Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Williams v Director-General of the Justice and Community Safety Directorate Citation: [2025] ACTSC 396 Hearing Date: 17, 23 February 2023, 6 – 10 March 2023, 30 May 2023 Decision Date: 4 September 2025 Before: McWilliam J Decision: The plaintiff is entitled to declaratory relief to the effect that the use of force and strip search to which she was subjected on 11 January 2021 at the Alexander Maconochie Centre was conduct incompatible with her rights under the Human Rights Act. Catchwords: HUMAN RIGHTS – PRISON AUTHORITIES – detainee on remand – refusal of request for funeral leave – whether conduct incompatible with human rights – right to enjoy culture and maintain cultural and kinship ties – right to privacy HUMAN RIGHTS – PRISON AUTHORITIES – detainee on remand – planned use of force – strip or body search – whether conduct incompatible with human rights – right to humane treatment while deprived of liberty – right to protection from degrading treatment – right to privacy – right to appropriate treatment for person on remand EVIDENCE – PRIVILEGES – PARLIAMENTARY PRIVILEGE principles applying in the Territory – functional connection required – objective test – where statute required report to be laid before Legislative Assembly – where statutory purpose for scrutiny by Legislative Assembly – functional connection established – privilege attached EVIDENCE – PRIVILEGES – Human Rights Commission Act 2005 (ACT), ss 73 and 75 – whether privilege against exposure to civil penalty applied – whether letter notifying complaint constituted an exercise of statutory coercive power to request information – where letter in response provided information voluntarily – no privilege attached STAUTORY CONSTRUCTION – Human Rights Act 2004 (ACT), s 40B(1)(b) – proper consideration – whether higher test imposed than that at common law – ordinary common law principles apply STATUTORY CONSTRUCTION – Human Rights Commission Act 2005, ss 45(2), 72 and 73 – scope of power to request documents – whether statutory power to obtain information limited to a coercive power contained in s 73 of the Act WORDS & PHRASES – Human Rights Act 2004 (ACT), s 40B(1)(b) – “proper consideration” – manner in which “proper” qualifies consideration PRACTICE AND PROCEDURE – HUMAN RIGHTS PROCEEDINGS – operation of Court Procedures Rules 2006, rr 33 and 34 – where proceeding commenced by application – appropriateness of pleadings in circumstances where complex factual and legal issues involved – whether Territory appropriate defendant Legislation Cited: Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24, pt III Bill of Rights 1688 (UK) art 9 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 10(b), 22(1) Corrections Management (Detainee Requests & Complaints) Policy 2019, cl 4.4 Corrections Management (Detainee Requests and Complaints) Operating Procedure 2019, cls 1.2, 5.1 Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019 Corrections Management (Management of At-Risk Detainees) Policy 2019, cls 4, 8.9, 11.1, 11.7, 11.9 Corrections Management (Searching) Policy 2010 Corrections Management (Use of Force and Restraint) Policy 2020, cls 4, 5.2, 5.3, 5.4, 6, 8, 9, 10 Corrections Management Act 2007 (ACT) ss 7, 9, 107, 108, 113, 113A, 113B, 113C, 114, 115, 126, 137, 138, 139, 140, 141, 142, 208, 209, 222, 223(3), pts 9.4, 9.7, 12.2, divs 9.4.1, 9.4.3, 9.4.4 Court Procedures Rules 2006 (ACT) (Republication No 64) rr 407A, 407B Court Procedures Rules 2006 (ACT) rr 33(2), 34(2), 218, 220, 6022 Crimes (Sentence Administration) Act 2005 (ACT) s 149(2) Custodial Inspector Act 2017 (ACT) ss 6, 17, 18(c), 25(4), 29, 30, Dictionary Discrimination Act 1991 (ACT) Evidence Act 2011 (ACT) ss 56, 59, 76, 135 Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) Human Rights Act 2004 (ACT) ss 10(1), 12, 19(1), 19(3), 27, 28, 30, 36, 40, 40B, 40C, sch 1 Human Rights Commission Act 2005 (ACT) (Republication No 33) ss 45, 75 Human Rights Commission Act 2005 (ACT) ss 14, 15, 42, 45, 47, 72, 73, 74, 75, divs 4.2, 4.4 Human Rights Commission Amendment Act 2023 (ACT) Inspector of Correctional Services Act 2017 (ACT) ss 6, 9, 17, 18(1)(c), 25(4), 27, 28, 29, 30, pt 3 Justice and Community Safety Legislation Amendment Act 2025 (ACT) Legislation Act 2001 (ACT) ss 126(4), 127, 142, 146, Dictionary Migration Act 1958 (Cth) s 5(1) Monitoring of Places of Detention Legislation Amendment Act 2024 (ACT) Parliamentary Privileges Act 1987 (Cth) s 16 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Allan v United Kingdom [2002] IX Eur Court HR 41 Amann Aviation Pty Ltd v The Commonwealth (1988) 19 FCR 223 Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; 48 VR 129 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 Blacktown City Council v Hocking [2008] NSWCA 144 BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 Brown v Director-General of the Justice and Community Safety Directorate [2021] ACTSC 320; 364 FLR 155 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Carrigan v Cash [2017] FCAFC 86 Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 Castles v Secretary, Department of Justice [2010] VSC 310; 28 VR 141 Cenbauer v Croatia [2006] III Eur Court HR 261 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 Certain Children v Minister for Families [2016] VSC 796; 51 VR 473 Crime and Corruption Commission v Carne [2023] HCA 28; 280 CLR 555 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Deng v Australian Capital Territory [2024] ACTCA 10 Dixon v Todd (1904) 1 CLR 320 Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 Egan v Willis [1998] HCA 71; 195 CLR 424 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48; 3 ACTLR 127 HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission [2021] VSCA 200; 64 VR 270 In the Matter of The Board of Inquiry into Disability Services [2002] ACTSC 28; 167 FLR 262 Ireland v The United Kingdom (1978) 25 Eur Court HR (ser A) Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22 Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Jones v Dunkel (1959) 101 CLR 298 Kalashnikov v Russia [2002] VI Eur Court HR 93 Knight v General Manager, HM Prison Barwon [2017] VSC 135 Kunstler v Kunstler [1969] 1 WLR 1506 Martin v Taylor [2000] FCA 1002 Millard v Collins [2021] ACTSC 216 Millington v Peach (No 2) [2025] ACTSC 21 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; 106 FCR 426 Minogue v Thompson [2021] VSC 56 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Nicolae Virgiliu Tănase v Romania (European Court of Human Rights, Grand Chamber, Application No 41720/13, 25 June 2019) Novoselov v Russia (European Court of Human Rights, First Section, Application No 66460/01, 2 June 2005) PLA and Puncernau v Andorra [2004] VIII Eur Court HR 179 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Płoski v Poland (European Court of Human Rights, Fourth Section, Application No 26761/95, 12 November 2002) Pretty v United Kingdom [2002] III Eur Court HR 155 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v A2 [2019] HCA 35; 269 CLR 507 R v Chaytor [2010] UKSC 52; 1 AC 684 R v Collaery (No 6) [2020] ACTSC 164 R v Roy (No 3) [2025] ACTSC 5 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Rich v Howe [2017] VSC 483 Rowley v O’Chee [2000] Qd R 207 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 Soenen v Thomas [1983] 8 CCC (3d) 224 Stewart v Ronalds [2009] NSWCA 277; 76 NSWLR 99 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 T v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 24724/94, 16 December 1999) The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 Thompson v Minogue [2021] VSCA 358; 67 VR 301 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105; 41 FCR 89 Tyrer v United Kingdom (1980) 26 Eur Court HR (ser A) Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 University of New South Wales v Moorhouse (1975) 133 CLR 1 V v United Kingdom [2000] 7 BHRC 659 Wainwright v United Kingdom [2006] X Eur Court HR 223 Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 Y.F. v Turkey [2003] IX Eur Court HR 171 Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 Zurich Australian Insurance Limited v CIMIC Group Limited & Ors [2024] NSWCA 229; 115 NSWLR 297 Texts Cited: Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) Explanatory Statement, Human Rights Bill 2003 (ACT) Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 50th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) Human Rights Committee, Views: Communication No th 1184/2003, 86 sess, UN Doc CCPR/C/86/D/1184/2003 (27 April 2006) Human Rights Committee, Views: Communication No 511/1992, nd 52 sess, UN Doc CCPR/C/49/D/511/1992 (8 November 1994) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Joint Committee on Parliamentary Privilege, Parliamentary Privilege (House of Lords paper 43-1, House of Commons paper 214-1, Session 1998-99) Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) Parties: Julianne Francis Williams (Plaintiff) Director-General of the Justice and Community Safety Directorate (First Defendant) Jon Peach (Second Defendant) A Corrective Services Officer (redacted) (Third Defendant) ACT Human Rights Commission (Intervenor) Representation: Counsel M Dennis SC, P Tierney (Plaintiff) H Younan SC, N Oram (Defendants) S Fitzgerald (Intervenor) Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendants) ACT Human Rights Commissioner (Intervenor) File Number: SC 480 of 2021 Contents The application ...................................................................................................................9 Summary of the result .......................................................................................................10 The parties ........................................................................................................................10 The nature of the statutory cause of action .......................................................................11 The appropriate respondent to the Application ..................................................................12 The procedure for bringing a complaint under the Human Rights Act before the court ......13 The conduct the subject of complaint ................................................................................16 The issues ........................................................................................................................18 The evidence ....................................................................................................................19 Inferences to be drawn from CCTV and handheld camera footage................................19 Jones v Dunkel inferences ............................................................................................20 Credit findings after delay ..............................................................................................21 The plaintiff’s cultural heritage .......................................................................................21 The plaintiff’s status in the AMC in January 2021 ..........................................................22 The plaintiff’s involvement in, and efforts to attend, her grandmother’s funeral on 12 January 2021 ................................................................................................................23 A breakdown in the progress of the Leave Application occurs .......................................25 The 11 January scuttle to facilitate an escort .................................................................27 The second defendant’s decision and the basis of the refusal of funeral leave ..............29 A concern arises about the plaintiff’s intention to self-harm ...........................................31 The treatment of the plaintiff at the CSU ........................................................................33 A decision to use force to facilitate a strip search is made .............................................33 The use of force is implemented....................................................................................35 The plaintiff initiates a surrender and negotiate response to the conduct .......................36 The conduct of the strip search in the bathroom ............................................................36 The Human Rights Act ......................................................................................................38 General principles in interpreting human rights ..............................................................38 General principles in interpreting other laws which interact with human rights ...............39 The court’s task in evaluating whether conduct of a public authority is or was in breach of a human right ............................................................................................................39 The court’s task in determining whether a public authority failed to give “proper consideration” to the human right identified in making a decision ..................................42 The right to protection from cruel, inhuman or degrading treatment ...............................48 Humane treatment when deprived of liberty ..................................................................52 The right to privacy ........................................................................................................55 The right to enjoy culture and maintain cultural and kinship ties ....................................56 What was the content of the human rights identified? .......................................................57 The statutory framework limiting the plaintiff’s rights .........................................................59 General provisions directed to protection of human rights .............................................61 Specific provisions dealing with the conduct the subject of complaint ............................62 Policies giving content to the rights limited by law .............................................................69 ‘At-Risk’ Policy ..............................................................................................................69 Searching Policy............................................................................................................70 Use of Force Policy .......................................................................................................71 Issue 1: Was the Funeral leave decision a breach of any of the human rights relied upon by the plaintiff?..................................................................................................................73 Section 27 and the right to enjoy cultural practices and maintain kinship ties ................74 Section 12(a) - The right to no unlawful and arbitrary interference with family ...............80 Sections 19(1) and 19(3) – The right to treatment with humanity and respect for inherent dignity when deprived of liberty, including appropriate treatment when detained on remand ..........................................................................................................................80 Issue 2: Was the lack of a review of the Funeral leave decision a breach of the plaintiff’s human rights? ...................................................................................................................81 Issue 3: Was the use of force on 11 January 2021 conduct incompatible with the plaintiff’s human rights? ...................................................................................................................82 Issue 4: Was the strip search in the cell conduct incompatible with the plaintiff’s human rights? ...............................................................................................................................84 Issue 5: Was the strip search or body search in the CSU bathroom conduct incompatible with the plaintiff’s human rights? .......................................................................................86 Evidentiary issues: The parliamentary privilege dispute ....................................................87 What is meant by parliamentary privilege? ....................................................................88 The source of the privilege in the Territory.....................................................................89 Principles applying to questions of parliamentary privilege ............................................90 The requirement for a functional connection, objectively considered .............................91 Was there a functional connection here? .......................................................................93 The competing arguments .............................................................................................95 Consideration ................................................................................................................97 Evidentiary issues: The response letter dispute ................................................................99 What relief follows from the findings of a breach of human rights? ..................................109 Costs .............................................................................................................................. 111 Conclusion and Orders ...................................................................................................112 McWILLIAM J:

1. The Human Rights Act 2004 (ACT) (Human Rights Act) is a law that applies to every person in the Territory. It deals with things many take for granted, such as the right to life, the protection from torture or cruel, inhuman or degrading treatment, the right to freedom from slavery – things so basic that it is hard to believe the Territory needs a law to spell them out. Yet this law is significant, not only for those who are already able to play the game of navigating societal and communal interactions and administrative requirements; it is for those who are just trying to get to the field in the first place. And sometimes, it is a prism through which social justice issues speak; a lawful means of saying to those in power, you have got to do better for those people.

2. This is a claim about human rights brought by the plaintiff, Ms Julianne Williams, a Ngunnawal woman who was detained on remand at the Alexander Maconochie Centre (AMC) from 12 September 2020 pending the resolution of criminal charges. The proceeding concerns two incidents that happened while she was detained.

3. As to the first incident, while in custody on 6 January 2021, the plaintiff learned that her grandmother had died. In the days leading up to the funeral, the plaintiff attempted to seek leave from the AMC to attend the funeral, which was to be held on 12 January 2021. Her request was unsuccessful, and the funeral occurred without the plaintiff being physically present or otherwise being able to view the funeral proceeding from the AMC.

4. The second incident arose out of the first. The plaintiff was notified of the outcome of her request on 11 January 2021 and was not informed about any opportunity to review that decision. Upon learning she would not be permitted to travel to attend the funeral, the plaintiff’s mental health deteriorated. She was transferred to the Crisis Support Unit (CSU) within the AMC on 11 January 2021. While in that unit, she was subjected to the use of force for the purpose of carrying out either a strip or a body search, which is alleged to have been first attempted in her cell but ultimately carried out in the bathroom. Those are the essential facts which have brought the plaintiff to court.

The application

5. By originating application filed on 18 November 2021 and amended on 13 July 2022 (Application), the plaintiff sought declarations under s 40C of the Human Rights Act that each of the named defendants breached her human rights in a number of ways. She alleged breaches of her right to protection from inhuman and degrading treatment, her right to privacy, her right to humane treatment and preservation of her inherent dignity as a human being, and her right as an Aboriginal woman to maintain her connection to culture and kinship ties.

6. The plaintiff sought the following declaratory relief: (a) A declaration pursuant to s 40C of the Human Rights Act that the first and second defendants breached the plaintiff’s human rights under ss 10(1), 12(a), 19(1), 19(3) and 27(2) of the Human Rights Act; and (b) A declaration pursuant to s 40C of the Human Rights Act that the third defendant breached the plaintiff’s human rights under ss 10(1), 12(a), 19(1) and 19(3) of the Human Rights Act.

7. The declarations sought against the defendants were divided because the human rights alleged to have been breached arose out of separate conduct.

8. The plaintiff also sought costs.

Summary of the result

9. It should be stated at the outset of this judgment that it is a complex, difficult and often thankless job to manage and work in the Territory’s prison and corrective services force. This case demonstrates that difficult decisions must be made by those staff under pressure, both temporal and otherwise. However, at the heart of those decisions there lies a significant responsibility to maintain respect for the rights and liberty of individuals detained by the Territory, however curtailed those rights or liberties may be by the fact of incarceration.

