative intent in enacting s 52 of the Leases Act, as it would confine the jurisdiction of the Magistrates Court to disputes in situations where the negotiations between the parties had reached the stage of a formal legal agreement as understood in Masters v Cameron. How could there be such an agreement if the level of rent was not agreed?
>
> 49. It should be noted that the Legislation Act does not merely provide that the court may have regard to legislative history in construing an Act. Rather, s 139 is a positive requirement that -
>
> (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
>
> 50. This provision, it seems to us, is in similar form to the interpretive provision in the Human Rights Act 1998 (UK) referred to by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30; (2004) 2 AC 557. Section 3(1) of that Act provides that -
>
> (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
>
> 51. An equivalent provision is to be found in s 30(1) of the Human Rights Act 2004, which provides that -
>
> (1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
>
> 52. The legislative direction to 'prefer' an interpretation that is consistent with a policy objective was given effect to in Ghadidan [sic] v Godin-Mendoza. Lord Nicholls of Birkenhead said (at 571) -
>
> the interpretive obligation decreed by is of an unusual and far reaching character. may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question.
>
> 53. We are far from satisfied that, in their ordinary usage, the terms 'offer' and 'accepts' as used in the Leases Act necessarily imply the technical contractual meaning of the terms. Even if it were to be accepted that, of the two possible interpretations, the technical legal approach would be favoured, the effect of of the , in our view, requires this Court to prefer an interpretation that best achieves the purpose of the legislation. It seems clear to us that this would favour the view that the terms in question are to be given their ordinary meaning rather than restricted to their technical contractual meaning. It follows that the learned Magistrate, and the learned primary appeal Judge, were in error in holding that the jurisdiction of the Magistrates Court was not enlivened because the parties had not yet reached a firm contractual agreement.
[191]
118․ That is, having referred among other provisions to s 3(1) of the UK Human Rights Act and to the consideration of that section in Ghaidan (but without referring to the distinction between interpreting legislation in accordance with its purpose and interpreting legislation in accordance with another objective that may be inconsistent with its purpose), the Court concluded that it should apply s 139 of the Legislation Act so as to adopt an interpretation of the provisions of the Leases (Commercial and Retail) Act 2001 (ACT) that best achieved the purpose of that legislation.
119․ I cannot see any basis for concluding that the Court of Appeal was adopting an interpretive approach that might permit or even require legislation to be interpreted contrary to its purpose. Nor can I see any basis for concluding that, in referring to the Court of Appeal's mention of Ghaidan in Kingsley's Chicken, the Explanatory Statement was revealing an intention to implement the Ghaidan approach in the Territory (to the extent that it went beyond the Kingsley's Chicken approach) by the insertion of the new s 30 into the Human Rights Act.
120․ As noted at [28․] above, the parliamentary debates relating to the enactment of legislation may be relevant in identifying the purpose of legislation even if the intention of the legislature cannot sensibly be pursued, so it is appropriate to deal with the comment made in argument that the interpretation of proposed by Mr Islam in reliance on the Explanatory Statement's mention of is not supported by the Attorney-General as intervener. It is true, as counsel for Mr Islam pointed out in response, that while the Attorney-General might have been responsible for the Explanatory Statement, it was the Legislative Assembly as a whole that enacted the new ; however, having satisfied myself by reference to the content of the Bill and the Explanatory Statement that it did not reveal an intention to adopt the approach in the ACT, I see no reason to assume that members of the Legislative Assembly did in fact find such an intention and did adopt it. Certainly, the effect of the new s 30 was mentioned only briefly and in passing in the Legislative Assembly during the passage of the .
[192]
124․ The interpretation of s 30 favoured in Fearnside is consistent with that adopted by the Victorian Court of Appeal (Maxwell P, Ashley and Neave JJA) in R v Momcilovic[2010] VSCA 50; (2010) 265 ALR 751 (Momcilovic). In that case, the Court conducted an extensive review of the UK, Hong Kong and New Zealand authorities, as well as previous Victorian decisions and the Parliamentary debates when the Victorian Charter was enacted (at [37] to [104]). Section 32(1) of the Victorian Charter is in effectively identical terms to s 30 of the Human Rights Act. The Court concluded (at [33]) that s 32(1) does not create what the Court called a "special" rule of interpretation, of the kind identified and applied in Ghaidan, requiring a court in certain circumstances "to depart from the meaning which would be arrived at by the application of 'ordinary' principles of interpretation".
125․ I note in passing, although it is not necessary to my conclusions, the Victorian Court's reference in Momcilovic at [54] to [57] to the post-Ghaidan case of R (on the application of Wilkinson) v Inland Revenue Commissioners[2005] UKHL 30; [2006] 1 All ER 529, and to the possibility that "the balance may have swung back a little from the stance taken in " (at [57], quoting Tipping J in (), at [152]).
126․ I am accordingly satisfied that there is no basis for adopting the Ghaidan approach in the application of s 30 of the Human Rights Act, and I propose instead to follow the Fearnside and Momcilovic approach in interpreting s 30. Specifically, that means that s 30 fits within the "ordinary" principles of statutory interpretation, being common law principles supplemented by certain statutory principles that preserve the common law focus on text, context and purpose. The significant effect of s 30 is to draw into those principles the articulation in statutory form of many of the fundamental rights and freedoms assumed by the common law (see Gleeson CJ's comments quoted at [202․] below), as well as some that may not have been fully recognised by the common law. To that extent s 30 may enable the recognition of some extra rights and freedoms, but it does not permit anything more to be done about those rights and freedoms in interpreting legislation than could in any case have been done with them under the ordinary principles of statutory interpretation. In particular, s 30 has no "remedial" operation, and the scope for interpreting Territory laws in a way that is compatible with human rights is confined by reference to the purpose of the law concerned. How exactly that section is used can only be addressed in the context of the broader processes to be followed in applying the .
127․ As outlined at [19․] and [20․] above, a human rights-based challenge to a Territory law may arise in a proceeding in the Supreme Court, and the Court may be required to apply the Human Rights Act in interpreting the law for the purposes of the proceeding.
128․ Real questions arise about the process by which the interpretation task is undertaken, which in essence centre on how ss 28 and 30 of the Human Rights Act should be applied and in particular which of them should be applied first.
[197]
129․ In Fearnside, the Court of Appeal also considered the approach to be taken in applying the ACT Human Rights Act in challenges to Territory legislation.
130․ Besanko J described (at [93]) a three-step process as proposed by counsel for the Attorney-General in that case, involving, in effect, the following questions:
[198]
(a) Does the legislative provision in question "enliven" a human right?
(b) If yes to (a), does the provision contain a limitation which is reasonable within s 28 of the Human Rights Act?
(c) If no to (b), how should the provision be interpreted in accordance with s 30 of the Human Rights Act?
[199]
the Attorney-General's submission that the human right for the purposes of applying the principle of interpretation in s 30 is the human right as defined in Pt 3, including s 28, is correct. The relevant human right is the right defined by any reasonable limit within the terms of s 28.
[200]
On the other hand, s 30 provides for a principle of interpretation and it might be said that it is not possible to apply s 28 without interpreting the relevant Territory law and therefore without applying s 30. That might suggest that it is not possible to distinguish clearly between stages two and three.
[201]
133․ Besanko J then identified (at [97]) an approach proposed by Tipping J of the New Zealand Supreme Court in Hansen, which is discussed at [177․] to [197․] below (Tipping J's proposal is set out at [191․] below). At [98], Besanko J concluded that:
[202]
the general approach taken by the majority in Hansen is the correct one, although whether that will be so in every case is best left for a case in which the issue is decisive and is the subject of detailed submissions from both sides.
[203]
134․ This approach has been noted in the ACT in Hakimi v Legal Aid Commission (ACT)[2009] ACTSC 48 (although Refshauge J's decision about the content of the human right relied on meant that his Honour did not need to consider the operation of either s 28 or s 30 specifically) and followed in Thomson v ACTPLA[2009] ACAT 38, both cases involving challenges to the actions of public authorities.
135․ It is relevant to note in relation to the weight to be given to Fearnside as authority for the position in the ACT that the Court's conclusions were tentative, and that they were strictly obiter, since the Court found that the right to a fair trial recognised in the Human Rights Act did not include a right to elect for trial by judge alone, and it did not therefore need to undertake any interpretation of the provision in question by reference to its potential human rights implications.
[204]
136․ In Momcilovic, the Victorian Court of Appeal considered the interaction between the interpretation provision (s 32(1)) and the justification provision (s 7(2)) in the Victorian Charter, and reached a different conclusion from the conclusion tentatively expressed in Fearnside.
137․ Noting the admonitions of the High Court about the need for trial judges and intermediate appellate courts in Australia to pay full regard to relevant decisions of intermediate appellate courts of other Australian jurisdictions (Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89 at [135], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), and the similarity between the relevant provisions of the Victorian Charter and the ACT Human Rights Act, I consider myself obliged to examine the Momcilovic decision to determine whether it should be followed in this jurisdiction in preference to Fearnside. Having regard to the fact that the relevant comments in Fearnside were obiter, and noting Besanko J's comments that a more definitive resolution of the question should await a case where it is decisive and where detailed submissions have been made, I consider that the current case is an appropriate opportunity to examine the ACT position more carefully, especially since in this case I have had the benefit of detailed submissions from all parties.
138․ The Court in Momcilovic at [35] set out what it considered to be the correct methodology for dealing with the questions of interpreting the legislation concerned under s 32(1) of the Victorian Charter, and deciding whether any breach of human rights discovered was demonstrably justified for the purposes of s 7(2) of the Victorian , as follows:
[205]
Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).
>
> Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.
>
> Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.
[206]
139․ The significant difference between this and the Fearnside approach is that the Victorian approach involves interpreting the provision concerned, including by reference to the human rights specified in the human rights legislation, before considering whether any identified breach of a human right reflects only a limit on the right that can be justified under, and is therefore not inconsistent with, that human rights legislation.
140․ The question for the ACT can be framed in terms of the order in which ss 28 and 30 of the Human Rights Act should be applied.
141․ Having had the benefit of the Court of Appeal's reasoning in Momcilovic and the careful submissions in this case, especially from counsel for the Attorney-General, I am inclined on reflection to adopt the Victorian approach in preference to that suggested in Fearnside (and adopted by me in that case), that is, that s 30 should be applied in the initial interpretation of the challenged provision before there is any s 28 inquiry into the justification for the provision. In reaching those conclusions I rely on comments made by the Victorian Court of Appeal, but also on conclusions that have emerged from a consideration of the practical aspects of the interpretive task and in particular from a more detailed examination of the ACT's interpretive framework than was needed in Fearnside.
142․ The Court of Appeal's explanation in Momcilovic for adopting its preferred approach can be summarised as follows:
[207]
(a) First, at [105], the Court noted that a consequence of its conclusion that s 32(1) of the Charter is not a "special" rule of interpretation but one having the same status as other applicable interpretation provisions, such as s 35(a) of the Victorian Interpretation Act, was that s 32(1) of the Victorian Charter should be part of establishing the meaning of the challenged provision before the question of justification is considered.
(b) At [107] the Court said that since s 32(1) of the Charter is directed at promoting and protecting the human rights set out in the Charter, it should not only be applied to prevent an unjustified infringement of a right; implicitly, it should be applied also in active promotion and protection of human rights. In making this point the Court referred to views to similar effect expressed by Elias CJ in dissent in Hansen at [6], and to the Canadian approach in which, under the Canadian Charter of Rights and Freedoms (the Canadian Charter), the question of justified limits is to be kept "analytically distinct" from the initial analysis of the human right in question (R v Oakes[1986] 1 SCR 103 (Canada) (Oakes) at [60], per Dickson CJ).
(c) The challenged provision in Momcilovic(s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act) reversed an onus of proof in that it deemed a person in certain circumstances to be in possession of drugs unless the person satisfied the court to the contrary. Section 5 applied separately to two different offences created by the Drugs Act, and it was possible that the application of the challenged provision in its apparent meaning could be justified in relation to one of the offences. At [106] the Court pointed out that if the justification provision were applied first, and the challenged provision were found to be justified in relation to one offence but not the other, s 32(1) would then need to be applied to the provision only as it applied to the latter offence. Adopting a human rights-compatible meaning of the provision for the latter offence (if that were possible), while the provision retained its "justified" meaning in relation to the former offence, would result in the same provision of the having different meanings in its application to different offences.
[208]
143․ While agreeing with the reasons given by the Court of Appeal in Momcilovic, I consider that, at least for the ACT, there is more that can be said in support of the Momcilovic approach to the interaction between the human rights interpretation provision and the justification provision. Before saying it, however, it is useful to consider the arguments that might be put in favour of the Fearnside approach, namely that the question whether a particular provision subjects a human right to a reasonable limit "that can be demonstrably justified in a free and democratic society" (s 28) should be considered before a final application of an interpretative provision (s 30) requiring a human rights-compatible interpretation to be applied "so far as it is possible to do so" consistently with the purpose of the legislation in question.
[209]
Arguments in favour of testing justification first
[210]
Need to strike a balance between conflicting rights
[211]
144․ First, the "reasonable limits" test is, among other things, important in striking a balance between different human rights, and between the human rights of different individuals, where they may be in conflict or competition. That potential conflict or competition is recognised at paragraph 6 of the Preamble to the Human Rights Act.
145․ Counsel for the Attorney-General argued that (with some specific exceptions), it is an inherent characteristic of human rights that "they are not absolute and may be subject to limitations", and that where a limit is justified, there is no relevant incompatibility. Even if this proposition is accepted, it does not necessarily follow that an attempt to justify a limit on a human right should precede an attempt to achieve compatibility through interpretation.
146․ It could also be argued that the true position is that the scope of particular human rights is defined by the justified limitations, rather than that human rights defined more broadly may be overridden by the justified limitations. This proposition, if accepted, would mean that the justification inquiry would have to precede an attempt to find compatibility through interpretation, because the true content of the human right could only be identified after the justification inquiry. However, it appears that justifiable limitations may vary from society to society and from time to time depending on social structures and conditions; see, for instance at [366․] below, the arguments put and accepted in Dlamini v The State[1999] ZACC 8 (Dlamini) about social conditions in South Africa in 1999, which counsel for the Attorney-General conceded could not be made about conditions in the ACT in 2010. This contrasts with the apparently wide-ranging agreement among nations about the basic content of human rights expressed in international instruments such as the ICCPR and the European Convention on Human Rights, so as to render unconvincing the proposition that the content of human rights is determined by what limits can be justified. Not only is this proposition logically unconvincing, but it also "risks the erosion of fundamental rights through judicial modification of enacted rights, according to highly contestable distinctions and values" ( at [6], Elias CJ).
[212]
148․ Counsel for the Attorney-General argued that the Fearnside approach to re-interpreting legislation to achieve human rights-compatibility was more likely to provide a useful remedy to an individual than the declaration of incompatibility available under the Momcilovic approach. I do not understand this argument; on each of the Fearnside and Momcilovic approaches, an attempt to find compatibility by interpretation precedes consideration of a declaration of incompatibility. The difference is that under the Momcilovic approach an attempt to find a human rights-compatible meaning for a provision would happen as part of the initial interpretive process rather than only after a justification inquiry. I cannot see why that is said to be less likely to produce a useful remedy for the individual; if anything, the individual is more likely to succeed in his or her claim if an attempt to find a human rights-compatible meaning for legislation precedes and pre-empts what might have been a successful attempt to justify a non-compatible meaning. Nor can I see why, more generally, the Momcilovic approach is more likely to lead to a declaration of incompatibility than the Fearnside approach; both the Momcilovic and Fearnside approaches to the interpretation provision are more likely to lead to a declaration of incompatibility than is the Ghaidan approach, but that is a different matter.
149․ There are also arguments in favour of the Fearnside approach based on the structure of the Human Rights Act, as Besanko J mentioned in that case at [94]. Section 28, providing for human rights to be subject to certain limits, is found within Part 3 which lists the human rights protected by the Human Rights Act, while s 30, providing for a human rights-compatible interpretation of Territory laws, is found in a separate part of the Act, and, obviously, later in the Act than s 28. This arrangement may found an argument that consideration of the need for a s 30 interpretation of a provision limiting a human right should come only after a s 28 inquiry produces a conclusion that the limit is not justified. The structure of the Victorian Charter is similar, except that the limitation provision (s 7(2)) comes at the beginning of the Part listing the protected human rights rather than at the end.
150․ The legislative structure can, however, be explained without requiring a conclusion that limitations are to be considered ahead of human rights-compatible interpretations. Provisions permitting certain limits on human rights are directly relevant to the effective content of protected human rights (whether or not they detract from the absolute content of those rights), so logically belong with the description of those rights. Interpretation provisions, in contrast, are operative or mechanical - they set out what is to be done with or about the human rights once identified, and logically therefore belong in a separate part of the Act.
151․ Counsel for the Attorney-General submitted that "The issue of construction in s 30 is not in terms engaged unless there is an apparent incompatibility between a law and a human right". I cannot see any basis for this submission in the terms of s 30, which contains no express mention of incompatibility but rather an exhortation to find compatibility, subject only to the obligation to preserve the legislative purpose in doing so. Those terms are at least as consistent with an intention that s 30 is applied at an early stage of the interpretive process as with an intention that it becomes relevant only at a late stage.
[215]
152․ Finally, counsel for the Attorney-General submitted that:
[216]
the approach adopted in Momcilovic is inconsistent with the approach adopted in other jurisdictions that have human rights legislation, such as the United Kingdom and New Zealand, and other jurisdictions that have constitutional bills of rights, such as Canada and Hong Kong, notwithstanding that the [Human Rights Act] drew upon and was modelled in part upon the approaches adopted in those jurisdictions. By contrast, Momcilovic has placed Victoria outside the mainstream international approach to the role of human rights in interpretation.
[217]
153․ This is in my view an unsustainable proposition.
