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.
To notify the Commission of proceedings involving the Human Rights Act 2004, please do so by email to human.rights@act.gov.au or send by post to GPO Box 158 CANBERRA ACT 2601. If you have any questions about our intervention work or about notifying us of a human rights matter, please contact us on (02) 6205 2222 or by email.
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.
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.