10. For the reasons that follow, the plaintiff has established that aspects of the conduct that occurred on 11 January 2021 were incompatible with her right to be treated humanely, her right to privacy, her right as a person on remand to be treated in an appropriate way, and her right to protection from degrading treatment, and the court will grant declaratory relief accordingly.

The parties

11. The first defendant is the Director-General of the Justice and Community Safety Directorate. The Justice and Community Safety Directorate (Directorate) is the department of the ACT Government which has a range of responsibilities corresponding to its name. These include the responsibility for the management of the AMC pursuant to the provisions of the Corrections Management Act 2007 (ACT) (Corrections Act). The Director-General is the public official (that is, the statutory office holder) who is given the primary functions of managing and operating corrective services under the Corrections Act. This includes the operation of the AMC.

12. The second defendant is Mr Jon Peach. At the relevant time, Mr Peach was the Commissioner for ACT Corrective Services (ACTCS). ACTCS is part of the Directorate. Among other things, he was responsible for the management of the AMC. The Commissioner for ACTCS sits at the head of ACTCS and, relevantly, has responsibility for custodial operations. He was the person who made the decision to refuse the plaintiff’s request to attend her grandmother’s funeral.

13. The third defendant was a Correctional Officer (CO) at the AMC at the relevant time. The third defendant had the role of Area Manager – Operations. In that role, the third defendant was responsible for admissions, visitors, the security team, the gatehouse, the management unit, and any escorts from the AMC. She was the person who authorised the use of force on the plaintiff and the conduct of the strip or body search.

14. The ACT Human Rights Commissioner (Intervenor) was joined to the proceedings on 18 March 2022 by order of Elkaim J, following an application pursuant to s 36 of the Human Rights Act. That section allows the Intervenor to intervene in court proceedings that involve the application of the Human Rights Act (with leave of the court). The Human Rights Commissioner is the head of the ACT Human Rights Commission (HR Commission).

The nature of the statutory cause of action

15. The Application sought relief solely under s 40C of the Human Rights Act. The cause of action is thus a statutory one, created by ss 40B and 40C of the Human Rights Act. The operative part of the section is s 40B(1): 40B Public authorities must act consistently with human rights (1) It is unlawful for a public authority— (a) to act in a way that is incompatible with a human right; or (b) in making a decision, to fail to give proper consideration to a relevant human right.

16. It can be seen that there are two limbs. The first is substantive. The second is procedural. This was discussed in Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 (Certain Children (No 2)) at [177], and confirmed in Thompson v Minogue [2021] VSCA 358; 67 VR 301 (Thompson) at [79] in relation to an equivalent section of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter). The plaintiff relies on both limbs in this Application. What constitutes ‘proper consideration’ is discussed separately below.

17. Section 40B(2) provides for circumstances where the section does not apply. They are immaterial to the present dispute.

18. Section 40C(1) and (2) then create a right to bring a proceeding in the Supreme Court: 40C Legal proceedings in relation to public authority actions (1) This section applies if a person— (a) claims that a public authority has acted in contravention of section 40B; and (b) alleges that the person is or would be a victim of the contravention. (2) The person may— (a) start a proceeding in the Supreme Court against the public authority; or (b) rely on the person's rights under this Act in other legal proceedings. The appropriate respondent to the Application

19. In my view and subject to hearing from the parties, the Territory was the proper defendant in lieu of the second and third defendants. Under s 223(3) of the Corrections Act, any civil liability that would attach to a person who has exercised a function under the Corrections Act or has otherwise been involved in the administration of the Corrections Act instead attaches to the Territory if the act or omission was done honestly and without recklessness for the Corrections Act. That is the case here.

20. Reinforcing that view, subsequent to the hearing, the Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) (HR Complaints Amendment Act) has brought about a number of amendments to the Human Rights Act. Section 40C(5) of the Human Rights Act in its current form stipulates who the appropriate respondent to a proceeding brought under s 40C is (emphasis added): (5) The respondent to a proceeding started under subsection (2)(a) is— (a) if the public authority is a public authority mentioned in section 40(1)(a) to (e) or (g)—the public authority; or (b) if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or (c) if the public authority is any other public employee—the Territory; or (d) if the public authority is an entity for whom a declaration is in force under section 40D—the entity.

The procedure for bringing a complaint under the Human Rights Act before the court

26. The plaintiff and the defendants were at odds as to whether the proceeding should properly have been brought as an originating claim, rather than by an originating application.

27. The defendants argued that the proceeding should have been commenced by originating claim, relying on r 33(2) of the Rules, which provides for a default position subject to a territory law providing otherwise.

28. The plaintiff relied on r 34(2) of the Rules, which provides that a proceeding must be started by originating application if a territory law requires or allows a person to apply to the court for an order or another kind of relief (which s 40C of the Human Rights Act plainly does), and the law does not state the kind of originating process to be used. That was the case here, in that the Human Rights Act is silent on the point.

29. In Millard v Collins [2021] ACTSC 216, Elkaim J considered the interaction between rr 33 and 34 of the Rules and concluded at [27] that it is open to a plaintiff to commence a human rights proceeding by either originating process.

30. His Honour was there considering rr 407A and 407B of the Rules, concerning what the plaintiff must state when bringing a proceeding under the Human Rights Act. Those rules have since been repealed (on 1 July 2023) and are now located (in substance) in r 6022 of the Rules. The wording of r 6022 confirms that a party may make a claim via either an originating application or an originating claim (accompanied by a statement of claim), but in either case, certain matters must be set out, being: (a) the human right relied on, including the content of the right and any particular aspect of the right relied upon; (b) the facts on which the party relies to assert that the Human Rights Act applies to the proceeding; (c) the breach of the human right identified and the details of the breach; and (d) the relief sought.

31. The choice under the Rules to permit litigants to commence a human rights proceeding by way of originating application or originating claim recognises the diverse range of circumstances which may bring a person seeking to enforce their human rights to court. The Rules attempt to facilitate those who may not have ready access to a lawyer and whose case may be factually straightforward or confined to a question of law or principle. In this way, the Rules accommodate access to justice issues, so that a requirement to plead a case is not itself seen as a barrier to a person enforcing their human rights.

32. Here, the proceeding involved a complex factual matrix likely to be contested, as well as numerous breaches of human rights, some of which overlapped. The application of the law to the facts was not straightforward (as evidenced by the Intervenor’s involvement and the submissions made by the parties) and all parties were legally represented from the outset. In such circumstances, it was preferable or convenient for the proceeding to either start or continue according to pleadings, to ensure clarity as to what the issues were and precisely what conduct was alleged to amount to a breach of the human rights specified.

The conduct the subject of complaint

39. There are five matters the subject of complaint. They are as follows: (a) While incarcerated, a decision was made by the first and second defendants to deny the plaintiff a request to attend her grandmother’s funeral (Funeral leave decision). In the way the plaintiff closed her case, this conduct was said to be a breach of the following rights under the Human Rights Act: 1․ The right of a person who belongs to an ethnic, religious or linguistic minority to enjoy their culture with other members of the minority: s 27(1).

2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).

3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).

4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3). (The Application also raised s 10(1) of the Human Rights Act but the plaintiff properly did not press that right in respect of this complaint in closing argument.) (b) The first and second defendants did not facilitate a review of that decision or notify the plaintiff she had a right of review (Failure to review). Again, in the way that the plaintiff closed her case, this conduct was said to be a breach of the following rights under the Human Rights Act: 1․ The distinct cultural right of Aboriginal peoples to maintain cultural heritage and distinctive spiritual practices, observances and kinship ties: s 27(2).

2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).

3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).

4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3). (Again, the Application also raised s 10(1) of the Human Rights Act but the plaintiff properly did not press that right in respect of this complaint in closing argument.) (c) The third defendant made a decision, which was implemented, to use force against the plaintiff while she was detained at the CSU at the AMC (Use of force). This conduct was said to be a breach of the following rights under the Human Rights Act: 1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).

2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).

3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).

4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3). (d) The first defendant (as a result of conduct by the third defendant) attempted to strip search or body search the plaintiff while in the cell at the CSU (the cell search). This conduct was said to be a breach of the following rights under the Human Rights Act: 1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).

2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).

3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).

4․ The right of persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3). (e) The first defendant (as a result of conduct by the third defendant) conducted a body search of the plaintiff in the bathroom at the CSU (the bathroom search). 1․ The right of persons to protection from being treated or punished in a cruel, inhuman or degrading way: s 10(1)(b).

2․ The right of persons not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily: s 12(a).

3․ The right of persons deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 19(1).

4․ The right of accused persons deprived of liberty to be treated in a way that is appropriate for a person who has not been convicted: s 19(3).

The issues

40. Whether those five matters breached any of the plaintiff’s human rights respectively form the five overarching issues for determination. If any of the breaches alleged is established, then there is a further issue as to what relief ought to follow.

41. In addition, there were two vigorously contested evidentiary rulings for which reasons were reserved at the time (as they involved matters of statutory construction that were not straightforward). The first arose from the operation of s 25(4) of the Inspector of Correctional Services Act 2017 (ACT) (ICS Act) which led to the rejection of a report prepared by the Inspector of Correctional Services on a different ground, that of parliamentary privilege (privilege ruling). That statute has since been replaced by the Custodial Inspector Act 2017 (ACT) (Custodial Inspector Act), by virtue of the Monitoring of Places of Detention Legislation Amendment Act 2024 (ACT) which came into force on 18 September 2024. The statutory provisions that were in question at the time of the ruling are markedly different now.

42. The second was the admission of a letter of response from the second defendant to the ACT Discrimination Commissioner dated 22 February 2021 (response letter). The dispute about that evidence related to a different privilege available under the Human Rights Commission Act 2005 (ACT) (HRC Act), a statute which has also been amended since the hearing and those amendments are part of the reasons dealing with the ruling below.

The evidence

43. The evidence included numerous affidavits from corrections officers, some of which were cross-examined, along with affidavits from each of the second and third defendant who were both cross-examined. There was expert evidence before the court addressed to Aboriginal culture and sorry business. There was further expert medical evidence regarding the plaintiff’s health condition. Before dealing with the facts found on the evidence, it is necessary to explain how I have treated some categories of evidence.

Inferences to be drawn from CCTV and handheld camera footage

44. The evidence also included video footage of the use of force against the plaintiff on 11 January 2021 and stills derived from that footage. In that regard, I have exercised caution in interpreting photographic evidence (including the CCTV and handheld camera footage), in accordance with the authorities to that effect: Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [20]-[28] and the cases there-cited, including Blacktown City Council v Hocking [2008] NSWCA 144 (Blacktown) at [8]-[11] and [167]-[170]. Although not dealing with cases involving human rights, the reasoning is about fact-finding from visual records in civil cases and applies equally here.

45. Ultimately, it was not in dispute that force was used on the plaintiff, nor was the nature or manner of that force used. Accordingly, this is not a case where it was necessary to determine any factual issue using the visual evidence as the sole means for a particular finding: c.f. Blacktown at [169] per Tobias JA. There is no doubt that such evidence may be used as an aid to determine which of the explanations given by the various witnesses appears to be most worthy of acceptance (following Blacktown at [167] per Tobias JA) and this is at times how I have used the evidence.

46. The following factual findings are made on the balance of probabilities as to what happened over the course of 6-11 January 2021. There were many versions of the same events given, with each witness remembering what occurred through their own lens and recall ability. There was no one witness that I generally preferred or considered to be more reliable than another. As will be seen, there are specific parts of the plaintiff’s evidence that I do not accept because I considered her memory to be unreliable when regard was had to the documentary evidence and evidence given by other witnesses, but there are also parts of the defendants’ evidence that fall into that category. Contrary to the plaintiff’s submissions, no findings of deliberate dishonesty are made in respect of any of the defendants’ witnesses.

Jones v Dunkel inferences

47. I have also not found it appropriate to draw inferences against the defendants in reliance upon the commonsense principle derived from Jones v Dunkel, which is that the “unexplained failure by a party ... to call witnesses ... may in appropriate circumstances lead to an inference that the uncalled evidence ... would not have assisted that party’s case”: RHG Mortgage Ltd v Ianni [2015] NSWCA 56 per McColl JA (Emmett JA and Sackville AJA agreeing) at [75]. Where the plaintiff sought that such an inference be drawn, it was not appropriate to draw the inference for one or other of the following two reasons: (a) I was not satisfied that the inference was material, because I did not consider the balance of the evidentiary record to be equivocal (as to which see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [78]- [79]). For example, on the evidence as it was, I did not accept the evidence of another witness on the point and found the fact in issue in favour of the plaintiff, meaning that any inference in respect of a different witness fell away. (b) The articulation of the case on systemic failures was not as clear as it ought to have been, given the submissions that were made about it, which meant that it could not fairly be said that the witness about which the inference was sought was one whom the defendant might have been expected to call. The simple explanation for why the witness was not called may have been that the person was not the decision-maker whose conduct was under question or that the person had since left the AMC and were not obviously a material witness in this case such as to warrant efforts to locate them.

48. Similarly, I did not draw a Jones v Dunkel inference in respect of the plaintiff in not initially referring to matters that might have been thought to be critical by the end of the hearing. She made herself available for cross-examination and I was not satisfied the proper explanation for the gaps in her evidence was due to a forensic choice not to present the evidence (due to a concern that it did not assist her case). Credit findings after delay

49. To the extent that there are any concerns arising about credit findings made after such a lengthy delay between the hearing and the judgment, the findings as to credit derive from my views and notes made during the hearing and upon its conclusion, as well as having refreshed my memory from the transcript and the parties’ submissions in light of the legal principles to be applied to those facts. Judgments are iterative and the court’s consideration may be given to factual matters and questions of credit significantly earlier than the date of final judgment suggests.

50. What is set out is what I consider to be the most consistent thread to be drawn from the various accounts, what was recorded on the documents (including the CCTV and handheld camera footage), what the witnesses recalled, as well as reasons given to the plaintiff and later to the HR Commission for particular decisions.

The plaintiff’s cultural heritage

51. Starting with some uncontroversial facts, the plaintiff was born in NSW in 1983. Her mother is from Ngunnawal country and her father is from Wiradjuri country. She identifies as a Ngunnawal woman.

52. It was not disputed that the plaintiff belonged to an ethnic minority and had a strong connection to the Aboriginal culture. The plaintiff lived in Yass, Queanbeyan and the ACT during her childhood. She previously danced in an Aboriginal dance group named Fully Dreaming. She would attend schools and teach students about Aboriginal dance and culture. When the plaintiff visited Narrandera growing up, her father would take her yabbying and fishing on the Murrumbidgee River. Her father painted and made digeridoos, and he taught his family how to make didgeridoos. Her father would often take her into the bush to look for native plants and medicines. He took her rabbiting and taught her how to skin a rabbit. He taught the plaintiff stories of the dreaming, language and culture. The plaintiff learnt to speak Wiradjuri.

53. When the plaintiff was 21, she moved to Alice Springs to live with her father. She continued to dance, performing in many shows. She worked as an artist and trained with Indigenous artists in Alice Springs. She has had her artwork shown at exhibitions in Alice Springs and Canberra. In her paintings, she utilised stories passed down by her family.

54. It was also not disputed that the plaintiff had a strong personal connection to her paternal grandmother, who lived in Narrandera in NSW and was often visited by the plaintiff before she died. She had stayed with her grandmother for around two to three months every year growing up. The plaintiff was also assisted by her grandmother in raising her own daughter.

The plaintiff’s status in the AMC in January 2021

55. The plaintiff was a sentenced prisoner who had been released into the community on parole in August 2019. While on parole, the plaintiff was taken into custody on 11 September 2020 in relation to further charges. She was detained on remand at the AMC from 12 September 2020, pending the resolution of those charges.

56. Subsequently, on 3 March 2021, the plaintiff was found guilty of attempting to use a false document and was sentenced to three months’ full-time detention which was backdated to commence on 11 September 2020. Upon conviction, the parole order was automatically cancelled pursuant to s 149(2) of the Crimes (Sentence Administration) Act 2005 (ACT). Other charges were subsequently dealt with on 19 May 2021.