154․ The cases relied on by the Attorney-General for this submission were the Canadian case of Oakes; Poplar Housing and Regeneration Community Association Ltd v Donoghue[2001] EWCA Civ 595; [2002] QB 48 (UK) (Poplar Housing); HKSAR v Lam Kwong Wai[2006] HKCFA 84 (Hong Kong) (Lam Kwong Wai); and Hansen.
155․ On close analysis, the first three cases in fact seem to stand for the proposition that interpretation provisions that have some kind of remedial purpose, and specifically that require or permit a departure from legislative intent, should be applied as a last resort and in particular only after justification has been tried. Poplar Housing, Lam Kwong Wai and Oakes also state or imply that the standard techniques of statutory interpretation should be applied before any attempt to justify a provision that is not human rights-compatible; this is quite consistent with Momcilovic. Hansen is more difficult to characterise, but could not be said to be clearly inconsistent with Momcilovic. Those cases are discussed in more detail below.
[218]
156․ Oakes involved a challenge to a statutory presumption that a person found to be in possession of a narcotic is in possession for the purpose of trafficking, so that the accused must be convicted of trafficking unless he or she establishes the contrary.
157․ The Supreme Court of Canada applied a two-stage process, starting by considering (at [27]) whether the challenged provision, s 8 of the Narcotic Control Act, RSC 1970, offended the right to be presumed innocent until proven guilty that s 11(d) of the Canadian Charter "constitutionally entrenches ... as part of the supreme law of Canada". Having found, through interpretation of s 8 and the Canadian Charter provision, that s 8 violated s 11(d) of the Canadian Charter, the court undertook a justification inquiry, and concluded that s 8 could not be justified. Section 8 was therefore found to be inconsistent with s 11(d) of the Canadian Charter and accordingly of no force and effect.
158․ In interpreting s 8 to determine whether it violated the Canadian Charter, the court rejected earlier interpretations of the section as placing on the accused only an evidentiary rather than a legal burden, and did not refer to any scope for remedial interpretation in the interests of preserving validity; such interpretation was unnecessary to promote human rights, because the infringement of human rights rendered the provision invalid.
159․ On the face of it Oakes and Momcilovic are entirely consistent; in each case all interpretation is undertaken before a justification inquiry, and the outcome of the justification inquiry is that the challenged provision is either upheld as not incompatible with the relevant human right, or found to be incompatible. Only the result of a finding of incompatibility is different; in Victoria it enables a declaration of incompatibility, while in Canada it leads to the invalidity of the challenged provision because of the constitutional superiority of the Canadian Charter. The most that could be said about the comparison of Oakes and Momcilovic is that the Momcilovic approach is not explained by the constitutional entrenchment of human rights that underpins the approach; this is not the same as saying that is inconsistent with .
[219]
160․ In Poplar Housing, the UK Court of Appeal found that the challenged provision (which permitted recovery of possession of a dwelling-house held on a specified kind of periodic tenancy) did not conflict with the tenant's right to have her family life respected. The court went on to make comments that it described as "strictly obiter" about interpretation and incompatibility. The court referred to the operation of s 3 of the UK Human Rights Act which, as discussed at [68․] to [81․] above, has been found to require courts to interpret legislation despite the legislative intent. It then noted (at [75]) the following points, which it described as "probably self-evident":
[220]
a) Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).
>
> b) If the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility.
>
> c) Section 3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3).
>
> d) The views of the parties and of the Crown as to whether a "constructive" interpretation should be adopted cannot modify the task of the court (if section 3 applies the court is required to adopt the section 3 approach to interpretation).
>
> e) Where, despite the strong language of section 3, it is not possible to achieve a result which is compatible with the Convention, the court is not required to grant a declaration and presumably in exercising its discretion as to whether to grant a declaration or not it will be influenced by the usual considerations which apply to the grant of declarations.
[221]
161․ The court's references to cases in which "the court has to rely on section 3" and to the "strong language" of s 3, and the comment that "unless the legislation would otherwise be in breach of the Convention, section 3 can be ignored" (emphasis added) reveal a clear view that s 3 of the UK Human Rights Act is a remedy of last resort. The court's apparent aim of excluding the use of s 3 if at all possible reflects its view of the dramatic effect of s 3; as the Court of Appeal said:
[222]
It is difficult to overestimate the importance of section 3. ... section 3 requires the court to now interpret legislation in a manner which it would not have done before the Human Rights Act 1998 came into force. When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when section 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the Human Rights Act 1998 and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3.
[223]
162․ From this perspective it is no surprise that the court said that whether there is a breach of the Convention should always be ascertained before s 3 is applied. The court's approach to the process seems to be heavily influenced by the nature of the "interpretation" task required by s 3 and in particular by its capacity to take the courts outside their usual role of interpreters and into new and confronting territory.
163․ For the ACT, I have at [126․] above interpreted s 30 of the Human Rights Act as imposing an interpretive obligation of the same nature as those imposed by other interpretive provisions, and one that in many respects goes little further than the principles and assumptions of "ordinary" statutory interpretation in Australia. The Court of Appeal in Momcilovic reached the same conclusion about s 32(1) of the Victorian Charter. I cannot see any need to treat the obiter comments made in Poplar Housing about an interpretation provision with a dramatically different operation as authoritative in the Australian context, where interpretation in pursuit of compatibility with human rights appears to fit neatly into mainstream interpretive approaches rather than requiring a significant departure from those approaches.
[224]
164․ In Lam Kwong Wai, Mason NPJ, sitting in the Court of Final Appeal of the Hong Kong Special Administrative Region, gave the leading judgment, with which the other four judges agreed. The case involved a charge of possession of an imitation firearm, which possession was not an offence under the relevant legislation if the defendant satisfied the court of one or more of several matters set out in the legislation. The principal issue, noted at [7], was whether the imposition by s 20 of the Firearms and Ammunition Ordinance, Cap 238, of an onus on the defendant was consistent with the presumption of innocence (protected by art.87(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Region of the Republic of China (the Basic Law) and art.11(1) of the Hong Kong Bill of Rights (referred to as the BOR)) and the right to a fair trial (art.87(2) of the Basic Law and art.10 of the Bill of Rights).
165․ Mason NPJ described the court's task as follows:
[225]
29. Our first task is to ascertain the meaning of s.20 according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the BOR. If that question is answered 'Yes', we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the Basic Law or the BOR and consequential invalidity. If invalidity could result, then it will be necessary to decide whether the validity of the section or part of it can be saved by the application of any rule of construction, severance of the offending part, reading down, reading in or any other remedial technique available to the Court. Consideration of this question will require examination of the powers of the courts as established by the Basic Law.
[226]
166․ That is, Mason NPJ gave a description of a staged process that had the justification inquiry taking place after "ordinary" interpretation but before "remedial" interpretation.
167․ His Honour explained the difference between "accepted principles of common law statutory interpretation" and "remedial interpretation" (from [62]). He described the common law principles as follows (citations omitted):
[227]
63. The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise. Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing. A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.
>
> 64. The very strong common law presumption or rule of construction in favour of constitutional validity, ut res magis valeat quam pereat ("it is better for a thing to have effect than to be made void") is subject to a similar limitation. Thus, it has been said that, if the language is not so intractable as to be incapable of being consistent with the presumption, the presumption should prevail. In Attorney-General (Vict) v. The Commonwealth [1945] HCA 30; (1945) 71 CLR 237, Dixon J said (at 267):
>
> "We should interpret the enactment, so far as its language permits, so as to bring it within the application of those '[legislative]' powers and we should not, unless the intention is clear, read it as exceeding them." (emphasis supplied)
[228]
168․ In his Honour's view, "remedial" interpretation is exemplified by s 3 of the UK Human Rights Act and s 6 of the NZ Bill of Rights. His Honour said (citations omitted):
[229]
65. Provisions such as s.3 of the Human Rights Act 1998 (UK) and s.6 of the New Zealand Bill of Rights Act 1990 go further. They are directed to the situation which arises when a statute on its true interpretation, derogates from an entrenched or statutory human right or fundamental freedom. They authorize or, more accurately, require the courts, in such a situation, to give the statutory provision an interpretation that is consistent with the protected rights, even an interpretation that is strained in the sense that it was not an interpretation which the statute was capable of bearing as a matter of ordinary common law interpretation. Thus, it has been acknowledged that s.3 of the Human Rights Act may require the courts to depart from time to time from the legislative intention in order to ensure that a statutory provision is European Convention-compliant. The operation of that section does not depend upon the particular form of words used by the legislative draftsman and inconsistency of the language with a Convention-compliant meaning does not make a Convention-compliant interpretation impossible. Section 3 of the 1998 Act also authorizes the courts to read words into the statutory provision, to read it down and to strike out words to make it Convention-compliant.
[230]
169․ Mason NPJ explained (at [77]) (in the context of consideration whether to imply the power of remedial interpretation into the Basic Law) the importance of the power of remedial interpretation and the effect of implying such a power:
[231]
Courts have traditionally, and for very good reason, been reluctant to engage in what may be seen as legislative activity. That is why, in earlier times the courts stopped short of engaging in remedial interpretation which involves the making of a strained interpretation. The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. In that event, they would have no option but to declare the legislation unconstitutional and invalid. Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.
>
> ...
>
> The Court must proceed on the footing that the courts of the Region, including this Court, possess all necessary powers to deal with all manner of questions which may legitimately arise in connection with the interpretation and enforcement of the provisions of the Basic Law, including their impact on Hong Kong legislation. It follows that the implied powers of this Court include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent. Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.
[232]
170․ His Honour's willingness to imply a power of remedial interpretation into the Basic Law (at [78]) seems to rest to a substantial degree on the fact that, absent that power, the consequence of a finding of incompatibility is the invalidity of the challenged legislation. A remedial interpretation, his Honour says, is less of an interference with legislative power than an invalidation of the legislation. By implication, where a finding of incompatibility results not in the invalidity of the legislation but simply in a warning to the legislature, there is not the same need to empower the courts to try to salvage something of the legislature's original intention; indeed his Honour's characterisation of remedial interpretation as "what may be seen as legislative activity" suggests that where there is no need for such interpretation, courts would "for very good reason" remain reluctant to engage in it.
171․ I note that in his Honour's discussion of whether the Basic Law confers a power to engage in remedial interpretation, Mason NPJ at [71] refers to that interpretation as follows:
[233]
Such an interpretation involves the well-known techniques of severance, reading in, reading down and striking out. These judicial techniques are employed by the courts of other jurisdictions whose responsibility it is to interpret and pronounce on the validity and compatibility of legislation which is challenged on the ground that it contravenes entrenched or statute-based human rights and fundamental freedoms. (emphasis added)
[234]
172․ His Honour's comment that the techniques of remedial interpretation are used by courts in deciding on the compatibility of legislation challenged by reference to statute-based human rights does not in my view imply that all courts empowered to make such decisions necessarily have such powers, only that this may be the case for some courts and some human rights legislation. The question whether that power is given to a court with a statute-based power of interpretation must, it seems to me, be answered by interpretation of the particular statutory provision by which that court's interpretive function is described or conferred, together with any relevant common law principles.
173․ Whether provisions requiring human rights-based interpretation confer remedial powers or are only specific additions to ordinary principles of statutory interpretation is the question that has been canvassed at [65․] to [126․] above, and which has been resolved one way in the UK (Ghaidan), and another way in Victoria in relation to an empowering provision that differs from the UK provision but is very similar to s 30 of the Human Rights Act (Momcilovic).
174․ It is the availability of "remedial" techniques of interpretation (including the application of rules of construction, severance of the offending part, reading down or reading in), that distinguishes the Hong Kong approach from the approach adopted in Momcilovic. Remedial interpretation as described in Lam Kwong Wai may be available for the purpose of salvaging the operation of a provision, or some part of it, from invalidity under a constitution or other superior legislation, but it should be a last resort after all scope for upholding the intended meaning of the provision has disappeared.
175․ In Momcilovic the Court of Appeal found that the human rights interpretation provision was not a special rule of interpretation and did not permit interpretation of a provision contrary to its purpose. I have reached the same conclusion about s 30 of the Human Rights Act. Thus s 30, and s 32 of the Victorian Charter, fit squarely within what Mason NPJ describes as "accepted common law principles of interpretation as supplemented by any relevant statutory provisions" and as such, on the analysis, would belong in the first interpretation stage.
[235]
177․ The relevant provisions of the NZ Bill of Rights, ss 4, 5 and 6, are set out in Appendix A to this judgment. Section 4 preserves the operation of legislation that is inconsistent with the Bill of Rights, s 5 permits justified limits on rights and freedoms, and s 6 provides for interpretation consistent with the Bill of Rights.
178․ Before discussing Hansen it is useful to mention two significant New Zealand cases that preceded it.
179․ In Moonen v Film and Literature Board of Review[1999] NZCA 329; [2000] 2 NZLR 9 (Moonen (No. 1), the Court of Appeal (including Elias CJ and Blanchard and Tipping JJ, who were also members of the court in Hansen), described at [17] to [19] a staged process of applying ss 5 and 6 as follows:
[236]
(a) identify all meanings for a provision that are "properly open";
(b) identify the meaning that constitutes the least possible limitation on the right or freedom in question (in the application of s 6 "aided by s 5");
(c) identify the extent, if any, to which that meaning limits the right or freedom;
(d) inquire whether any such limit can be justified under s 5;
(e) if the limit cannot be justified, then there is an inconsistency with the Bill of Rights, but the provision is to be given effect under s 4.
[237]
180․ In Moonen v Film and Literature Board of Review[2002] NZCA 69; [2002] 2 NZLR 754(Moonen (No. 2)), the Court of Appeal (this time including Blanchard, Tipping and Anderson JJ, who were members of the court in Hansen), without resiling from the five-step approach suggested in Moonen (No. 1), said that it was intended to be helpful rather than prescriptive. For procedural reasons the Court declined to deal with an argument challenging the Moonen (No. 1) indication that if multiple meanings of a provision could be justified, the one that imposed the least possible limitation on rights and freedoms should be adopted.
181․ It is worth noting that the decisions in Moonen (No. 1) and probably Moonen (No. 2) (both of which contemplate the interpretation provision being applied before the justification provision), but not the decision in Hansen, would have been available when the Bill for the ACT Human Rights Act was originally drafted.
182․ Hansen is a difficult case to come to grips with; it seems that the New Zealand courts are still working through the implications of the NZ Bill of Rights. A detailed commentary on some aspects of the case is found in a paper by Claudia Geiringer, 'The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen' (2008) 6 New Zealand Journal of Public and International Law 59. The paper focuses on the relationship between human rights-based interpretation and common law principles of statutory interpretation, raising similar issues to those raised at [201․] to [203․] below. For present purposes it is sufficient to note Ms Geiringer's description of the Supreme Court's suggestion that the s 5 justification provision should be applied before the s 6 human rights-based interpretation. In the light of the Court's "general orientation" towards seeing s 6 as "a legislative manifestation of the established common law principle that legislation is ... to be interpreted consistently with fundamental rights recognised by the common law", Ms Geiringer says (at 63) that the Court's approach is "incoherent".
[238]
Step 1. Ascertain Parliament's intended meaning.
>
> Step 2 Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
>
> Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
>
> Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament's intended meaning prevails.
>
> Step 5. If Parliament's intended meaning represents an unjustified limit under s 5, the court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
>
> Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament's intended meaning be adopted.
[239]
192․ Blanchard and McGrath JJ both noted (at [61] and [192] respectively) that the sequence of applying s 5 before s 6 was not, however, mandated by the NZ Bill of Rights.
193․ All three judges indicated, in effect, that the sequence was appropriate where the provision had a single, clear meaning as a result of "ordinary" interpretation, but implied that cases where the possible meanings of a provision were less clearly defined might call for different treatment (Blanchard J at [61]; Tipping J at [93] and [94]; McGrath J at [192]).
194․ Anderson J did not deal explicitly with the order in which s 5 and s 6 could be applied, but noted at [266], somewhat obscurely, that if there were two possible meanings inconsistent with human rights, one of which could be justified and another which could not, then s 6 would require adoption of the justified one. The suggestion that two meanings could emerge from "ordinary" interpretation and be subjected to justification inquiries was not discussed by the other judges, except to the extent that they contemplated that cases in which there is no single "natural meaning" might require a different approach.
195․ Anderson J's assumption that the initial interpretation process might produce two possible meanings seems also to allow the possibility of the process throwing up both a meaning consistent with human rights and one that is apparently inconsistent but can be justified, neither of which qualifies as the "natural meaning" of the provision. How a choice would be made between meanings in such a case is unclear to me, since Tipping J's proposed process depends on a single meaning being identified to start with.
196․ Hansen in my view does not provide any useful guidance about how the ACT legislation might be applied. It gives no clear picture of the scope or meaning of the interpretation provision, no clear indication of when the justification provision can appropriately be used, and no definitive lead on the interaction of the interpretation and justification provisions. To the extent that the views of members of the court seem to be based on the assumption that legislative provisions will generally have a single "natural meaning", they do not seem to reflect either the assumptions of Australian courts or the assumptions underlying Australian interpretation legislation (although they may be a fair reflection of modern legislative drafting). More significantly, such a starting assumption raises questions about the utility of an interpretation provision requiring preference to be given to human rights-consistent meanings in an environment where multiple meanings are unlikely, and suggests that if the interpretation provision is to have a substantive effect in such an environment it might in fact need to be given an operation like that of s 3 of the UK Human Rights Act.
[240]
Conclusions about the "mainstream international approach"
[241]
198․ In summary, the cases referred to by counsel for the Attorney-General as identifying a "mainstream international approach to the role of human rights in interpretation" with which Momcilovic is inconsistent do nothing of the kind. Rather, they identify that what counsel describes as the "mainstream" approach generally depends on the possession by the courts in question of what Mason NPJ describes in Lam Kwong Wai as "remedial" interpretive powers, which may arise from the constitutional status of human rights such that a provision's incompatibility with those rights leads to invalidity (Hong Kong) or from the extended interpretive powers conferred by statute (UK). Hansen does not fit neatly into the framework I have described, since a majority of the judges in that case applied the justification provision first but then applied the interpretation provision in a way that is not easily classed as "remedial". However, as indicated at [182․] to [197․] above, I do not consider Hansen to be clear enough to be treated as persuasive in the ACT, especially given the difference between the terms of the New Zealand legislation and that of the ACT.
