In the Matter of an Application for Bail by Isa Islam  ACTSC 147 (19 November 2010)
The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent with the right to liberty under s 18 of the ACT Human Rights Act 2004 (‘HR Act’). Section 9C of Bail Act requires those accused of murder, certain drug offences and ancillary offences, to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken. This was found to be inconsistent with the requirement in s 18 of the HR Act that a person awaiting trial not be detained in custody as a ‘general rule’.
Consistent with the dialogue model of the ACT HR Act, the law declared incompatible continues to operate in its original form, and power rests in the Legislative Assembly alone to amend it.
The applicant, Mr Islam, was arrested and charged with a range of offences including attempted murder. Mr Islam applied for bail on 21 May 2010. On 13 August 2010, Penfold J refused his application, and on 19 November issued her written decision. The key issues in Her Honour’s decision were:
- Did exceptional circumstances exist demonstrating that Mr Islam’s application for bail should be considered under the normal bail tests?
- In determining this question, the Court had to consider the appropriate method of interpreting ACT legislation in accordance with ss 30 and 28 of the HR Act.
- If s 9C could not be interpreted consistently with the HR Act, should the Court issue a declaration of incompatibility?
Where in a proceeding in the ACT Supreme Court a question arises involving the application of the HR Act, notice of the proceeding must be given to the Attorney-General and the Human Rights Commissioner.
The Attorney-General has a right to intervene in such matters and he did so. The Human Rights Commissioner must seek leave to intervene. The Commissioner did not seek leave and instead made amicus curiae submissions. The Commissioner’s submissions focused on the methodology that could be adopted by the Court in applying s 30 of the HR Act, and noted some of the human rights issues relevant to presumptions against bail.
Did exceptional circumstances exist?
Under s 9C of the ACT Bail Act, those charged with murder or certain serious drug offences must show ‘special or exceptional circumstances’ to have the usual considerations for bail under s 22 applied.
Whilst not making substantive submissions on the issue, Mr Islam tentatively raised the issue of delay in his trial. Counsel for Mr Islam instead focussed his arguments on ‘re-interpretation’ of s 9C based the HR Act.
What is the appropriate method of applying the HR Act to ACT laws?
Section 30 of the HR Act requires legislation to be interpreted in a way that is compatible with human rights, so far as that interpretation is consistent with its purpose.
Her Honour noted that s 28 of the ACT HR Act was relevant to the question of interpretation. That section states that limits may be placed on human rights, but only where such limits are ‘demonstrably justified in a free and democratic society’. Consideration of whether a limit on human rights is justified involves assessing the purpose of the limitation, the relationship between the limitation and its purpose, and whether there is any less restrictive means reasonably available to achieve the limitation’s purpose.
International and Comparative Law
The Applicant sought to rely on the decision of the House of Lords in Ghaidan v Godin-Mendoza  AC 557, which found that the UK equivalent of s 30 could be used to broaden the meaning of legislative provisions to ensure they are consistent with human rights, even where there is no ambiguity in their meaning. The House of Lords noted that this would lead to ‘far-reaching’ impacts including ‘reading in’ many undrafted words.
Human Rights vs General Interpretation
In applying, and at times critiquing, elements of the Explanatory Statement to the ACT Human Rights Bill 2003, Her Honour found that the intention of the original s 30 was not to displace the legislative purpose test of interpretation found in s 139 of the Legislation Act. Instead, it required that a human rights interpretation be subject to the obvious purpose of the legislation.
However, amendments to s 30 in 2008 removed the requirement that s 30 be applied subject to any other legislation. The amendments included what Her Honour described as a ‘non-committal’ note to s 139 of the Legislation Act that s 30 of the HR Act was also ‘relevant to interpreting territory laws’. This created ambiguity about how the two provisions should interact.
The Applicant argued that the Explanatory Statement to the 2008 amendments made explicit reference to Ghaidan, and therefore reflected the Legislative Assembly’s intention that it be the applicable authority in relation to the HR Act.
R v Fearnside
It was assumed by many prior to this case that the methodology adopted by Besanko J in the ACT Court of Appeal case R v Fearnside  ACTCA 3 was the applicable authority for the application of s 30 to ACT law. Justice Besanko did not explicitly endorse Ghaidan in Fearnside, however he did suggest s 30 would allow a court to interpret a law compatibly with human rights and consistent with its purpose, even if that interpretation would ‘not necessarily best achieve the purpose of that provision’. Justice Besanko appeared to endorse a three-step approach proposed by counsel for the Attorney-General in that case:
(a) Does the legislative provision in question ‘enliven’ a human right?
(b) If yes to (a), does the provision contain a limitation which is reasonable within s 28 of the Human Rights Act?
(c) If no to (b), how should the provision be interpreted in accordance with s 30 of the Human Rights Act?