57. The consequence of this is that as at 6-11 January 2021, the plaintiff was technically a sentenced prisoner, not a detainee on remand. However, that fact arises from a retrospective operation of legislation. For the purposes of assessing the content of the plaintiff’s human rights and whether they were infringed, the assessment takes place as at the date of the conduct (and not by reference to subsequent events or automatic consequences pursuant to legislation). Accordingly, as at 6-11 January 2021, the plaintiff had the status of a detainee on remand.

58. The evidence disclosed that the plaintiff had physical and mental health challenges leading up to the incidents the subject of the proceedings. She was in segregation at the AMC from 1 January 2021 for disciplinary related issues, including an allegation of a serious assault of another detainee. These are relevant background context for what occurred, but I have endeavoured to avoid detailing health or other disciplinary matters in this judgment.

59. For the claims under consideration here, there was a real question as to whether the plaintiff’s conduct while in custody affected the assessment of her as a security risk for the purposes of considering her application for funeral leave or otherwise influenced the decision-making processes in respect of the conduct that occurred. This included the parties engaging on whether any assessment by the corrections officers involved was justified. On the facts that I have found, it has not been necessary to traverse all the evidence and submissions devoted to that topic. The plaintiff’s involvement in, and efforts to attend, her grandmother’s funeral on 12 January 2021

60. On Wednesday 6 January 2021, the plaintiff learned that her paternal grandmother had died. She was upset and initially asked to be left alone. As she processed the news, she accepted peer support and moved to dealing with the question of attending the funeral.

61. The plaintiff was the first-born child of her father and the family’s representative. It was her responsibility to read the eulogy at her grandmother’s sorry business.

62. The third defendant was aware on 6 January that the plaintiff intended to apply for funeral leave. She advised the plaintiff to get the paperwork in as soon as possible.

A breakdown in the progress of the Leave Application occurs

79. The plaintiff believed that she told two corrections officers the details of the funeral on 7 January, namely that it was to be held in Narrandera and at the lawn cemetery, when they came to perform a segregation review.

80. From the documentary record, that segregation review occurred on Friday 8 January. The record includes the plaintiff’s mother telling ILO 2 that she only found out the details of the funeral on Friday 8 January. There were also two emails from one of the corrections officers who performed the segregation review to ILO 1. The first requested ILO 1 to confirm that the plaintiff’s grandmother had passed away that week, and the second requested her to confirm that the funeral was on Tuesday at 2pm and to “please confirm the place”. That second email was sent at 6:25pm on the Friday on a day when ILO 1 was on leave and was scheduled to be on leave over the next three days.

81. ILO 1’s evidence was that even though she was on leave on Friday 8 January, she responded to emails while on leave. She did respond to the first email sent to her. However, she did not respond to the second email requesting her to confirm the time and location of the funeral. ILO 1’s evidence (which I accept) was that this may have been because she did not see the second email as she was drafting a response to the first email. However, the position was that an ILO who was on leave was dealing with the issue late on a Friday evening, rather than any handover of the issue occurring at the AMC.

82. A separate point of significance of ILO 1 being on leave is that it provides a further reason why the plaintiff’s recollection that she filled out the Leave Application with ILO 1 in person on 8 January once the funeral details were known cannot be accepted.

83. The funeral was actually at 2:30pm. It is not to the point that there was half an hour difference in the time. That would have been remedied on confirmation. Regrettably, that did not occur over the weekend. Whether it could have occurred is thus a moot point.

84. There was a corrections officer copied into ILO 1’s correspondence. It was not apparent whether that was a matter of standard practice or whether that was because the particular corrections officer was working over the weekend and tasked with the duty of confirming the funeral. That officer did not give evidence in the proceeding.

85. Accordingly, by 6:25pm on Friday 8 January 2021, the details of the funeral were known by the plaintiff, and that officers at the AMC knew the date, general location (Narrandera) and approximate time of the funeral. However, there was a disconnect, in that even those details were not communicated to those responsible for actioning the request in terms of an escort.

86. Nothing was progressed over the weekend of 9-10 January. An ILO did not work over the weekend, but it is not only ILOs who can progress outstanding paperwork. The evidence of the second defendant was that other corrections officers were employed over the weekend and part of their role was to support all detainees throughout all periods. The lack of an ILO working over the weekend was not the issue. The issue was the lack of a handover to someone else to progress the request (if possible) over the weekend.

The 11 January scuttle to facilitate an escort

90. On the morning of 11 January, the third defendant arrived at work and checked the pigeonholes. She discovered the Bluey and observed that there was no Leave Application attached. She requested a ILO 2 to obtain the Leave Application from the plaintiff. The third defendant deposed to also finding the funeral information letter dated 11 January 2021 with the Bluey.

91. The defendants were critical of the plaintiff failing to adduce the email which confirmed details of the funeral. Equally though, there was no affidavit from ILO 2 as to how he came into possession of the letter from the funeral service provider.

92. I did not accept the evidence that the letter confirming the funeral details was in the pigeonhole when the third defendant arrived at work. The following surrounding evidence established the confirmation letter being obtained by ILO 2 following his visit to the plaintiff on the morning of 11 January: (a) First, ILO 1 did not give evidence that after receiving the email late on Friday 8 January, she then contacted the funeral service provider. Her evidence was that she did not see that last email. (b) Second, the case note that was contained in the third defendant’s own affidavit stated that ILO 2, “obtained the funeral service confirmation from the Funeral Director”. (c) Third, the funeral letter was also dated 11 January, which makes it unlikely that it was sitting in the pigeonhole when the third defendant arrived at work and more likely that it was sent in response to ILO 2 actioning the third defendant’s request to confirm the funeral details.

93. In any event, I find that the Bluey and the completed Leave Application were first submitted on the morning of Monday 11 January 2021.

94. Things moved quickly from there. A request was made in respect of the ACT Victims Register to confirm whether there were any issues that needed to be considered in respect of any victim if the plaintiff were to attend the funeral. The answer came back promptly that there were no registered victims and no known concerns with the escort request.

95. The third defendant attended the Hume Health Centre within the AMC to seek advice on any medication risks to the plaintiff in undertaking the proposed travel. The response again was prompt, and she was advised that the health risk to the plaintiff due to the proposed travel could be managed by medication.

96. However, notwithstanding those two matters, the third defendant recommended that the plaintiff not be granted prisoner leave, writing on the Prisoner Leave Application: Detainee has been displaying difficult behaviours in recent times. Funeral information was received with 24 hours notice, the funeral is a significant distance away and poses fatigue risk to staff.

97. That does not quite accord with what she wrote on the Detainee Request Form which was as follows: Family are supportive of detainee attending funeral. Funeral notice/confirmation received 11/01 leaving 24 hours notice. Funeral is in Narrandera NSW.

A concern arises about the plaintiff’s intention to self-harm

111. The plaintiff was told by ILO 2 that her request for funeral leave had been refused at approximately 4:15pm. Her reaction to that news was not good. It suffices to state that she was crying, swearing and threatening self-harm by cutting her pacemaker out with a razor. One CO employed by the AMC completed a ‘Referral for An ‘At Risk’ Assessment’ Form. Another CO attended the plaintiff’s cell to observe the plaintiff (observing officer) and his evidence was that he attempted to deescalate her distress. An ILO visited the plaintiff’s cell, but she refused to speak with them.

112. During that time, the observing officer saw the plaintiff place a hand with toilet paper down her pants to her crotch area. The plaintiff was menstruating and attempting to attend to that without discussion with the male CO. However, in the context of the threats of self-harm that were occurring at the time, the officer did not appreciate that was a possible explanation for the conduct and instead became concerned that the plaintiff had secreted a razor blade (hence the need to wrap it in toilet paper).

113. Following the referral for an ‘At Risk’ assessment, Forensic Mental Health considered that it was in the plaintiff’s interests for her to be transferred to the CSU. An interim risk management plan was prepared at 5.50pm. The notes stated: Client highly upset as not able to attend funeral, refusing to talk to mental health, threatening to pull out pacemaker.

114. The plaintiff refused to be transferred. She appeared exhausted. It is at that point that the third defendant was informed that the plaintiff refused to move to the CSU. She considered that the use of force may be necessary to move the plaintiff from the Special Care Centre (SCC) which was being used to accommodate women detainees to the CSU.

115. Around 6pm, the third defendant telephoned a doctor who was a visiting medical officer at the AMC (the VMO) prior to him leaving for the day. She discussed the plaintiff’s threats of self-harm, and the doctor agreed that given her distress, she would be safer, better monitored and better supported at the CSU.

116. The doctor was asked about the plaintiff’s physical condition and whether a pacemaker could be dislodged or damaged if force was used when she was moved. The third defendant initially gave evidence that she told the VMO that a use of force might be needed to extract the plaintiff from the SCC cell and take her to the CSU. She subsequently believed that she did not tell the doctor the reason for the use of force. I have rejected that later evidence as it was inconsistent with the doctor’s clear recollection and it was also inconsistent with the third defendant’s contemporaneous report (extracted below).

117. The VMO explained that pacemakers are usually removed surgically by specialists when required but are otherwise secure unless there is trauma to the pacemaker site, which should be avoided. There was some suggestion that there were questions about whether a razor could be used to cut out a pacemaker. The VMO did not recall that question being asked and I do not accept that was a topic of discussion between the third defendant and the doctor.

A decision to use force to facilitate a strip search is made

122. Upon receiving the information that the detainee had threatened self-harm, had refused to participate in a strip search upon entry to the CSU (which she believed at the time was a mandatory procedure), was refusing to engage with the mental health team and the observing officer’s concern about a concealed razor blade, the third defendant (as the “Officer in Charge”) decided upon a course of action that involved the use of force to conduct a strip search, described as a non-compliant strip search, in the plaintiff’s cell in the CSU.

123. As to the third defendant’s belief that a strip search was mandatory, any such belief she had arose under the Corrections Management (Management of At-Risk Detainees) Policy 2019 (At-Risk Policy). That policy is discussed at [226]-[272] below as part of the limits informing the content of the plaintiff’s human rights at this point.

124. The following is what the third defendant wrote in an Incident Report Form on 11 January 2021 reporting what occurred. Because of its evidentiary importance, it is appropriate to extract the full account up to the point of decision: On Monday 12th January 2021 I was rostered on duty as Operations Area Manager [from] 0730-1930 hours and [wish] to report the following: At 1625 hours [the plaintiff] was deemed At Risk by SCC staff. At 1750 she was assessed by mental health, she would not engage with mental health and therefore CSU placement and S2 x 15 minute observations were required. CO2 … contacted me to advise that the [plaintiff] was refusing to move from SCC to CSU. I asked CO2 … to speak to [the plaintiff] further and explain that she had to move to CSU and it was non-negotiable, he agreed to have this conversation but advised that she would likely refuse. Due to current policy and the time of day I took this opportunity to contact [the VMO] and advise that there may be a use of force in order to relocate the detainee. [The VMO] agreed that a use of force would be appropriate to maintain safety and security. I questioned [the VMO] about [the plaintiff’s] pacemaker, he stated that it should not be a problem. A short time after this [the plaintiff] compliantly relocated to CSU. Upon placement in CSU [the plaintiff] refused to participate in a mandatory strip search. I attended CSU to speak with [the plaintiff], it was clear she was not going to comply with the strip search. Multiple staff members attempted to communicate with [the plaintiff] to gain compliance with no success. Staff were advised to maintain constant observations on her until a plan was put in place. Whilst exiting CSU [the observing officer] informed me that whilst performing observations he had witnessed [the plaintiff] with her hands in her groin area, he was of the belief she may have been attempting to secrete a razor or something to harm herself with. I contacted Duty Manager … to brief her on the situation. Due to the [plaintiff’s] current risk, what [the observing officer] had witnessed and the requirement to strip search a detainee on entry into CSU it was proposed that a team of staff apply PPE and remove the [plaintiff’s] clothes in a non-compliant strip search. This was agreed upon.

The use of force is implemented

130. Drawing from the CCTV footage, the handheld camera footage and the witness accounts, the third defendant oversaw the use of force on the plaintiff between 6:48pm to 6:55pm.

131. The footage showed the plaintiff lying on her bed. She refused to submit to the strip search. The footage shows the third defendant speaking outside the door to the plaintiff’s cell and announcing that force was about to be used.

132. The plaintiff’s evidence was that she did not hear what was said through the door. There was no evidence as to what could be heard. Four female corrections officers in helmets and carrying shields then entered her cell. They dragged her onto the floor, lay on top of her and directed her to comply with a search.

133. The plaintiff said loudly several times, “I can’t breathe”. She also mentioned pain in her chest.

134. At the time this occurred, one of the officers was carrying a Hoffman knife or clothing removal scissors, with the intention that it would be used to cut the plaintiff’s clothes from her. During the operation, the third defendant asked, “who’s got the knife?” One of the corrections officers handed her the clothing removal scissors. The third defendant thought she would have to remove the plaintiff’s clothes “if the use of force reached that point”.

135. The use of force was viewed by a number of corrections officers, including male corrections officers. They mainly stood outside the cell with a view through the window and open door. However, a number of male corrections officers came in and out of the cell at different times.

The plaintiff initiates a surrender and negotiate response to the conduct

136. The plaintiff was clearly in visible distress. I accept her evidence that she could not breathe.

137. She yelled out that if the corrections officers got off her, she would go with the CSU Supervisor. The CSU Supervisor attempted to come into the room to assist. She was sent away. The plaintiff’s pleas to go with the CSU Supervisor continued. Eventually, someone gave the direction to release the plaintiff, and the CSU Supervisor was permitted to enter the cell and attend to the plaintiff.

138. The CSU Supervisor spoke to the plaintiff and the plaintiff asked for toilet paper, indicating that she was menstruating. The plaintiff was provided some toilet paper which she used to wipe her face and which she also placed down her underwear. This was all in full view of a number of corrections officers watching.

139. The CSU Supervisor sat with the plaintiff providing support. After the plaintiff had sat for a little while and recovered, the plaintiff was then escorted from her cell to the CSU bathroom.

The conduct of the strip search in the bathroom

140. The plaintiff went with the CSU Supervisor and another corrections officer to the bathroom. The plaintiff was asked by either the other corrections officer or the CSU Supervisor to remove the clothes on the top half of her body. The clothes were passed to the other officer and examined to make sure that nothing was concealed within that item. The plaintiff was then handed back her clothes for the top half of her body and put them back on.

141. The same process was then repeated with the clothes on the lower half of the plaintiff’s body, including her shoes and socks.

142. Contrary to the plaintiff’s evidence, there was no request to the plaintiff to squat and cough and she was not fully naked at any one time. I have rejected that aspect of the plaintiff’s evidence as unreliable, as I consider the evidence of the CSU Supervisor and the other corrections officer, to be the more likely scenario for the following reasons: (a) They were each consistent in their accounts that neither of those things occurred. Both were cross-examined and were credible in the witness box. (b) The plaintiff’s initial letter of complaint spoke about the degradation of the attempted strip search and discussed the use of force with the intention of cutting her clothes off in her cell. She did not refer to the strip search that was actually conducted in the bathroom, which lends some support for the fact that the strip search in the bathroom was conducted in the manner in which the corrections officers remembered. (c) Listening to the plaintiff in the witness box, I had concerns that her memory may have been affected on this point by her trauma and the passage of time. (d) There was also a personal injury claim form which was in evidence and filled out on the plaintiff’s behalf. It expressly referred to the plaintiff taking her clothes off “half at a time”. That account can only have come from the plaintiff, and it was prepared at a time before this proceeding commenced. It again supports the version of events given by the corrections officers involved.

143. Further, although I accept that she was asked to pull her ears forward, I did not accept that any officer looked inside her ears. There was evidence that the plaintiff was told to put her finger in her mouth and run her finger inside her mouth and that she complied with that request. Given the definition of “body search” in the Corrections Act below, that may arguably have been sufficient to amount to examination of an orifice or cavity of the detainee’s body. However, it may also be argued that what constitutes a “body search” was not what occurred because the plaintiff used her own finger. My view of the corrections officers who gave evidence and my acceptance of their account in respect of the manner of the search as explained above led me to accept their evidence that on the balance of probabilities, they did not carry out a body search (which would have been unlawful without the presence of a medical practitioner under div 9.4.4 of the Corrections Act). Ultimately, the findings on this aspect of the search do not turn on whether the search carried out was a strip search or a body search. What occurred following the strip search

The Human Rights Act

147. As a number of the same human rights arise for consideration in each of the five matters, it is useful to first deal with the law relating to the human rights in question, both generally and then specifically with regard to the scope of each of the human rights identified, before dealing with the content of the right (the limits imposed under the Corrections Act) and the facts giving rise to the breach alleged.