199․ Where, as in Victoria and, in my view, the ACT, the protection of human rights does not currently include the conferral of powers of remedial interpretation on the courts, there is no reason for excluding the interpretive powers that are conferred from the ordinary process of statutory interpretation that needs to be undertaken to work out the meaning of legislation before any justification inquiry is undertaken.
[242]
Arguments in favour of interpreting before testing justification
[243]
200․ In the ACT there are, quite apart from the interstate and international authorities, both philosophical and practical reasons favouring the Momcilovic approach to the process question.
[244]
The difficulty of separating the interpretive stages
[245]
201․ As noted at [33․] and [43․] above, s 139(1) of the Legislation Act requires that an interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation, and s 138 of that Act provides that this approach is to be applied to a wide range of interpretive ends, being:
[246]
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
[247]
202․ If real meaning is to be given to the word "best", the direction to adopt an interpretation that best achieves the legislative purpose seems to require (even without the application of a specific human rights-based approach) the identification of all of the issues raised by a search for the purpose of the legislation, and most if not all of the genuinely available meanings for a particular provision. Apart from the significance of "best", the proposition that interpretation under s 139 is likely to throw up all available human rights-compatible meanings for a provision is supported by the comments of Gleeson CJ in Plaintiff S157 2002 v Commonwealth[2003] HCA 2; (2003) 211 CLR 476, quoted in Momcilovic at [103], to the effect that the framework of interpretive rules, even in the absence of human rights legislation, includes a presumption that fundamental rights or freedoms are not intended to be abrogated or curtailed by anything other than clear words. At [30] (citations omitted), Gleeson CJ said:
[248]
courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual'.
204․ It is interesting that, despite favouring an approach in which human rights-based interpretation comes after a justification inquiry, Tipping J in Hansen said at [89] that:
[250]
The initial interpretation exercise should proceed according to all relevant construction principles, including the proposition inherent in s 6 that a meaning inconsistent with the rights and freedoms affirmed by the Bill of Rights should not lightly be attributed to Parliament.
[251]
205․ The scope for s 30 of the Human Rights Act to reveal available meanings of the plain words of a legislative provision beyond what would emerge in a s 139 inquiry is narrowed even further once s 30 is read as limited to meanings consistent with legislative purpose (see [126․] above).
206․ It is accordingly unrealistic to suggest that when a human rights-based challenge is made to a provision, the first process of interpreting the provision must involve a consideration of available meanings for the provision that is artificially limited to exclude those meanings that appear to have what might be described as human rights significance (a vague term which suggests that the concept itself is not necessarily meaningful), on the basis that those meanings will be considered if and only if any identified restriction on rights imposed by other meanings cannot be justified under s 28. Given the broad scope for interpretation under ss 138 and 139 of the Legislation Act, the implicit requirement under s 139 to identify all available meanings consistent with purpose, and the inclusion in the standard interpretive processes of a general presumption in favour of fundamental rights and freedoms, I am not convinced that s 30 provides for a meaningfully distinct interpretive task that can be quarantined until after the s 28 justification inquiry.
207․ For the ACT, how s 30 could operate with s 139 of the and the "ordinary" interpretive process is a question that requires further teasing out.
208․ The unusual operation of the ACT purposive interpretation provision, s 139, seems to require that s 30 is applied not just as part of the standard interpretive processes but even before s 139. Sections 30 and 139 apply in different ways, in that s 30 requires only that a human rights-compatible meaning be sought, whereas s 139 requires that one particular meaning be preferred, namely the one that best achieves the legislative purpose. That is, where a provision has multiple possible meanings as a matter of orthodox statutory interpretation, s 30 may leave some or all of those meanings in play but s 139 excludes all but the "best", judged by reference to legislative purpose.
209․ This in turn means that starting with s 139 sends the inquiry along a single track which, if the preferred meaning of the provision is not human rights-compatible, may require a s 28 inquiry before possibly concluding with a recognition that the preferred meaning would not satisfy s 30; this is effectively the process favoured by several of the judges in Hansen, which as noted at [190․] above seemed to emerge not from an explicit interpretation of the NZ Bill of Rights but from an assumption that there will usually be only one "natural meaning" of the legislation in question.
210․ Nor is it clear from the ACT legislation where the process would go after a finding that the required meaning under s 139 is not human rights-compatible and not justifiable; even if there is obviously an available meaning that is both human rights-compatible and consistent with purpose, s 139 with its emphasis on the "best for purpose" meaning could drive the court straight to a declaration of incompatibility or, alternatively, could require it to repeat the s 28 process, for all other "better for purpose" meanings one by one until everything except the human rights-compatible meaning has been discarded.
211․ Attempts to justify non-compatible meanings, and declarations of incompatibility, are appropriate outcomes of last resort for cases where there is a clear conflict between the legislature's purpose and the protection of human rights - it is hard to accept that they are intended to be outcomes of first resort as soon as it becomes apparent that the meaning that best achieves the legislative purpose is not compatible with human rights. It is particularly hard to accept this in the absence of anything in the words of the legislative scheme that seems to require such an approach, and having regard to the explanation of the current s 30, in the Explanatory Statement for the , that its effect is "that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail".
[254]
221․ Section 40B of the Human Rights Act was not the subject of argument, so I draw no conclusions about its operation. However, it is interesting in considering the operation of ss 28 and 30 of that Act to note that the section makes it unlawful for a public authority to disregard human rights in its actions and decision-making (s 40B(1)), unless required to do so by a law that is inconsistent with a human right (s 40B(2)(a)) and cannot be interpreted in a way that is consistent with human rights (s 40B(2)(b)).
222․ The reference to interpreting the law, and the absence of any reference to determining whether the inconsistency can be justified, may indicate a legislative intention that human rights-based interpretation can be engaged in by public authorities but that attempts to find provisions justified are not appropriate for such bodies. Such an intention would not be surprising given the difficulties inherent in any justification inquiry. What would be surprising is a legislative intention that courts are not to apply a human rights-based interpretation to a provision before undertaking a justification inquiry but that a human rights-based interpretation is the only method that public authorities may use to achieve consistency with human rights (which among other things would multiply the scope for a variety of inconsistent interpretations being applied in different contexts).
223․ Thus, s 40B seems to support the view that s 30 of the Human Rights Act should be applied as part of the first stage in attempting to find a human rights-compatible interpretation of a Territory law, not only after a justification inquiry.
[255]
Need for argument and evidence in testing justification
[256]
224․ Another consideration with both practical and philosophical implications is that the investigation of whether a provision imposes a limit on human rights that can be "demonstrably justified in a free and democratic society" is not a straightforward task, but one that has been recognised as often requiring the provision of evidence as well as argument about the need for the particular limit in the "democratic society" concerned. In Momcilovic, the Court of Appeal noted at [142] that neither the respondent Crown nor the Attorney-General had sought to put evidence before the Court to establish the need for a provision to reverse the onus of proof as was done by the challenged provision. The court later noted (at [146]) that Momcilovic was a case in which evidence was required. The Court also referred at [143] and [144] to comments by Dickson CJ in Oakes at [68] and by Warren CJ in Re an application under the Major Crime (Investigative Powers) Act 2004[2009] VSC 381 at [147] to the effect that evidence will generally be required in an attempt to justify a provision's infringement of a human right and that it will need to be "cogent and persuasive".
225․ The practical concern is that the need to gather and tender evidence about the aims of the provision concerned, and how effectively it achieves those aims, may add a significant extra dimension to court proceedings in which the provision has been challenged. Its impact on the interpretation of legislation by people such as public officials is even more problematic.
226․ Counsel for the Attorney-General submitted that there is no necessary requirement for a party to tender evidence in support of a limit on human rights that is sought to be justified under s 28, despite the cases referred to at [224․] above, and this must be correct. On the other hand I am not convinced that "the developed wisdom of the common law" (relied on by counsel for the Attorney-General in submissions) is of itself an acceptable basis on which to justify a limit that appears otherwise to infringe a human right. It is true that in many respects the common law and human rights principles are substantially in accord with one another (see [] above), but by definition, if the common law had always recognised human rights in the same way as is now sought to be achieved by human rights legislation, there would seem to be no need for human rights legislation in common law countries. Furthermore, as will be discussed, "the developed wisdom of the common law" does not appear to justify the particular method chosen in the ACT to deal with bail applications by people accused of serious offences (see [] and [] below).
[257]
Momcilovic approach is a better allocation of tasks
[258]
229․ Thus, the approach that involves applying the interpretation provision then the justification provision has the practical and philosophical virtues of:
[259]
(a) potentially absorbing fewer resources all told in resolving human rights challenges; and
(b) better assigning any work that is required, so that the courts focus on the legal task (interpretation) and the legislature retains more of the task of making and justifying policy decisions.
[260]
230․ At [59․] and [60․] above I have expressed the view that (in contrast to the approach of the UK legislature as mentioned in Ghaidan) the ACT legislature did not intend the ACT courts to play the primary role in actually making the ACT statute book compatible with human rights.
231․ The courts, however, clearly do have a significant role in ensuring that ACT legislation is compatible with human rights via interpretation of legislation. This suggests to me that an application of the Human Rights Act that maximises the prospect of resolving human rights issues in the courts without the need to investigate whether legislation is "justified" (effectively a political rather than a legal question) should be preferred over one which would require justification to be argued and determined in the courts even where an interpretation-based solution is clearly available.
[261]
Conclusion - order of interpretation and justification
[262]
232․ In summary, having regard to both the authorities and to the explanatory material about the Human Rights Act, I have concluded that the only sensible way to deal with s 30 of that Act is to apply it at an early stage in the process of interpreting legislation, rather than at the end and only after an unsuccessful justification inquiry.
233․ The two substantive reasons for that conclusion can be summarised as follows.
234․ The first reason, which seems to be of general application, is the practical desirability of avoiding a justification inquiry by a court if that can be done without any substantial negative effect on either legislative purpose or human rights; it seems reasonable to assume that there would be no substantial negative effect of that sort caused by adopting a meaning that is both human rights-compatible and consistent with legislative purpose as required by s 30, in preference to attempting to justify a provision that is also consistent with purpose but appears not to be human rights-compatible.
235․ The second reason, which is partly of general application and partly peculiar to the ACT, is the general difficulty, in the context of the Australian approach to statutory interpretation, of making practical sense of an interpretation process that purports to separate a general purposive interpretation from a non-remedial, human rights-based, interpretation, and to interpose a justification inquiry between the two rounds of interpretation. In particular there is a real difficulty in the ACT in reconciling the operation of s 30 of the Human Rights Act with s 139 of the Legislation Act if those two provisions are not applied in a single exercise in which s 30 takes priority over s 139.
[263]
236․ For these reasons, then, I propose to follow the Momcilovic approach to the process, with an ACT gloss to take account of s 139 of the Legislation Act; this approach involves the following steps:
[264]
Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.
[265]
Step 2: Set aside for the time being any available meaning that is not human rights-compatible under s 30.
[266]
Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).
[267]
Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.
[268]
Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.
[269]
Step 4: Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.
[270]
Step 4A: If only one meaning can be justified, it is adopted.
[271]
Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.
[272]
Step 4C: If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.
[273]
237․ Steps 1 to 3 describe the interpretive process, and Step 4 is the justification inquiry and the resulting choice of a meaning for the provision from among the meanings already identified by applying all relevant statutory and other interpretation rules.
238․ The process required by Step 1 is not straightforward, in particular to the extent that it is not really possible to separate the process of identifying legislative purpose from the process of interpreting the legislation. This is particularly so if the relevant legislative purpose is, as discussed at [33․] to [35․] above, the purpose of the provision being interpreted rather than a broader purpose such as the purpose of the Act as a whole.
239․ There would be no apparent reason under the orthodox purposive interpretation provision why Step 4 (the justification inquiry) could not be conducted in relation to all remaining meanings at once, with a view to determining whether any of them could be justified. I do not consider that the s 139 direction (to prefer the "best for purpose" meaning) requires the choice of the "best for purpose" provision to be made before any justification inquiry under s 28. As a practical matter, however, an ACT court might choose to consider justification for the available meanings one by one starting with the one that is seen as best effecting the legislative purpose.
[274]
240․ Before applying the process identified at [236․] above to s 9C of the Bail Act, it is useful to consider also the elements of a justification inquiry under s 28 of the Human Rights Act.
241․ The onus of justifying a limitation found to be imposed on a human right falls on the party or parties seeking to have the court uphold the meaning of the provision that is not apparently human rights-compatible. In Re an application under the Major Crime (Investigative Powers) Act 2004, Warren CJ said at [147]:
[275]
The onus of 'demonstrably justifying' the limitation in accordance with s 7 resides with the party seeking to uphold the limitation. In light of what must be justified, the standard of proof is high. It requires a 'degree of probability which is commensurate with the occasion'. King J observed in Williams that the issue for the court is to balance the competing interests of society, including the public interest, and to determine what is required for the accused to receive a fair hearing. It follows that the evidence required to prove the elements contained in s 7 should be 'cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.'
[276]
242․ Section 28(2) sets out factors to be considered in a justification inquiry, being:
[277]
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
[278]
243․ Apart from the preliminary factor of the nature of the right affected (s 28(2)(a)), the other factors generally reflect the tests set out in Oakes (citations omitted) as follows:
[279]
69. To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be 'of sufficient importance to warrant overriding a constitutionally protected right or freedom'. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
>
> 70. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves 'a form of proportionality test'. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of 'sufficient importance'.
[280]
244․ Section 28(2)(e) identifies as one of the relevant factors "any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve". Counsel for the Attorney-General relied on R v Sharpe[2001] 1 SCR 45 (Sharpe) and Sabet v Medical Practitioners Board of Victoria[2008] VSC 346 (Sabet) in submitting that s 28(2)(e) does not require that the legislature adopt the least restrictive means, only that the means adopted falls "within a range of reasonable solutions to the problem confronted". In Sharpe, the Supreme Court of Canada said at [96] (citations omitted):
[281]
This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end. It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted. The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account.
[282]
245․ In Sabet, Hollingworth J said at [188] (citations omitted) that:
[283]
it is common ground that, in considering whether there is any 'less restrictive means available', there is no obligation on a public authority to choose the least intrusive means possible. Rather, the court is required to consider whether the chosen measure falls within a range of reasonable alternatives.
[284]
246․ However, his Honour did not need to consider the question of less restrictive means of achieving a purpose, because he was not satisfied that the relevant human right (the presumption of innocence) had been limited by the action of the public authority concerned (see [191]).
247․ The tests which need to be satisfied in the ACT can be summarised (adopting the terminology of the Human Rights Act where relevant), as follows:
[285]
(a) Is the purpose of the limitation of sufficient importance to warrant overriding the recognised human right (see ss 28(2)(a) and (b) of the Human Rights Act)?
(b) Is the challenged provision rationally connected to its purpose (see ss 28(2)(c) and (d))? That is, does it achieve the relevant purpose without having an arbitrary or unfair operation and without relying on irrational considerations?
(c) Does the challenged provision limit the human right concerned no more than is reasonably necessary (see s 28(2)(e))?
(d) Is the limit imposed on the human right proportional to the importance of the purpose?
[286]
248․ If all four questions can be answered "yes", then the challenged provision may be found to be justified. If any of the questions is answered "no", then the limitation effected by the challenged provision would generally not be justified.
249․ There are some comments that should be made about the Oakes tests. First, of course, the rights recognised by the Human Rights Act are not "constitutionally protected". I do not consider that this distinction is important in applying s 28, if only because the relatively lower legal status of ACT human rights is matched by the relatively lower legal impact of a finding that a human right has been infringed.
250․ Secondly, it is likely to be an unusual case in which a provision could be found not to be justified if all questions are answered "yes" or could be found to be justified despite one or more questions being answered "no". However, s 28 does not impose a set of tests but a list of factors to be considered, and it allows for the possibility of considering other factors that are relevant but not specified in the section. The undoubted persuasive weight of Oakes does not seem to require or permit a conclusion that the justification inquiry is purely a mechanical application of the Oakes tests.
251․ Having established the framework for the inquiry, I turn to considering the specific question in Mr Islam's application, namely the status of s 9C of the Bail Act having regard to the provisions of the Human Rights Act.
[289]
Step 1: What are the available meanings of s 9C that are consistent with legislative purpose?
[290]
252․ Before considering legislative purpose, it is useful to explain the structure of the Bail Act.
253․ Part 2, headed "Availability of bail", starts with Div 2.1 which explains the general concept of bail. Division 2.2 deals with cases in which there is a presumption in favour of bail, covering certain minor offences in respect of which there is generally an entitlement unless, where application is made to a court, the court is satisfied that refusal is justified after considering, for an adult, the matters set out in s 22.
254․ Division 2.3 deals with offences for which there is no presumption for bail. Although it is not specified anywhere, this seems to mean that subject to s 22, bail is at the court's discretion; that is, there is no requirement that bail be granted unless the court is satisfied that refusal is justified, but there is also no requirement that bail be refused unless the court is satisfied that the grant of bail is justified or perhaps that refusal of bail is not justified.
255․ Division 2.4 deals with circumstances in which there is a presumption against bail. Sections 9C, 9D and 9E require bail to be refused unless the court is satisfied that there are special or exceptional circumstances favouring the grant of bail. Section 9F applies a different hurdle to the grant of bail to a person accused of a domestic violence offence. gives further information about "special or exceptional circumstances", and specifies that the criteria relevant to a grant of bail set out in may only be considered special or exceptional circumstances have been found.
