R v AM  ACTSC 149 (15 November 2010)
The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences. An applicant sought to argue that her consciousness beliefs should provide her a defence to otherwise criminal conduct, and if not, that the Court should issue a declaration of incompatibility on the basis the relevant offence was inconsistent with the HR Act.
AM is charged with contravening a protection order under s 90 of the ACT Domestic Violence and Protection Orders Act 2008 (‘the DVPO Act’). She had previously been committed to stand trial. That Act replaced the former Domestic Violence and Protection Orders Act 2001 following the judgment in SI bhnf CC v KS bhnf IS  ACTSC 125, a decision which also raised issues under the ACT Human Rights Act 2004.
Earlier this year, AM’s parents each obtained Interim Domestic Violence Orders prohibiting AM from attending their residence until 24 March 2010. AM was served with both orders on 15 February 2010. On 16 February 2010 she attended their home and was arrested.
Prior to her trial, in these proceedings, AM sought two orders in relation to her criminal charges. Firstly, that the Interim Domestic Violence and Protection Orders taken out by her parents be declared invalid, and, secondly, that she be allowed to defend herself according to the defence of lawful authority under ACT Criminal Code, using s 14 of the HR Act in her trial. Alternatively, she sought a declaration that parts of the Criminal Code 2002 were inconsistent with the HR Act.
Striking out of Original Orders
Refshauge J quickly dismissed the first application on the basis that it was inappropriate to deal with such an order because the correct parties, being AM’s parents, were not before the Court. His Honour also found that because the order was one of an inferior court, the challenge should have been on the basis of a jurisdictional error and not merely that the order should not have been issued.
What is Freedom of Conscience?
His Honour dealt with the interaction between the HR Act and DVPO Act in some detail. Section 14 of the HR Act provides that everyone has the right to freedom of thought, conscience and religion. This includes freedom to have or adopt a religion or belief, and the freedom to demonstrate his or her religion or belief in public or private. Subsection 14 (2) states,
No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.’
His Honour noted that in several Australian cases freedom of conscience in relation to military service had been found to include conscientious objection, including Barwick CJ of the High Court in R v District Court of the Northern District of the State of Queensland; Ex parte Thompson (1968) 118 CLR 488:
A conscientious belief because it is a matter of conscience with its compulsive quality is durable though not unchangeable...The inclusion of non-combatant service in the exemption indicates the wide sweep which the conscientious objection must have. Such a belief must be carefully distinguished from mere intellectual persuasion which by its very nature maybe transient.
In a human rights context, Refshauge J noted the potential difference between religious beliefs and conscience, citing the comments of Linden JA in the Canadian case of Roach v Canada (Minister for State of Multiculturalism and Citizenship) (1994) 113 DLR (4th) 67. Burton J of the UK Employment Appeals Tribunal (Grainger PLC v Nicholson  UKEAT 0219/09/ZT) recently reviewed the relevant UK authorities, and suggested that in order to be recognised,
(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others.
In reviewing the authorities both locally and in other human rights jurisdictions, Refshauge J concluded.
There is a strong sense that freedom of conscience, unlike freedom of religion, is limited to the beliefs and mental processes of an individual and that it does not necessarily protect any action motivated by the conscience of the person.
Application to AM
His Honour had difficulty determining from her submissions what AM’s conscientious beliefs were, short of pacifism. Whilst noting that the authorities recognised such a belief, it was also inconsistent with her actions in breaching a protection order. At its highest, His Honour characterised her beliefs ‘a conscientious obligation to confront persons whom she believes have inflicted harm on her and to do so in a non-violent way.’ Even then, His Honour found such a belief would not be consistent with the definitions of conscience, as it seemed to lack the ‘serious, cohesion and importance that is necessary’. Such a belief also seemed to conflict with her parents rights to privacy, security of person and perhaps freedom of association under the HR Act.
His Honour nonetheless also considered how freedom of conscience should interact with the criminal law using s 30 of the HR Act. 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. This decision predated that of R v Islam  ACTSC 147, which appeared to lay out a new test for the application of s 30 to ACT laws. His Honour therefore applied the decision of the ACT Court of Appeal in R v Fearnside (2009) 3 ACTLR 25. That test essentially requires that in applying the HR Act to ACT legislation, the court should consider whether the law infringes a human right, and if so, if that infringement is justified under s28 of the HR Act.
His Honour applied this test to s 90(2) of the DVPO Act 2008. He found that even if AM’s beliefs were to constitute a conscientious belief, and therefore engage the protection of s 14 of the HR Act, the offence of breaching a protection order under s.90 of the DVPO Act would be justified. His Honour stated,
It is clear to me that public safety and order are clearly purposes of Domestic Violence Orders and, as such, they are justified as restraints on the actions of others. Indeed, there may be some obligation for the Territory to make such protections.
Even if AM had successfully argued that s 90 was an unjustified limitation on s 14 of the HR Act, a declaration of incompatibility may have been the only result and that would not have helped her. Such declarations do not result in a change to the law, but rather oblige parliament to reconsider the law in question. The Court applies in the law in its current, incompatible state.
AM also sought to rely on s 43 of the ACT Criminal Code, which provides that a person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under a law. She sought to argue that a law in this context should include the HR Act. In finding that AM did not have the requisite conscientious belief under s 14 of the HR Act, His Honour refused this order. He did note however that she might argue in her trial that her views were relevant to questions of the requisite fault elements of mens rea of the offence.
Whilst AM failed to prove that her beliefs met the requisite test of a conscientious belief under the HR Act, His Honours decision provides some guidance as to how the courts in the ACT will interpret freedom of conscience. The decision also seems to leave open the possibility that a person with a conscientious belief under the HR Act might be able to argue the defence of lawful authority under the Criminal Code.
The decision is at http://www.courts.act.gov.au/supreme/judgments/am.htm.
Sean Costello is Human Rights & Discrimination Legal Policy Adviser with the ACT Human Rights Commission