Silson v O'Connell [2025] VSC 470

1 On 24 July 2025, a referral to the Supreme Court of Victoria pursuant to section 33(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter') was made by Magistrate Thomas of the following question:

Should section 13(2) of the Bail Act 1977 (Vic) be read such that in circumstances where section 9 of the Charter is engaged in relation to a risk of life or serious risk to health the Magistrates' Court has power to grant bail where a person is charged with murder?

2 The context which gave rise to the Referral is that New South Wales Police seek the extradition of the Plaintiff, Lisa Silson, on the allegation of murder. The allegation relates to the road death of her violent ex‑partner.

3 The Plaintiff was apprehended in Victoria. The provisions of the Service and Execution of Process Act 1992 (Cth) (the 'SEPA') apply to the proceeding before the Magistrates' Court. The application for extradition by New South Wales Police is opposed, and bail is sought. Bail is opposed by the Defendant.

4 The Plaintiff is a vulnerable First Nations woman. She has a long list of prior convictions reflecting a transient lifestyle and a pattern of offending consistent with past trauma and ongoing vulnerability, including physical and mental ill health, ADHD, Autism, and CPTSD.

5 If the Magistrate has jurisdiction to grant bail, it was submitted that the Plaintiff has 'exceptional circumstances' for the purposes of a bail application; her defence team raised serious concerns about her life and health if she is remanded in custody.

6 The Referral came before the Practice Court on 25 July 2025. As the Referral had the potential to have significant implications for the interpretation of section 13(2) of the Bail Act 1977 (Vic) (the 'Bail Act'), directions were given for the filing of written submissions and an opportunity for both the Attorney‑General and the Victorian Equal Opportunity and Human Rights Commission ('VEOHRC') to appear. Notices had been given to the Attorney‑General and VEOHRC. Neither entity has chosen to participate in this proceeding, both formally advising the Court of this approach.

7 On the return of the application on 31 July 2025, the submissions made on behalf of the Plaintiff, said to be by way of reply, raised a number of additional issues going to jurisdiction. I was not satisfied that the question referred by his Honour engaged the breadth of matters sought to be raised by the Plaintiff. In particular, questions of Constitutional conflict,[1] the interpretation of the SEPA and additional Charter rights issues (such as right to liberty) were raised in the reply submissions. I am not satisfied these issues are properly before this Court on the terms of his Honour's Referral made under section 33 of the Charter. There is a process for dealing with such questions which include the giving of a section 78B notice in respect of the section 109 arguments if they wish to be pursued.

8 The power to refer a question of law with respect to the interpretation of a statutory provision in accordance with the Charter may be referred to the Supreme Court in accordance with section 33(1). This requires that a party has made an application for referral and the Magistrates' Court (in this instance) considers that the question is appropriate for determination by the Supreme Court. The question for determination is the question as referred by his Honour and, in my view, there is no power for me to determine a different question.

9 Having considered the written and oral submissions made by the parties, a short oral decision was given ex tempore determining the Referral.

10 The extradition application was due to return to the Magistrates' Court on 1 August 2025.

11 The Plaintiff sought written reasons which I indicated I would provide as promptly as I was able.

Service and Execution of Process Act 1992 (Cth)

12 Section 82 of the SEPA provides that the person named in a warrant issued in a State may be apprehended in another State.

13 Section 83 of the SEPA sets out the procedure to be adopted after a person is apprehended and provides for the power of a Magistrate to grant bail. The detailed procedure after apprehension is contained in sections 83(1)-(15).

14 Section 88 of the SEPA provides as follows:

(1) Despite subsection 68(1) of the Judiciary Act 1903, the law of a State with respect to the granting of bail applies in relation to a power under this Division to grant bail to:

(a) a person apprehended in that State; or

(b) a person who has applied in that State for an order under section 90;

as if the person had been apprehended under, or by authority of, a law of that State.