258․ As discussed at [52․] above, the purpose of the Bail Act as a whole seems to be to ensure that accused persons turn up for trial, to protect the community and the administration of justice, and to protect the liberty of persons presumed to be innocent. That is, it is intended to balance a variety of competing rights, interests and expectations; a purpose of that kind provides important context, but is unlikely to provide easy answers to questions about the meaning of particular provisions.
259․ The purpose of each individual provision could probably be said, generically, to be to strike the balance at a particular point, that point being identifiable by reference to the operation of that particular provision. Between the purposes of the Act and the specific operation of the provision concerned, clues to "sub-purposes" may be given by such things as higher-level headings; for a section of an Act, relevant elements of the Act might be the headings of the Division, Part or Chapter in which the section is located, or the headings of other units that do not include the section. For instance, the location of s 9C in a Division called "Presumption against bail" gives a clue to a purpose, if not to a rationale, that is slightly more specific than the purposes of the Bail Act. Clues may also be given by the contents of provisions other than the provision in question. For instance, the inclusion of s 9F (Domestic violence offence - bail by authorised officer) in the division implementing the presumption against bail enables the focus of that section (the safety of a "protected person") to be contrasted with the less specific requirement in s 9C to find "special or exceptional circumstances" before bail can be considered. The application of s 9F only to the grant of bail by an authorised officer (which, under the Dictionary to the Bail Act, covers only police officers of specified ranks or with express authorisations) can be contrasted with the application of the hurdle under s 9C to all bodies authorised to grant bail, up to and including the Supreme Court.
260․ An examination of the purpose of s 9C must also be undertaken, although it is of course hard to separate determining the purpose of s 9C from interpreting s 9C.
261․ Section 9C applies to persons who have been charged with several specified kinds of offences, namely murder and certain serious drug offences under chapter 6 of the Criminal Code 2002 (ACT), all of which carry a maximum penalty of life imprisonment. By the operation of s 189 of the Legislation Act, the section also applies to offences that are ancillary offences in relation to the specified offences. Ancillary offences are created by Part 2.4 of the Criminal Code, including attempt (s 44) and aiding, abetting, counselling or procuring the commission of the offence (s 45), and by s 717 of the Criminal Code relating to accessories after the fact.
262․ Section 9C specifies in unambiguous terms that the court "must not grant bail" to a person unless satisfied that "special or exceptional circumstances exist favouring the grant of bail" (s 9C(2)).
263․ Section 9C must be read in context. As already described, it appears in a division of the Bail Act headed "Presumption against bail", and it is subject to s 9G, which provides general rules for the several provisions , and ) that require the court to find special or exceptional circumstances favouring the granting of bail before considering the "bail criteria".
[297]
In conjunction with introducing a presumption against bail for a charge of murder, the Government is of the view that the Act should make a clear distinction between the bail criteria (as set out in sections 22 or 23) and the test of special or exceptional circumstances.
>
> This new section intends to make it clear that the test of special or exceptional circumstances is a higher test than the bail criteria, and that the bail criteria should only be considered if the test of special or exceptional circumstances has been decided by the court or authorised officer.
>
> As noted in the context of murder, the common law position of bail for a charge of murder was that it would not be allowed unless exceptional circumstances existed.
[298]
268․ The purpose of s 9C, read in context and noting the Explanatory Statement for the original version of s 9C, is, in practical terms, to make it very difficult for a person charged with murder or an ancillary offence to obtain bail, and to achieve this by providing a significant extra obstacle to the granting of bail to such persons. Whether the underlying purpose is to ensure that such persons turn up for trial, to protect the community or the administration of justice, or to protect the accused person, is not apparent from either the text of the provision or the explanatory material.
269․ Counsel for the Attorney-General implied that the underlying purpose could be found in the history of bail at common law. She provided, as part of the context in which s 9C should be interpreted, detailed submissions about "the common law approach to the grant of bail, particularly to an accused who has been charged with murder or attempted murder". Those submissions noted a number of authorities relevant to murder and other serious offences, but it has to be said that authorities supporting a specific distinction between murder and its ancillary offences on the one hand, and other serious offences of violence on the other, seem to be thin on the ground.
270․ Counsel noted that the considerations long recognised by the common law as relevant to the grant of bail are now reflected in s 22 of the Bail Act. Considerations relating to community safety have come to be considered relevant and are also reflected in s 22. Counsel said that a principle has developed that bail should only be granted to a person charged with murder where "special circumstances" or "exceptional circumstances" exist.
271․ In Sabau v The State of Western Australia[2007] WASC 183 Johnson J at [71] noted the common law principle that "in very serious cases or extremely serious cases, including murder and wilful murder, the applicant is required to establish exceptional circumstances before bail can be granted". This principle was strengthened from early times by the existence of the death penalty, but the abolition of the death penalty has not been seen as eliminating the requirement for exceptional circumstances. It has been conceded that the inference of a high risk of absconding is not necessarily as strong as it had been, but also that it is the possible severity of the sentence more generally that supports an inference that absconding is a particular risk ( at 16, Malcolm CJ).
[299]
Possible meanings of s 9C - circumstances need not be very special or exceptional
[300]
279․ Counsel for the Attorney-General and the DPP both noted the argument put on behalf of Mr Islam that as well as the accepted meaning of "special or exceptional circumstances" set out in Massey [No. 2] and other ACT cases, the phrase could be interpreted as requiring the establishment of circumstances that were not very special or exceptional at all.
280․ Counsel for the Attorney-General, while noting that the Attorney-General had no basis on which to make any submissions about the significance of delay in the particular case, did point out that the weaker "special or exceptional" test did not need to be adopted for the purpose of Mr Islam's application, since the more stringent meaning of the test has been accepted, and was accepted by the Attorney-General, as including inordinate delay. This submission, however, missed the point that Mr Islam's counsel specifically declined to make any submissions to the effect that the delays affecting his client were inordinate and therefore special or exceptional within the accepted meaning of s 9C, and counsel for the DPP specifically declined to concede that any delay affecting the applicant was special or exceptional.
281․ The meaning of "delay" was considered in Allen (see [6․] above).
282․ Counsel for the DPP submitted that interpreting s 9C to require the court only to find circumstances that were not really very special or exceptional would be a problematic approach, specifically in relation to delay. His argument was that:
[301]
(a) if inordinate delay may amount to special or exceptional circumstances under the currently-accepted meaning of that phrase; and
(b) if inordinate delay means, in essence, elapsed time that goes beyond the time that is normally required for a prosecution to move through the usual stages in the ordinary course of events;
[302]
then any meaningful reduction in the effect of the requirement for special or exceptional circumstances would reduce the significance of "delay" such that the normal passage of time as a prosecution moved through its usual stages could itself be delay amounting to a special or exceptional circumstance. This would potentially drain the s 9C requirement of any content, since all prosecutions for s 9C offences involve elapsed time, and at some point in each case this would become "delay" amounting to a special or exceptional circumstance.
[303]
283․ This particular example does not of itself establish that the proposed meaning for "special or exceptional" is unavailable, but it does suggest that trying to give "special or exceptional" a real meaning that has less of an impact than the test as currently applied but still has some impact (rather than none) may be a theoretical rather than a practical option.
[304]
Possible meanings of s 9C - a reminder to the courts
[305]
284․ Another possibility is that s 9C could be read as merely a reminder to the courts to take extra care in considering a bail application from a person accused of a relevant offence.
285․ In 1998, s 25(1) of the Bail Act 1976 (UK) was amended to replace the provision about bail for persons who had been charged with certain serious offences if they had previously been convicted of a serious offence. The original provision, denying bail to such persons, was replaced with a provision enabling a grant of bail only if the court was satisfied that exceptional circumstances justified the grant of bail. In parliamentary debate on the amendment, it had been made clear that the provision was intended to put the onus onto the bail applicant to "show good and sufficient reason" for a grant of bail.
286․ In O(FC) (Appellant) v Crown Court at Harrow (Respondents)[2006] UKHL 42 (Harrow), Lord Brown of Eaton under Heywood, with whom the other Law Lords agreed on this issue, noted at [35] the difficulty posed by the words of the provision and concluded that the provision had to be read down so as to eliminate the burden of proof clearly intended to be placed on the bail applicant.
287․ The Law Lords in that case did not refer specifically to Ghaidan, but their decision clearly relied on the Ghaidan approach. Lord Carswell said at [7] that:
[306]
[B]ut for the effect of the Human Rights Act 1998 and the Convention, the courts would most probably follow the ordinary meaning of the section and fulfil the object of Parliament in enacting it. The fact that they are not in a position to do that does not derive from any judicial desire to frustrate the wishes of Parliament, but is the inescapable consequence of the application of the Human Rights Act 1998 and the Convention.
[307]
288․ At [34] Lord Brown referred to the view of the court below that the new test "has no substantive effect upon the way in which bail applications by [the affected class of bail applicants] would in any event fall to be determined under the Bail Act", but that it would serve "merely to 'remind' the courts of the [relevant] risks ... and 'will merely assist the court to adopt a proper approach in relation to bail". That was the outcome of the different approaches of the two members of the court below, Kennedy J and Hooper J, who found, respectively, that a statutory presumption against the grant of bail was a way of giving a reminder to the court about the risks of granting bail, but that courts were free to override the presumption; and that s 25 literally imposed a burden on the bail applicant that had to be read down to leave the burden with the prosecution.
289․ In the absence of a requirement along the lines of s 3 of the UK Human Rights Act to read down the provision by ignoring the text of the provision and its legislative purpose, there is no basis that I can see for following the Harrow approach and treating s 9C as simply a reminder to the courts.
[308]
Possible meanings of s 9C - decision that bail can safely be granted is the exceptional circumstance
[309]
290․ The Human Rights Commissioner's submissions drew attention to the discussion of this general issue in the UK Law Commission Report, Bail and the Human Rights Act 1998, Report No 269 (2001), and pointed out, without adopting it, the suggestion at [8.46] that to be human rights-compatible, the exceptional circumstances test:
[310]
should be construed as meaning that where the defendant would not, if released on bail, pose a real risk of committing a serious offence, this constitutes an 'exceptional circumstance' so that bail may be granted.
[311]
291․ This suggestion is similar to that made in Harrow by counsel for the respondent at [29] that:
[312]
if, having regard to all the relevant facts, the court concludes that bail should after all be granted to [a relevant applicant], that, by definition will constitute exceptional circumstances.
[313]
292․ These suggestions have the virtue of attempting to find an acceptable meaning in the language of the provision concerned; unfortunately they have the vice of relying on their own bootstraps ("bail may be granted in exceptional circumstances, which may be constituted by a finding that bail may be granted"). In any case, s 9C read with s 9G makes it clear that the court cannot engage in a preliminary consideration of the general "bail criteria" in order to reach a decision in favour of bail that can then be identified as a special or exceptional circumstance; such a circumstance must be found before the general availability of bail is assessed.
[314]
293․ Counsel for the Attorney-General and the DPP both submitted that s 9C could be interpreted as not imposing any onus on the applicant to establish special or exceptional circumstances, so that any possible meaning identified for the provision as a whole could be further subdivided into a version that puts the onus onto the applicant to establish the circumstance and one that does not, presumably with a view to offering up the less burdensome version as a human rights-compatible version of the provision.
294․ The submission that the onus could be on the applicant or not covers at least two sets of alternative approaches, one relating to the onus of adducing evidence and one relating to the onus of establishing a relevant matter.
295․ As to a possible evidential onus, s 9C says that the court must be satisfied that special or exceptional circumstances exist, and it is true that in most cases, if an applicant did not start by pointing to something asserted to be a special or exceptional circumstance, the court would have no difficulty refusing the application. However, as counsel for the Attorney-General submitted, s 9C does not preclude the court being so satisfied by evidence that is provided by the prosecution, and counsel for the DPP conceded that the DPP would be obliged to put to a court hearing a bail application any material known to the DPP that might be relevant to the applicant's claim for bail (a matter such as an imminent downgrading of charges might be particularly relevant). For that reason, I do not accept that one available meaning of s 9C is that it imposes an evidential onus on the applicant, nor that a meaning that did not impose such a burden on the applicant could therefore be seen as a genuine alternative.
296․ Another possible set of approaches to onus relates to what the court is really required to be satisfied about, and therefore who has the onus of satisfying it. Section 9C says that the court must be satisfied of the existence of special or exceptional circumstances; this has generally (for obvious reasons) been interpreted as requiring that the court must be satisfied that there is a special or exceptional circumstance. An alternative interpretation (implied by an attempt to draw an onus of proof distinction) would be that s 9C only prohibits the court considering the bail application against the s 22 criteria if it is satisfied that there is no special or exceptional circumstance. However, a meaning of s 9C to the effect that the prosecution must rule out the existence of special or exceptional circumstances before the section prevents the court examining the s 22 matters seems to be another meaning that is simply unavailable by reference to the plain words of the provision and by reference to common sense. Apart from anything else, positively ruling out the existence of special or exceptional circumstances would be an impossible task for the prosecution in a bail application.
[315]
Possible meanings of s 9C - a "remedial" interpretation
[316]
301․ Counsel for the applicant, on the assumption that the purpose of s 9C was the protection of the community, submitted that:
[317]
(a) the section could be "blue-pencilled" into providing a meaning that had a rational connection with the protection of the community in preference to a meaning that gave effect to the text of the section and the legislative purpose expressed in explanatory material; or
(b) alternatively the words of the section could be ignored and, in effect, replaced with a general finding that what the legislature sought to achieve could be achieved in a different way, being a way that needed to be identified but did not need to be specified in the form of a "legislative" provision.
[318]
302․ Since I have concluded that such "remedial" interpretation is not available in the ACT in the human rights context (see [126․] above), this argument does not need to be further addressed.
[319]
303․ The possible meanings for s 9C that emerged from argument can be summarised as follows:
[320]
(a) The currently accepted meaning, namely that s 9C imposes a threshold barrier to consideration of a bail application, being that the court must be satisfied of "special or exceptional circumstances" in the nature of those identified by Australian courts over many years (which include inordinate delay in bringing a person to trial; Allen at [27] and [28] and the cases cited there).
(b) That s 9C imposes an obstacle on consideration of a bail application that consists of a requirement for the court to find "special or exceptional circumstances", but it is a low threshold, of a much less significant nature than the kinds of circumstances identified by Australian courts previously.
(c) That s 9C is simply a warning to a court hearing a bail application by a person covered by s 9C that it is necessary to be particularly rigorous in considering the s 22 criteria for the purposes of that application.
(d) That section 9C can be satisfied by a finding that bail can safely be granted by reference to s 22.
[321]
304․ I have already at [297․] dismissed the suggestion that any or all of those meanings can be subdivided into meanings with or without either an evidentiary onus or an onus of proof.
305․ None of the meanings set out in [303․] above could be said to be inconsistent with the purposes previously identified for the Bail Act as a whole; each meaning would represent a balancing of the competing interests addressed in the Bail Act, with different meanings striking the balance between the interests of the community (loosely speaking) and the liberty of the offender in different ways.
306․ However, I consider that meanings (c) and (d) are not available under principles of statutory interpretation that require regard to be had, and meaning to be given, to the plain words of the legislation, and that are not displaced by the inclusion of s 30 in the relevant body of statutory interpretation principles. I am satisfied that if the ACT legislature had intended only to provide that s 22 was to be applied in specified cases in a particularly rigorous way (meaning (c)), or that whether bail could safely be granted by reference to s 22 was the only test that needed to be applied (meaning (d)), it was entirely capable of doing so, and it would not have chosen s 9C as the means of doing so. As noted at [265․] above, the aim made explicit by s 9G(3) of erecting a substantive barrier, not just to the granting of bail but to consideration of a bail application, cannot simply be ignored.
307․ Meaning (a), as well as better reflecting the case law about bail for those accused of very serious offences, could be said to be more effective to implement a presumption against bail. Meaning (b) might be said to be a better reflection of the presumption of innocence. Both meanings are equally available by reference to the words of s 9C, and are not conclusively excluded by any explanatory material.
[322]
Step 2: Set aside for the time being any available meaning that is not human rights-compatible
[323]
308․ This step requires a determination whether any of the available meanings for the provision concerned are not compatible with human rights.
309․ In due course I shall refer in more detail to the South African case of Dlamini, which related to provisions restricting bail where serious offences were alleged, but at this stage it is useful to mention the comment by Kriegler J in that case at [79] that:
[324]
As in the case of reliance on any other right in the Bill of Rights, if accused persons wish to rely on [the statement of the relevant human right] they must bring themselves within its ambit.
[325]
310․ The need to find a match, or a discrepancy, between the actual provisions of the legislation protecting human rights and the actual provisions of the challenged legislation should not be overlooked, and must be taken seriously.
311․ The human right in issue in this application is found in s 18(5) of the Human Rights Act, being:
[326]
Anyone who is awaiting trial must not be detained in custody as a general rule.
[327]
312․ Schedule 1 to the Human Rights Act (item 17) indicates that s 18(5) was intended to recognise the human right set out in Article 9(3) of the ICCPR as:
[328]
It shall not be the general rule that persons awaiting trial shall be detained in custody.
[329]
313․ However, I do not agree with the submission made by counsel for the Attorney-General's statement that Article 9(3) is "in analogous terms" to s 18(5). Article 9(3) is about general rules, but s 18(5) seems to confer an individual right.
314․ Drafting provisions so as to apply person by person has benefits in some cases, and seems to operate adequately where the human right applies person by person - see, for instance, s 18(3) ("Anyone who is arrested must be told ...") and s 18(4) ("Anyone who is ... detained on a criminal charge ... must be promptly brought before a judge or magistrate"). This approach may not be so appropriate where the human right originally identified in the ICCPR seems to be not a right directly conferred on an individual but a right conferred on the whole community, or perhaps on the class of arrested persons, not to have a general rule requiring detention in custody for a person awaiting trial.
