{"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 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 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 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 Interpreting the HRA<\/em><\/p>\n\n\n\n As this was the first substantive opportunity for the Court to consider the HRA\u2019s operation, Martin J was required to determine the issues that arise when a breach of human rights recognised in the HRA are alleged. Acknowledging that \u2018[s]ome situations will call for more intensive examination of some issues\u2019, Martin J identified the following steps in determining such a claim:<\/p>\n\n\n\n The human rights recognised in the HRA \u2018are not absolute\u2019 and, as with the Victorian Charter,[30]<\/sup><\/a> the HRA has a general limitations provision.[31]<\/a>This limitations provision \u2018emobod[ies] a proportionality test\u2019. [32]<\/a> Relying on Victorian Charter jurisprudence, Martin J held that in determining whether a limitation had been justified<\/p>\n\n\n\n In interpreting the HRA, international law and the judgment of international courts and tribunals may be drawn upon.[34]<\/a> <\/sup>Such interpretive assistance may also be drawn upon in Victoria[35]<\/sup><\/a> and has been done so extensively.[36]<\/sup><\/a> The HRA should be given a broad construction as the HRA is beneficial legislation.[37]<\/sup><\/a><\/p>\n\n\n\n The Court\u2019s Consideration of the Applicant\u2019s Solitary Confinement<\/em><\/p>\n\n\n\n The evidence presented by the applicant was that, aside from contact with prison officers, he was without physical contact with any other individual since January 2013.[38]<\/a> <\/sup>His cell is small and bare, he is permitted a three minute shower, is only permitted to flush the toilet in his cell six times in a day and his cell is searched daily.[39]<\/sup><\/a>He is allowed two hours of time outside his cell per day.[40]<\/sup><\/a><\/p>\n\n\n\n The applicant\u2019s evidence engaged s 30 of the HRA (the right to humane treatment when deprived of liberty).[41]<\/sup><\/a> The respondent did not justify the limitation placed upon the applicant\u2019s s 30 right arising from the conditions of his detention. In particular, the decision-maker in their reasons does not disclose any basis for the view expressed that there was no alternative available to adequately manage the risk posed by the applicant than making a further consecutive MSO. As Martin J notes, this burden \u2018is a heavy one and cannot be discharged simply by the decision-maker reciting that he or she held a particular belief without providing any basis for that belief\u2019.[42]<\/sup><\/a>This respondent did not attempt to call any evidence in support of justification.[43]<\/sup><\/a> Further, the decision-maker failed to adequately (or at all) appreciate that the MSO was \u2018for a further <\/em>six months \u2013 on to of more than seven years of MSOs\u2019.[44]<\/sup><\/a>As such, the cumulative effect of the applicant\u2019s solitary confinement as a burden on his right ought to be considered.[45]<\/sup><\/a> The No Association Decision also went to the solitary confinement of the applicant as much as the MSO, as it worked \u2018to prevent the applicant from engaging in any meaningful conversations or exchanges\u2019, thus placing \u2018him in a cocoon of isolation from all but the slightest interaction with other human beings\u2019.[46]<\/sup><\/a><\/p>\n\n\n\n In upholding the applicant\u2019s claim for breach of his HRA rights (in part), Martin J held that the MSO Decision was unlawful because it was not compatible with human rights,[47]<\/a> <\/sup>and the decision-maker also failed to adequately consider the decision\u2019s burden on the applicant\u2019s rights.[48]<\/sup><\/a>In relation to the No Association Decision, while the decision-maker considered the applicant\u2019s right to peaceful assembly and freedom of assembly as relevant, the decision-maker did not turn their mind to the right to be treated humanely when deprived of liberty.