General principles in interpreting human rights

148. The rights set out in the Human Rights Act are drawn primarily from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR): Explanatory Statement to the Human Rights Bill 2003 (ACT) at 3. That has a consequence for how they should be interpreted, with a broader range of jurisprudence informing the words of the Human Rights Act.

149. In Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (Islam), I explained the interpretive tools the court uses at [77]-[79]: 77. The protection of human rights crosses borders, with the human rights set out in the ICCPR having been implemented and considered in a number of other jurisdictions. The task of interpreting and applying the Human Rights Act may therefore be assisted by reference to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision, with due caution exercised for the particular statutory and constitutional framework in the jurisdiction and any variations in the words used of the sections under consideration: Momcilovic v R [2011] HCA 34; 245 CLR 1 (Momcilovic) at [18] per French CJ; at [146] per Gummow J. 78. This is reflected in s 31 of the Human Rights Act, which expressly provides that international law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. 79. Further, each right is to be construed in “the broadest possible way”: see Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children) at [143] and the authorities there-cited. General principles in interpreting other laws which interact with human rights

150. Given that the Corrections Act governed the operations at the AMC that are under scrutiny and some words of the statute are considered later in these reasons, it is worth briefly noting s 30 of the Human Rights Act, which provides: 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.

151. This requires no different approach to statutory interpretation: Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 (Momcilovic) at [565], a case which concerned the Victorian Charter but was applied in respect of the Human Rights Act in Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 (Andrews) at [46]-[47]. It requires that, when interpreting legislation, a construction that is compatible with human rights is to be preferred, so far as it is possible to do so consistently with the law’s purpose.

152. The process of interpreting a Territory law is not impacted by s 28 of the Human Rights Act, which is directed to the different task of examining the content of a human right and how it may be limited: Momcilovic at [574]-[575], cited in Andrews at [53]. The terms of s 28 are dealt with separately in addressing the content of the rights in question in this proceeding.

The court’s task in evaluating whether conduct of a public authority is or was in breach of a human right

153. The court’s task is simply to determine whether a statutory entitlement, being the human right identified, has been denied, either because of conduct which was incompatible with the right (s 40B(1)(a)), or because of a decision that was made without taking the person’s human rights into account (s 40B(1)(b)). It is a question of fact and degree to be assessed in all the circumstances: Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 per Mossop M (as his Honour then was) at [87]. If the court finds that the conduct complained of is, or was, incompatible with a plaintiff’s human right, the task turns to considering the appropriate remedy under s 40C(6) (as it is now), which permits the court to grant “the relief it considers appropriate except damages.”

154. For completeness, at the time this proceeding was commenced the relevant power to grant relief was s 40C(4). It was in the same terms. The current numbering was brought about on 11 June 2024, as a result of the commencement of amendments made by the HR Complaints Amendment Act. Nothing turns on that amendment.

155. Some of the parties framed their submissions around a series of questions derived from cases such as Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48; 3 ACTLR 127 at [51]-[53] and other Victorian authorities. The Intervenor and the plaintiff proposed that the court address a series of questions, with a subset of questions, under five headings: (a) The relevance or engagement question – is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (b) The limitation question – if so, has the public authority done or failed to do anything that limits that right? (c) The proportionality or justification question – if so, is that limit set by laws reasonable and demonstrably justified having regard to the matters set out in the Human Rights Act? (d) The proper consideration question – even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (e) The inevitable infringement question – was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the act confer a discretion that cannot be interpreted in a way that is consistent with the protected right?

156. I have not set out the subset of questions. The questions posed in the authorities appeared to me to be an attempt to ensure that the different sections of the Human Rights Act or the Victorian Charter were not overlooked. Having considered those cases and the Intervenor’s submitted approach, in my view, caution should be exercised in setting up a series of questions to be answered, lest this inadvertently substitute the questions for the statutory task. It is not what the statute requires and may divert the consideration unnecessarily, or even impermissibly conflate notions of an incompatible act with an incompatible law. The considerations are different and the complaint here was not that a particular law was incompatible.

The right to protection from cruel, inhuman or degrading treatment

188. Section 10 of the Human Rights Act is in the following terms: 10 Protection from torture and cruel, inhuman or degrading treatment etc (1) No-one may be— (a) tortured; or (b) treated or punished in a cruel, inhuman or degrading way. (2) No-one may be subjected to medical or scientific experimentation or treatment without their free consent.

189. At the time of the incidents, s 10(2) used the words “his or her” instead of “their”. The amendment was made by the HR Complaints Amendment Act (which came into force after the matter was heard).

190. The authorities dealing with the right contained in s 10 of the Human Rights Act have been dealt with in Islam at [82]-[97] and I have again drawn on that summary in what follows. What constitutes cruel, inhuman or degrading treatment is not defined in the Human Rights Act.

191. However, due to this human right being included in international and domestic obligations, there is a substantial body of jurisprudence dealing with the human right set out in s 10 of the Human Rights Act.

192. First, schedule 1 to the Human Rights Act confirms that the relevant article of the ICCPR which has been implemented is art 7, the words of which are as follows: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ...

193. Those words are also to be found in art 5 of the Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (Universal Declaration) and in art 3 of the 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) (ECHR), which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Again, there is no definition of the phrase in either the ICCPR, the Universal Declaration or the ECHR.

194. Secondly, the words of the section as extracted above are almost identical to the language found in s 10(b) of the Victorian Charter, save that the opening words of that section commence: ‘a person must not be’. The phrase is not defined in the Victorian Charter either.

195. A number of applicable principles may be extracted from this jurisprudence. Having regard to the facts of this case, the focus is on what constitutes “inhuman or degrading treatment”.

196. Conduct is said to be ‘degrading’ when it is such as to arouse feelings of fear, anguish and inferiority in a victim, capable of humiliating and debasing a person: Kalashnikov v Russia [2002] VI Eur Court HR 93 (Kalashnikov) at [95]. The right is concerned with the deliberate imposition of severe suffering: Certain Children v Minister for Families [2016] VSC 796; 51 VR 473 (Certain Children) at [163].

197. Not every finding that conduct was cruel, inhuman or degrading will amount to a contravention of the Human Rights Act. What is required is an assessment of the severity of the conduct, with a minimum or threshold level of severity required before it will be found to contravene the Human Rights Act: Islam at [87] and [99]; and Kalashnikov at [95], cited in Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 at [158] per Mossop AsJ (as his Honour then was). That principle was subsequently referred to as being well-established in Islam v Director- General, Justice and Community Safety Directorate [2024] ACTCA 22 at [74].

Humane treatment when deprived of liberty

212. Section 19 of the Human Rights Act is in the following terms (emphasis added to highlight the parts relied on here): 19 Humane treatment when deprived of liberty (1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. (2) An accused person must be segregated from convicted people, except in exceptional circumstances. … (3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.

213. The section is specifically directed to ensuring that public authorities preserve the humanity and inherent dignity of those who are in custody and are a particularly vulnerable section of the community as a result of that fact. The words ‘with respect for’ in s 19(1) do no more than state that the right of persons who are deprived of liberty to their inherent dignity is to be respected. They are not words that create an internal limit on the right: Thompson at [69].

214. In Thompson, the Victorian Court of Appeal discussed the content of the right under s 22(1) of the Victorian Charter, which is the equivalent of s 19(1) of the Human Rights Act. The Court of Appeal started by explaining what the right is protecting at [61]-[65] (footnotes omitted): 61. The precise content of the dignity right in s 22(1) of the Charter has not been determined. Nor have the courts formulated a test for determining when the dignity right is limited. That is not surprising because the scope of the right, and the circumstances in which it can be limited, will be informed by the nature, extent and purpose of the deprivation of a person’s liberty. 62. Self-evidently, some attributes of a person’s dignity may be restricted as a necessary feature of the deprivation of liberty to which the person is subject. For example, members in the general community might regard the freedom to choose the clothes they wear, the food they eat and the people with whom they associate as matters that affect their dignity. Those freedoms are necessarily restricted for persons serving a term of imprisonment in a maximum security prison. 63. In considering the content of the dignity right in s 22(1) of the Charter, a relevant factor is that individuals who are deprived of their liberty may be vulnerable in that they may not be able to resist incursions upon their dignity in the same way as members of the general community. An involuntary patient in a psychiatric institution with a severe cognitive impairment would fall within this category. 64. In the case of prisoners, the content of the dignity right will be informed by the legal and practical realities of incarceration. As Emerton J stated in Castles v Secretary of the Department of Justice: [F]or the period of their imprisonment, [prisoners] are largely deprived of their freedom of association and, to a significant extent, their autonomy. Hence, although prisoners do not forgo their human rights, their enjoyment of many of the rights and freedoms enjoyed by other citizens will necessarily be compromised by the fact that they have been deprived of their liberty. ... [T]he effects of the deprivation of liberty are profound. Rights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, ‘attenuated’ and ‘qualified’ merely by reason of the deprivation of liberty. 65. However, the fact that the enjoyment of many rights and freedoms by prisoners is curtailed merely by reason of the deprivation of their liberty does not mean that the dignity right is nominal or that the arbiters of its content are the public officials who manage the prison. For all persons whose liberty is curtailed at the hands of the State, the dignity right is an important protection against abuse.

The right to enjoy culture and maintain cultural and kinship ties

229. Section 27 of the Human Rights Act is in the following terms: 27 Cultural and other rights of Aboriginal and Torres Strait Islander peoples and other minorities (1) Anyone who belongs to an ethnic, religious or linguistic minority must not be denied the right, with other members of the minority, to enjoy their culture, to declare and practise their religion, or to use their language. (2) Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right— (a) to maintain, control, protect and develop their— (i) cultural heritage and distinctive spiritual practices, observances, beliefs and teachings; and (ii) languages and knowledge; and (iii) kinship ties; and (b) to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued. Note The primary source of the rights in s (2) is the United Nations Declaration on the Rights of Indigenous Peoples, art 25 and art 31.

230. Once again, the section previously used gendered pronouns which have now been replaced.

231. As submitted by the Intervenor and relevant to the facts under consideration here, the scope of this right includes the right to participate in what may be described as cultural practices: Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 50th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994).

232. As submitted by the plaintiff, the concept of culture is not defined in the Human Rights Act. It includes the maintenance of ties with a person’s community and preservation of the person’s identity: Brown v Director-General of the Justice and Community Safety Directorate [2021] ACTSC 320; 364 FLR 155 at [124], [163]. The concept is not static, but may evolve over time: Human Rights Committee, Views: Communication No 511/1992, 52nd sess, UN Doc CCPR/C/49/D/511/1992 (8 November 1994) at [9.3].

What was the content of the human rights identified?

233. As the plaintiff in this proceeding was detained in custody at the time of the conduct involved, the content of her human rights was limited by her environment. That process is facilitated by s 28 of the Human Rights Act, which is in the following terms: 28 Human rights may be limited (1) Human rights may be subject only to reasonable limits set by 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; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

234. I discussed the process by which human rights may be limited pursuant to s 28 of the Human Rights Act in Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 (Islam (2018)) at [41]-[44]. The matters to understand are as follows: (a) Section 28 acknowledges that the human rights under the Human Rights Act are not absolute or always completely consistent with each other. It produces a conclusion that where a law limits a human right under the Human Rights Act, the statute itself permits the right to be reduced, subject to the limitation being justified or reasonable. In that way, the right and the statutory provision are rendered compatible following adjustment: Momcilovic at [572] per Crennan and Kiefel JJ; at [684] per Bell J. (b) If the limitation is not reasonable, then the conduct in question will be incompatible with the relevant human right under the Human Rights Act. Various considerations for reasonableness under s 28 of the Act invoke what is known as the proportionality test: Momcilovic at [22] and [34] per French CJ; at [432] per Heydon J; and at [555]-[557] per Crennan and Kiefel JJ. Again, Momcilovic was dealing with s 7(2) of the Victorian Charter. (c) Three components provide a framework for assessing proportionality (Momcilovic at [553] per Crennan and Kiefel JJ): 1․ The nature (and inferentially the importance) of the right affected;

2․ The importance and purpose of the limitation; and

3․ The extent to which the limitation operates on the right. (d) That framework is reflected in the considerations set out in s 28(2) of the Human Rights Act. The court objectively assesses the relationship between the purpose of the limit and the nature and extent of the limit on the right: Certain Children at [206]-[208]; and Rich v Howe [2017] VSC 483 at [161].

235. The onus of establishing that a human right has been limited lawfully (in accordance with s 28) is on the person alleging the limitation: Thompson at [47].

236. The Intervenor submitted that the assessment that was required under s 28 was closer to merits review than is usual in judicial review, relying on Certain Children (No 2). Language directed to the assessment being closer to merits review also appears to have been indirectly adopted in Davidson at [362]. However, I do not accept that submission. This is not a judicial review proceeding and the assessment task under s 28 is entirely different.

237. On this point, it is appropriate to exercise caution before adopting what has been said in the authorities in respect of the Victorian Charter. The words used in s 7(2) of the Victorian Charter are “[a] human right may be subject under law only to such reasonable limits …”, whereas the words of the Human Rights Act speak of a limit “set by law”. Although I accept substantial similarity, the words of the Victorian Charter do not operate as a gloss on the words of the section applicable in the Territory. The task under s 28 of the Human Rights Act is one of assessing the proportionality of the limit on the right “set by law”.

238. The assessment of proportionality required under s 28 is thus concerned with whether the law imposing the limit (including any policies lawfully made under statute) is proportionate or justified. It is not directed to assessing the proportionality of a discretionary decision carried out in accordance with a limit. It is important not to conflate the two. As submitted by the defendants, it is necessary to first work out what the content of the identified right was, before looking at the conduct complained of and determining whether that conduct was compatible with the specific human right as limited by law.