315․ It may be that a human right expressed along the lines of ICCPR Article 9(3) would raise a different set of issues in relation to a provision like 9C. For the purposes of a provision structured like Article 9(3), it would be hard to argue that the Bail Act made a general rule that people who have been charged should be detained in custody. The Bail Act provides an entitlement to bail or a presumption for bail for a large proportion of offences against Territory laws; as such it does not seem to provide a "general rule" that persons awaiting trial will be detained in custody.
316․ However, the ACT provision does not reflect the structure of art 9(3). Under s 18(5), the human right is expressed to attach to the individual, but the individual's express right is "not to be detained as a general rule". Assuming that the idiomatic meaning of "as a general rule" to mean "commonly" or "usually" was not intended in s 18(5), then s 18(5) seems to apply to a "general rule" that affects an individual - in this case, individuals included in a class of individuals who have been charged with specified serious offences.
317․ It is notable that the "comparable" human rights recognised in other relevant jurisdictions (set out at Appendix B) also apply to individuals (rather than reflecting Article 9(3)), but none of them relies on the concept of a "general rule" - rather, they require a "reasonable" approach to the granting or refusal of bail, or exclude automatic detention.
[330]
The number of individuals who are charged with murder or a derivative of murder in the ACT proportionate to other crimes is miniscule. This evidences that s 9C does not operate as a general rule.
[331]
320․ Putting aside the fact that a general submission that murder charges make up a miniscule proportion of all total ACT charges is not "evidence" of anything, the fact that a legislative provision applies to a relatively small number of people does not mean that it cannot be a "general rule". The fact that there are only a handful of step-parent adoptions in the ACT each year does not mean that s 15 of the Adoption Act 1993 (ACT) is not a general rule about step-parent adoptions. Whether an Act or provision, even one that applies to a very small class of persons, is offensive as creating a "general rule" will depend largely on the form of the relevant prohibition of "general rules".
321․ Counsel for the DPP also submitted that the existence of a procedure provided by law as required by s 18(2) of the Human Rights Act (that procedure being s 9C), and Mr Islam's ability to challenge his detention as required by s 18(6) of that Act, are evidence of Mr Islam "having and exercising his human rights". Human rights are not fungible. I cannot see that the protection of one or even two of a person's human rights is any kind of response to an argument that another of the person's human rights is being infringed (except possibly in circumstances in which a person's various human rights seem to be in conflict with each other and a choice may have to be made among them).
322․ Counsel for the Attorney-General contended, first, that whether s 18(5) of the Human Rights Act was offended by the existence of a "general rule" should be determined by reference to the Bail Act as a whole, not only by reference to s 9C, and secondly, that even if s 9C is considered alone, it imposes a rebuttable presumption that is not properly characterised as a "general rule".
323․ As to counsel's first argument, I agree that there is a good case that the Bail Act as a whole does not establish a general rule that persons awaiting trial should be detained in custody. For present purposes, I do not need to decide whether a human right expressed along the lines of Art 9(3) would also require a court to ask whether there are "general rules" applying to specific categories of bail applicants. However, I consider that the form in which Art 9(3) has been "reflected" in s 18(5) of the does require me to inquire about the existence of any "general rule" affecting individuals or individuals included in a limited class of bail applicants. Thus it is appropriate to ask whether s 9C in its application to a limited and probably fairly small class of offenders imposes a "general rule" that affects the human right recognised by s 18(5).
[332]
Step 3: Examine the human rights-compatible meanings
[333]
336․ Both available meanings of s 9C having been set aside as not human rights-compatible, there are no human rights-compatible meanings to examine. It is therefore necessary, as provided in Step 3B, to re-instate the two available meanings for the purpose of engaging in a justification inquiry under s 28.
[334]
Step 4: Inquire whether either available meaning can be justified
[335]
337․ In this case it is up to the Attorney-General and the DPP to satisfy the court that s 9C can be justified (see [241․] above).
338․ Submissions in support of s 9C were made by both those parties, but neither party tendered any evidence in support of its submissions about the need for a provision to the effect of s 9C or about s 9C's suitability for its purpose.
339․ The following discussion considers the questions set out at [247․] above, which reflect the Oakes test, and note their relationship with the factors set out in s 28(2) of the Human Rights Act. No factors other than those specified in s 28 were identified as possibly relevant in this case.
[336]
Is the purpose of the limitation of sufficient importance to warrant overriding the recognised human right?
[337]
340․ This question requires consideration of the nature of the right affected (s 28(2)(a)) and of the importance of the purpose of the limitation (s 28(2)(b)).
341․ Counsel for the Attorney-General and the DPP both conceded that the right in question, the liberty of the person, is of particular importance; this is indisputable. Counsel for the Attorney-General also made the uncontroversial point that in the administration of the criminal justice system, some people will need to be detained pending trial and that this is recognised by s 18(5) in its prohibition only on there being a "general rule". This proposition does not detract from the importance of the liberty of the person.
342․ The purposes articulated by counsel for the Attorney-General for the presumption against bail achieved by s 9C were to ensure the accused's presence at trial (recognising that the flight risk is greater for serious offences carrying severe penalties), to ensure that witnesses are not threatened or interfered with, and to protect the community as a whole. The DPP submissions focussed on the need to protect the community from persons charged with one of the most serious crimes known to the criminal law, rather than on risks relating to absconding or attempting to interfere with the administration of justice.
343․ These are important purposes. Whether they differ from the purposes of the Bail Act more generally is another question, and one which may be significant given that all these purposes are specifically accounted for in the s 22 criteria. However, it is enough at this point to accept that these purposes are sufficiently important to warrant some restrictions on the right to liberty of those accused of serious offences.
[338]
344․ This question is explained in Oakes as asking whether the limitation achieves its purpose without having an arbitrary or unfair operation and without relying on irrational considerations. It requires consideration of the nature and extent of the limitation (s 28(2)(c)) and the relationship between the limitation and its purpose (s 28(2)(d)).
345․ I note the submission made on behalf of the Attorney-General that the s 9C limitation on the availability of bail is not absolute but subject only to a special or exceptional circumstances test, which may be satisfied by inordinate delay among other things.
346․ Counsel for the DPP submitted that the extent of the s 9C limitation is relatively minor because s 9C imposes only an evidential burden, in that "if the accused can provide evidence of special or exceptional circumstances favouring the grant of bail, then s 9C will be complied with". I have already found that s 9C does not impose an evidential burden in the sense of requiring the applicant to provide all the necessary evidence, but this is not the same as saying that s 9C "only" imposes an evidential burden rather than requiring anything to be proved. I am not convinced that counsel's submission is correct; "compliance" with s 9C involves the court being "satisfied" of the existence of special or exceptional circumstances, and s 9C(3) refers to those circumstances being "established". I cannot see that providing evidence is necessarily enough to "satisfy" the court or to "establish" the circumstances. The evidence may be inadequate or inherently unbelievable, or may be contradicted by prosecution evidence. In any of these cases it is possible or even likely that the court will not be "satisfied" and the special or exceptional circumstance will not be "established".
347․ While I generally accept the submission of counsel for the DPP that what constitutes special or exceptional circumstances will depend on the facts of the particular application, I do not see that this proposition is useful in establishing whether the legal limits imposed by s 9C can be justified under s 28.
348․ The question asked in Oakes about whether the provision is arbitrary, unfair or irrational, however, goes to the heart of what is wrong with s 9C, which appears to be both pointless and to have a potentially random or irrational operation.
[339]
Does s 9C limit the human right no more than is reasonably necessary?
[340]
358․ Section 28(2)(e) expresses this question in terms of whether there is a less restrictive means reasonably available to achieve the purpose of the limitation.
359․ Counsel for the Attorney-General conceded that a less restrictive means of achieving the purposes already canvassed is available, but went on to identify the less restrictive means in this case as "to simply leave the entire question of bail as a discretionary matter for the courts" and to leave the courts to administer bail "in the absence of legislative guidance". Before responding to that submission, it is useful to consider the submissions made in support of the proposition that s 9C is within the range of reasonable responses to "the problem confronted".
360․ First, it has to be said that no attempt was made to identify "the problem confronted" by s 9C as distinct from the general purposes of bail legislation. Neither evidence nor argument was directed to establishing any reason for a concern about the operation of s 22 in the case of offenders charged with particularly serious offences. The explanation for the enactment of ss 9C and 9G (contained in the Explanatory Statement for the Bail Amendment Bill 2003; see [266․] and [267․] above) related to what s 9C would do rather than to what problem it was intended to solve, or how it compared with approaches to such a problem adopted in other jurisdictions.
[341]
Whether the limitation is reasonably necessary - legislation from other Australian jurisdictions
[342]
361․ Counsel for the Attorney-General referred to the legislative approach to relevant classes of bail applicants in other Australian jurisdictions. The table at Appendix C sets out more information about those jurisdictions. For present purposes it is enough to note that a number of jurisdictions impose some kind of special or exceptional circumstances test before bail can be granted to people charged with certain offences (eg s 9C, Bail Act 1978 (NSW); ss 4 and 13, Bail Act 1977 (Vic); s 10A, Bail Act 1985 (SA)). However, it is not clear that any of these jurisdictions require that the special or exceptional circumstances are established before the standard bail "criteria" are considered, and nor is it clear that where the requirement applies to murder charges, it also applies to attempted murder charges. For instance, the NSW provision applies only to murder (attempted murder is a separate rather than "ancillary" offence in NSW - see ss 27 to 30 of the Crimes Act 1900 (NSW)), and has been applied after consideration of all bail "criteria" and without any suggestion that the court needs to find anything more than that the circumstances of the offender, taken together, are exceptional (see, for instance,
[343]
Whether the limitation is reasonably necessary - authorities from outside Australia
[344]
362․ The Attorney-General noted that in the South African case of Dlamini the imposition of a burden of proof on an applicant for bail was upheld as constitutionally permissible on the basis that it was "reasonable and justifiable" under s 36 of the Constitution of the Republic of South Africa 1996. The constitutional provision, s 35(1)(f), said that:
[345]
Everyone who is arrested for allegedly committing an offence has the right ... (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.
[346]
363․ The challenged provision, s 60(11)(a) of the Criminal Procedure Act 1977, provided for the detention of a person charged with any of several serious offences (including murder) committed in specified aggravating circumstances, unless the accused adduced evidence satisfying the court that "exceptional circumstances exist which in the interests of justice permit his or her release".
364․ The Attorney-General submitted that this provision was "more draconian" than s 9C. I am not convinced that this is correct, and nor am I convinced that there is any point in such an inquiry, or any realistic standard for comparing how draconian different provisions are. However, to the extent that comparisons of impact may be relevant, I note that the coverage of the South African provision was far more limited than that of s 9C. Attempted murder was not included in that provision (nor indeed were all murders). Attempted murder where grievous bodily harm was inflicted was covered by a provision not requiring exceptional circumstances but only satisfaction that the interests of justice permitted release. Other attempted murder charges did not seem to be subject to any specific bail restrictions.
365․ Kriegler J of the Constitutional Court of South Africa noted at [64] that the provision:
[347]
contemplates an exercise in which the balance between the liberty interests of the accused and the interests of society in denying the accused bail, will be resolved in favour of the denial of bail, unless "exceptional circumstances" are shown by the accused to exist.
[348]
366․ He accepted (at [67]) a submission from counsel for the State that:
[349]
over the last few years our society has experienced a deplorable level of violent crime, particularly murder, armed robbery, assault and rape, including sexual assault on children ... [and] that the effect of widespread violent crime is deeply destructive of the fabric of our society and that accordingly all steps that can reasonably be taken to curb violent crime must be taken.
[350]
One must be careful to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights.
[351]
although the inclusion of the requirement of 'exceptional circumstances' in s 60(11)(a) limits the right enshrined in s 35(1)(f), it is a limitation which is reasonable and justifiable in terms of s 36 of the Constitution in our current circumstances.
[352]
369․ He also found (at [78]) that there was no objection to placing an onus of proof on a bail applicant, given the interlocutory nature of the proceedings and the fact that such proceedings were "not geared to arriving at factual conclusions but designed to make informed prognoses".
370․ In Dlamini the constitutional provision provided a specific right to be released from detention "if the interests of justice permit". That right was held not to be infringed by a provision adding an exceptional circumstances test to the basic "interests of justice" test for a carefully defined set of cases that were recognised as posing a particular danger in the then circumstances of South Africa. Importantly, the form of the South African provision meant that, on a bail application, the applicant had to establish that exceptional circumstances existed, but Kriegler J accepted that the requirement could be satisfied by reference to the standard set of considerations on a bail application. He said at [76]:
[353]
In requiring that the circumstances proved be exceptional, the subsection does not say they must be circumstances above and beyond, and generically different from those enumerated. Under the subsection, for instance, an accused charged with a sch 6 offence could establish the requirement by proving that there are exceptional circumstances relating to the his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case.
[354]
There is no reason to believe that courts will find it impossible to find that release on bail is justified where an 'ordinary' circumstance is present to an exceptional degree.
[355]
372․ That is, the "exceptional circumstances" test was able to be read, apart from its effect on the evidentiary onus, simply as applying a more stringent standard to the court's application of the ordinary bail criteria; unlike s 9C, it did not apply a separate and not rationally connected threshold test. Accordingly, the fact that the South African court found it to be a justified limitation on a recognised human right does not support a similar finding about s 9C; indeed Kriegler J's reference to the test not requiring circumstances above and beyond, or generically different from, the standard considerations supports my conclusion that s 9C's imposition of a threshold test is the source of the problem.
373․ The Canadian position on bail restrictions which emerged from R v Pearson[1992] 3 SCR 665 (Pearson)and R v Morales[1992] 3 SCR 711 differs from the current case in concerning both a differently expressed human right and a different approach to the targeted class of alleged offenders, specifically alleged traffickers in narcotics. The human right involved in both the Canadian cases was "not to be denied reasonable bail without just cause" (s. 11(e) of the Canadian Charter), and the Canadian bail provision involved putting the onus on an accused person in the affected class to show that detention in custody pending trial was not justified. The majority of the Supreme Court in Pearson found that there were reasons for a more rigorous approach to bail in relation to drug traffickers, and that the sub-class of alleged traffickers (described as "small fry" drug dealers and "the 'generous smoker' who shares a single joint of marijuana at a party") who were not at a higher risk of absconding or offending would "normally have no difficulty justifying their release and obtaining bail" (at 698, Lamer CJ). That is, the extra rigour imposed on consideration of the affected bail applications was explained by the specific characteristics of the relevant offences, and accordingly did not breach the right to "reasonable bail" or the right not to be denied bail without "just cause".
[356]
Whether the limitation is reasonably necessary - the "developed wisdom of the common law"
[357]
374․ Counsel for the Attorney-General also relied on "the developed wisdom of the common law" to justify the imposition of a presumption against bail for those accused of murder, noting that the requirement for exceptional circumstances "is not something that Parliament dreamt up a few years ago, it is a requirement that has been in place in the common law since at least 1850". However, this submission does not address:
[358]
(a) the fact that the ACT provision imposes the special or exceptional circumstances in a particular form that does not appear to reflect any long-standing common law approach - none of the "equivalent" provisions from other jurisdictions that have been mentioned in this case use the approach of imposing a threshold test expressly separated from the basic bail criteria; or
(b) the fact that the ACT human rights legislation recognises the right concerned in a form that is not found in any of the comparable human rights instruments mentioned in this case.
[359]
375․ Thus, while the common law might be sufficient to explain a general recognition that bail needs to be administered very carefully in the case of persons accused of serious offences, it is not enough to justify the particular approach adopted in the ACT. For that, some form of evidence, or analysis of the ACT situation, would be required.
376․ This brings me back to the concession made on behalf of the Attorney-General that a less restrictive means of achieving the purposes already canvassed is available, namely to "leave the entire question of bail as a discretionary matter for the courts" and to leave the courts to administer bail "in the absence of legislative guidance".
377․ This is a very extreme submission. I do not accept that abandoning the legislative regulation of bail is the only less restrictive means of achieving the purposes concerned. It is clear from the foregoing discussion of both the legislative approaches taken in other Australian jurisdictions and the judicial approaches taken overseas that there are many other ways, many if not all of them more rational, of dealing with the possible grant of bail for persons accused of very serious offences. What is not clear is that there is anything special about "the problem confronted" in the ACT (whatever that problem is) such that only the s 9C approach of imposing an apparently irrelevant threshold test for consideration of such a bail application is adequate to meet that problem.
378․ Without expressing any conclusions about their human rights-compatibility or their justifiability, I note several alternative approaches that have emerged from the foregoing discussion. The Bail Act could require rather than permit the court to have regard to the matters set out in s 22(3), or it could require the court in some or all cases to specify its reasons for granting bail so as to indicate the conclusions it has reached about each of the s 22(1) matters. Prohibiting the court from granting bail unless it is satisfied that the grant is justified after considering the matters mentioned in (the mirror image of s 9A, which entitles a person to bail unless the court is satisfied that refusal is justified) would not necessarily make it easier for an applicant to obtain bail but would focus the court's attention more directly on whether bail could safely be granted.
[360]
Is the limit proportional to the importance of the purpose?
[361]
381․ This final question from Oakes draws together all the factors listed in s 28(2) and already discussed.
382․ I have concluded that, while the purpose of the limitation imposed by s 9C is of sufficient importance to warrant some overriding of the human right to liberty (at [343․] above), s 9C is not rationally connected to its purpose because of its arbitrary or irrational operation (at [357․] above), and s 9C limits the human right to liberty more than is reasonably necessary (at [380․] above).
383․ In those circumstances I do not consider that it is possible to find that the limit imposed by s 9C on the human right to liberty as protected by s 18(5) of the Human Rights Act is proportional to the importance of the purpose identified for that limit.
384․ Without in any way minimising the importance of community protection and of the integrity of the justice system, and without in any way disputing the need for a system in which bail applications, especially from those accused of very serious offences, are scrutinised rigorously, I do not accept that the particular limit applied in this case (specifically the requirement for a separate special or exceptional circumstance to be shown) is either necessary or sufficient to guarantee that rigorous scrutiny. Nor is it, in the words of counsel for the Attorney-General, "narrowly tailored to fit its purpose".
