Lewis v Australian Capital Territory  ACTSC 19 (16 February 2018)
The Supreme Court of the Australian Capital Territory held that section 18(7) of the Human Rights Act 2004 (ACT) (Act) does not create a new right or new remedy for compensation for unlawful arrest or detention. The tort of false imprisonment provides adequate protection for that right.
On 24 January 2008, Mr Lewis pled guilty to the offence of recklessly or intentionally inflicting actual bodily harm and was sentenced to a term of 12 months imprisonment, but the Court ordered the term to be served by periodic detention, rather than full time imprisonment. Mr Lewis was required to report to the police every Friday evening, and be held in custody until Sunday afternoon each week during the 12 month sentence.
The Sentence Administration Board (Board) had the power, and was required to, cancel the periodic detention order if Mr Lewis failed, without reasonable excuse, to report for detention on two or more occasions.
Mr Lewis failed to report on three occasions, and on a fourth was turned away due to returning a positive alcohol test. On 12 May 2008, Mr Lewis left Canberra for work without notifying the relevant authority, and failed to report for detention after this date.
Between 12 May 2008 and 7 July 2008, the Board sent correspondence to Mr Lewis about an upcoming inquiry regarding Mr Lewis' breach of the periodic detention order and directed him to attend the enquiry. Mr Lewis received this correspondence upon his return to Canberra, but did not read it.
On 8 July 2008, the Board conducted an inquiry in the absence of Mr Lewis and:
- cancelled the periodic detention order;
- ordered that a warrant be issued for Mr Lewis' arrest; and
- ordered that, on his arrest, Mr Lewis serve the balance of his sentence in full-time custody.
Mr Lewis was arrested on 5 January 2009, and spent 82 days in full time custody.
Subsequently, Mr Lewis successfully challenged the Board's decision to cancel the periodic detention order, and the Board's decision was set aside on grounds of procedural fairness.
Mr Lewis then commenced proceedings against the ACT, on the basis that Board's decision was invalid from the time it was made, and therefore his full time detention was unlawful. Mr Lewis sought:
- damages under common law for false imprisonment; and
- compensation under section 18(7) of the Act.
The ACT argued that the decision was valid up until it was set aside, and that full-time custody was authorised by the original sentence imposed by the Court.
Justice Refshauge held that Mr Lewis' detention in full time custody was unlawful and constituted false imprisonment. His Honour found that:
- A denial of procedural fairness amounts to a jurisdictional error. Consequently, the Board's decision to cancel the periodic detention order was invalid from the time it was made.
- As there was no valid cancellation of the periodic detention order. In circumstances where the periodic detention order remained on foot, the sentence imposed by the Magistrate did not authorise full-time custody.
- Mr Lewis was only entitled to nominal damages and awarded judgment for Mr Lewis in the sum of $1.00. Mr Lewis was not entitled to compensatory or aggravated damages.
His Honour also considered whether Mr Lewis was entitled to compensation under section 18(7) of the Act, which provides that "anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention".
Justice Refshauge held that the Act does not provide for additional compensation above and beyond damages for the tort of false imprisonment. His Honour held that:
- The purpose and intent of the Act is to set human rights standards, so that domestic legislation and law can be measured, judged and construed against those standards.
- Section 18(7) is not intended to go further than stating the right it expresses, namely that a person should have a right to compensation for unlawful detention. Through the Act, the ACT recognises that the right should be extended to persons subject to its laws.
- Section 18(7) is not procedural or intended to amend the law; nor does it create a new right to a new remedy.
- The tort of false imprisonment meets the right expressed in section 18(7) of the Act, and provides adequate protection for that right.
- The right under section 18(7) is simply the expression of a right to compensation; a proper calculation of damages for false imprisonment satisfies that right.
This decision clarifies the role and scope of section 18(7) of the Act. Justice Refshauge construed the Act as a tool to assist the judiciary in evaluating legislation and executive action. Sections 18(7) and 23 are exceptions to the general provision in section 40C of the Act that a person cannot obtain damages under the Act in a proceeding on a claim of contravention of a right protected by the Act. This decision confirms that section 18(7), and by extension of this reasoning section 23, does not create new rights or provide for free-standing claims for damages. Rather, section 18(7) operates as a general expression of the right to compensation for unlawful detention; Justice Refshauge was satisfied that the tort of false imprisonment gives the protection that the right requires.
His Honour contrasted the Act with the New Zealand Bill of Rights Act 1990 (NZ) (New Zealand Act), which affirms New Zealand's commitment to the International Covenant on Civil and Political Rights, requiring each State Party will ensure that people who have had their rights violated 'shall have an effective remedy'. Unlike the Act, the New Zealand Act has been found to create a new right to a new remedy.
Note that when the Act was originally introduced, it did not contain any express remedies other than the power for the Supreme Court of the ACT to make a 'Declaration of Incompatibility'. The Act was subsequently amended in 2008 to include Part 5A. Under Part 5A, a person may commence proceedings against a public authority for contravention of the Act, and the Supreme Court of the ACT now has the power to grant the relief it considers appropriate, except damages.
Presently, the ACT and Victoria are the only territory and state respectively to pass dedicated human rights legislation. The decision is pertinent as Queensland is currently drafting its own Human Rights Act and there are campaigns on foot for other states to pass human rights legislation. Any state intending to introduce human rights legislation should take into account the importance of carefully drafting remedial provisions so that victims are able to bring proceedings and receive an effective remedy, while having regard to the risk of legislative undermining and implied repeal.
The full decision can be found here.
Danica Goodbody is a Senior Associate at Allens. Kate Strachan is a Law Graduate at Allens.