The statutory framework limiting the plaintiff’s rights

239. All parties agreed that the plaintiff’s rights were limited by the Corrections Act. The Corrections Act was drafted quite deliberately with a focus on protecting human rights within the prison management setting and directly references s 28 of the Human Rights Act, as seen in the extract that follows. Given that all parties referred to the drafting of the legislation as being undertaken with a keen eye on the extent to which the fact of incarceration impinged upon human rights, I have set out what was said in Islam at [21]- [23] as capturing the point: 21. At the time this legislation was presented in the form of the Corrections Management Bill 2006 (ACT) (the Bill), there was a very deliberate drafting focus, referred to in the Supplementary Explanatory Statement to the Bill as follows: The Bill is informed by human rights principles and jurisprudence as it stands at the time of the Bill’s introduction to the Assembly. Powers and decisions contemplated by the Bill are also crafted to reflect contemporary administrative law principles, which in many cases are also an expression of human rights jurisprudence. 22. That extract is part of an earlier expression of the Legislative Assembly’s intent when presenting the Bill (on 14 December 2006), through the Presentation Speech of the then Attorney-General, Mr Simon Corbell (Presentation Speech) (emphasis added): [T]he government has publicly stated that the Alexander Maconochie Centre will be a secure and safe place that will have a positive effect on the lives of prisoners held there, and on staff who work there. The aim of the prison's management and operations is to give substance to Sir Alexander Paterson's observation that offenders are sent to prison "as punishment, not for punishment". The primary function of a prison or a remand centre is to hold people in secure custody. This function is a means to both uphold the law and provide protection to the community from people who pose a risk to the community in the context of criminal justice. Along with the powers to manage detainees, the bill also governs the lawful treatment of detainees. To this end, the bill is informed by human rights principles and international cases. The powers provided by the bill are also crafted to reflect modern administrative law principles. The bill aims to leave no doubt as to what is intended to be lawful and what is not. The bill clearly sets the boundaries of any power allocated to the territory's government and corrections authority. The ACT's Human Rights Act 2004 protects fundamental rights. Any limits on these rights are only permissible if they are authorised by a territory law, they are reasonable and they are justifiable in a democratic society. The Human Rights Act 2004 is not a criminal's charter, as has been suggested by some in this Assembly. Human rights law recognises all of the conditions of humanity, from positive to negative. Consistent with section 28 of the Human Rights Act 2004, the bill sets out reasonable limitations upon a sentenced offender's human rights and other detainees' rights, consistent with the objects of the bill. The bill stipulates the minimum conditions and management of people whose right to liberty is lawfully limited. These minimum conditions are akin to the best practice of jails in Australia, New Zealand, Canada and the United Kingdom. To meet the primary function of holding detainees in secure custody, the bill creates a range of powers that uphold the safety and good order of corrections centres. The bill includes extensive powers and procedures to prevent weapons, illegal drugs and other contraband from being smuggled into the prison. The bill enables corrections staff to separate, and if necessary segregate, prisoners who are at risk of harm, at risk of causing harm or at risk of spreading disease. A modern procedure for dealing with disciplinary breaches is also included. The disciplinary system used by the bill will also enable a clear delineation between prosecutions for criminal offences and the imposition of administrative penalties for disciplinary breaches. Historically, prisons were seen as the absolute realm of governments and the agencies assigned to run prisons. There was an underlying idea that prisoners were no longer part of the community and a fear that a recognition of any rights would undermine the purpose of imprisonment. Over the years, that position has changed. Prisoners are part of the community, and as a community we should be satisfied that the punishment imposed upon an offender is being carried out. We should also be satisfied that the administration of the imprisonment is humane and fair. There is little merit in applying the full force of the criminal law to a person while hypocritically treating a person as if they had no legal rights. To ensure our prison and remand centres work according to law, the bill includes provisions for the inspection of correctional centres and the investigation of complaints made by detainees. The bill also sets out rights of review for detainees who are segregated or disciplined. These protections allow the community to see that detainees are not treated arbitrarily. These protections for detainees protect us all. 23. Explanatory statements and presentation speeches in the Legislative Assembly are extrinsic materials that have at times been viewed as being of little assistance and directed more towards serving political ends, rather than as an aid to statutory construction. Nevertheless, they remain a legitimate contextual tool (see items 4 and 5 of Table 142 in s 142 of the Legislation Act 2001 (ACT)) and in this particular case, the lengthy passage above serves to drive home the legislative purpose behind the disciplinary scheme that has been put in place by the Corrections Act. It not only speaks to the primary function of managing the secure custody of prison detainees, but (as seen in the emphasised parts of the above extract) ties the disciplinary scheme directly to the protection of the human rights of prison detainees. …

General provisions directed to protection of human rights

241. The objective of protecting human rights in a custodial setting is included in ss 7 and 9 of the Corrections Act, which provide: 7 Main objects of the Act The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by— (a) ensuring the secure detention of detainees at correctional centres; and (b) ensuring justice, security and good order at correctional centres; and (c) ensuring that detainees are treated in a decent, humane and just way; and (d) promoting the rehabilitation of offenders and their reintegration into society.

9 Treatment of detainees generally Functions under this Act in relation to a detainee must be exercised as follows: (a) to respect and protect the detainee’s human rights; (b) to ensure the detainee’s decent, humane and just treatment; (c) to preclude torture or cruel, inhuman or degrading treatment; (d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention; (e) to ensure the detainee’s conditions in detention comply with section 12 (Correctional centres—minimum living conditions); (f) if the detainee is an offender—to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.

242. Both the Intervenor and the plaintiff emphasised the mandatory language of “ensuring” humane treatment (which, as the Intervenor submitted, includes humane treatment when deprived of liberty), in the sense of a guarantee or certainty of such treatment. The language of s 9 is also mandatory, in that the exercise of a function under the Corrections Act “must” respect and protect the detainee’s human rights and must “preclude” degrading treatment. The word “must” indicates that the function “is required to be exercised”: s 146 of the Legislation Act.

Specific provisions dealing with the conduct the subject of complaint

243. There were three sources of power touching or concerning the acts in question here: (a) The power to grant interstate leave: pt 12.2 of the Corrections Act; (b) The power to use force against a detainee: pt 9.7 of the Corrections Act; (c) The power to search a detainee: pt 9.4 of the Corrections Act.

(a) The power to grant leave

244. The power to grant leave to attend an interstate funeral is prescribed in ss 208 and 209 of the Corrections Act. The material parts of s 208 are as follows: 208 Interstate leave permits (1) The director-general may, by written notice (an interstate leave permit) given to a full-time detainee, give the detainee leave to travel to and from, and remain in, a participating State. (2) An interstate leave permit must include the following details: (a) the State or Territory to which the permit applies; (b) the purpose for which the leave is granted; (c) the period, not longer than 7 days, for which leave is granted. … (6) An interstate leave permit may be issued— (a) for a full-time detainee with a high security classification—only if the leave is to enable the detainee to receive a health service or for a compassionate reason; or (b) in any other case—for any purpose the director-general believes, on reasonable grounds, is appropriate. (7) An interstate leave permit is subject to the following conditions: (a) any condition prescribed by regulation; (b) any other condition, consistent with the conditions (if any) prescribed by regulation, that— (i) the director-general believes, on reasonable grounds, is necessary and reasonable; and (ii) is stated in the permit. Examples of conditions stated in interstate leave permits 1 a condition that an escort officer stated in the permit escort the detainee 2 a condition prohibiting association with a particular person or being near a particular place 3 a condition that an indigenous detainee travelling interstate to mark the birth or death of a relative be escorted by an indigenous elder or relative

245. Other parts of the section deal with extension of permits and are immaterial here. The examples are part of the Act: s 126(4) of the Legislation Act. It can be seen from the example given in the section that it expressly envisages interstate leave being given (potentially with conditions) for the very purpose under consideration here.

246. On 15 May 2019, a statutory instrument specific to human rights was made: the Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019. It includes the following within it: The distinct cultural rights of Aboriginal and Torres Strait Islander detainees should be respected, including the rights relating to cultural heritage and spiritual practices, language and kinship ties.

247. The applicable policy dealing with leave requests (among other things) was the Corrections Management (Detainee Requests & Complaints) Policy 2019, which includes within it cl 4.4: The General Manager Custodial Operations will establish operational procedures for the management of Detainee Request Forms.

248. The procedure for processing a detainee request is then contained in the Corrections Management (Detainee Requests and Complaints) Operating Procedure 2019 (Request Procedure), which has been in force since October 2019. In relation to requests, relevant parts include the following: 1. Detainee Request Forms … 1.2 Where a detainee requires assistance to complete the detainee request form, Officers should assist them to complete the form. … 5.1 If detainees request to appeal the outcome of their complaint, Officers are to provide them with [the relevant] form located on CIS.

(b) The power to use force

251. The power to use force is contained in s 137, located in Part 9.7 of the Corrections Act. It is in the following terms: 137 Managing use of force (1) The director-general must ensure, as far as practicable, that the use of force in relation to the management of detainees is always— (a) a last resort; and (b) in accordance with this part. (2) Without limiting section 14 (Corrections policies and operating procedures), the director-general must make a corrections policy or operating procedure in relation to the use of force, including provision in relation to the following: (a) the circumstances, and by whom, force may be used; (b) the kinds of force that may be used.

252. Section 138 then provides for the conditions in which force may be authorised. Material to the circumstances of this case, it provides: 138 Authorised use of force (1) A corrections officer may use force that is necessary and reasonable for this Act, including for any of the following: (a) to compel compliance with a direction given in relation to a detainee by the director-general; (b) to act under section 126 (Searches—use of force); … (g) to prevent a detainee from inflicting self-harm; (h) anything else prescribed by regulation. (2) However, a corrections officer may use force only if the officer believes, on reasonable grounds, that the purpose for which force may be used cannot be achieved in another way.

253. Section 126 of the Corrections Act is relevant here. Among other things, it provides that a corrections officer may use force to carry out a search or assist at a body search, but may only do so in accordance with pt 9.7.

254. Those requirements include the manner in which force may be used. Section 139 provides: 139 Application of force (1) A corrections officer may use force under this part only if the officer— (a) gives a clear warning of the intended use of force; and (b) allows enough time for the warning to be observed; and (c) uses no more force than is necessary and reasonable in the circumstances; and (d) uses force, as far as practicable, in a way that reduces the risk of causing death or grievous bodily harm. (2) However, the corrections officer need not comply with subsection (1) (a) or (b) if, in urgent circumstances, the officer believes, on reasonable grounds, that doing so would create a risk of injury to the officer, the detainee or anyone else. Example of urgent circumstances the detainee is assaulting someone or engaging in self-harm

255. Section 140 of the Corrections Act provides the power to use a weapon, which includes a knife or clothing removal scissors. The terms of that section are: 140 Use of restraints or weapons (1) The use of force under this part includes the use of restraints and weapons. (2) The director-general must ensure, as far as practicable, that the use of force involving a restraint or weapon is proportionate to the circumstances, and in particular that— (a) the circumstances are sufficiently serious to justify the use; and (b) the kind of restraint or weapon is appropriate in the circumstances; and (c) the restraint or weapon is used appropriately in the circumstances. (3) The director-general must also ensure that restraints and weapons are only used under this part— (a) by corrections officers trained to use them; and (b) in accordance with a corrections policy or operating procedure that applies to their use. (4) A health practitioner appointed under section 22 (Health practitioners—non-therapeutic functions) may administer a drug as a restraint, or direct the use of another form of restraint, if the health practitioner believes, on reasonable grounds, that is necessary and reasonable— (a) to treat a detainee, particularly where the detainee's behaviour cannot be controlled otherwise; or (b) to prevent a detainee inflicting self-harm, or harming someone else, particularly where other forms of restraint are unlikely to be effective; or (c) to prevent the escape of a detainee, particularly while being transferred to or from a correctional centre or other place. (5) The director-general must ensure that firearms are not used under this part unless someone's life is under threat or a detainee or other person offers armed resistance to a corrections officer or police officer exercising a function under this Act or another Act. (6) In applying force under this part, a corrections officer may use a restraint or weapon, including any of the following: (a) body contact; (b) handcuffs, restraint jackets and other restraining devices; (c) riot control equipment; (d) a chemical agent; (e) a gas gun; (f) a firearm; (g) anything else prescribed by regulation.

(c) The power to search a detainee

258. The power to search a detainee is in pt 9.4 of the Corrections Act. There was a dispute in this case as to whether what was attempted to be carried out (and ultimately was carried out) was a body search or a strip search. Each of those types of searches are defined in s 107 (div 9.4.1 of the Corrections Act): In this Act: body search, of a detainee, means a search of the detainee’s body, including an examination of any orifice or cavity of the detainee’s body. frisk search means … ordinary search means a search of a person, or of articles in a person’s possession, that may include— (a) requiring the person to remove the person’s overcoat, coat or jacket and any gloves, shoes or hat; and (b) an examination of those items. scanning search means … strip search, of a detainee, means a search of the detainee, or of articles in the detainee’s possession, that may include— (a) requiring the detainee to remove all of the detainee’s clothing; and (b) an examination of the detainee’s body (but not the detainee’s body orifices or cavities) and of that clothing.

259. The proportionate limit, balancing the human right to privacy and inherent dignity of the person with the objectives for which the power to search a detainee was granted, is contained in s 108 of the Corrections Act: 108 Intrusiveness of searches The person conducting a search of a person under this part must ensure, as far as practicable, that— (a) the search is the least intrusive kind of search that is reasonable and necessary in the circumstances; and (b) the search is conducted in the least intrusive way that is reasonable and necessary in the circumstances. Example searching for a prohibited thing by a frisk search (rather than an ordinary search) with the assistance of a corrections dog

260. There are highly prescriptive requirements for the conduct of both strip and body searches in divs 9.4.3 and 9.4.4 of the Corrections Act. In summary: (a) The searches relate to looking for “seizeable items” which are defined in s 113. Relevantly here, the definition includes any prohibited thing or thing that may be used by the detainee in a way that may involve a risk to their personal safety. (b) A detainee may be strip searched only if the director-general gives a direction. Such a direction may only be given in limited circumstances: s 113A. (c) Those circumstances are when: (i) The director-general suspects on reasonable grounds that the detainee has a seizeable item concealed on them: s 113B; or (ii) The director-general believes on reasonable grounds that it is prudent to search the detainee for a seizeable item that may be concealed on the detainee because the detainee: 1. Has recently not been under the control or immediate supervision of a corrections officer for a period; and 2. During the period, may have had an opportunity to obtain a seizeable item; and 3. A scanning search may assist in detecting the item but the means of conducting the search is not available; or if the means of conducting the search is available, the scanning search is not likely to detect more than a limited range of seizeable items; or the search could only be carried out using force that would be likely to make it ineffectual; and 4. A frisk or ordinary search is not likely to detect more than a limited range of seizable items: s 113C.

Policies giving content to the rights limited by law

265. There were a number of policies supporting the statutory powers which limited the plaintiff’s human rights.

‘At-Risk’ Policy

266. When the plaintiff started to threaten self-harm, she moved to the CSU and her environment, and her rights, became subject to a further layer of limitation under the At- Risk Policy.

267. The principles of the policy should be noted as they guided the exercise of the decisions to be made under the policy. They were contained in cl 4 (emphasis added): 4.1 Detainees at-risk of self-harm or suicide are identified. 4.2 Detainees are assessed on admission to a correctional centre to identify any risk or issues that may render a detainee vulnerable and at-risk. 4.3 Staff receive appropriate training in identifying and managing at-risk detainees. 4.4 The treatment, care and support of at-risk detainees will be managed through a multi-disciplinary response by ACTCS and Justice Health Services. 4.5 All appropriate and necessary precautions are taken to ensure the safety and wellbeing of at-risk detainees during escort. 4.6 Positive staff engagement with at-risk detainees is encouraged to reduce social isolation. 4.7 CCTV is not used to conduct observations on detainees managed under this policy.

268. The policy recognised that death of a loved one may increase the risk of a deterioration in a detainee’s mental health, as seen in cl 8.9: A detainee who has returned to a correctional centre following compassionate leave will be closely monitored by custodial officers for signs they may be at-risk.

269. The policy provided for the CSU as the unit accommodating “detainees who have engaged in suicidal or self-harming behaviour or who are being managed under this policy”: cl 11.1.

270. Clause 11.7 provided: All detainees will be searched on arrival to the CSU in accordance with the Searching Strategy.

271. No Searching Strategy was in evidence. A document purporting to match that description was sought to be tendered but rejected as its provenance and date of compilation was entirely unknown. The references among the witnesses to “my belief” and “it was standard practice”, rather than any knowledge of an actual formally approved strategy that the At-Risk Policy required, suggests that what was in place was an adopted practice that led corrections officers to believe that it was mandatory for a person who had just been moved to management under the At-Risk Policy to be subjected to a strip search. That was not consistent with the At-Risk Policy, nor was it consistent with the general searching policy discussed below, nor would an automatic mandatory strip search upon entry to the CSU arguably have been consistent with ss 113-113C of the Corrections Act, but given the evidence, it was not necessary to decide that matter.

272. Indeed, cl 11.9 provided: As far as practicable, the restriction of access to in-possession property items must be consistent with managing the risk posed by a detainee and not be automatic. Searching Policy

273. If the “Searching Strategy” referred to in the At-Risk Policy was simply a reference to the standard Corrections Management (Searching) Policy 2010 (Searching Policy) that was in force at the time of the incidents (and has since been twice replaced), then that policy included the following (emphasis added): Searching people Prior to a scanning, ordinary, frisk or strip search being performed, the corrections officer must ask the person who is being searched if they wish to declare any items that may be contraband or prohibited. Other than scanning searches, this request will be asked as part of the standard search declaration made by corrections officers. … Intrusiveness and privacy The type of search conducted must be the least intrusive type of search appropriate to the situation considering the circumstances and desired outcome. All searching must be conducted in a physical location appropriate to the type of search being conducted (eg. strip searches will be conducted in private).

Issue 1: Was the Funeral leave decision a breach of any of the human rights relied upon by the plaintiff?