(2) The law of a State with respect to bail and matters related to bail (including enforcement of bail) applies in relation to a person who has been remanded on bail in that State under this Division as if the person had been remanded on bail to appear before a court of that State.

(3) Money received in proceedings for the enforcement of bail is to be retained by the State in which the bail condition, the breach of which lead to the proceedings being brought, was imposed.

Bail Act 1977 (Vic)

15 Section 13(2) of the Bail Act restricts the power to grant bail where a person is accused of murder to the Supreme Court. It reads as follows:

Only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

16 The main purpose of the Charter is to protect and promote human rights by setting out the human rights that Parliament specifically seeks to protect and promote, ensuring all statutory provisions are interpreted so far as possible in a way that is compatible with human rights and imposing obligations on all public authorities to act in a way that is compatible with human rights.[2]

17 Whilst the Plaintiff in her initial submissions relied on section 9 'right to life', in her reply submissions reliance was extended to section 21 'right to liberty and security of a person'. It was with reference to the 'right to life' Charter right only that the Magistrate referred the interpretation question to this Court.

18 Section 21 of the Charter provides that every person has the right to liberty and security,[3] and that a person must not be subjected to arbitrary arrest or detention.[4] A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.[5]

19 Section 32 of the Charter is an interpretation provision. When applying it, the Court must identify how the words or phrases in the relevant provision should be interpreted.

20 Section 32(1) of the Charter requires that the relevant provision must be interpreted in a way that is compatible with human rights, so far as it is possible to do so consistently with its purpose. In this Referral, the relevant provision is section 13(2) of the Bail Act. Where the provision in question admits 'shades of meaning and nuance',[6] section 32(1) requires exploring all possible interpretations of the provision in question in adopting an interpretation that least infringes on the Charter rights.[7]

21 The High Court considered the nature and effect of section 32(1) of the Charter in Momcilovic v The Queen, holding that it 'mandates an attempt to interpret statutory provisions compatibility with human rights'.[8] In Slaveski v Smith, the Court of Appeal described the effect of Momcilovic v The Queen as:

Consequently, if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question.[9]

22 Section 33(1) of the Charter empowers courts and tribunals to refer particular Charter‑related questions to the Supreme Court of Victoria. This section does not authorise the Supreme Court to make the determination to which any referred questions are relevant, it only refers 'that question' to the Supreme Court.

23 Section 33(1) does no more than empower the Supreme Court to answer the referred question set out at [1] above. The Court may decide that it is not appropriate to answer the question, at its[10]iscretion.10

24 It was submitted on behalf of the Plaintiff that the position apparently adopted by the Magistrate and the Defendant, is that the Magistrates' Court has no power to grant bail to the Plaintiff on the warrant, nor on any adjournment. As a consequence, she and any person being extradited in respect of the offence of murder in another State or Territory, are left 'in the extraordinary position' of being automatically detained in custody with no ability to be granted bail.

25 If that position is correct, it is said to be contrary to both international human rights law and the right to liberty in the Charter. Whilst the initial submissions relied on section 9 of the Charter (right to life), the reply submissions suggested that the present case, which involves a First Nations woman with significant physical and mental health issues who is at risk in custody, is also contrary to the right to equality and cultural rights in the Charter. The reply submissions focused on section 21 (right to liberty and security), the right to life submission having been made at the earlier hearing.

(a) Section 83 of the SEPA clearly empowers a Magistrate to grant bail in any case in which a person is apprehended under that Act including where an extradition application includes a charge of murder.

(b) Section 88 of the SEPA provides that a State law with respect to the granting of bail applies in relation to a power under this Division to grant bail. Properly construed, this does not include section 13(2) of the Bail Act. If it is interpreted so as to prohibit a Magistrate from granting bail in respect of an allegation or charge of murder in another State or Territory, it is inconsistent with the provisions of section 83 of the SEPA. Section 83 of the SEPA must prevail over section 13(2) of the Bail Act and the Court should declare that section 13(2) is invalid.