385․ For those reasons, I am not satisfied that it has been demonstrated that s 9C (with either of the meanings set out at [303․] above) is justified in the ACT's "free and democratic society".
[362]
Step 4C: Outcome if none of the available meanings can be justified
[363]
386․ Thus, the outcome of the justification inquiry in this case is a finding that neither of the available meanings can be justified under s 28 of the Human Rights Act. Since both of the available meanings are incompatible with human rights and neither of them has been justified, the preferred meaning would seem to be that which best achieves the apparent legislative purpose as demonstrated by the words of the legislation and the explanatory material, namely meaning (a) at [303․] above, specifically that the requirement for special or exceptional circumstances has the meaning that it has previously been given in the ACT as set out in Massey [No. 1],Allen and various other cases.
[364]
387․ Accordingly, s 9C continues to operate in the way in which it has previously been interpreted in this jurisdiction, namely that special or exceptional circumstances must be established to the court's satisfaction before the s 22 criteria will be considered and that those circumstances must be "unusual or uncommon".
[365]
Effect on s 9C of order of consideration of ss 28 and 30
[366]
388․ I note at this point that the result in this particular case would have been the same if I had applied s 28 of the Human Rights Act before s 30; I would have found that neither meaning (a) nor meaning (b) for s 9C was demonstrably justified, but I would still not have been able to find a human rights-compatible version of the provision with the help of s 30 (because, as revealed by the interpretation process that I did undertake, there was no available meaning for the section that was human rights-compatible). This may simply reflect the difficulty of finding many genuinely different interpretations of s 9C, and it may be that in other cases the choice among available interpretations is more substantive, or it may be more generally that modern legislative drafting leaves relatively little scope for substantively different interpretations of most legislative provisions (as distinct from interpretations that differ as a result of giving different content to discretionary terms such as "special and exceptional" or "reasonable"). That latter possibility gains some support from the court's conclusion in Momcilovic at [113] that "the purpose of [the challenged provision] is unambiguously clear from the statutory language" and the fact that in none of the cases I have been referred to in this application was a court that considered itself bound by statutory language and legislative purpose able to find a useful variety of meanings for a challenged provision.
389․ However, noting the matters set out above (in particular at [233․] and [235․]), I do not consider that the result in this case means that it does not actually matter whether s 30 or s 28 is applied first.
[367]
390․ I should also note that my finding about a lack of compatibility with human rights relates only to s 9C of the Bail Act, which applies to specific offences, and does not apply to the requirement for special or exceptional circumstances imposed by s 9D (relating to persons accused of serious offences while charges for other serious offences are pending or outstanding), or by s 9E (relating to offenders sentenced to imprisonment who are appealing their convictions or sentences). Whether the requirements of either of those sections can be "demonstrably justified" was not argued before me, and may well raise a different set of considerations.
[368]
391․ Mr Islam's application thus had to be considered applying the orthodox interpretation of s 9C of the Bail Act that has been applied in the ACT until his challenge to the provision.
392․ As noted at [8․] above, while excessive delay was asserted, it was not the subject of evidence or argument, and I was not able to find a special or exceptional circumstance affecting Mr Islam. Accordingly ss 9C and 9G prevented me considering his application further, and I refused bail.
[369]
393․ The DPP submission noted that the only source of potentially inordinate delay in Mr Islam's trial was the time that would elapse between the setting down of the matter for trial and the date set down for that trial to begin.
394․ In particular, counsel for the DPP emphasised that the delay in bringing Mr Islam to trial related to listing backlogs in the ACT Supreme Court and was not caused by the Australian Federal Police or by the DPP.
395․ This comment presumably alludes to my finding in Massey [No. 2] that the work of bringing Ms Massey to trial was not being done at a reasonable pace. Significant delays in bringing an accused person to trial that are caused by prosecution failings may well amount to special or exceptional circumstances. However, this is not because the prosecution is to be punished for its failings but because such failings mean that the normal processes of bringing a matter to trial are not happening at a reasonable pace. Significant delay caused by the conduct of the accused bail applicant or his or her lawyers may be much less likely to produce special or exceptional circumstances, but again this does not reflect the punishment of the bail applicant; in such a case it simply means that the bail applicant cannot generally rely on delays that he or she has caused.
396․ However, the role of prosecution failures in establishing inordinate delay does not mean that an inordinate delay arising in the absence of fault on the part of the DPP and the AFP cannot amount to special or exceptional circumstances.
397․ It may be generally inappropriate to see a bail application as an adversarial proceeding, and in particular to see it as a contest between the bail applicant and the DPP or the AFP. As the discussion of the purpose of s 9C suggests, if a bail application is a contest at all, it is a contest between the rights of the applicant and the needs and interests of the community as a whole. If that is correct, then delays that are within community control (such as the delays caused by general under-resourcing of the justice system) cannot be dismissed as "beyond everyone's control" and therefore not a basis for a finding of inordinate delay (see also my comments in In the matter of an application for bail by SA[2010] ACTSC 114 at ).
[370]
399․ Being satisfied that s 9C is not consistent with the human right recognised in s 18(5) of the Human Rights Act, I must consider the option of making a declaration of incompatibility under s 32(2). No submissions were made about whether, if I did find that s 9C could not be interpreted to be consistent with human rights, and could not be justified, I should make such a declaration; rather, this was assumed to be the inevitable result of such a finding.
400․ I can think of no reason, having made a finding of inconsistency, for not making a declaration of incompatibility. The declaration has no legal significance for the application or operation of the relevant provision but its significance as a step in the "dialogue" involving the courts, the executive and the legislature (if three parties can have a dialogue), should not be overlooked. The "dialogue" model was proposed in the Report of the ACT Bill of Rights Consultative Committee, ACT Parliament, Towards an ACT Human Rights Act (2003) and referred to by the Attorney-General in his speech on the introduction of the Human Rights Amendment Bill 2007 (Australian Capital Territory, Hansard, Legislative Assembly, 6 December 2007, 4028 (Simon Corbell, Attorney-General)). Relevantly, the approach is that "the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act".
401․ There may be an argument that the making of the formal declaration is not a judicial function. Without addressing that possibility, I note that the declaration, while expressed in a form reflecting the relevant provision of the Human Rights Act, is in content no more than a re-statement of a conclusion of incompatibility reached at the end of one of the steps in the process of interpreting s 9C in order to determine Mr Islam's bail application
402․ The Human Rights Act does not provide any guidance on the form of a declaration of incompatibility. The declaration made by the Victorian Court of Appeal following its decision in Momcilovic simply followed the wording of the relevant Victorian provision (s 36(2) of the Victorian ), so I shall adopt the same approach, although with the addition of a reference to my reasons for making the declaration.
[371]
(1) Under s 32(2) of the Human Rights Act 2004 (ACT), the Court is satisfied, for the reasons set out in In the Matter of an Application for Bail by Isa Islam[2010] ACTSC 147, that s 9C of the Bail Act 1992 is not consistent with the human right recognised in s 18(5) of the Human Rights Act, being that "Anyone who is awaiting trial must not be detained in custody as a general rule".
[372]
I certify that the preceding four hundred and three [403] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold
9CBail for murder and certain serious drug offences
[376]
(b) an offence against any of the following provisions of the Criminal Code, chapter 6 (Serious drug offences):
[377]
Note A reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).
[378]
(2) A court or authorised officer must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
[379]
(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -
[380]
(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or
[381]
(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).
[382]
(1) This section applies if a court or authorised officer is required under this part to be satisfied of the existence of special or exceptional circumstances favouring the grant of bail to a person.
[383]
(2) A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.
[384]
(3) Also, the court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of the special or exceptional circumstances.
[385]
Damien is before the court charged with having committed an aggravated robbery. He has earlier been charged with having committed aggravated robbery. Section 9D applies and there is a presumption against bail unless there are special or exceptional circumstances. Damien argues that there are special circumstances as he needs to support his child, he may lose his job and he may lose an opportunity to take up public housing. The court considers that the circumstances are not special or exceptional. Bail is not granted and the criteria in section 22 are not considered.
Jason is facing similar charges. Jason has had a car accident before his arrest for the second offence. His kidneys are damaged requiring dialysis every 3 days. Jason argues that his need for regular treatment and his reduced mobility mean that he is highly unlikely to abscond. The court considers these circumstances are special or exceptional. The court then considers the criteria in section 22 in deciding whether to grant bail.
[386]
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
[387]
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider -
[388]
(a) the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail -
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
[389]
the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
[390]
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
>
> (2) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
>
> (3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including -
>
> (a) the nature and seriousness of the offence; or
>
> (b) the person's character, background and community ties; or
[391]
(c) the likely effect of a refusal of bail on the person's family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
[392]
(4) The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
>
> (2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
>
> (3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
>
> (4) Anyone who is arrested or detained on a criminal charge -
>
> (a) must be promptly brought before a judge or magistrate; and
>
> (b) has the right to be tried within a reasonable time or released.
>
> (5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
>
> (6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person's release if the detention is not lawful.
>
> (7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
>
> (8) No-one may be imprisoned only because of the inability to carry out a contractual obligation.
[395]
(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
>
> (2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
>
> (a) the nature of the right affected;
>
> (b) the importance of the purpose of the limitation;
>
> (c) the nature and extent of the limitation;
>
> (d) the relationship between the limitation and its purpose;
[396]
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
[397]
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
[398]
(a) a proceeding is being heard by the Supreme Court; and
[399]
(b) an issue arises in the proceeding about whether a Territory law is consistent with a human right.
[400]
(2) If the Supreme Court is satisfied that the Territory law is not consistent with the human right, the court may declare that the law is not consistent with the human right (the declaration of incompatibility).
[401]
(3) The declaration of incompatibility does not affect -
[402]
(a) the validity, operation or enforcement of the law; or
[403]
(4) The registrar of the Supreme Court must promptly give a copy of the declaration of incompatibility to the Attorney-General.
Act to be interpreted not to exceed legislative powers of Assembly
[406]
(1) An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
[407]
(2) Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly -
[408]
(a) the provision is valid to the extent to which it does not exceed power; and
[409]
(3) Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision's application to other matters is not affected.
[410]
(4) This section is in addition to any provision of the Act itself.
[411]
Meaning of working out the meaning of an Act
[412]
(a) resolving an ambiguous or obscure provision of the Act; or
[413]
(b) confirming or displacing the apparent meaning of the Act; or
[414]
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
[415]
(d) finding the meaning of the Act in any other case.
[416]
Interpretation best achieving Act's purpose
[417]
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
[418]
(2) This section applies whether or not the Act's purpose is expressly stated in the Act.
[419]
_Note T_he Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
Human rights - what they are and when they may be limited
[422]
(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.
[423]
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -
[424]
(b) the importance of the purpose of the limitation; and
[425]
(d) the relationship between the limitation and its purpose; and
[426]
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
[427]
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
[428]
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
[429]
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
[430]
(a) an Act or provision of an Act that is incompatible with a human right; or
[431]
(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
[432]
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), -
[433]
(a) Hold any provision of the enactment to be impliedly repealed or r evoked, or to be in any way invalid or ineffective; or
[434]
(b) Decline to apply any provision of the enactment -
[435]
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
[436]
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[437]
6 Interpretation consistent with Bill of Rights to be preferred
[438]
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[439]
Constitution of the Republic of South Africa Act 1996 (South Africa)
[440]
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
[441]
(b) the importance of the purpose of the limitation;
[442]
(d) the relation between the limitation and its purpose; and
[443]
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
[444]
Canadian Charter of Rights and Freedoms (Canada)
[445]
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[446]
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
[447]
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
[448]
European Convention for the Protection of Human Rights and Fundamental Freedoms.
[449]
Article 5(3) provides that a person arrested "shall be brought promptly before a judge ... and shall be entitled to trial within a reasonable time or to release pending trial".
[450]
Section 11(e) provides that a person charged with an offence has the right "not to be denied reasonable bail without just cause".
[451]
Constitution of the Republic of South Africa Act 1996
[452]
Section 35(f) provides that a person arrested for allegedly committing an offence has the right "to be released from detention if the interests of justice permit, subject to reasonable conditions".
Section 21(6) provides that "a person awaiting trial must not automatically be detained in custody, but his or her release may be subject to guarantees to attend ... for trial".
[455]
Appendix C - Relevant bail provisions in other Australian jurisdictions
[456]
Method of applying "special or exceptional circumstances" tests
For murder, bail is not to be granted unless the court "is satisfied that exceptional circumstances justify the grant of bail".
[459]
Bail for "repeat offenders" (a person charged with a "serious personal violence offence" who has a previous conviction for a serious personal violence offence) is not to be granted unless the court "is satisfied that exceptional circumstances justify the grant of bail".
[460]
Attempted murder is a serious personal violence offence.
For treason and murder, bail shall not be granted unless the court "is satisfied that exceptional circumstances exist which justify" the grant of bail.
For offences carrying life or indefinite sentences, bail may only be granted in the Supreme Court, and shall be refused unless the defendant shows cause why detention in custody is not justified. If bail is granted, the court must state its reasons for granting bail.
For murder, and for various other serious offences allegedly committed while the person was at conditional liberty in respect of another serious offence, bail shall be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody, and that bail may properly be granted having regard to the matters to be considered in any bail application.
For various offences including manslaughter caused during police pursuits, and causing bushfires, but not apparently murder, bail is not to be granted unless "the applicant establishes the existence of special circumstances" justifying release on bail.
For murder, treason, serious drug offences, serious sexual offences, and serious violence offences allegedly committed within 5 years after a finding of guilt on an earlier serious violence offence, a person is not to be granted bail unless he or she satisfies the court that bail should not be refused.
Legislation Cited (56)
Acts Interpretation Act 1915(SA)
Rights Act 2004
Interpretation Act 1901
Interpretation Act 1931
Interpretation Act 1954
Canadian Charter of Rights and Freedoms (Canada Act 1982
Human Rights and Responsibilities Act 2006
Legislation Amendment Act 2008
Code Act 1995
Procedure Act 1977
Rights Act 1998
Rights Amendment Act 2008
Legislation Act 1984
Court Act 1930
Drugs Act 1975
Zealand Bill of Rights Act 1990
Crime (Investigative Powers) Act 2004
Human Rights Act 1998
Code (Serious Drug Offences) Amendment Act 2004
New Zealand Bill of Rights Act 1990
Rent Act 1977
Youth Justice and Criminal Evidence Act 1999
(Commercial and Retail) Act 2001
Poisons and Controlled Substances Act 1981
Misuse of Drugs Act 1975
Bail Act 1976
Criminal Procedure Act 1977
Republic of South Africa Act 1996
Acts Interpretation Act 1915(SA)
Rights Act 2004
Interpretation Act 1901
Interpretation Act 1931
Human Rights and Responsibilities Act 2006
Code Act 1995
Drugs Act 1975
Crime (Investigative Powers) Act 2004
Code (Serious Drug Offences) Amendment Act 2004
New Zealand Bill of Rights Act 1990
Interpretation Act 1954
Canadian Charter of Rights and Freedoms (Canada Act 1982
Legislation Amendment Act 2008
Procedure Act 1977
Rights Act 1998
Rights Amendment Act 2008
Legislation Act 1984
Court Act 1930
Zealand Bill of Rights Act 1990
Human Rights Act 1998
Rent Act 1977
Youth Justice and Criminal Evidence Act 1999
(Commercial and Retail) Act 2001
Misuse of Drugs Act 1975
Republic of South Africa Act 1996
Poisons and Controlled Substances Act 1981
Bail Act 1976
Criminal Procedure Act 1977
Cases Cited (10)
(1945) 71 CLR 237
(2009) 20 VR 717
(2007) 230 CLR 89
(2009) 240 CLR 319
(2009) 237 CLR 501
(1954) 91 CLR 353
(2003) 211 CLR 476
(e) that the process of a justification inquiry under s 28 of the Human Rights Act should be as described at [240․] to [250․] below, and should involve considering the questions set out at [247․] below;
(d) Sections 9C and 9G reveal only their mechanical operation but not "the purpose of the underlying legislation". That purpose must be inferred.
(e) If the purpose is to reinforce the seriousness of the charges covered by s 9C and the caution that should be exercised in determining a bail application where such a charge has been laid, that purpose would not be defeated by interpreting s 9C as not imposing a separate obstacle to the granting of bail.
(f) If the purpose is to ensure that generally those charged with s 9C offences are held in custody pending trial, then s 18(5) could "ameliorate" the operation of s 9C "without completely removing its effect", by recognising that under s 18(5) there should not be such a general rule and therefore the rule "ought to be restricted or read down" - the applicant did not specify the nature of that proposed reading down, but seemed to imply a reading down to impose a less stringent threshold test in applying the requirement to find special or exceptional circumstances. This would not, however, remove the general rule and therefore there would still be a direct conflict between s 18(5) on the one hand and ss 9C and 9G on the other, such that a declaration of inconsistency should be made.
(g) The delay in this case would be adequate to satisfy s 9C read as imposing a lower threshold.
20․ Section 32 provides that if the Supreme Court finds that a Territory law is not consistent with a human right, the Court may make a declaration of incompatibility. Importantly, s 32(3) provides that such a declaration does not affect the operation of the Territory law, or anyone's rights or obligations. Section 33 requires a declaration of incompatibility, and a response from the Attorney-General, to be presented to the Legislative Assembly. Sections 34, 35 and 36 make provisions aimed at ensuring that all interested parties may be heard in any Supreme Court consideration of questions arising under the Human Rights Act.
21․ Part 5 provides for pre-enactment scrutiny of legislation for consistency with human rights.
22․ Part 5A makes it unlawful for public authorities as defined to act in ways that are incompatible with human rights or to fail to consider human rights properly in making decisions. Section 40C provides a method for individuals to challenge any such unlawful acts or failures.