[49]<\/sup><\/a> Having not sufficiently identified the human rights thereby engaged, the decision-maker could not have given proper consideration to the human rights relevant to that decision.[50]<\/sub><\/a>Accordingly, the No Association Decision was also unlawful.[51]<\/sup><\/a><\/p>\n\n\n\n The Owen-D\u2019Arcy<\/em> judgment draws heavily upon Victorian Charter jurisprudence in interpreting the HRA and ascertaining how it ought to be administered. In this way, it illustrates the certainty and coherence of Victorian Charter jurisprudence as the leading body of human rights jurisprudence in Australia, which itself has been developed alongside the jurisprudence of other leading human rights instruments.[52]<\/sup><\/a> Nevertheless, there is a key point of distinction between the HRA and the Victorian Charter: the obligation on public authorities under both the substantive and procedural limbs.<\/p>\n\n\n\n The Procedural Limb<\/em><\/p>\n\n\n\n The obligation on public authorities to give proper consideration to relevant human rights in making decisions[53]<\/sup><\/a> has been the subject of much consideration by Victorian courts. In Castles v Secretary, Department of Justice<\/em>, Emerton J recognised that there was no \u2018strict formula\u2019, but that the decision-maker must perform a number of steps in order to be found to have given proper consideration, including \u2018understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so, how, those rights will be interfered with by the decision that is made.[54]<\/a> <\/sub>However, the decision-maker need not identify the specific or correct rights which are engaged.[55]<\/sup><\/a><\/p>\n\n\n\n Under the HRA, a decision maker is required to specify the rights engaged by a decision, \u2018in a common sense and practical manner\u2019, [56]<\/a> <\/sup>because of s 58(5) which defines \u2018proper consideration\u2019 non-exhaustively as including:<\/p>\n\n\n\n This is a preferable situation because it explicitly prevents a cursory or general assessment of a person\u2019s human rights by requiring a decision-maker to give a higher degree of attention to the specific rights engaged.<\/p>\n\n\n\n The Substantive Limb<\/em><\/p>\n\n\n\n The HRA has also remedied one of the less effective parts of the Victorian Charter which has seen divided opinion in the High Court in Momcilovic<\/em>,[57]<\/sup><\/a> and an imperfect workaround adopted thereafter. This is in the interpretation of human rights and the relationship with the proportionality analysis (ie, the relationship between ss 23(1) and 7(2) of the Victorian Charter).[58]<\/sup><\/a> For its part, the HRA does away with any such confusion by adopting a single definition of \u2018compatible with human rights\u2019[59]<\/a> <\/sup>which applies wherever that expression is used within the HRA.[60]<\/a> <\/sup>This definition is consistent with early judgments under the Victorian Charter which adopted a proportionality analysis at the interpretation stage.[61]<\/a> <\/sup>Recommendations for a similar provision have been made in Victoria to remedy this inconsistency, but such an amendment has not been made to date.[62]<\/sup><\/a><\/p>\n\n\n\n This position renders the Charter as less than \u2018optimum\u2019, such that it impedes \u2018the fulfilment of its purpose of promoting and protecting human rights of individual Victorians\u2019.[63]<\/sup><\/a> Indeed, of the most important factors of human rights compliance is the promotion and embedding of a culture which respects human rights.[64]<\/a> <\/sup>In the context of the mental health system, for example, this requires that human rights are embedded in service delivery and embedded within law, policy, and practice of the mental health workforce.