(c) Properly construed in light of the Charter, section 13(2) of the Bail Act is limited to offences in Victoria and does not operate to limit the power to grant bail conferred by section 83 of the SEPA. There is nothing in section 13(2) to indicate that Parliament intended that the provision apply to offences in other States and Territories or to a person sought to be extradited for those offences under the SEPA.

(d) Section 32 should not be narrowly construed. A narrow construction ignores authorities such as the Director of Public Prosecutions v Smith,[11] and the comments of Nettle, Tate and Osborn JJA in Victoria Police Toll Enforcement v Taha.[12]

(e) Section 88 of the SEPA is not intended to be a provision that constrains the power in section 83, only those provisions concerned with the exercise of that power; for example, the ability to impose conditions of bail.

(f) If and insofar as section 13(2) of the Bail Act is picked up by section 88 of the SEPA, and interpreted so as to prohibit a Magistrate from granting bail in respect of an allegation or charge of murder in another State or Territory, it is inconsistent with the provisions of section 83 of the SEPA. Pursuant to section 109 of the Constitution of Australia, section 83 of the SEPA prevails and section 13(2) of the Bail Act is invalid.

27 In addition to the right to life and health matters initially placed before the Court, it was submitted that the right not to be arbitrarily detained (section 21(2)); the right of persons arrested or detained on a criminal charge to be brought properly before a court (section 21(5)); and the requirement that a person awaiting trial must not be automatically detained in custody, but that person's release may be subject to guarantees to attend trial, judgment or any other part of the proceeding (section 21(6)), were engaged.

28 Section 32 of the Charter is an interpretation provision and when applying it, the Court must identify how the words and phrases should be interpreted. Section 32(1) of the Charter requires that section 13(2) of the Bail Act must be interpreted in a way that is compatible with human rights and which is consistent with its purpose. Where the provision admits 'shades of meaning and nuance', section 32(1) of the Charter requires exploring all possible interpretations of the provision in question and adopting the interpretation which least infringes on the Charter rights.

29 The words of section 13(2) of the Bail Act are clear that only the Supreme Court of Victoria (or a Court committing the person for trial) may grant bail to a person accused of murder.

30 The requirement that only the Supreme Court of Victoria can grant bail to a person who is accused of murder, recognises the seriousness of the crime of murder. This is consistent with section 1B(1AA) of the Bail Act. Interpreting the provision in accordance with its ordinary meaning also promotes transparency and consistency in bail decision‑making in accordance with section 1B(1)(c).

31 The Defendant's written submissions set out in detail the international jurisprudence in relation to the right to life. The Defendant submitted that the right to health is a distinct right that is not a part of the right to life. It is primarily recognised in article 12 of the International Covenant on Economic Social and Cultural Rights ('ICESCR'). The rights in the Charter are sourced in the International Covenant on Civil and Political Rights, and not the ICESCR.

32 The right to life requires the State to adopt reasonable measures to prevent the deprivation of life, but is not engaged in relation to issues of health or healthcare falling short of the deprivation of life.

33 The right to life in section 9 of the Charter has been interpreted as protecting against the 'deprivation of life', rather than the mere protection of health.[13]

34 The additional rights raised by the Plaintiff's reply submissions were not expressly dealt with by the Defendant's written submissions. In oral submissions, it was argued that section 13(2) of the Bail Act is not an arbitrary deprivation of liberty because there are pathways available to the Plaintiff to apply for bail.

35 Section 88 of the SEPA picks up section 13 of the Bail Act. Therefore, the question before the Court concerns the interpretation of section 13 of the Bail Act and not the interpretation of section 88 of the SEPA. Section 88 of the SEPA cannot be subject to section 32 of the Charter as the Charter does not apply to the interpretation of Commonwealth legislation.

36 Section 88 of the SEPA calls up section 13 of the Bail Act as the applicable State law. The procedure for commencing a criminal procedure in New South Wales under the Criminal Procedure Act 1986 (NSW), is the issuing of a Court attendance notice which is the equivalent of laying a charge in Victoria. The process for seeking bail is governed by the respective State or Territory laws in accordance with section 88 of the SEPA.