287. I have considered the Funeral leave decision itself (conduct of the second defendant) and the process by which it came to be made (conduct of the correctional officers and ILOs at the AMC).

288. The Intervenor submitted that the second defendant should only have refused the plaintiff’s attendance at the funeral of a close loved one if there were compelling reasons and if no alternative solution could be found. The decision was not made in accordance with the discretion conferred by s 209 of the Corrections Act. Alternatively, if the refusal was in accordance with law, it was nevertheless incompatible with the right as limited because it was arbitrary. The plaintiff supported that submission.

289. The Intervenor and plaintiff’s submissions were broadly that: (a) To the extent that the refusal was based on operational reasons, those operational difficulties resulted from the failure of the prison authority to promote and facilitate the plaintiff’s attendance at her grandmother’s funeral at a practical level. (b) To the extent that the refusal was a result of the plaintiff’s previous behaviour, that was also arbitrary, because it amounted to a refusal to facilitate a human right because of past poor behaviour. Such conduct “inhumanely uses funeral attendance as a behaviour management consequence”. (c) Unless a prisoner’s past behaviour makes the attendance of the prisoner at the funeral “impossible to manage” without a genuine threat to the safety of others, past behaviour should not be grounds for refusing attendance at a funeral. The plaintiff’s past behaviour did not indicate that she would pose an insurmountable safety risk.

290. The defendants argued that the refusal was in no way arbitrary (capricious or unjust). There was no evidence to suggest that funeral leave was refused to punish the plaintiff for her behaviour while in custody. The rights of the plaintiff were necessarily limited by the custodial environment and subject to the discretion of the second defendant as a result. That discretion was exercised taking the plaintiff’s rights into account but also balancing the other statutory objectives of the Corrections Act, which he was entitled to do.

Section 27 and the right to enjoy cultural practices and maintain kinship ties

291. On the basis of the cultural heritage evidence set out above, I accept that the plaintiff belonged to a minority group and had a right to enjoy her culture with other members. On the authorities discussed above, that included the right to participate in sorry business.

292. Here, the right was limited by the fact of the plaintiff being lawfully held in custody. The limits imposed on the exercise of the right were that the right to participate in sorry business was not totally prohibited but instead was subject to the discretion of the Commissioner at the AMC. As set out above, that was a reasonable limit in that it was proportionate and set by laws (including policies which carry the force of a statutory instrument in this context) justified by the requirement for good order and management at the AMC. The AMC itself does not operate with unlimited resources.

293. As to the substance of the Funeral leave decision, the discretion was exercised against the plaintiff in this instance, but in the circumstances that is not to be viewed as a product of a blanket discretionary denial of her right, as she had been granted funeral leave in the past. I have not found as a fact that the decision was in any way based on the plaintiff’s behaviour in custody. I have assumed (without deciding) that the plaintiff may have required an escort of three officers as opposed to two officers, along with an ILO who had volunteered to accompany the escort but not in a security role. However, as will be explained, the decision did not turn on that extra resource.

294. As to the matters taken into account in making the decision, it is not the case that no consideration was given to the plaintiff’s right to maintain cultural and kinship ties. The evidence of the second defendant to the extent that it was accepted above (including what was written to the HR Commission) made it clear that this is something that the Commissioner attempted to facilitate as a starting point, both as a matter of practice and in this particular case. The evidence that the second defendant was “acutely aware of the importance of funerals to Indigenous detainees” was not a convenient platitude or a “boilerplate statement”, as the Intervenor submitted. Such a submission paid scant regard to the many years of experience the second defendant had in dealing with the applications from Aboriginal detainees to participate in sorry business. Further, the AMC had ILOs employed to assist with the process of applying for leave, which included funeral leave. There was an Aboriginal and Torres Strait Islander policy statement in the court book which specifically referred to the ILOs facilitating cultural practices. Although it was not formally tendered as an exhibit, the parties treated the policy documents of the AMC as being before the court. There was a policy for assessment, and the AMC had some capability to support funeral leave, subject to resourcing on any particular day. I accept that the importance of facilitating sorry business was well within the second defendant’s awareness and consideration.

Section 12(a) - The right to no unlawful and arbitrary interference with family

313. The same reasoning applies in respect of the plaintiff’s right to family (if, contrary to my preliminary view expressed above, this aspect of the right was engaged). The content of the plaintiff’s right was limited by the Corrections Act. The same decision-making process was followed. To the extent that the plaintiff’s right was interfered with, it was not unlawful, nor was it arbitrary as that term is understood in the authorities, discussed above at [226].

314. The Intervenor relied heavily on Płoski v Poland (European Court of Human Rights, Fourth Section, Application No 26761/95, 12 November 2002) (Ploski) in arguing that the Funeral leave decision was incompatible with s 12(a). However, as explained in discussing the content of the right under s 12(a) as limited above, even with a broad construction, I do not accept that this right is directed to ‘family life’ in the context in which it sits in this section, and the purpose of the right having regard to the legislative history founding the section. Even if it were, the factual circumstances of that case were different as the authorities involved in the decision to refuse funeral leave were found not to have even considered whether escorted leave was available: Ploski at [36].

Sections 19(1) and 19(3) – The right to treatment with humanity and respect for inherent dignity when deprived of liberty, including appropriate treatment when detained on remand

315. I have first considered the plaintiff’s humanity and inherent dignity under s 19(1). Taking into account the fact that the plaintiff’s rights in this regard were lawfully attenuated in content by her custodial environment, it is difficult to see how the Funeral leave decision separately impacted upon this aspect of the right. She was afforded a humane process of applying for funeral leave that respected her inherent dignity. That the decision did not fall in her favour does not mean that the decision was treatment without respect for her dignity and humanity.

316. As to the requirement for appropriate treatment when detained on remand, while the plaintiff’s case for attending the funeral was undoubtedly strengthened by the fact that she was on remand, she was equally not on bail seeking to travel interstate; she was in custody. I accept that her challenging history meant that on no view was unescorted interstate travel appropriate. The fact that there were limits in that regard, and that such limits were discretionary, does not mean that the limit on her rights was arbitrary.

317. Otherwise, for the conduct in question, being applications for a leave permit from the prison, I have been unable to discern any relevant distinction arising from the plaintiff’s status as a prisoner on remand when considering the requirement for “appropriate treatment” of such detainees under s 19(3). Specifically, that difference in custodial status did not require any different policy or process to be applied when it came to considering questions of leave. The plaintiff’s right to attend a funeral while detained in custody was limited in the same way that a sentenced prisoner’s right was limited, and subject to the same resourcing considerations.

318. This was an important occasion for the plaintiff and the Funeral leave decision plainly caused her great personal distress, but that result was not conduct that fell short of the obligation to treat the plaintiff humanely while deprived of her liberty, nor did it fall short of the obligation to treat the plaintiff appropriately while on remand.

Issue 2: Was the lack of a review of the Funeral leave decision a breach of the plaintiff’s human rights?

319. The plaintiff put this complaint as a failure to facilitate a review of the Funeral Leave decision or to notify the plaintiff that she had a right of review. She argued that this was incompatible with the rights under ss 12(a), 27(2), 19(1) and 19(3) of the Human Rights Act.

320. The defendants argued that the plaintiff had not addressed how the right to an urgent review of the second defendant’s decision formed any part of the content of the rights relied upon. I accept the defendants’ submissions that this aspect of the plaintiff’s complaint failed to grapple with those matters.

321. I have earlier dealt with the content of each of the rights to maintain cultural and kinship ties, the right to protection from unlawful or arbitrary interference with family, the right to humane treatment when deprived of liberty and to appropriate treatment when detained on remand.

322. The limits which affected the content of each of those rights were found to be lawful limits. There was no suggestion that the lack of an urgent review mechanism (or the “failure” to explain any right of urgent review) meant that an otherwise appropriate limit on the rights involved became unjustified.

323. The plaintiff is correct when she states that she was not advised of any avenue available for review and she is also correct in submitting that there was no right of review within the AMC or otherwise provided by the Corrections Act.

324. The Corrections Act provides a very detailed regulatory framework for reviewing disciplinary decisions, as well as policies which include review mechanisms for addressing complaints by detainees. There is no opportunity to review detainee requests. Decisions about “requests” as a category of decisions made at the AMC are not decisions for which internal review mechanisms exist.

325. That does not mean that there was no review available at all. There remains an external review mechanism for decisions made under an enactment (which the Funeral Leave decision was), namely the avenues of administrative review and supervisory judicial review by the Supreme Court.

326. In the circumstances here, it was obviously not feasible for the plaintiff to invoke any of those rights. However, what the court is concerned with is whether the lack of any review of the Funeral Leave decision was incompatible with any of the rights on which the plaintiff relied. I see no basis on which to find that the absence of a review mechanism or notification of avenues of external review was conduct incompatible with any of the rights propounded by the plaintiff.

Issue 3: Was the use of force on 11 January 2021 conduct incompatible with the plaintiff’s human rights?

327. The plaintiff argued that the use of force was conduct incompatible with the rights under ss 10(1)(b), 12(a), 19(1) and 19(3) of the Human Rights Act.

328. In the circumstances of this case, the decision to use force on 11 January 2021 for the purpose of a strip search was incompatible with the plaintiff’s human rights. As will be explained, it was inconsistent with the policies that provided the proportionate limits to the content of the plaintiff’s human rights. I have dealt with the manner in which the use of force was implemented separately as part of Issue 4.

329. The circumstances which are relevant to consider are that this was a person who was on remand and “At-Risk”. She had lost her grandmother and had her request to attend the funeral where she was to represent her family denied. She was in a high state of grief and distress. All of this was known to those managing the plaintiff in custody.

330. What did those circumstances call for? They called for treatment, care and support of an at-risk detainee, managed through a multi-disciplinary response by ACTCS and Justice Health Services. That is what the At-Risk Policy required.

331. It did not matter that the Officer in Charge (being the third defendant) had spoken with a medical practitioner earlier in respect of the practicalities of the use of force on this detainee and that the potential for physical injury to her pacemaker had already been discussed. That was a different discussion about physical medical consequences arising from a potential use of force in a different context.

332. It was also not to the point that the plaintiff herself had not engaged with the mental health team when she initially arrived at the CSU. That did not prevent the third defendant from communicating with the mental health team or another medical practitioner about advice on practicable solutions. What the policy required was a ‘multi-disciplinary response’. That meant the involvement of a health practitioner qualified to consider not only the physical but the psychological health of a vulnerable detainee and what was the best way to progress the refusal to comply with the direction of a strip search.

333. There was nothing in any of the policies that were before the court that required a person in the plaintiff’s position to be subjected to a strip search within the first hour of entry to the CSU, let alone that required such a search to be carried out in the manner implemented (discussed below).

334. Here, there was a misunderstanding that a mandatory strip search was required under the Corrections Act upon entry to the CSU. That was not the case. There was also a view that a strip search was appropriate because of a suspicion about a seizeable item. Again, that was a discretionary decision, not an automatic one and in the circumstances as outlined above, it required careful management.

Issue 4: Was the strip search in the cell conduct incompatible with the plaintiff’s human rights?

341. The plaintiff argued that the intended strip search in the cell, which was part of the implementation of the use of force, was conduct incompatible with the rights under ss 10(1)(b), 12(a), 19(1) and 19(3) of the Human Rights Act.

342. The circumstances here were that a highly vulnerable plaintiff had refused a strip search. She was otherwise quiet and lying on her bed.

343. Part of ensuring there was a ‘clear’ warning about the planned use of force is ensuring that the warning can be heard, not delivering the requisite warning through a closed cell door. In addition, contrary to what the officers believed, they did not allow enough time for the warning to be observed. There was no reason why the officers could not have given the CSU Supervisor a further opportunity to take the plaintiff to the bathroom once the warning had been given.

344. The planned use of force was only the first step in an operation that involved a clear intention to conduct a non-compliant strip search of the plaintiff in the cell. That called into consideration additional requirements for the implementation of the decision to use force, as the conduct squarely gave rise to considerations for the plaintiff’s right to privacy, attenuated as that right was.

345. In that regard, the manner in which the use of force was carried out was in breach of the Searching Policy. Four corrections officers, kitted up in personal protection equipment including defensive shields, entered the plaintiff’s cell for the purpose of cutting her clothes off in front of male corrections officers not only standing outside the cell observing, but moving in and out of the cell. The presence of the camera may have been required by the Use of Force Policy, but it was not permitted under the strip search measures in the Searching Policy. That tension was not considered or reconciled before the force was implemented.

346. If the Officer in Charge believed that contingent reinforcements were necessary, then it should have been made very clear to all involved that the use of force was to cause the plaintiff to be moved to the bathroom and not with any suggestion of cutting her clothes off in her cell. Alternatively, if resources permitted, the additional officers awaiting direction should have been female. However, it is not for the court to offer suggestions about how the decision (which itself was unlawful) could have been implemented in a way that was consistent with the applicable policies. It is enough to find that this particular operation did not so comply. The method in which the search was initially attempted was not done in a way that minimised embarrassment for the detainee. The breach in that regard was severe enough to constitute conduct incompatible with the plaintiff’s right to privacy.

347. In addition, the implementation of the use of force decision did not involve the minimum amount of force necessary and was inconsistent with the Use of Force Policy. Even having heard the evidence as to the standard practice being to force the detainee to the floor, this was a detainee who was already lying on her bed.

Issue 5: Was the strip search or body search in the CSU bathroom conduct incompatible with the plaintiff’s human rights?

352. The plaintiff argued that the search in the bathroom was conduct incompatible with the rights under ss 10(1)(b), 12(a), 19(1) and 19(3) of the Human Rights Act.

353. I did not find that the strip search that was conducted in the bathroom was a body search. Insofar as the manner in which the strip search in the bathroom was conducted, it was in accordance with the requirements of the Searching Policy discussed above. That is, it was carried out in a private location, with no camera, by only two corrections officers. Those officers were of the same gender. They did not touch the plaintiff. Compliance with their requests did not result in the plaintiff being completely naked at any one time.

354. However, the thing that troubles me is that the obtaining of the plaintiff’s consent and the search itself was a result of conduct that I have accepted was unlawful and was incompatible with the plaintiff’s human rights. The plaintiff’s consent was obtained in circumstances of severe distress and degradation. Having closely considered whether the conduct of the strip search in the bathroom can be divorced from what occurred in the cell, my view is that although the manner in which the search was conducted was proper and there is no criticism of the officers who carried out the search itself, the circumstances in which the strip search was brought about were tainted. Moreover, they were tainted to a degree of severity that leads me to I find that this conduct also was in breach of the plaintiff’s right to privacy under s 12 of the Human Rights Act. Had I found that a body search was conducted, that finding would have been made with greater force.

355. For similar reasons, the search was also in breach of the plaintiff’s right to appropriate treatment while detained on remand under s 19(3) of the Human Rights Act.

356. However, because of the manner in which the search was conducted, which was sensitive to the plaintiff’s privacy and did not involve the actual use of force, I am not persuaded that the conduct itself was degrading to the level of severity required for the conduct to be incompatible with the rights under s 10 or s 19(1) of the Human Rights Act.

Evidentiary issues: The parliamentary privilege dispute

357. On 24 February 2023, I made an advance evidentiary ruling following a contested interlocutory application in this matter, filed by the defendants on 18 November 2022 and amended on 20 February 2023. At that time, I indicated that my reasons for those orders would be provided as part of the substantive reasons in the matter, following trial.

358. The ruling concerned the admissibility and/or use of the affidavit of Mr Neil McAllister, the ACT Inspector of Correctional Services, affirmed 2 June 2022, in its entirety including Annexure A to that affidavit. Annexure A is a report (the Report) produced by the ACT Inspector of Correctional Services (the Inspector).

359. The defendants argued the affidavit was inadmissible because: (a) it was contrary to ss 56, 59, 76 and 135 of the Evidence Act 2011 (ACT) (Evidence Act); (b) it was subject to parliamentary privilege; or alternatively (c) it was protected by s 25(4) of the ICS Act, now s 25(4) of the Custodial Inspector Act which dealt with the privilege against self-incrimination and exposure to civil penalty.

