Under the Human Rights Act 2004, the ACT Human Rights Commissioner is able to intervene, subject to leave being granted, in court and tribunal proceedings that raise human rights issues. As intervener, the Human Rights Commissioner advocates for and explains how the Human Rights Act works to assist the court. The Commissioner does not represent or advocate for individual parties.
The Commission encourages practitioners to notify us about any proceedings that raise arguments about the Human Rights Act or to contact us with questions about our intervention work
This case concerned whether ACT Corrective Services had respected a detainee’s minimum entitlement to one hour of open air and exercise as required under s 45 of the Corrections Management Act 2007 (CMA). The detainee was subject to separate confinement in the Management Unit at the AMC, and at issue was whether granting the detainee access to an enclosed rear courtyard (approximately the same dimensions as their cell, with four solid walls and metal mesh overhead) met those obligations. The right to humane treatment when deprived of liberty in s 19(1) of the Human Rights Act 2004 (HR Act) was central to the proceedings.
The ACT Supreme Court held that access to the rear courtyard of the Management Unit did not comply with s 45 of the CMA, and also declared invalid a clause in a June 2019 operating procedure by reason of it being inconsistent with s 45 of the CMA. The court further declared that the defendant had breached the detainee’s human rights under s 19(1) of the HR Act, and issued declaration of incompatibility with respect to cl 4.3 of the 2019 operating procedure.
The decision is significant for its detailed discussion of public authority obligations and how to use the HR Act to interpret legislation compatibly with human rights. It is also only the second instance of a declaration of incompatibility being issued by the ACT Supreme Court, and comes more than ten years after the first declaration was made in 2010.
The ACT Supreme Court confirmed that the appointment of an intermediary, in and of itself, does not engage an accused’s right to a fair hearing or their right to examine witnesses on the same terms as the prosecution (as recognised in s 22(2)(g) of the Human Rights Act 2004 (HR Act)). In reaching its decision, the court also affirmed that a fair trial involves a “triangulation of interests” of taking into account the position of the accused, the victim and his or her family, and the public. The decision is a timely recognition of the role of witness intermediaries in upholding the rights of complainants in the conduct of court proceedings, including equality, protection of children and the right to a fair hearing.
For the first time, the ACT Supreme Court has recognised that the circumstances of mixing of sentenced and remand prisoners and the prima facie breach of the offender’s rights under s 19(2) of the Human Rights Act 2004 are matters which may be taken into account in sentencing the offender.
Section 19(2) of the Human Rights Act 2004 states that accused people must be segregated from convicted people, except in exceptional circumstances. In R v McIver [2022] ACTSC 206, a remandee at the Alexander Maconochie Centre (AMC) was sentenced for recklessly inflicting grievous bodily harm in retaliation against a sentenced detainee who had earlier attacked him.
In considering the importance of general deterrence in prison, Mossop J took into account the causal link between the offending and the individual’s circumstances of incarceration with a sentenced prisoner. He noted the prima facie breach of the Human Rights Act was a relevant consideration for sentencing. He did not, however, accept that the breach rendered the offence one that was committed while not in ‘lawful custody.’
The Commission has previously raised concerns about the mixing of remanded and sentenced detainees, which has been a longstanding practice in the AMC. While this inconsistency with s 19(2) remains unaddressed in the AMC, Mossop J’s comments may be helpful to practitioners whose clients have been convicted of offences committed in custody and who wish to rely on their rights under the Human Rights Act in legal proceedings (see s 40C(2)(b)).