37 No section 78B notices have been issued in respect of the identification of a constitutional issue.

38 As indicated at the end of the hearing, I would provide more detailed reasons for my determination of the Referral, being that the Magistrates' Court of Victoria does not have the power to grant bail where a person is charged with murder in circumstances where section 9 of the Charter is engaged in relation to risk of life or serious risk to health. The power to grant bail resides in the Supreme Court of Victoria pursuant to section 13(2) of the Bail Act.

39 The Charter cannot be used to expand the jurisdiction of the Magistrates' Court where the legislature has clearly identified that the repository of that jurisdiction is the Supreme Court.

40 The words of section 13(2) of the Bail Act are clear:

Only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.

41 The Courts have not hesitated in identifying the ordinary meaning of section 13(2) of the Bail Act, namely that only the Supreme Court, or a Court on committing the person for trial, may grant bail to a person accused of murder.[14]

42 The requirement in section 13(2) of the Bail Act is that only the Supreme Court can grant bail to a person who is accused of murder (other than upon committal), recognises the seriousness of the crime of murder, and the absolute, irrevocable and egregious nature of its impact on the victim of that crime. This is consistent with section 1B(1AA) of the Bail Act. Interpreting the provision in accordance with its ordinary meaning also promotes transparency and consistency in bail decision‑making, in accordance with section 1B(1)(c) and promotes public understanding of bail practices and procedures in accordance with section 1B(1)(d).

43 Section 33 of the Charter confers jurisdiction on the Supreme Court to determine a question which arises with respect to the interpretation of the statutory provision in accordance with the Charter. That question, as framed by the Referral, is limited to the interpretation of section 13(2) of the Bail Act in the context of section 9 of the Charter, and whether the Magistrates' Court has the power to grant bail where a person is charged with murder.

44 In my view, it would be to step outside the extent of the Supreme Court's jurisdiction in determining this Referral to express a view or make a determination that goes wider than the ambit of the question posed. Consequently, I have considered the Referral within the confines of the question posed.

45 That said, the pathway to the operation of the Bail Act in accordance with the application of Victorian law arises directly by the machinery of the SEPA. Section 88 of the SEPA explicitly provides that the law of a State with respect to the granting of bail applies in relation to a power to grant bail to a person apprehended in that State, as if the person had been apprehended under or by authority of a law of that State.

46 The Plaintiff was apprehended in Victoria. The Bail Act is the law of Victoria with respect to the granting of bail. Section 13(2) of the Bail Act explicitly states that the Supreme Court is the court with the jurisdiction to grant bail where a person is accused of murder. There is no nuance, ambiguity or inconsistency in this.

47 Section 32 of the Charter is an interpretive provision. In my view, there are no shades of nuance or meaning which requires this Court to consider all possible interpretations of the provision in question beyond the clear words of section 13(2) of the Bail Act.

48 It is section 13(2) of the Bail Act which is being interpreted, not the provisions of the SEPA. The Charter does not apply to Commonwealth legislation.

49 The Plaintiff's arguments, as set out above, extend beyond the question referred by his Honour. If some question of constitutional validity is to be raised, there is a mechanism for that to occur. This application is not that vehicle.

50 In interpreting section 13(2) of the Bail Act in the context of section 9 of the Charter, the answer is unambiguous. Only the Supreme Court has jurisdiction to grant bail where a person is accused of murder and the Charter does not aid an alternative interpretation.

51 The Referral seeks to clarify whether the right to life provided by section 9 of the Charter modifies what otherwise is the clear meaning of the provision. The first consideration in respect of the Charter is whether the identified Charter right is engaged. As set out in the Defendant's written submissions, there is no Charter right to health. I agree with this proposition for the reasons identified by the Defendant. The Charter right is expressed to be a right to life and the right not to be arbitrarily deprived of life.

