{"id":400910,"date":"2021-11-22T23:52:37","date_gmt":"2021-11-22T23:52:37","guid":{"rendered":"http:\/\/castancentre.com\/?p=5487"},"modified":"2021-11-22T23:52:37","modified_gmt":"2021-11-22T23:52:37","slug":"interstate-human-rights-jurisprudence-confirms-the-certainty-and-coherence-of-the-victorian-charter-but-we-can-learn-a-thing-or-two-from-queensland","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/11\/22\/interstate-human-rights-jurisprudence-confirms-the-certainty-and-coherence-of-the-victorian-charter-but-we-can-learn-a-thing-or-two-from-queensland\/","title":{"rendered":"Interstate Human Rights Jurisprudence Confirms the Certainty and Coherence of the Victorian Charter, but We Can Learn a Thing or Two from Queensland"},"content":{"rendered":"\n

By Scott Walker <\/strong><\/p>\n\n\n\n

The Supreme Court of Queensland recently delivered a landmark judgment<\/a> (the Owen-D\u2019Arcy <\/em>judgment) on the operation of the Human Rights Act 2019 <\/em>(Qld)<\/a> (HRA).[1]<\/a> <\/sup>The HRA is Australia\u2019s most recently enacted human rights statute joining those already in force in Victoria<\/a>[2]<\/a> <\/sup>and the Australian Capital Territory<\/a>.[3]<\/sup><\/a> These human rights statutes mark a change from the traditional reliance on representative arms of government for the \u2018protection and promotion of human rights\u2019 in Australia.[4]<\/sup><\/a> Although the HRA has been previously considered by Queensland courts and tribunals,[5]<\/sup><\/a> the Owen-D\u2019Arcy <\/em>judgment is the first opportunity that the Queensland Supreme Court has had to substantively consider the HRA\u2019s operation.<\/p>\n\n\n\n

The Owen-D\u2019Arcy <\/em>judgment brings to mind observations made by the Castan Centre\u2019s Executive Director, Professor the Hon Kevin H Bell AM QC earlier this year at the Castan Centre Human Rights Conference<\/a>. In his presentation<\/a> on the Victorian Charter of Human Rights and Responsibilities <\/em>(Victorian Charter), Bell argued that the Victorian Charter has developed to operate \u2018with certainty and coherence\u2019, \u2018but not always optimally\u2019.[6]<\/sup><\/a>  It is the certainty and coherence of the Victorian Charter that I seek to here address.<\/p>\n\n\n\n

The Facts<\/strong><\/h3>\n\n\n\n

Michael Owen-D\u2019Arcy (applicant) committed murder in July 2007 and was subsequently convicted and sentenced to life imprisonment.[7]<\/sup><\/a> On approximately 29 January 2013, a Maximum Security Order (MSO) was issued with respect to the applicant and was thereafter renewed every six months.[8]<\/sup><\/a> The MSO was issued \u2018on the basis that [the applicant] posed a high risk of killing or seriously injuring other prisoners or other persons with whom he may come into contact\u2019.[9]<\/a> <\/sup>The MSO required that the applicant be accommodated within a single cell,[10]<\/sup><\/a> be permitted two telephone calls of 10 minutes duration each week,[11]<\/sup><\/a> be permitted the opportunity of at least two hours exercise in fresh air in daylight,[12]<\/sup><\/a> and be entitled one non-contact visit per week for one hour.[13]<\/sup><\/a> The decision to issue the MSO (MSO Decision) was made on 17 June 2020 and was effective from 18 June 2020 to 16 December 2020.[14]<\/a> <\/sup> A \u2018no association direction\u2019 (No Association Decision) was made together with the MSO Decision.[15]<\/a> <\/sup>The No Association Decision provided that the applicant was \u2018not permitted contact associations with other prisoners \u2026 without approval\u2019.[16]<\/sup><\/a><\/p>\n\n\n\n

The applicant sought judicial review of the MSO Decision and the No Association Decision alleging that, in making the decision, the decision-maker failed (inter alia) to afford to the applicant natural justice and breached a number of the applicant\u2019s human rights under the HRA.[17]<\/sup><\/a> In the alternative, the applicant also sought relief under s 59 of the HRA which provides that a person may seek remedy or relief in relation to an act or decision of a public entity if the decision was unlawful for a reason other than under the HRA.[18]<\/sup><\/a><\/p>\n\n\n\n

The Court\u2019s Decision on Judicial Review and the Obligation to Give Proper Consideration<\/strong><\/h3>\n\n\n\n

The applicant succeeded, in part, on his application for judicial review in so far as Martin J held that the decision-maker failed to take into account the effect of the No Association Decision on the applicant\u2019s human rights, which was a relevant consideration.[19]<\/sup><\/a> Martin J identified that s 58(1) of the HRA,[20]<\/sup><\/a> which concerns the obligations of public entities to act compatibly with human rights (substantive limb) and to give proper consideration to relevant human rights in the making of a decision (procedural limb),[21]<\/sup><\/a> required the decision-maker to consider whether the decision was compatible with the applicant\u2019s human rights.<\/p>\n\n\n\n

In reaching this conclusion, Martin J held that it was not sufficient for the decision-maker to refer broadly and imprecisely to \u2018prisoner Owen-D\u2019Arcy\u2019s human rights\u2019.[22]<\/a> <\/sup>In particular, the decision-maker did not turn their mind to the applicant\u2019s right not to be treated or punished in a cruel, inhuman or degrading way or his right to be treated with humanity and respect for the inherent dignity of the human person when deprived of liberty.[23]<\/sup><\/a> As the attention given to the applicant\u2019s human rights was \u2018was superficial at best\u2019,[24]<\/sup><\/a> the decision-maker failed to take into account a relevant consideration in the making of the No Association Decision. [25]<\/sup><\/a><\/p>\n\n\n\n

The Court\u2019s Decision on the Human Rights Act Claim<\/strong><\/h3>\n\n\n\n

The Applicant\u2019s Claim<\/em><\/p>\n\n\n\n

The applicant argued that the MSO Decision and the No Association Decision breached his human rights, namely he argued that:<\/p>\n\n\n\n