37 year old Isa Islam has been in custody since mid 2009 after an incident that resulted in charges that include attempted murder, intentionally inflicting grievous bodily harm and assault occasioning actual bodily harm. In applying for bail his representative highlighted delays in commencement of the trial and argued special circumstances. Justice Penfold was unimpressed, refusing bail. She indicated that -
On 13 August 2010 I refused his application on the ground that no special or exceptional circumstance favouring the granting of bail had been identified and that s 9C of the Bail Act accordingly precluded me from considering whether bail could properly be granted in accordance with s 22 of that Act. In dealing with Mr Islam's application I indicated that, because of the nature and significance of some of the issues that had been raised in the application, I would provide written reasons for my decisionIn unpacking the case Penfold J indicated that -
Two fundamental issues concerning the operation of the Human Rights Act arose in this application, as follows:She notes that s 28(1) of the ACTHRA "importantly, permits human rights to be limited by Territory laws, but only to the extent of 'reasonable limits ... that can be demonstrably justified in a free and democratic society'".
a) What is the process by which a court should consider a claim that a provision of a Territory law is inconsistent with human rights (the process question)?
b) In considering a human rights-based challenge to a provision of a Territory law, what approach should the court take to interpreting the provision (the interpretation question)?
Her judgement goes on to declare that section 9C of the ACT Bail Act 1992 (ACT) that applies to accused people facing potential life sentences is inconsistent with section 18(5) of the Human Rights Act 2004 (ACTHRA), which indicates that anyone awaiting trial must not be detained in custody as a general rule. The Human Rights statute does not override other ACT legislation. Section 32 provides that if the Supreme Court finds that a Territory law is not consistent with a human right, the Court may make a declaration of incompatibility. Section 32(3) provides that such a declaration does not affect the operation of the Territory law, or anyone’s rights or obligations. Section 33 requires a declaration of incompatibility, and a response from the Attorney-General, to be presented to the Legislative Assembly
Justice Penfold's declaration will be brought to the Attorney-General's attention, with the A-G being obliged, under the the ACTHRA, to present it to the Legislative Assembly for a response. Any change to the Bail Act will be a matter for the Legislative Assembly.
Penfold J comments that -
I can think of no reason, having made a finding of inconsistency, for not making a declaration of incompatibility. The declaration has no legal significance for the application or operation of the relevant provision but its significance as a step in the “dialogue” involving the courts, the executive and the legislature (if three parties can have a dialogue), should not be overlooked. The "dialogue" model was proposed in the Report of the ACT Bill of Rights Consultative Committee, ACT Parliament, Towards an ACT Human Rights Act (2003) and referred to by the Attorney-General in his speech on the introduction of the Human Rights Amendment Bill 2007 (Australian Capital Territory, Hansard, Legislative Assembly, 6 December 2007, 4028 (Simon Corbell, Attorney-General)). Relevantly, the approach is that "the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act".
There may be an argument that the making of the formal declaration is not a judicial function. Without addressing that possibility, I note that the declaration, while expressed in a form reflecting the relevant provision of the Human Rights Act, is in content no more than a re-statement of a conclusion of incompatibility reached at the end of one of the steps in the process of interpreting s 9C in order to determine Mr Islam’s bail application