The three-step process used in Fearnside has been applied or referred to positively in a number of subsequent ACT cases, including the Supreme Court case of Hakimi v Legal Aid Commission (ACT)  ACTSC 48 and the ACT Civil and Administrative Tribunal case of Thomson v ACTPLA  ACAT 38.
A new test for the ACT
Earlier this year, the Victorian Court of Appeal issued the first declaration of incompatibility under human rights legislation in Australia in R v Momcilovic  VSCA 50. The Court in Momcilovic also declined to adopt Ghaidan but applied a more narrow approach than that in Fearnside. The Court favoured applying the interpretative provision (s 32(1) of the Victorian Charter) prior to applying the limitation provision (s 7(2)).
Justice Penfold clarified that the comments of Besanko J in Fearnside were obiter and therefore not binding. Her Honour was swayed by the reasoning of the Victorian Court of Appeal in Momcilovic, particularly their characterisation of human rights interpretative provisions as having the same status as other applicable common law and statutory rules. Her Honour also suggested that the Momcilovic test retained the primacy of the legislature to legislate, even if at times incompatibility with human rights. Her Honour saw particular desirability in avoiding a justification inquiry under s 28, if by applying s 30 first, an interpretation both human rights-compatible and consistent with legislative purpose could be found.
Her Honour also responded to assertions from the Attorney-General that international law was not consistent with Momcilovic by identifying that there was support for that approach in the Canadian case of R v Oakes  1 SCR 103, the UK case of Poplar Housing and Regeneration Community Association Ltd v Donoghue  GB 48 and the Hong Kong case of HKSAR v Lam Kwong Wai  HKCFA 84.
She therefore broadly adopted the Momcilovic methodology. However, Her Honour also found the construction of the relevant ACT provisions meant this methodology required further ‘gloss’ for the ACT context:
Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the Human Rights Act but also meanings that would be available apart from s 30.
Step 2: Set aside for the time being any available meaning that is not human rights-compatible under s 30.
Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).
Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.
Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.
Step 4: Undertake an inquiry under s 28 of the Human Rights Act into whether any of those re-instated available meanings can be justified.
Step 4A: If only one meaning can be justified, it is adopted.
Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.
Step 4C:If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.’
Was the Bail Act consistent with the HR Act?
Her Honour then proceeded to apply this test to s 9C of the Bail Act. Her Honour found s 9C could be interpreted in two possible ways, based on general rules of statutory interpretation. In applying s 18(5) of the HR Act to the two meanings, Her Honour found that as s 9C applied a general rule implementing a presumption against bail, it was not compatible with the requirement in s 18(5) that no one be detained in custody as a general rule.
In applying s 28 of the HR Act, she found that the limits of s 9C of the Bail Act were not proportional to the importance of its purpose.
Therefore, Her Honour found that neither of the available meanings of s 9C could be justified under s 28. She found that the preferred meaning was the one which best achieved the apparent legislative purpose. This was that s 9C sought to apply a threshold barrier to consideration of a bail application, being that the court must be satisfied of special or exceptional circumstances before considering a grant of bail.
Were there exceptional circumstances?
Her Honour was not able to find a special or exceptional circumstances affecting Mr Islam and she denied bail.
Declaration of Incompatibility
Having found that s 9C of the Bail Act could be not be interpreted consistently with the HR Act, Her Honour proceeded to issue a declaration of incompatibility under s 32 of that Act. Pursuant to the HR Act, the legislation continues to operate in a manner consistent with its original purpose.
Under s 33 of the HR Act, the Attorney-General must present a copy of the declaration to the Legislative Assembly within 6 sitting days and must prepare a written response within 6 months after its presentation. There is no requirement for the Legislative Assembly to amend the law, and it can remain in its original form.
Declarations of incompatibility have been described as ‘booby-prizes’, as parties can successfully argue human rights principles yet the law remain unchanged. In the cases of both Islam and Momcilovic more time in prison was the outcome for both individuals.
The ACT Legislative Assembly next sits in December. The ACT Government has not yet commented on whether it believes s 9C should remain in its current form.
Mr Islam is unlikely to appeal in the immediate future, as his trial began on 22 November 2010.
One clear benefit of this decision is that the two Australian human rights jurisdictions – the ACT and Victoria – now have generally consistent jurisprudence on the application of the operational provisions of their human rights laws. However, the potential for human rights legislation to be used to ‘read in’ human rights to existing laws has diminished significantly, particularly when compared to the high watermark in the United Kingdom. Both Australian jurisdictions have decades of legislation that pre-dates human rights legislation. Therefore, without the ability for courts to re-interpret such laws broadly, more declarations are likely in the coming years.
The decision is at www.courts.act.gov.au/supreme/judgments/islam.htm.
Sean Costello is Human Rights & Discrimination Legal Policy Adviser with the ACT Human Rights Commission