23․ Only Pts 3 and 4 of the Human Rights Act are directly relevant to Mr Islam's application. The possible application of Pt 5A to a court considering a bail application was not raised except by the Attorney-General. Counsel for the Attorney-General mentioned it only for the purpose of rejecting such a possibility, relying on:
37․ These uncertainties are highlighted if the ACT provisions referring to legislative purpose are compared with purposive interpretation provisions enacted in other Australian jurisdictions which, with the exception of Queensland (s 14A of the Acts Interpretation Act 1954 (Qld)), take a slightly different approach.
47․ The first response is that, as already noted at [35․] above, the reference in s 30 to legislative purpose is to the purpose of the "Territory law" that is being interpreted, whether that "Territory law" is in the particular case an Act, a section, or some other legislative unit. As also noted, it is not clear whether the structure of s 30 also permits interpretation of a "Territory law" (being, for instance, a section) by reference to the purpose of any larger "Territory law", such as the Act, or the part of the Act, in which that section is located. However, I do not consider that there is any scope for reading s 30 as if it required consistency with legislative purpose to be tested, for a provision of an Act, by reference only to the purpose of the Act and not to the purpose of the provision.
48․ Nor is there any basis for accepting that, as a matter of principle, the Human Rights Act can apply only to legislative purpose in relation to an Act as a whole.
49․ There is nothing inherent about the structure or content of Acts such that they should be seen as organising the legislature's pronouncements into units that have any absolute significance, either in general or in the human rights context in particular. Decisions about what matters are to be dealt with in a single Act, how many Acts are to be used to establish a scheme or implement a policy, and what level of detail is to be included in an Act are made by various different entities in various circumstances and for various reasons; for instance, legislative structures may reflect the allocation of policy or operational responsibilities within the executive, constitutional requirements (such as ss 54 and 55 of the Constitution (Cth)), or contemporary theories of legislative drafting that might, for instance, favour longer but comprehensive Acts or shorter but less self-contained Acts. I am not aware of any legislature which deliberately enacts legislation structured so as to have human rights significance only as a whole Act.
50․ Another consideration is that many if not all Acts have multiple purposes. This may cause some difficulties in applying the orthodox purposive interpretation provision if an Act has conflicting or competing purposes (so that a meaning might promote one purpose but not promote another purpose). Those difficulties would be magnified in applying a requirement to prefer the "best" meaning for achieving "the" purpose (where each of multiple meanings might be the "best" meaning for one of those purposes) or applying a requirement to interpret legislation consistently with "its" purpose (where a human rights-compatible meaning might be consistent with one purpose but inconsistent with another purpose).
51․ For those reasons, I do not see any basis for finding that s 28 or s 30 requires or permits the courts to interpret legislative provisions, or to assess their compatibility with human rights, having regard only to the purpose or operation of the legislation concerned at the highest or most general level, such as an Act as a whole.
52․ That general conclusion is supported by a consideration of the Bail Act. The purpose of that Act as a whole appears to be to balance the need to ensure that accused persons turn up for their trials, the need to protect the community and the administration of justice, and the need to protect the right to liberty of persons who are presumed to be innocent. It is highly unlikely that, for the Bail Act or any of the many other Acts whose purpose is a balancing of competing rights, interests and expectations, s 30 invites a court to devise its own set of detailed rules by which that balance is struck. It makes far more sense to assume that the Human Rights Act invites the courts to look at the purpose and meaning of specific provisions, or provisions dealing with specific topics, against the general background of any higher level purpose (whether that is found by reference to the Act, a Chapter, Part or Division of an Act or indeed by reference to a group of Acts by which a policy or scheme is implemented), and to decide about the human rights implications of those provisions in that context.
121․ During debate on that Bill, the Attorney-General, immediately after referring to the fact that human rights-consistent interpretations would prevail as far as possible consistently with underlying purpose, went on to say that providing a direct right of action against public authorities was "the most substantive and important change" effected by the Bill (Australian Capital Territory, Hansard, Legislative Assembly, 4 March 2008, 391 (Simon Corbell, Attorney-General)). This suggests that the Attorney-General did not see the Bill as likely to take statutory interpretation in the ACT a long way in a new and unpredictable direction.
122․ Noting the whole scheme of the ACT Human Rights Act, and the discussion and commentary around the enactment of the current s 30, there is no basis that I can see for accepting that the legislature in enacting the ACT Human Rights Act "intended", or that it was a purpose of the Human Rights Act, that the courts would take on the task of re-writing legislation to make it human rights-compatible rather than publicly pointing out any inconsistencies for the attention of the legislature. The focus on drawing matters to the attention of the legislature is supported by the specific requirement that a declaration of incompatibility must be promptly provided to the Attorney-General (s 32(4) of the Human Rights Act), who must in turn table the declaration in the Legislative Assembly within six sitting days thereafter (s 33(2) of the Human Rights Act).
123․ Finally, s 30 can be contrasted with s 120 of the Legislation Act (see [53․] above), which does provide for some level of remedial interpretation to preserve validity. If the legislature's intention was that legislation could be confined or changed, including by discarding offending parts of the legislation, and irrespective of its clear meaning, so as not to infringe human rights, the legislature had the example of s 120 before it. The legislature did not choose to provide a clear power of remedial legislation, and it expressly excluded the need to infer such power by specifying that infringements of human rights do not render legislation invalid (s 32(3) of the Human Rights Act).
(d) Having earlier quoted the remarks of French CJ that I have set out at [62․] above, the Court noted at [110] that s 32(1) was required to be applied by anyone interpreting relevant legislation, including not only judges and other tribunals but also, for instance, public officials. Parliament, the Court said, could not have intended that decisions about justifiable limits would need to be made by courts, tribunals and public officials before legislation could be interpreted for the purpose of its implementation, because this would lead to uncertain interpretation and inconsistent application.
Hansen
147․ One of the effects of the Momcilovic approach is that a provision may be interpreted so as to make it human rights-compatible when in fact a non-compatible meaning for the provision could have been justified. This could be said to result in an inappropriate constraining of the legislature's power to legislate effectively for an objective that involves some incompatibility with a human right but is seen as socially desirable. One answer to this concern is found in the clear power of the legislature to overturn by further legislation an objectionable meaning given to legislation. Another response is to point out the fundamental purpose of the legislature, in enacting a Human Rights Act, of promoting and protecting human rights; in this context the Victorian Court of Appeal's comments referred to at [(b)] above are relevant, as is the fact that the ACT Human Rights Act's long title is "An Act to respect, protect and promote human rights".
Oakes
Momcilovic
Oakes
Lam Kwong Wai
176․ For this reason, I consider that there is no inconsistency between Momcilovic and Lam Kwong Wai; on the contrary, Lam Kwong Wai provides considerable support for the Momcilovic approach, given the difference between the operation of s 32 of the Victorian Charter and the operation of the Hong Kong Basic Law and Bill of Rights as determined by Mason NPJ.
183․ Hansen involved a challenge to a provision deeming a person found to be in possession of certain drugs above certain quantities to possess the drugs for the purpose of supply or sale "until the contrary is proved" (s 6(6), Misuse of Drugs Act 1975 (NZ)). This provision was said to be inconsistent with the right under s 35(c) of the NZ Bill of Rights to be presumed innocent until proved guilty.
184․ All five judges found that the provision in question was intended to impose a legal onus of proof on the defendant to establish a defence, that this was inconsistent with the presumption of innocence, but that there was no available alternative meaning and that the provision's operation to impose that legal onus of proof was preserved. This meant that the jury direction in the original trial had been correct and the appeal was dismissed.
185․ However, there were three different paths by which the judges reached this conclusion. Elias CJ said that there was no available alternative meaning for the provision, but that this exhausted the effect of the NZ Bill of Rights and there was no basis for the court to engage in a justification inquiry. Blanchard J found that the provision was justified, while the other three judges found that the provision was not justified but there was no available alternative meaning.
186․ In the course of reaching their conclusions, the judges also expressed a range of views about the operation of ss 4, 5 and 6 of the NZ Bill of Rights.
187․ Elias CJ said that s 6, the interpretation provision, could not be distinguished from s 3(1) of the UK Human Rights Act but, having referred to the recognition in Ghaidan that a convention-compliant interpretation might not always be possible, said at [25] that the meanings available under s 6 must be "tenable on the text and in the light of the purpose of the enactment". Anderson J agreed at [287] that there was no difference between the NZ and UK provisions, but nevertheless found at [290] that s 6 did not permit the adoption of a "strained and unnatural" meaning. McGrath J at [244] saw no linguistic difference between s 6 and s 3(1) of the UK Human Rights Act, but said that because of the different constitutional contexts of the two provisions, they had different meanings, in particular that s 6 only permitted "reasonably available" meanings to be adopted (at [252]).
188․ Tipping J at [158] distinguished s 6, which he said allowed the adoption of a meaning that was "reasonably possible", from s 3 of the UK Human Rights Act which he said had been relied on to allow the adoption of a meaning that was "unreasonably possible". He also specified that s 6 should not be used as a "concealed legislative tool". Blanchard J, without comparing s 6 with s 3 of the UK Human Rights Act, simply said at [61] that s 6 permitted the adoption only of a meaning that was "genuinely open in light of both its text and its purpose".
189․ As to s 5 (the justification provision), Elias CJ said at [15] that it was directed at lawmakers rather than courts, and that once the court had found a provision inconsistent with human rights, the use of s 5 did not arise. The basis for this latter conclusion is not clear to me, since Elias CJ went on to note that in some cases s 5 could appropriately be applied, after s 6 had been exhausted, to produce a "declaratory response" to a challenge.
190․ At [58], [90] and [192] respectively, Blanchard, Tipping and McGrath JJ all said, in effect, that s 5 should be applied after an "ordinary" interpretation process revealed the "natural meaning" of the provision and before any attempt to find another available meaning using s 6.
191․ Tipping J at [92] identified an explicitly iterative process for undertaking interpretation and justification, as follows:
197․ It is accordingly not correct in my view to say that Hansen fits anywhere in particular by reference to "the mainstream international approach to the role of human rights in interpretation", such that adopting a different approach, in the context of differently expressed human rights legislation and an apparently different approach to statutory interpretation, would put an Australian jurisdiction outside any "mainstream" that can convincingly be identified.
212․ In contrast, starting with the s 30 test means that the available meanings are initially narrowed to those that are human rights-compatible, from which the one of those meanings that best achieves the legislative purpose can be chosen. Only if it is impossible to find an human rights-compatible meaning that is also consistent with legislative purpose would it be necessary to undertake a s 28 inquiry and possibly to consider a declaration of incompatibility.
213․ In a jurisdiction with a more orthodox alternative to s 139 (such as s 35 of the Victorian Interpretation Act), the practical implications would still seem to favour incorporating the human rights-based interpretation into the general interpretive task, but there would not be the same structural obstacle to an alternative approach.
214․ The "tentative" views of the Victorian Court of Appeal in Momcilovic at [103] were that s 32(1) of the Victorian Charter requires "exploring all 'possible' interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights". The applicant made a similar suggestion in this case, in effect that if I could find no meaning for s 9C that was consistent with human rights, I should adopt the meaning that was least inconsistent, and consider also making a declaration of incompatibility. This approach is also reflected in Steps 5 and 6 of the process suggested by Tipping J in Hansen and quoted at [191․] above.
215․ I am not convinced that the applicant's submission is correct, for reasons arising from the interaction between s 30 of the Human Rights Act and s 139 of the Legislation Act.
216․ It is implicit in the applicant's submissions that the words of s 30, "So far as it is possible to do so consistently with its purpose", assume a compatibility spectrum on which all possible meanings are ordered in terms of the extent of their incompatibility with the relevant human right, and require that the least incompatible meaning is adopted irrespective of its effect in terms of achieving the legislative purpose. However, such an approach would give no effect to s 139 in any interpretation of any provision that engages s 30. Rather, s 30 in my view means that if it is possible to find a human rights-compatible interpretation that is also consistent with legislative purpose, that interpretation is to be adopted; but if such an interpretation is not available, then s 139 takes over (requiring adoption of the meaning that best achieves the legislative purpose, wherever that meaning sits on the scale of human rights compatibility compared with other meanings) and the possibility of a declaration of incompatibility emerges.
217․ I do not see any scope for adopting some kind of compromise meaning that is neither compatible with human rights nor the meaning that best achieves the legislative purpose.
218․ For the same reasons I reject the Attorney-General's submission that the "ordinary", non-compatible meaning of a provision is only to be adopted if "it is not possible to find a consistent or less inconsistent meaning" (emphasis added).
219․ The difference between my view and that of the Victorian Court of Appeal may be another result of the unorthodox form of the ACT purposive interpretation provision, s 139 of the Legislation Act, in requiring the adoption of the meaning that best achieves the legislative purpose. Where, as under s 35 of the Victorian Interpretation Act, all meanings that are consistent with purpose are available, it might make sense to read the human rights interpretation provision as requiring the adoption of the available meaning that is least incompatible with human rights, even where that still leaves scope for a declaration of incompatibility. Where, as in the ACT, all available meanings will be consistent with purpose but the preferred meaning, apart from human rights compatibility, is mandated by other legislation, I am not convinced that the application of a human rights-based interpretation provision gives any basis for adopting a meaning that is neither human rights-compatible, nor the meaning required by reference to purpose, just because it gives the least offence to the human right involved.
220․ Section 30 is about finding meanings that are consistent with human rights rather than meanings that are less inconsistent; if a consistent meaning cannot be found, s 32 deals with the inconsistency, and it does so not by requiring necessarily ineffective attempts to resolve the problem but by enabling attention to be drawn to provisions for which consistent meanings cannot be found.
227․ The philosophical issue is that the need to look at this kind of evidence requires lawyers and judges to enter into policy-based argument and decision-making, which they may not be particularly well-equipped to handle; indeed this may be the point at which arguments about unelected judges usurping the powers of elected legislators become most passionate.
228․ There would thus seem to be good reason for postponing an inquiry of this kind until the courts or other "interpreters" have had the maximum opportunity to resolve the issue by "ordinary" interpretation of the provision. If a meaning that is both consistent with the legislative purpose and compatible with human rights is found and adopted, the legislature may respond with further legislation if that meaning is not acceptable. It is hard to see any benefit in requiring that, before the legislature can indicate whether such a meaning is acceptable, the court must hear and decide on an argument about the justification for another meaning that is more effective at achieving the legislative purpose but is not apparently compatible with human rights. As already mentioned, the prospect of officials having to make judgments about justification, possibly without the benefit of evidence or argument, in order to administer legislation, is even more problematic. As well, if the legislature does choose to legislate to overturn the meaning adopted following a s 30 process, it does so on notice of the human rights issues and it has the opportunity to demonstrate the justification for its preferred legislation through the political process before the courts again become involved.
256․ Section 22, in Part 4, describes various matters relevant to a decision whether to grant bail. Several matters are always relevant, being the likelihood of the person appearing in court as required, the likelihood of the person offending, harassing or endangering anyone or generally interfering with the processes of justice, and the interests of the person (s 22(1)). As well, for a person awaiting sentence, the likelihood of a sentence of imprisonment being imposed is relevant (s 22(2)). Finally, other relevant matters including the nature and seriousness of the offence, as well as other specified matters relating to the bail applicant and the strength of the case, are mentioned (s 22(3)).
257․ It is important to note that s 22 requires the court only to "consider" all those matters; they are not "criteria" strictly speaking (although elsewhere in the Act, for instance s 9G, they are referred to as "bail criteria"). There is no suggestion of particular tests that must be satisfied or questions that must be answered in a particular way before bail can be granted or must be refused. This can be contrasted with, for instance, s 6 of the Bail Act, which provides that if the conditions set out in paragraphs 6(1)(a), (b) and (c) are satisfied, then under s 6(2) the person is entitled to be released from custody.
264․ Section 9G(2), even leaving aside the grammatically-odd references to "an applicable bail criteria", is not easy to interpret, but it seems to be saying that a circumstance affecting a bail applicant that would be relevant in a consideration of the s 22 criteria for granting bail cannot be special or exceptional merely because it is relevant under s 22. However, it does not seem to say that there can be no overlap between a special or exceptional circumstance and a s 22 circumstance.
265․ Section 9G(3), like s 9C(2), is very specific in directing the court's processes; the court must consider the applicable bail criteria (s 22 in this case) only after the court is satisfied of the existence of special or exceptional circumstances. While s 9G(2) seems to permit an overlap between circumstances that might be special or exceptional and circumstances that might be relevant to s 22, there is a clear prohibition in s 9G(3) on the court simply throwing the special or exceptional circumstances test into the s 22 mix and considering both issues together.
266․ Those comments about the operation of ss 9C and 9G are supported by reference to the legislative history of s 9C. The Explanatory Statement for the Bail Amendment Bill 2003 referred to the ACT Law Reform Commission, Report No 19 on Bail, Report No 19 (2001), and identified the Government Response to that report as the basis for the Bail Amendment Bill. Without specifying whether the Bill took up the Law Reform Commission's recommendations or not, the Explanatory Statement noted that the major change to the bail system was the division of offences into categories for which different types of presumptions about bail are explicitly stated. The presumption against bail for those charged with murder and associated offences such as attempted murder was mentioned (the serious drug offences now covered by s 9C were added by a later amendment), and reference was made to the common law position, which was that for an accused murderer there was a presumption against bail unless exceptional circumstances existed.
267․ The Explanatory Statement also explained the purpose of s 9G as follows:
272․ Counsel for the DPP also noted the common law origins of bail laws.
273․ Neither counsel, however, addressed the fact that the authorities, while often referring to capital offences as one of the categories that require special treatment, have not tended to distinguish between capital offences and other serious offences so much as to distinguish between very serious offences with high penalties (including but not limited to the death penalty) and other offences whose lower penalty levels are apparently assumed not to generate such a risk of absconding. Counsel for the Attorney-General expressly conceded that "there is a correlation between severity of penalty and likelihood of a person absconding", and referred to "other jurisdictions that have also, in effect, codified the presumption against bail for murder and other serious offences".
