The ACT has thrown up the first declaration of incompatibility under its 1 July 2004 Human Rights Act, which includes a presumption for bail. However, the Territory’s Bail Act of 1992 does the reverse if the charge is attempted murder. The Legislative Assembly must now decide which way to go.
IN THE MATTER OF AN APPLICATION FOR BAIL BY ISA ISLAM [2010] ACTSC 147 (19 November 2010)
Justice Hilary Penfold of the ACT Supreme Court made the first ‘declaration of incompatibility’ pursuant to the Human Rights Act 2004 (ACT).
The applicant, Mr Islam, was subject to section 9(c) of the Bail Act 1992 (ACT) that requires “special or exceptional circumstances” to exist before he could be assessed as suitable for bail under the usual criteria. One of the charges he faces is attempted murder which is in the category of cases for which there is no presumption of bail.
Section 18(5) of the Human Rights Act provides “anyone who is awaiting trial must not be detained in custody as a general rule………….”. Justice Penfold made a declaration that section 9(c) of the Bail Act is not consistent with the human right recognised in section 18(5) of the Human Rights Act.
Section 30 of the Human Rights Act states that “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”. Justice Penfold found that she was not able to interpret section 9(c) in any way that was compatible with section 15(8) of the Human Rights Act. Therefore she concluded that her only recourse was to:
(a) Apply section 9(c) of the Bail Act to the applicant and, in all the circumstances, refuse bail.
(b) Make a declaration of incompatibility in accordance with section 32 of the Human Rights Act.
That declaration does not affect the validity, operation or enforcement of the law or the rights or obligations of anyone. However it does require the declaration to be provided to the Attorney-General who must then present a copy of the declaration to the Legislative Assembly within six sitting days of receiving it.
The Attorney-General must prepare a written response to the declaration of incompatibility and present it to the Legislative Assembly not later than six months after the day the copy of the declaration is presented to the Legislative Assembly.
The ACT Attorney-General, Simon Corbell, had intervened in the matter, as had the ACT Human Rights Commissioner, Dr Helen Watchirs, who said the decision marked a new development for the ACT as human rights jurisdiction.
Presumably, the outcome of the declaration will be that the Attorney-General and the Legislative Assembly will change section 9(c) of the Bail Act to be compatible with the Human Rights Act. However, it is also open to the Attorney-General and the Assembly to change the Human Rights Act to accommodate and provide for the wording and effect of section 9(c) of the Bail Act. Or to do nothing.
In her judgment, Justice Penfold also explores the definitions of “special or exceptional circumstances”. Her Honour interprets these as being circumstances that are unusual or uncommon. The applicant attempted to argue that the special and exceptional circumstance was the delay in the hearing. The application was made in April 2010. Had the trial proceeded as originally set down in June 2011 the applicant would have spent 23 months in custody. As a result of the appointment of acting Judges to the ACT Supreme Court, the hearing was brought forward to 22 November 2010. Her Honour commented that there was no evidence or argument that the delays affecting criminal trial listings in the ACT Supreme Court affected Mr Islam in any ‘unusual way’. Such a delay was usual, not unusual. In order for the delay to be considered ‘special or ‘exceptional’ it needs to be shown to be inordinate, not simply quantified.
Her Honour originally gave her decision in August 2010 but did not provide written reasons until 19 November 2010.
A similar declaration under the Victorian Charter of Human Rights (Charter of Human Rights and Responsibilities Act 2006 (VIC) ) in the case of R v Moncilovic [2010] VACA 50 (17 March 2010) is on its way to the High Court. In that case, the declaration of incompatibility concerned a conviction for trafficking drugs against a person who was in possession of the premises where the drugs were found. The relevant statute reverses the burden of proof and was therefore found by the Victorian Court of Appeal to be incompatible with the ‘presumption of innocence’ provision in the Charter of Human Rights.
Justice Penfold’s decision more closely followed Moncilovic than it did the previous ACT Supreme Court judgment in R v Fearnside [2009] ACTA 3, effectively reducing the ability of the courts to ‘read in’ human rights to existing laws.
–Noor Blumer
(Noor Blumer is a principal of Blumers Lawyers,
a specialist accident and personal injury firm in the ACT)