Court power to remedy a human rights breach does not need to be expressly included in human rights legislation

LM v Childrens Court of The Australian Capital Territory and The Director of Public Prosecutions for the ACT [2014] ACTSC 26 (24 February 2014)

The ACT Supreme Court has confirmed that the ACT Children’s Court has the power to stay proceedings in cases where the Public Prosecutor has breached the Human Rights Act 2004 (ACT).

While this case did not merit the grant of a permanent stay of proceedings, such a remedy is available within the existing powers of the Children’s Court in certain circumstances, including where abuse of process is proved.


On 21 February 2013, LM, a minor, was charged with assault occasioning actual bodily harm (the First Charge) in relation to events allegedly occurring on 11 August 2012. LM pleaded guilty to the First Charge and the matter was adjourned to 11 June 2013 for sentencing. It was then adjourned again, to 22 July 2013, to enable a pre-sentence report to be obtained.

On 18 July 2013, four days before her scheduled sentencing hearing, LM’s lawyer was notified of a second charge to be laid against her, recklessly inflicting grievous bodily harm (the Second Charge), arising out of the same set of facts.

LM applied for a permanent stay of proceedings, arguing that the conduct of the proceedings, including multiple adjournments and the delay in the filing of the Second Charge against her four days prior to the sentencing hearing in respect of the First Charge, to which she had pleaded guilty, breached her rights under the HR Act, specifically:

  • the right to a fair trial (section 21(1));
  • the right to be tried without unreasonable delay (section 22(2)(c)); and
  • the requirement that a child must be brought to trial as quickly as possible (section 20(3)).

The Magistrate found that the rights to fair trial and to be tried without unreasonable delay had not been breached in this particular case. However, the Magistrate did find that the requirement that children be brought to trial as quickly as possible had been breached given the time it took to lay the Second Charge.

Despite finding that the DPP, a public authority within the meaning of section 40B of the HR Act, was bound by that Act, and that breach of section 20(3) had occurred, the Magistrate rejected LM’s application.

Reasons included that:

  • the remedy sought – a permanent stay of proceedings – was an express power only granted to the Supreme Court; and
  • while the Children’s Court has the power to grant a “common law remedy” to grant a permanent stay of proceedings as sought, since no prejudice flowed from the delay the exercise of that power would be inappropriate.


On appeal, LM argued that the Magistrate’s decision to refuse her application for a permanent stay suffered from jurisdictional error by “failing to recognise that a stay based on abuse of process was not limited to circumstances where prejudice or unfairness of any ultimate trial could be demonstrated.” LM further argued that abuse of process could occur solely based on the breach of the HR Act, and that no prejudice need be demonstrated. LM sought:

  • quashing of the decision refusing to issue a permanent stay of proceedings on the basis of the jurisdictional error; and
  • an order compelling the Children’s Court to determine her application.

The Supreme Court found that while only the Supreme Court is given express power to remedy breaches of the HR Act under that Act, inferior courts (such as the Children’s Court) have the power to issue remedies for HR Act breaches which are within their existing powers and processes. This includes the power to grant a permanent stay of proceedings where, for example, because of a delay, “the trial would be oppressive amounting to an abuse of process”.

The Supreme Court found that a breach of the HR Act by the DPP could amount to an abuse of process. While recognising that the categories of abuse are not closed, the Supreme Court noted that there are generally three ways where use of court’s procedures will amount to an abuse of process, being where the use:

a)     is for an illegitimate purpose;

b)     is unjustifiably oppressive to one party; or

c)     would “bring administration of justice into disrepute”.

While a breach of the HR Act by the DPP in the conduct of proceedings may amount to an abuse of process under (c), his Honour considered that in a case such as the present the court is asked to reconcile two different forms of unlawfulness – the criminal acts of LM and the breach of the HR Act by the DPP. In the present case, his Honour was not convinced that a stay of proceedings should have been considered as a remedy for the breach of the HR Act made out.


This case is an important acknowledgement of inferior courts’ powers to remedy breaches of the HR Act. While only the Supreme Court is granted express powers to remedy breaches of the HR Act, this decision confirms inferior courts’ ability to issue remedies for such breaches within the confines of their existing powers, including the power to permanently stay proceedings. 

While the rights to fair trial and a trial free from abuse of process are often conceptualised as some of the most fundamental rights, particularly in a democratic society, this case serves as an important reminder that even fundamental rights such as those at play here are subject to limitation. The express statutory protection of human rights raises questions for the court as to how fundamental that protection is. As Master Mossop of the Supreme Court asks, is a breach of human rights under the HR Act “unlawful in the same way as the Crimes Act renders murder unlawful? Or does it mean unlawful in some administratively more convenient sense of being a gateway to the grant of relief”.

Balancing an individual’s human rights against the functions of the criminal justice system, community expectations and norms is a fraught and difficult exercise. In cases such as these, the courts must “choose between staying criminal prosecutions or condoning breaches of human rights.” In these circumstances, there is no necessarily positive outcome: “a public interest will, and will be seen to be, frustrated”.

This decision is available online:

Liz Austin is a solicitor at Tresscox Lawyers.