274․ It is, I suppose, arguable that, in confining the cases in which special or exceptional circumstances must be shown more narrowly than was the case at common law, s 9C might be seen as modifying the common law approach to the benefit of bail applicants and thereby reducing any infringement on their human rights; but it might equally be seen as irrational in imposing an extra test in relation to one class of serious offences while leaving other serious offences to be treated on bail applications in the same way as much less serious offences.
275․ Against this background, counsel for the Attorney-General contended that "s 9C was intended to enact the common law approach to bail for murder and ancillary offences and thus should be interpreted in light of this common law history".
276․ Counsel for the DPP submitted that the purpose of s 9C is to ensure the protection of the community from those alleged to have committed the small group of offences covered by the section, which are said to "have wide ranging and detrimental effects on the community". This may be a fair description of the direct impact of the serious drug trafficking offences covered by s 9C, and it is probably also true that murders have detrimental effects on the community that extend beyond the victims and those who know them. However, it is not clear that an attempted murder, especially if it does not result in significant or long-lasting injuries to the victim, has an effect on the community that is more wide-ranging or more detrimental than, for instance, an offence involving grievous bodily harm, for which, as mentioned, there is generally no exceptional circumstances requirement in the Bail Act.
277․ Furthermore, most murderers are known to their victims. The Australian Institute of Criminology Homicide Statistics for 2006-07 (apparently the most recent figures available) (Jack Dearden and Warwick Jones, 'Homicide in Australia: 2006-2007 National Homicide Monitoring Program annual report' (Monitoring Report No 1, Australian Institute of Criminology, January 2009) 10-11) show that for male homicide victims in that year, only 25% of offenders were strangers to the victim, and for female victims, only 6% of perpetrators were strangers. It may thus be the case that many of those charged with murder in fact pose less danger to the community in general than the class of offenders who engage in more or less random violence as a result of alcohol or drug abuse; counsel for the applicant correctly drew attention to the contrast between the relatively slight danger posed by a person charged with the murder of her abusive partner in a "battered woman" situation and the danger posed by a repeat violent offender who has been charged with an aggravated assault and who already has a long record of such offences. Thus, s 9C with its focus on murder to the exclusion of other serious offences of violence is not necessarily a rational response to the need for community protection, and thus the purpose of community protection cannot necessarily be assumed in the absence of a clear indication of such a purpose.
278․ It is next necessary to consider what meanings of s 9C are available for assessment of their impact on human rights.
297․ Accordingly, I do not consider that different approaches to the question of onus justify expanding the possible meanings identified for s 9C by developing versions with or without an onus of any particular kind.
298․ Before leaving the issue of the onus imposed by s 9C, it is useful to mention a related issue that was raised and to some extent argued in that context, namely the proposition that if a bail applicant manages to satisfy s 9C (by establishing special or exceptional circumstances), then the prosecution must negate an entitlement to bail by reference to s 22. This seems to me to be an incorrect interpretation of s 22.
299․ As noted at [256․] above, s 22 does not set out a series of tests that, if satisfied, entitle a person to bail. Rather, it sets out a series of matters that the court must consider, each of which requires an assessment of matters of degree, not a "yes/no" answer. Generally, it is not possible to say that under s 22 bail will or will not be granted in any particular hypothetical circumstances. Section 22, in listing matters to be taken into account, indicates to the court what is relevant to the court's decision, but is neutral about the weight to be given to any factor or how competing factors should be balanced in any particular case. The presumptions relevant to the application of s 22 are not implicit in that section but are explicit in the provisions of the Bail Act that deal specifically with presumptions, being Divisions 2.2, 2.3 and 2.4 of Pt 2.
300․ This means, among other things, that there is no particular way by reference to s 22 that a party could establish, or exclude, an entitlement to bail. Whatever material is put before the court and by whichever party, the court retains its discretion under s 22, constrained only by whatever presumptions are applied by the provisions of the Bail Act that have directed the court to s 22.
318․ Thus, s 9C is to be assessed for consistency with a human right not protected in an equivalent form in any other human rights instrument drawn to my attention. The question is whether s 9C creates a general rule for the detention of a class of accused persons.
319․ Counsel for the DPP in written submissions noted that:
Human Rights Act
324․ It is clear that making a general rule for the class of cases to which it applies is routinely what a legislative provision does. That proposition may be less significant to the extent that a legislative provision confers a broad discretion on a court, because the outcomes will be more varied even if all of them emerge from the same "general rule", but in this case the discretion to identify circumstances as special or exceptional is confined within a process that applies not just generally but universally where the provision applies at all.
325․ I also reject the submission made on behalf of the Attorney-General that s 9C is only a rebuttable presumption and not a general rule that bail cannot be granted. Section 9C is a general rule that bail cannot even be considered in accordance with the usual bail criteria until a special or exceptional circumstance not necessarily relevant to those criteria has been established. Such a provision is fairly described as providing a "general rule" (as opposed to an universal or immutable rule) that persons in the relevant class will be detained in custody. The fact that the "special or exceptional circumstances" test is accepted as able to be satisfied in some cases does not excuse s 9C from operating as a "general rule".
326․ Counsel for the Attorney-General referred to the Victorian case of DPP v Barbaro[2009] VSCA 26; (2009) 20 VR 717, in which consideration was given to the Victorian Charter provisions referring to a right to be tried without unreasonable delay or released (ss 21(5) and 25(2)). The Victorian Court of Appeal (at [40]) concluded that the Victorian Charter "did not require any departure from the existing approach to the treatment of delay as an issue in bail applications". That case is, however, not to the point. First, no Charter provision equivalent to s 18(5) of the Human Rights Act was identified. Secondly, the challenge in this case is not to the treatment of delay as an issue in bail applications, or to whether delay can constitute special or exceptional circumstances. The question is whether a provision requiring the identification of special or exceptional circumstances as such, structured in the form of ss 9C read with 9G, offends a right, recognised in s 18(5) of the Human Rights Act, not to be subject to a general rule for detention in custody.
327․ Nor is the matter of Sextus v Trinidad and Tobago, HRC, Communication No 818/1998, UN Doc CCPR/C/72/D/818/1998 (2001), also mentioned on behalf of the Attorney-General, relevant; the only possibly relevant challenge in that case was to Mr Sextus's detention for an extended period between his arrest and his ultimate conviction for murder, which was found to directly offend Art 9(3) and other provisions of the ICCPR. There was no issue about the legislative basis on which bail was denied.
328․ Counsel for the Attorney-General submitted that s 9C, while imposing a threshold requirement, does leave the bail decision to be made by a judge in relation to the circumstances of the particular applicant; this is correct as far as it goes, but ignores the fact that the judge's capacity to look at the substance of the bail application, and the applicant's capacity to make out a case for bail by reference to standard factors, are severely constrained by a threshold test that is not apparently relevant to the substance of that application.
329․ It is also correct, as submitted on behalf of the Attorney-General, that matters included in the s 22 bail "criteria" may be considered in the search for special or exceptional circumstances, but this is not the same as saying that the court may look at the substance of the bail application and then conclude that the strength of the application of itself amounts to special or exceptional circumstances (see the discussion of this suggestion at [290․] to [292․] above). Section 9C imposes a clear threshold test; if that test cannot be met by the identification of one or a combination of circumstances that counts as "special or exceptional", the court is prohibited by the rule established by s 9C and 9G(3) from looking any further at the bail application.
330․ Having regard to the form of s 18(5), I cannot see any ground for saying that s 9C does not apply "a general rule" because it only applies to a limited class of accused persons or because there is scope for the application of judicial discretion. Whether s 9C is a "general rule" is not affected, either, by the strength of the special or exceptional circumstances requirement.
331․ Counsel for the Attorney-General submitted that decisions of the United Nations Human Rights Committee "clearly contemplate that a person charged with murder may be denied bail" but that such a person must be tried expeditiously. I have no quarrel with the proposition as expressed on behalf of the Attorney-General; clearly such a person may be denied bail in an appropriate case, and the seriousness of the offence would be a relevant consideration in any decision whether or not to refuse bail (as it currently is under s 22(3)(a) of the Bail Act). This is not the same as saying that a person charged with murder may be subject to a general rule precluding bail or that such a person may be denied bail, irrespective of how the standard criteria for granting bail would operate in the particular case, simply because the person cannot point to a particular circumstance that distinguishes his or her case from the general run of cases involving murder charges.
332․ The two Massey decisions (cited at [6․] and [9․] above) demonstrate the odd effect of s 9C. Ms Massey had been charged with murder. After several months in custody with no trial date set, she applied for bail, and the matter was considered under s 9C. The first application was unsuccessful, and several months later she made a second application. Special or exceptional circumstances, including delay, were found on both applications and the real question became whether Ms Massey could safely be released on bail having regard to the s 22 criteria, which raised the usual issues such as how her attendance at trial could be guaranteed, how the integrity of witnesses could be guaranteed and how offending could be guarded against. These matters were not able to be addressed to the satisfaction of the court on the first application, but were adequately addressed on the second application. In neither case was the substance of the special or exceptional circumstances that were found significant to the final outcome of the bail application. Conversely, if Ms Massey had been unable to identify a distinguishing but effectively irrelevant circumstance, s 9C would have operated to deny bail to a person who under s 22 could safely have been granted bail.
333․ As a "general rule" that is structured to implement a presumption against bail, and therefore in favour of the continued detention of a class of persons awaiting trial, I consider that s 9C is not compatible with the human right recognised by s 18(5) of the Human Rights Act. My conclusion that s 9C is not human-rights compatible is in this case based on the imposition of a substantive threshold test before the substance of a bail application can be considered; I do not need to express the view that a presumption against bail in any form and for any class of offences would be objectionable by reference to s 18(5) of the Human Rights Act, and I am not currently convinced that such a view would be correct. Because it is the imposition of the threshold test that renders s 9C incompatible with the particular human right recognised in the ACT, this means that neither of the available meanings of s 9C is human rights-compatible.
334․ Accordingly, I find that the two available meanings of s 9C identified above (meaning (a) and meaning (b) in [303․]), offend the human right recognised by s 18(5) of the Human Rights Act, to the extent that each meaning would generally confine the scope for bail to be granted to a particular class of alleged offenders without addressing the real matters at issue in any grant of bail.
335․ Counsel for the Attorney-General noted that s 18(4) of the Human Rights Act (the right to be tried within a reasonable time or released), and s 22(2)(c) of that Act (the right to be tried without unreasonable delay) are relevant to the right under s 18(5), but submitted that they are not as relevant to the particular context of an application for bail and so do not need to be considered for present purposes. Those other provisions of the Human Rights Act were not relied on by Mr Islam and I agree with the Attorney-General that I do not need to address them. I note in passing that whether those provisions could be relied on in a challenge to legislation, as distinct from a challenge to an administrative activity such as allocating investigative resources by prosecuting authorities or listing criminal trials for people in custody, raises a further set of issues that were not touched on in this hearing.
349․ Section 9C seems to be pointless to the extent that s 22 already permits the court, in its required consideration of the bail criteria, to have regard to the particular offences with which the bail applicant has been charged. It is true that s 22 permits rather than requires the court to consider the nature of the offences charged, while s 9C gives the court no choice but to proceed by reference to the particular kind of offence. It is hard to see how the matters to be considered in s 22 could be assessed without considering the nature of the offences charged, and I am not convinced that there is a real risk of a court ignoring the nature of the offence where it is a very serious offence. However, if there is such a risk, a more direct response to that risk might be found in simply requiring rather than permitting the court to consider the nature of the offence, either generally or in relation to specified classes of offences. Furthermore, while s 9C ensures that the court cannot ignore the nature of the charge, s 9C does not tie either the class of circumstances that may be accepted as special or exceptional, or any subsequent consideration of the s 22 criteria, to the nature of the offence charged. In this respect s 9C may be contrasted with s 9F, which draws a very specific and direct connection between the nature of the relevant offences (domestic violence offences) and the extra hurdle imposed, which is the requirement to ensure that the accused person poses no danger to the victim of the offence charged if he or she is released on bail (an issue which is particularly and rationally relevant to domestic violence offences, which usually involve a close and often continuing relationship between victim and the offender).
350․ The random or irrational operation of s 9C arises from the fact that the requirement to find a special or exceptional circumstance "favouring the grant of bail" does not necessarily operate as meaning "making it more appropriate to grant bail under s 22" but as meaning, in some cases, "making it more appropriate to grant bail despite s 22".
351․ This proposition is particularly clear in the context of inordinate delay which, as the Attorney-General has conceded in this case, is appropriately accepted, and has previously been accepted, as a special or exceptional circumstance.
352․ Inordinate delay in bringing a person to trial may well be a circumstance favouring the granting of bail by reference to the interests of the person, but it is not a circumstance that makes it more likely that the person concerned will appear for trial or that he or she will not interfere with witnesses or offend in the interim; if anything, a delayed trial may increase both the risk of non-appearance and the risk of offending. If, in a case of inordinate delay, a person could appropriately be granted bail within the s 22 criteria in terms of the likelihood that he or she would appear for trial and in terms of the safety of the community and the risks to the administration of justice, then there would seem to be no good reason why the person should not be granted bail irrespective of delay. Equally, if inordinate delay and its effect on the interests of the person would be sufficient to outweigh any risks in terms of the other s 22 criteria so as to permit the granting of bail, it is hard to see what s 9C adds to the court's weighing of the s 22 criteria.
353․ For the reasons set out at [276․] and [277․] above, the need for community protection may have more weight in relation to some of the offences covered by s 9C than others. It is not clear that s 9C is confined sufficiently to ensure that whatever justification can be proposed for the section applies to a reasonable degree to all the classes of offenders to which the section itself applies. The categories of offences dealt with in the South African bail legislation (see [363․] and [364․] below) provide an interesting contrast to the coverage of s 9C.
354․ In particular, the extent of prosecutorial discretion in relation to the charge of attempted murder may be problematic. Most of the s 9C offences include core elements that can be assessed objectively - a person is dead, or a substantial quantity of a prohibited drug has been found. A charge of attempted murder, however, may be laid on the basis of conduct that might have caused only a relatively minor injury, combined with a prosecutorial inference about the accused person's intent. The contrast with the South African approach ( at [364․] below) which puts attempted murder into a special category for bail decisions only where grievous bodily harm is inflicted (and even then not into the most restrictive category) is instructive. Under s 9C, where for instance there is an injury that might otherwise justify a charge alleging only "actual bodily harm", and no apparent basis for alleging an intention to kill except for the basic act of inflicting that actual bodily harm, the willingness of a prosecutor to draw an inference from that conduct may be significant to the charge that is laid, and inappropriately significant to the accused person's chances of being granted bail.
355․ As to whether s 9C has a rational operation, I note that all the offences covered by s 9C carry a maximum penalty of life imprisonment (although this is not mentioned in the section), and I accept the general relationship articulated on behalf of the Attorney-General between the seriousness of a charge (as indicated by its penalty) and the risks of granting bail. However, the fact that there is such a relationship, and the fact that the penalties for offences can be placed on a continuum of severity, with a corresponding continuum of risks generally attached to the granting of bail in relation to such offences, does not provide an obvious basis for adding a further restriction at any point, or any particular point, on that continuum. I also accept that the point at which further restrictions are imposed might once have been explained by the application of the death penalty (although this was by no means established in argument), but as already mentioned at [271․] above, the sentence of life imprisonment does not have quite the same impact.
356․ I note also that s 9C does not apply to all offences carrying penalties of life imprisonment that might be dealt with in ACT courts; specifically it does not seem to cover many Commonwealth offences carrying life imprisonment maximum penalties such as treachery and piracy under the Crimes Act 1914 (Cth) and a variety of offences relating to murder, treason, terrorism, genocide and war crimes under the Criminal Code Act 1995 (Cth). These offences would presumably be covered by s 9C, because of s 68 of the Judiciary Act 1903 (Cth), if s 9C were expressed to relate to offences carrying a life imprisonment penalty rather than only to a small number of identified offences. Nor does s 9C apply to a range of other serious offences carrying maximum penalties of 25 years imprisonment, or to a person charged with multiple serious offences where there is scope for an extremely long total period of imprisonment.
357․ Thus, there is a real question in this case whether the limitation imposed by s 9C is rationally connected to the purposes of the section noted at [275․] and [276․] above, and that question cannot be answered with an unqualified "yes". There may be a logical connection between the relevant purpose of the section and some of the cases that are caught by the section, but the scope and operation of the section are both too wide and too narrow, in different respects, for the section to be accepted as "narrowly tailored to fit its purpose", and the imposition of a threshold test rather than an additional test adds an irrational element into the operation of the section that is a problem even for the cases in which s 9C otherwise has an obviously appropriate operation.
379․ The DPP's submission was to the effect that there was no other way to achieve the limitation. Given the nature of the limitation in this case, this submission may well be correct, but it is beside the point. The s 28(2)(e) question is whether there is a less restrictive way to achieve the purpose sought to be achieved by the limitation concerned, and the DPP's submission did not address this issue.
380․ Having regard to the alternative approaches identified, rather than only the one conceded on behalf of the Attorney-General, I conclude that there are other means of achieving the purpose of s 9C as identified at [275․] and [276․] above, some or all of which would be less restrictive and certainly less random in operation (although not necessarily more conducive to release on bail in any particular case), and therefore that s 9C limits the human right to liberty more than is reasonably necessary.
398․ On the other hand, if a bail application is not a contest, then apart from any delay that is the applicant's responsibility, the source of delay may be irrelevant. The only real question may be whether there is genuine "delay" (as distinct from simply the passage of the time needed to do what has to be done before trial) and whether that delay has become inordinate. That is, if there has been or appears likely to be delay beyond that required by the normal processes or beyond the normal standards, the fact that neither the DPP nor the AFP is at fault is irrelevant.
Charter
403․ Accordingly, I make the following declaration: