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Bail law reform should follow declaration

Bail law reform should follow declaration

Human rights law works best when it tweaks the ordinary law to be more uniform, fair, and understandable by the average citizen. In the ACT, the Legislative Assembly has its first chance to achieve those tri-aims by reforming the Bail Act: Human Rights Commissioner Dr Helen Watchirs makes out the case for positive legislative action.

Human rights declaration should result in bail law reform

By Dr Helen Watchirs*

On 19 November 2010, the ACT Supreme Court for the first time declared a provision of ACT law incompatible with human rights. It found s.9C of the Bail Act 1992 was incompatible with the right to liberty, a provision which was inserted prior to the Human Rights Act 2004 coming into effect.

The ACT Government recently announced that it will not proceed with an appeal and must now make a formal response to the year-old declaration. 

The ACT model of human rights protection is like the United Kingdom Human Rights Act 1998 and the Victorian Charter of Rights and Responsibilities 2006, which ensure members of Parliament retain ultimate decision-making power. If the Supreme Court finds that provisions of a law are incompatible with human rights, it does not automatically change the law.

Rather, the court formally declares this to the ACT Legislative Assembly, which must then make a decision about whether to change the law, or retain it as it is. These types of court declarations were recently found to be valid by the majority of the High Court in the case of Momcilovic. 

In the matter of an application for Bail by Islam – ‘Islam’ is the man’s surname – the ACT Supreme Court considered s.9C of the Bail Act, which requires those accused of murder, certain drug offences and ancillary offences to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken. This provision includes attempts to commit these offences, as was the case for Mr Islam, who was charged with attempted murder.   Having to prove ‘exceptional circumstances’ was found to be inconsistent with the requirement in s.18 of the Human Rights Act that a person awaiting trial not be detained in custody as a ‘general rule’.

The individual decision did not change the law, and Mr Islam was in fact detained in custody, and may have been even in the absence of s.9C.  Mr Islam was ultimately found not guilty of attempted murder, but guilty of inflicting grievous bodily harm, an offence which is not covered by s.9C of the Bail Act.

The amendment (about ‘exceptional circumstances’) affecting his case was enacted before 1 July 2004 when the Human Rights Act came into force. As such, the provision was not subject to the current level of human rights scrutiny, although the impending passage of the Human Rights Act meant human rights were considered in the Legislative Assembly’s debate of the amending bill.

A common misunderstanding about human rights is that they are absolute. In fact, the ACT HR Act makes no rights absolute, and very few rights are considered absolute in international law: the right not to be tortured is one example of the very few ‘non-derogable’ (basically, unable to be watered down’) rights. Generally, specific human rights may at times need to be balanced with other considerations, including the rights of others and the broader interests of the community. For example, the right to liberty doesn’t mean that people cannot be detained in jail: community safety means at times those charged or convicted of criminal offences may have to be detained in custody.

Human rights law incorporates the concept of rights being ‘engaged’ by legislation. This means that the subject matter of the law will in some way impact upon a person’s specific human right protected in law. Limitations set out in legislation are permissible if they are ‘proportionate’. This requires a range of factors to be considered including the purpose of the limitation, the nature of the right and whether there are less restrictive ways of achieving the same purpose. 

In reaching her decision in Islam, Justice Hilary Penfold found that although the purpose was important, the limitation on the right to liberty imposed by the Bail Act was unreasonable:

‘While the purpose of the limitation imposed by s 9C is of sufficient importance to warrant some overriding of the human right to liberty, s 9C is not rationally connected to its purpose because of its arbitrary or irrational operation, and s 9C limits the human right to liberty more than is reasonably necessary.’

Her Honour referred to s.9C’s ‘arbitrary or irrational operation’, which relates to her difficulty in finding a rational connection between the various offences covered in it. Although, they all carry maximum sentences of life imprisonment, not all offences carrying such penalties are included in s.9C. Her Honour also noted that s.9C does not apply to a range of other serious offences carrying maximum penalties of 25 years imprisonment, or to a person charged with multiple serious offences where there is scope for extremely long total imprisonment.

From a principled point of view, the idea that merely being charged with certain apparently unrelated offences denies you the ordinary assessment of bail is disproportionate. Section 22 of the Bail Act sets out a range of highly relevant considerations that the court must ordinarily take into account, including: the

  • likelihood of the person reoffending;
  • likelihood of them appearing again in court;
    and, perhaps most importantly in the context of Islam,
  • nature of the alleged offence.

These appear to cover the relevant factors that a court should consider, and it is difficult to see any justification for requiring certain accused persons to satisfy any additional evidential or legal burden for the right to have such a routine assessment.

I recommend that the Government’s response should be a repeal of s.9C of the Bail Act.

However, my view is just one voice in the community. The value of the dialogue model of human rights is that when the courts identify such issues, it is for the community and the Legislative Assembly to debate their resolution.

There will undoubtedly be members of the community who believe the Bail Act should remain in its current form, and of course they are entitled to voice their opinion in exercising freedom of expression. I look forward to the community debate, and am hopeful it will result in a fairer and more human rights-compatible Bail Act.


  • Dr Watchirs is the ACT Human Rights and Discrimination Commissioner.
    This article appeared first in the
    Canberra Times.

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