360. During the hearing of the application on 23 February 2023, I indicated (after submissions from the parties) that the question of whether parliamentary privilege applied to the Report would be dealt with in advance of the substantive trial. If parliamentary privilege did not extend to the Report, the arguments concerning admissibility under the Evidence Act and immunity under the ICS Act were to be heard during the course of the substantive trial.

361. For the reasons that follow, I ruled (on 24 February 2023) that the Report was not able to be used in the proceedings, as it was covered by parliamentary privilege. The remainder of the affidavit was not covered by parliamentary privilege.

362. Had I determined that the Report was not protected by parliamentary privilege, I may nevertheless have found that it was not relevant to the issues before me. The Report was not prepared for contested litigation. It served a different statutory function from the matters in dispute here. It was prepared on the basis of different evidence, certainly without the detailed affidavits prepared for this proceeding, and may have relied on material that would not have been admissible in a court. The fact that someone else had expressed a view about conduct that also arose in this contested litigation in the court did not make the Report setting out that opinion relevant. The Report did not purport to constitute expert evidence. Indeed, it may have been unfairly prejudicial (to either party depending on its findings) and excluded altogether on that basis.

363. Acknowledging that full argument was not heard on the issue due to the ruling explained below, although the admissibility of the Report was vigorously contested and comprehensively argued, my preliminary view was that the evidence was likely to have been excluded for other reasons. I have explained that to put the parliamentary privilege ruling in perspective. Ultimately, it is unlikely to have made a difference to the tender of the Report.

What is meant by parliamentary privilege?

364. The privilege that has come to be known as parliamentary privilege derives from art 9 of the Bill of Rights 1688 (UK) (Article 9), which is in the following terms: That the [Freedom] of Speech and Debates or Proceedings in [Parliament] ought not to be impeached or questioned in any Court or Place out of [Parliament].

365. That section was enacted into Australian law by s 16 of the Parliamentary Privileges Act 1987 (Cth) (Privileges Act), the terms of which are set out below.

366. It is useful to start this consideration with a statement from Crime and Corruption Commission v Carne [2023] HCA 28; 280 CLR 555 (Carne), a case that came before the High Court after the interlocutory application in this proceeding was heard and determined. At [106], Gordon and Edelman JJ (agreeing with the plurality but writing separately) summarised the foundations of the privilege as follows (footnotes omitted): Parliamentary privilege is a "bulwark of representative government". It has long antecedents. It allows Parliament to perform its functions without obstruction. Parliamentary privilege shields certain areas of legislative activity from judicial or executive review, thereby giving "the legislative branch of government the autonomy it requires to perform its constitutional functions". Parliamentary privilege operates to ensure that a person who participates in parliamentary proceedings can do so knowing, at the time of that participation, that what they say cannot "later be held against them in the courts", thereby ensuring that such a person is not inhibited in providing information to the Parliament or in otherwise participating in parliamentary proceedings. This is the "basic concept underlying article 9" of the Bill of Rights 1688. The source of the privilege in the Territory

367. The Territory became self-governing in 1989 through operation of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act), pt III of which establishes the Legislative Assembly as the legislature of the Territory.

368. Section 24 of the Self-Government Act declares the powers, privileges and immunities of the Legislative Assembly, which are expressed to be the same as the House of Representatives unless the Legislative Assembly makes a law with respect to its powers. The Legislative Assembly has not, thus far, made a law with respect to its powers, a fact not disputed by the parties, and therefore, its powers, privileges and immunities remain the same as those of the House of Representatives (including its members and committees).

369. Parliamentary privilege in court proceedings, for the Legislative Assembly as for the House of Representatives, is thus sourced from s 16 of the Privileges Act. The privilege is incorporated by section 16(1): 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

Principles applying to questions of parliamentary privilege

374. Before dealing with the statute that governed the publication of the Report, some general principles should be understood.

375. First, it is for the courts to determine whether or not the privilege attaches to a document: Egan v Willis [1998] HCA 71; 195 CLR 424 (Egan) at [27], cited in R v Collaery (No 6) [2020] ACTSC 164 (Collaery (No 6)) at [3]. The privilege does not attach simply because the Legislative Assembly, the Territory or the report writer holds a view that the document is one to which s 16 of the Privileges Act applies.

376. Second, whether the document in question was prepared “for purposes of or incidental to … the transacting of the business of a House” is largely a question of fact: Carne at [34].

377. Third, it is the functional connection, objectively considered, between the document in question and the Legislative Assembly or committee which must be considered. The mere preparation of a document for the Assembly or committee, or presentation of a document to them, by a third party will not suffice if there is no other connection to their work at the time the document was prepared: Carne at [35]-[36].

378. Fourth, in resolving the question of whether parliamentary privilege applies, the court may receive and consider evidence concerning parliamentary proceedings: Carrigan v Cash [2017] FCAFC 86 at [42], cited in Collaery (No 6) at [3]. That means that here, the court was not limited to construing the statute under which the Report was prepared. Although the intentions of those preparing the document will generally say nothing about the requisite connection with the work of the Assembly or a committee, there are occasions where the purpose for which the work is being transacted may be informed by statements of intention by third parties, such as the preparer of the document: Carne at [37].

The requirement for a functional connection, objectively considered

379. In determining whether parliamentary privilege exists, the relevant purpose or purposes that are the subject of inquiry are those of the Assembly or a committee. That inquiry is objective. What is meant by the consideration being objective was explained in Carne at [111] (citing Rowley v O’Chee [2000] 1 Qd R 207 (Rowley) at 220) as being: [Whether an act is] “done… for the purposes of [the Assembly or] a committee” - is an objective inquiry in the sense that it involves the drawing of inferences from objective facts.

380. Gordon and Edelman JJ went on in the same paragraph to make the point that when construing the objective purpose of Parliament in passing legislation, one does not equate the subjective purpose of a given individual with the objective purpose of the institution of which they are a part: Carne at [111] and the cases there-cited.

381. The reasoning of the plurality in Carne was to similar effect. Prior to Carne, the word “purposes” in the expression “for purposes of or incidental to” the transaction of Assembly business might have been interpreted as introducing an element of subjectivity or intention which existed at the time the document was prepared, as mentioned by McPherson JA in Rowley at 220-221. However, in Carne (at [34]), the plurality drew attention to the fact that McPherson JA actually went on to apply an “independent basis or reason” (that is, an objective consideration) in concluding that the documents in question were prepared for the requisite purpose.

382. As to understanding what is meant by a functional connection, it may assist to return to first principles supporting the privilege. In R v Chaytor [2010] UKSC 52; 1 AC 684 , Lord Phillips PSC stated at [47]: … the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.

383. His Lordship went on to state at [61] that that there are good reasons of policy to give Article 9 a narrow ambit, restricting it to the purpose for which it was enacted – for the Parliament to conduct its business without interference from the Crown or the courts (originally the Crown’s judges).

384. At [73], his Lordship cited an extract from the Joint Committee on Parliamentary Privilege, Parliamentary Privilege (House of Lords paper 43-1, House of Commons paper 214-1, Session 1998-99) to the effect that the nearest definition (of the dividing line between privileged and non-privileged activities) is that the areas in which courts ought not intervene extends beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that the intervention would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.

The role of the Inspector

387. The position of Inspector was created by the ICS Act. The Object of the ICS Act provided (the section has been replicated in s 6 of the Custodial Inspector Act): 6 Object of the Act (1) The main object of this Act is to promote the continuous improvement of correctional centres and correctional services. (2) This is to be achieved particularly by providing a framework for— (a) the systematic review and scrutiny of the correctional centres and services; and (b) independent and transparent reporting.

388. Section 9 established the role of Inspector and provided that they are to be appointed by the Executive.

389. Part 3 of the ICS Act was titled “Inspector’s functions and powers”. Section 17 concerned functions of the Inspector and was in the following terms (emphasis added): 17 Functions—generally (1) The inspector has the following functions: (a) to examine and review correctional centres; (b) to examine and review correctional services; (c) to review critical incidents at correctional centres or in the provision of correctional services; (d) to report under part 4 (Reports by inspector); (e) to exercise any other function given to the inspector under this Act or another territory law. (2) In this section: critical incident means any event in a correctional centre or in the provision of correctional services that involves any of the following: (a) the death of a person; (b) a person’s life being endangered; (c) an escape from custody; (d) a person being taken hostage; (e) a riot that results in significant disruption to a centre or service; (f) a fire that results in significant property damage; (g) an assault or use of force that results in a person being admitted to a hospital; (h) any other incident identified as a critical incident by a relevant Minister or relevant director-general.

390. The same functions appear in s 17 of the Custodial Inspector Act, although not with the same nomenclature (they are no longer contained in a sub-section). The definition of a ‘critical incident’ has been relocated to the dictionary of the Custodial Inspector Act. The emphasised words are those that operated in the present case and they remained part of the relocated definition.

391. Thus, s 17(1)(c) (or s 17(c) in the Custodial Inspector Act) gave the Inspector the function of reviewing a ‘critical incident’, as defined. This was the function the parties agreed the Inspector was exercising in producing the Report. The Inspector may review a critical incident on their own initiative or when requested by either the relevant Minister or the relevant director-general: s 18(1)(c) of the ICS Act (or s 18(c) of the Custodial Inspector Act).

392. Section 27 concerned the production of a report with respect to the exercise of a function under s 17. It provided: 27 Inspector to give reports to Legislative Assembly (1) The inspector must give a report on each examination and review conducted by the inspector to the Legislative Assembly within 6 months of completing the examination and review. (2) A report must include the following: (a) an evaluation of the correctional centre and correctional services that were subject to examination and review; (b) an assessment of the delivery of correctional services and the operation of correctional centres that were subject to examination and review; (c) an assessment about whether the rights under international and territory law of detainees at a correctional centre subject to review are protected; (d) an assessment about whether law, policy and procedures applying to the correctional centre or service subject to review reflect best practice standards; (e) any recommendations of the inspector in relation to changes required to the infrastructure at correctional centres, correctional policies and procedures or the law applying to correctional centres or services; (f) a statement about a matter that has been referred under section 32 (Inspector may refer matter to investigative entity) or section 34 (Oversight entities may refer matter to inspector); (g) a statement about whether any part of the report is to be kept confidential due to public interest considerations against disclosure. (3) The relevant Minister may extend a period mentioned in subsection (1) by an additional period of no more than 12 months.

The competing arguments

399. The defendants argued that the requirements of the ICS Act mandated the preparation and presentation of the Report to the Legislative Assembly and hence squarely fell within the definition in s 16(2) of the Privileges Act, in that the Report constituted “the presentation or submission of a document to a House or a committee,” or “the preparation of a document for purposes of or incidental to the transacting of any such business.”

400. The functional connection was established through the objects of the ICS Act, being the systematic review and scrutiny of the corrections centres and services, through independent and transparent reporting. Through the reporting obligations that are then set out in the ICS Act, it can be seen that the apparent purpose of the legislative scheme was to provide for scrutiny of correctional services by the Legislative Assembly.

401. Further, the defendants argued that the reports prepared by the Inspector are done so with the knowledge that the reports receive the same privileges as if the scrutiny was presented through debate in the Legislative Assembly and are thus safe from examination or subsequently being impugned in a court. That facilitates full, frank and complete information being provided both to and by the Inspector, in line with the purposes of the ICS Act.

402. The plaintiff submitted that the Report was requested by a member of the Executive and prepared by a member of the Executive for the purposes of the Executive and hence did not attract the privilege (as the functional connection was insufficient). In support of that argument, the plaintiff drew attention to the contents of the Report itself, in that it contained within it recommendations directed to the procedures of corrective services staff, being part of the Executive.

403. Alternatively, the plaintiff submitted that the Report was published on the website of the ACT Inspector of Correctional Services, and the public copy was not subject to parliamentary privilege.

404. The Intervenor’s submissions supported the conclusion for which the plaintiff contended. In summary, the Intervenor contended: (a) Privilege does not attach to all copies of documents that are tabled in the Legislative Assembly; (b) The Report is a distinctly Executive publication, initiated at the request of the Executive; (c) The Inspector is an independent statutory decision-maker; (d) The objects of the ICS Act and the functions of the Inspector are not of a kind that constitute “purposes of or incidental to the transacting of the business of a House or of a committee”. (e) Performance of those statutory functions does not bring the Report within “proceedings in Parliament” irrespective of the fact that reports are ultimately provided to the Speaker of the Legislative Assembly; and (f) Section 28 of the ICS Act deals with issues of confidentiality, and that context also indicates that the Legislature did not intend parliamentary privilege to apply to reports produced under the ICS Act.

Consideration

405. Like the legislation under consideration in Carne, the ICS Act requires the tabling of the report provided to it in the exercise of its statutory functions. However, there is a difference here, in that the ICS Act contains no express provision to the effect that, once tabled, the report is given all the immunities and privileges of a report tabled and published by the Legislative Assembly.

406. The court must therefore construe the ICS Act, with the ultimate question being whether the preparation of the Report was for the purposes of, or incidental to, the business of the Legislative Assembly.

407. The parties’ submissions set out the various contextual and purposive indicators. The “functional connection” inquiry considers the connection between critical incident reports produced under the ICS Act (which was how the Report came to be generated) and the purposes of the Legislative Assembly. Applying Carne at [112]: ... the relevant purpose or purposes that are the subject of inquiry in determining whether parliamentary privilege exists are those of the Assembly ...

408. Having regard to the objects of the ICS Act in s 6, I accepted that the purpose of the mandatory requirement to give the report to the Legislative Assembly under s 27 of the ICS Act was to enable the Legislative Assembly to scrutinise the conduct of the correctional centres. The stated purposes in the ICS Act thus had a functional connection to the business of the Legislative Assembly.

409. I did not accept that this was a distinctly Executive publication for the distinctly Executive purpose of self-scrutiny. The requirement under the ICS Act was not that the report be provided to the relevant director-general (a defined term in the ICS Act) or even the relevant Minister (who requested the report), it was that the report be provided to the Legislative Assembly and tabled by the Speaker.

410. Further, the circumstances of the Report’s creation were statutory, in that it was triggered on the application of the critical incident criteria set out in the ICS Act and requested by the Minister. The Minister is part of the Legislative Assembly. The mandated process culminated in the provision of the Report to the Legislative Assembly. This was not a report prepared by the Inspector for its own oversight or purposes.

411. That in itself carries some significance. In Carne, the plurality pointed (at [38]) to the fact that the investigation that led to the report there under consideration was not directed by the relevant parliamentary committee, as being indicative of a lack of functional connection. In a circumstance where the committee had directed the investigation, the report writer “is obliged to report to the Committee with respect to such an investigation”.

412. Here, the opposite is the case. The Legislative Assembly did in substance direct the investigation, acting through the Minister, and through the statute also directing any report that resulted from such an investigation to be provided to the Legislative Assembly (effectively obliging the writer to report to the Legislative Assembly).

Evidentiary issues: The response letter dispute

421. The second evidentiary ruling for which I indicated I would set out the reasons in the published judgment arose from the defendants’ objection to the tender of the response letter, being the second defendant’s response to the ACT Discrimination Commissioner dated 22 February 2021, the contents of which I have accepted.

422. The basis of the objection was that the response letter attracted the protection of s 75(4) of the HRC Act, which limited the admissibility of certain information provided to the HR Commission. Again, the legislation has since been amended by the Human Rights Commission Amendment Act 2023 (ACT) (which came into force on 7 January 2024) (Amendment Act) and the substance of the applicable provision is now s 75(5). The plaintiff and the Intervenor both argued that the response letter was admissible and did not attract this protection.

423. In order to resolve the dispute about admissibility, it was necessary to work out whether the response letter was information required by the HR Commission to be given or produced, pursuant to the exercise of a coercive power under the HRC Act. If it was, then there was a protection against the evidence being used in a proceeding where the person producing the information was exposed to self-incrimination or a civil penalty (which was the case here). However, if the information contained in the response letter was provided merely in response to an invitation made by the HR Commission, then such a protection did not apply.

424. The answer to that question required a consideration and understanding of the relevant statutory framework. It is to these matters that I now turn.