52 Whilst the Referral does not refer to any other Charter right other than section 9, the Plaintiff's reply submissions also referred to the right not to be arbitrarily detained pursuant to section 21 of the Charter. There can be no legitimate argument that the right not to be arbitrarily detained is engaged where the law provides for an opportunity to apply for bail pursuant to the provisions of the Bail Act.

53 I reject the Plaintiff's proposition that she has no ability to seek bail. The Bail Act prevents the Magistrates' Court from granting bail where a person is accused of murder. However, an application can be made to the Supreme Court. As a consequence, it cannot be correct that the Plaintiff is, as claimed, 'in the extraordinary position of being automatically detained in custody with no ability to be granted bail.' This is not a 'catch 22' situation, or a lacuna in terms of the opportunity to seek bail. The jurisdiction resides in the Supreme Court of Victoria where bail is sought for a person accused of murder.

54 Alternatively, an application could be made in the issuing jurisdiction in accordance with that jurisdiction's laws.

55 I note that initially the Plaintiff did not dispute the validity of the warrant. However, at the subsequent hearing, that position had changed and I was informed that the Plaintiff now challenges the validity of the warrant. That is a matter to be determined by the Magistrates' Court in due course.

56 The Referral requires this Court to answer the specified question with respect to the interpretation of section 13(2) of the Bail Act.

57 It is plain that the Plaintiff has attempted to expand the question beyond the question referred. I am of the view that the Referral question is limited to that which his Honour posed in his order made 24 July 2025. Equally, reference to other alleged Charter rights raised in the Plaintiff's reply are not the subject of this Referral. In any event, given the right to apply for bail under the Bail Act, arguments based on a right to liberty and freedom from arbitrary detention are hollow in the context of a person charged with murder and the ability to apply for bail, albeit not in the Magistrates' Court in Victoria.

58 The order made on 31 July 2025 in answer to the Referral was:

A question was referred to the Supreme Court of Victoria for determination pursuant to section 33(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter').

Question: Should section 13(2) of the Bail Act 1977 (Vic) (the 'Bail Act') be read such that in circumstances where section 9 of the Charter is engaged in relation to a risk of life or serious risk to health the Magistrates' Court has power to grant bail where a person is charged with murder

Answer: Where a person is charged with murder, section 9 of the Charter does not empower or enlarge the power of a Magistrate to grant bail under section 13(2) of the Bail Act. The power to grant bail where a person is charged with murder resides in the Supreme Court of Victoria.

[1] Section 109 of the Australian Constitution was raised in the reply submissions.

[2] Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') s 1(2)(a)-(c).

[3] Charter s 21(1).

[4] Charter s 21(2).

[5] Charter s 21(3).

[6] Momcilovic v The Queen (2011) 245 CLR 1, [50] (French CJ).

[7] T_aha v Broadmeadows Magistrates' Court_ [2011] VSC 642, [59] (Emerton J), approved on appeal in Victoria Police Toll Enforcement v Taha [2013] VSCA 37; (2013) 49 VR 1, [24]-[27] (Nettle, Tate and Osborn JJA).

[8] (2011) 245 CLR 1, [50] (French CJ).

[9] Ibid; Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, [24] (Warren CJ, Nettle and Redlich JJA).

[10] De Simone v Bevnol Constructions and Developments Pty Ltd [2010] VSCA 348, [29]-[31] (Redlich and Hansen JJA).

[11] DPP v Smith [2024] HCA 32; (2024) 419 ALR 212, [131]-[134].

[12] V_ictoria Police Toll Enforcement v Taha_ [2013] VSCA 37, [189]-[190].

[13] Re Application by the Chief Commissioner of Police [2024] VSC 815, [19]; AB (a pseudonym) v CD (a pseudonym) [2017] VSCA 338; AB (a pseudonym) v CD (a pseudonym) [2017] VSC 350, [415]-[416].

[14] Re Oldis [2020] VSC 769, [2] (Tinney J); Re Application for Bail by Rahman [2020] VSC 748 (Coghlan JA).