[65]<\/a> It requires everyone within systems to respect, protect, and fulfil human rights, not merely through recourse to lawyers and the courts with their understanding of the law\u2019s intricacies. This requires an understanding of human rights, which is generally considered to be lacking in Australia, [66]<\/a><\/sup> as a necessary step for ensuring human rights compliance. The Victorian Charter, and its operation, should therefore be readily comprehensible. This comprehensibility is risked and human rights compliance worse off because of this interpretive anomaly which ought to be rectified now that the HRA has demonstrated a clear path forward.<\/p>\n\n\n\n [1]<\/a> Owen-D\u2019Arcy v Chief Executive, Queensland Corrective Services <\/em>[2021] QSC 273 (\u2018Owen-D\u2019Arcy<\/em>\u2019).<\/p>\n\n\n\n [2]<\/a> Charter of Human Rights and Responsibilities Act 2006 <\/em>(Vic) (\u2018Victorian Charter\u2019).<\/p>\n\n\n\n [3]<\/a> Human Rights Act 2004 <\/em>(ACT).<\/p>\n\n\n\n [4]<\/a> Julie Debeljak and Laure Grenfell, \u2018Diverse Australian Landscapes of Law-Making and Human Rights: Contextualising Law-Making and Human Rights\u2019 in Julie Debeljak and Laura Grenfell, Law Making and Human Rights <\/em>(Lawbook Co, 2020) 1, 2.<\/p>\n\n\n\n [5]<\/a> Prior to Owen-D\u2019Arcy<\/em>, the most extensive consideration was by Ryan J sitting in the Court of Disputed Returns in Innes v Electoral Commission of Queensland (No 2) <\/em>(2020) 5 QR 632 (\u2018Innes<\/em>\u2019). While the underlying cause of action was dismissed such that it was ultimately not necessary to consider the applicant\u2019s arguments under the HRA, Ryan J ultimately considered it appropriate to make a number of observations about the operation of the HRA and to consider, in obiter, the arguments put by the applicant. Of particular relevance is her Honour\u2019s endorsement of the Attorney-General of Queensland\u2019s submission that the HRA should be approached consistently with the Victorian Charter, which Ryan J considered to be a \u2018reasonable\u2019 approach: 668 [202] (Ryan J).<\/p>\n\n\n\n [6]<\/a> Kevin Bell, \u2018Certainty and Coherence in the Charter of Human Rights and Responsibilities Act 2006 <\/em>(Vic)\u2019 (Conference Paper, Castan Centre Human Rights Law Conference, 23 July 2021) 3. This paper is available at SSRN: < https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3899704><\/a>;.<\/p>\n\n\n\n [7]<\/a> Owen-D\u2019Arcy<\/em> (n 1) [1].<\/p>\n\n\n\n [8]<\/a> Ibid [4], [18].<\/p>\n\n\n\n [9]<\/a> Ibid [18]. The MSO Decision was made pursuant to s 60 of the Corrective Services Act 2006 <\/em>(Qld) (\u2018CSA\u2019).<\/p>\n\n\n\n [10]<\/a> Ibid [21(a)].<\/p>\n\n\n\n [11]<\/a> Ibid [21(c)].<\/p>\n\n\n\n [12]<\/a> Ibid [21(d)].<\/p>\n\n\n\n [13]<\/a> Ibid [21(e)].<\/p>\n\n\n\n [14]<\/a> Ibid [19].<\/p>\n\n\n\n [15]<\/a> Ibid [20].The No Association Decision was made pursuant to s 62(1)(a) of the CSA.<\/p>\n\n\n\n [16]<\/a> Ibid.<\/p>\n\n\n\n [17]<\/a> Ibid [3].<\/p>\n\n\n\n [18]<\/a> Human Rights Act 2019 <\/em>(Qld) s 59(1) (\u2018HRA\u2019). This is analogous to s 39 of the Victorian Charter.<\/p>\n\n\n\n [19]<\/a> Owen-D\u2019Arcy <\/em>(n 1) [81].<\/p>\n\n\n\n [20]<\/a> Section 58 of the HRA is drafted in substantially similar terms to s 38 of the Victorian Charter and deals with the conduct of public authorities.<\/p>\n\n\n\n [21]<\/a> It was accepted by the parties as uncontroversial that the decision-maker, exercising decision-making authority vested in them by the respondent was a public entity for the purposes of s 58 of the HRA.<\/p>\n\n\n\n [22]<\/a> Owen-D\u2019Arcy <\/em>(n 1) [79] (Martin J).<\/p>\n\n\n\n [23]<\/a> HRA (n 22) ss 17(b), 30.<\/p>\n\n\n\n [24]<\/a> Owen-D\u2019Arcy <\/em>(n 1) [80] (Martin J).<\/p>\n\n\n\n [25]<\/a> HRA (n 22) s 58(1)(b).<\/p>\n\n\n\n [26]<\/a> Owen-D\u2019Arcy <\/em>(n 1) [124].<\/p>\n\n\n\n [27]<\/a> HRA (n 22) s 13.<\/p>\n\n\n\n [28]<\/a> Ibid s 58(1)(a).<\/p>\n\n\n\n [29]<\/a> Owen-D\u2019Arcy<\/em> (n 1) [95] (Martin J).<\/p>\n\n\n\nThe Facts<\/strong><\/h3>\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 Court\u2019s Decision on the Human Rights Act Claim<\/strong><\/h3>\n\n\n\n
The Impact of Victorian Charter Jurisprudence<\/strong><\/h3>\n\n\n\n
\n\n\n\nReferences<\/h3>\n\n\n\n