The HR Commission’s letter generating the response letter

425. The HR Commission sent a letter on 2 February 2021 (request letter). It contained the following: Notification of [the plaintiff’s] discrimination complaint The ACT Human Rights Commission has received a discrimination complaint from [the plaintiff] against ACT Corrective Services (ACTCS) alleging discrimination on the basis of race, sex and disability in the area of provision of goods, services and facilities. I attach a copy of the complaint together with the sections of the Discrimination Act 1991 … which appear to be relevant. Requirement to deal with complaints promptly and efficiently Under section 45 of the … [HRC Act]… the Commission must deal with complaints promptly and efficiently. It is therefore very important that you provide information to support your response as soon as possible, and within any deadlines set by the Commission. However, the Commission’s consideration of this complaint is impartial, and you will be given fair opportunities to put your point of view. Dealing with the complaint Early conciliation The Commission can attempt to assist the parties to resolve the matter…

426. The letter then dealt with a number of other matters before stipulating a deadline for response: Deadline for response Noting that the Commission has power to require the production of documents or information, pursuant to section 73 of the [HRC Act], I would appreciate receiving your response by 23 February 2021. Should you wish to discuss this complaint and our consideration process before preparing your response, or if we can provide any further information, please contact…

427. The letter raised a number of issues, and the second defendant was invited to provide all background information regarding the issues raised.

The relevant legislation

428. The HR Commission considers complaints it receives pursuant to a statutory process.

429. Section 14 of the HRC Act describes the functions of the HR Commission. They relevantly include: 14 Commission’s functions (1) The commission has the following functions: (a) encouraging the resolution of complaints made under this Act, and assisting in their resolution, by providing an independent, fair and accessible process for resolving the complaints; ... (d) identifying, inquiring into and reviewing issues relating to the matters that may be complained about under this Act; (e) exercising any other function given to the commission under this Act or another Territory law. …

430. Section 15 of the HRC Act states: 15 Functions and human rights The commission must act in accordance with the human rights under the Human Rights Act 2004 when exercising a function under this Act or a related Act.

431. Section 42 of the HRC Act specifies what complaints may be made under the HRC Act to the HR Commission. Relevantly, the section includes complaints about unlawful acts under the Discrimination Act 1991 (ACT). Such a complaint was made by the plaintiff to the HR Commission.

432. Section 45 of the HRC Act, as in force at the time of the incidents and the second defendant’s engagement with the HR Commission, set out the HR Commission’s obligations. They included (emphasis added): 45 Commission’s obligation to be prompt and efficient (1) The commission must deal with complaints promptly and efficiently. (2) In particular, the commission must— … (c) unless subsection (4) applies—before considering the complaint, tell the complainant and the person complained about, in writing, that the complaint is to be considered; and … (4) Also, the commission need not give notice under subsection (2) to the person complained of if, because of subsection (3), it decides— (a) not to consider the complaint; or (b) not to consider the complaint further.

433. The significance of the emphasised words is that this is what the plaintiff and the Intervenor argued occurred with respect to the correspondence under consideration here – the HR Commission sent a notification of complaint letter under s 45(2) of the HRC Act (now s 45(3)) to the second defendant and invited a response “before considering the complaint”. The questions that were asked were by way of preliminary enquiry prefatory to considering the complaint, although not pursuant to the express power which was inserted as the new s 45(2) (as that provision did not exist at the time the request letter was sent).

434. The Justice and Community Safety Legislation Amendment Act 2025 (ACT) (which came into force on 27 February 2025) amended s 45 of the HRC Act. Among other things, the following was inserted: (2) Without limiting subsection (1), the commission may make any preliminary inquiry it considers necessary and appropriate to decide how to deal with a complaint.

Other legislation providing context

444. The defendants also relied on s 222 of the Corrections Act as being context relevant to the investigative powers being construed under the HRC Act. That section is in the following terms (with emphasis added in s 222(3)(b)): 222 Confidentiality (1) In this section: corresponding corrections law means a law of a State or another Territory declared to be a corresponding corrections law under section 225. court includes a tribunal. Note A tribunal includes any entity authorised to hear, receive and examine evidence (see Legislation Act, dict, pt 1). divulge includes communicate. person to whom this section applies means a person who— (a) exercises, or has exercised, a function under this Act; or (b) is, or has been, otherwise involved in the administration of this Act. produce includes allow access to. protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of— (a) the exercise of a function under this Act by the person or someone else; or (b) the involvement of the person, or someone else, in the administration of this Act. (2) A person to whom this section applies commits an offence— (a) if the person— (i) makes a record of protected information about someone else; and (ii) is reckless about whether the information is protected information about someone else; or (b) if the person does something that divulges protected information about someone else and is reckless about whether— (i) the information is protected information about someone else; and (ii) doing the thing would result in the information being divulged to someone else. Maximum penalty: 50 penalty units, imprisonment for 6 months or both. (3) Subsection (2) does not apply if the record is made, or the information is divulged, by the person as follows: (a) under this Act or another territory law; (b) in relation to the exercise of a function under this Act or another territory law; (c) for the Crimes (Sentencing) Act 2005, section 136 (Information exchanges between criminal justice entities); (d) to a person exercising a function under, or otherwise involved in the administration of, a corresponding corrections law; (e) to a law enforcement agency; Note Law enforcement agency is defined in the dictionary. (f) to an entity prescribed by regulation; (g) otherwise in relation to the administration of this Act or another territory law. (4) Subsection (2) does not apply to the divulging of protected information about someone— (a) with the person’s consent; or (b) if authorised by the director-general under subsection (5); or (c) if the information only tells someone of the place where a detainee is held in detention; or (d) if the information is disclosed under a regulation. (5) The director-general may, in writing, authorise the divulging of protected information about a person if the director-general believes, on reasonable grounds, that divulging the information is— (a) necessary to protect someone whose life or safety is in danger; or (b) otherwise in the public interest.

445. Information about what occurred to the plaintiff in this case in relation to her unsuccessful request for funeral leave and the strip search falls plainly within the definition of “protected information” and the confidentiality provisions apply. The emphasis in s 222(3)(b) is to draw attention to an exception featuring in the statutory construction exercise that follows.

Parties’ submissions Defendants’ submissions

446. The defendants submitted that the legislation and the power of the HR Commission to obtain information must be construed in the context of the scheme of laws that protect privacy of information, including any relevant privacy principles pursuant to s 12 of the Human Rights Act and s 222 of the Corrections Act. To divulge information such as that contained in the response letter voluntarily would incur a liability. As a result, the information must be divulged only through the compulsory process provided for by s 73 of the HRC Act, so as to obtain the protection pursuant to s 75 of the HRC Act.

447. The defendants relied upon a number of indicia supporting that construction: (a) The HR Commission is given coercive powers, to request documents under s 73 and to require attendance under s 74. (b) There are no other express provisions empowering the HR Commission to request information or documents for the purposes of considering a complaint. (c) Section 75 expressly abrogates a fundamental right, being the privilege against self-incrimination. The carve out in s 75(4) (before the Amendment Act) is an exception to that. (d) That the statutory scheme confines the HR Commission’s power to obtaining documents and information by coercion is consistent with the broader statutory obligations of confidentiality, as seen in s 222 of the Corrections Act, and supports the protection of the right to privacy under the Human Rights Act.

448. The defendants accepted that the contents of the letter here did not expressly state that it was a notice issued pursuant to s 73 and it uses language that invites a person to respond rather than requiring a person to respond. They argued that even if that was a technical deficiency, the response was still a request for documents and could only have been issued pursuant to s 73. It cannot be the case that a person who responds to a request for information that is bad in form loses the protection of the immunity provided by s 75(4) (before the Amendment Act) purely because of that defect or ambiguity in the notice.

449. The defendants argued that explicit reference was made in the notice to s 73, which supported an interpretation of the letter being one where coercive power to require the production of information and documents was being exercised.

Plaintiff’s and Intervenor’s submissions

450. It is convenient to deal with the positions of the plaintiff and the Intervenor together as they arrived at the same construction of the HRC Act and conclusion. The material submissions were: (a) Sections 45 and 72 of the HRC Act, properly construed, were sufficient to give the HR Commission a broad power to inform itself however it wishes. This includes sending an initial invitation to respond to a complaint or by exercising coercive powers under ss 73 and 74. (b) That construction is not affected by the statutory right to privacy and statutory obligations of confidentiality such as that provided by s 222 of the Corrections Act. Section 222(3)(b) of the Corrections Act provides a relevant exception which covers the present circumstances. (c) The construction for which the defendants contended would mean that every initial communication from the HR Commission notifying a person of a complaint and requesting a response would be construed as the exercise of a coercive power to obtain information. That is not the proper construction of the requirement to notify a respondent of a complaint under s 45(3)(c) of the HRC Act.

451. The plaintiff and the Intervenor argued that the request letter was sent at the start of the conciliation process. It was sent pursuant to the power under s 72 of the HRC Act, giving the HR Commission the power to control the manner in which it considered complaints in the exercise of the function under s 14(1)(a) of encouraging their resolution.

452. The terms of the request letter make it clear it is an invitation to respond to the complaint, not a notice sent under s 73. There is nothing in the nature of compulsion in the request letter, and this is evident from the final paragraph that notes (but does not invoke) the coercive power available.

453. If the purpose of the letter was to invoke the coercive power under s 73, it was so deficient in form as to fail to achieve that intention.

454. Insofar as s 222 of the Corrections Act is engaged in its application to the factual circumstances here, s 222(3)(b) applies as a clear exception to the confidentiality obligation. Any divulging of information in response to a non-coercive request by the HR Commission in considering a complaint is one that relates to “the exercise of a function under another territory law”. That is because the functions of the HR Commission include inquiring into and encouraging the resolution of complaints: see s 14 of the HRC Act set out at [429] above.

Ruling – the response letter was admissible

455. I ruled that the letter was admissible, accepting the submissions of the plaintiff and the Intervenor that I considered to be material to the question of construction and have summarised above. Applying the same principles of statutory construction as those set out at [162]-[163] above, I determined first, that there was an implied power to obtain information through invitation and not exclusively by the exercise of coercive power; and second, that such a power was exercised in the circumstances of this case.

456. The words of s 45 of the HRC Act require the commission to deal with complaints “promptly and efficiently” and notify a respondent to the complaint of the fact that a complaint has been made. Section 72 facilitates that mandate, permitting the HR Commission to consider the complaint “in the way the commission decides”

457. These sections should be construed as permitting the seeking of information by invitation if that is the way the HR Commission decides will best further its prompt and efficient mandate. They do not expressly exclude non-coercive requests for information and the purpose of the Act as a whole is best promoted by such a construction.

458. In terms of the notification requirement in s 45, the purpose of notifying the respondent is plainly one of procedural fairness; that is, to enable the person a fair opportunity to be heard on the issues. The statutory context supporting that construction is that the HR Commission’s functions, which include encouraging the resolution of complaints and providing “a fair” and accessible process for resolution of complaints: s 14 of the HRC Act. They also include identifying, inquiring into and reviewing issues relating to those complaints.

459. Without going into yet another area of legal discourse on the question of procedural fairness, it is shaped by the words of the statute in which the obligation arises. Here, a fair process would include making the respondent to a complaint aware of the issues identified by the HR Commission as arising for consideration of the complaint and giving the respondent the opportunity to comment or make submissions or otherwise respond. Although such an opportunity may be given later in the process of consideration, the process is expressly flexible by virtue of s 72. There is nothing in the HRC Act to prevent the HR Commission from giving the person the opportunity to provide information as part of carrying out its statutory obligation of notification. Indeed, it is more efficient to send one letter rather than two.

460. Given the prompt, efficient, flexible and fair process that is woven into the statutory fabric of the HRC Act, there was no basis for construing the exercise of that the HR Commission’s power to be one of coercive investigative powers only, even taking into account the broader statutory context of the HRC Act and the privacy considerations that extend to statutory obligations in other legislation.

What relief follows from the findings of a breach of human rights?

464. As discussed in Islam (2018) at [73] and the cases there-cited, the determination of appropriate relief requires a balancing process guided by four objectives: (a) Addressing the wrong occasioned by the contravention of the Human Rights Act that has been established; (b) Deterring future violations; (c) Making an order that can be complied with; and (d) Ensuring fairness to all those who might be affected by the relief.

465. The Human Rights Act is directed to protecting human rights. Accordingly, where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end: see Islam (2018) at [71] and the cases there-cited.

466. Here, the conduct was isolated to a specific period that had passed. Accordingly, if a breach of the Human Rights Act was established, the only relief sought was the discretionary remedy of declaratory relief. Guidance on the exercise of the power to grant declaratory relief is provided by a number of established principles, which should not be elevated to rigid restraints on a discretionary decision of this nature. They are not controversial and have been set out in various ways in many different authorities. I have set them out again here primarily for the benefit of the plaintiff, who may be unfamiliar with the considerations that feed into the court’s discretion to grant the relief she sought.

467. First, the discretion to make a declaration is wide: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 9 per Gibbs J. Although it is neither possible nor desirable to fetter the discretion to grant declaratory relief by laying down rules as to the manner of its exercise, the discretion is to be exercised judicially: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.

468. Second, declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts: Egan at [5]. In Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 the Full Court of the Federal Court said at [8]: … The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. …

469. Third, there must be some utility in granting the declaration: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307.

470. Fourth, the court must be satisfied that the making of the declarations sought is appropriate, even where parties have jointly proposed the relief. Because a declaration is a judicial act, it ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412. Whether it will be appropriate to grant such relief depends upon the requirements of justice in the particular case: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470.

Costs

476. The plaintiff has succeeded in her statutory claim. Applying the guiding principle in the exercise of the court’s discretion, she is entitled to her costs. It is appropriate that such an order be made, subject to first ensuring that the declaratory relief is granted against the appropriate party (with the appropriate costs liability attaching to the party), and to any party making an application for a different costs order within seven days of the publication of these reasons. Conclusion and Orders

477. I cannot leave this case without observing that this was a very challenging plaintiff, personally facing difficult circumstances. This created a confluence of policy and management issues at the AMC that escalated to a crisis point. The law, and the courts who implement it with the tacit reflection of community expectation, do not require perfection from those entrusted with the management of detainees. That is recognised in the severity considerations when evaluating conduct through the prism of protecting human rights. I have found that the circumstances of this case brought about conduct that was unlawful under the Human Rights Act. However, it cannot be extrapolated from these findings alone that the policies and procedures at the AMC in managing risk, security, logistics and challenging situations are deficient in protecting human rights for members of the community who are detained, nor that the corrections officers systemically disregard the human rights of detainees. If there is anything to take away from the conduct that occurred, it is that those who are applying the policies and their requirements daily need all the support they can get from those who lead them, the detainees they manage and the community they protect.

478. For the above reasons, the plaintiff is entitled to the following declaratory relief: (a) A declaration that the use of force on the plaintiff on 11 January 2021 was incompatible with the plaintiff’s human rights under ss 19(1) and 19(3) of the Human Rights Act; (b) A declaration that the attempted strip search of the plaintiff in the cell at the Crisis Support Unit (CSU) on 11 January 2021 was conduct incompatible with: 1․ the plaintiff’s rights to humane and appropriate treatment while deprived of liberty on remand, under ss 19(1) and 19(3) of the Human Rights Act,

2․ the plaintiff’s right to privacy under s 12 of the Human Rights Act, and

3․ the plaintiff’s right to protection from degrading treatment under s 10 of the Human Rights Act; and (c) A declaration that the conduct of a strip search in the bathroom at the CSU on 11 January 2021 was conduct incompatible with: 1․ the plaintiff’s right to humane and appropriate treatment while deprived of liberty on remand, under ss 19(1) and 19(3) of the Human Rights Act, and

2․ the plaintiff’s right to privacy under s 12 of the Human Rights Act.

479. As the final orders are subject to the potential substitution of the Territory as a party to the proceeding in lieu of the second and third defendants, I will make the following order: (1) The parties are directed to bring in short minutes of order giving effect to these reasons within seven days.

I certify that the preceding four hundred and seventy-nine [479] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate: Date: