Page 71 - Week 01 - Tuesday, 15 February 2011
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
… section 9C of the Bail Act 1992 (ACT) is not consistent with the human rights recognised in subsection 18(5) of the Human Rights Act, in that “Anyone who is awaiting trial must not be detained in custody as a general rule”.
The declaration was made in the course of her decision in relation to an application for bail by Mr Isa Islam. Section 9C of the Bail Act requires special and exceptional circumstances to be established before bail can be considered for certain serious offences.
The ACT has a proud history in the protection and promotion of human rights, being the first jurisdiction in the nation to enact a legislative bill of rights. The ACT Human Rights Act was established as a dialogue model to encourage a meaningful dialogue on human rights issues between the three arms of government—the legislature, the judiciary and the executive—as well as with the broader community.
This model allows for a declaration of incompatibility made about the act. A declaration of incompatibility provides a trigger for further discussion between the three arms of government and the community on the issues that have been raised.
This is the first declaration of incompatibility made under the Human Rights Act. It therefore presents us with the first opportunity to work through our dialogue model of human rights law.
As Justice Penfold noted in her decision, the declaration has no impact on the operation of, in this case, section 9C of the Bail Act 1992. Any decision to change the legislation in question remains a matter for this Assembly. Nor does the declaration affect the outcome of the proceedings for the individual applicant in the case.
What the declaration does do is confirm the supremacy of the Assembly in determining how human rights are to be reflected in ACT laws through the legislative process. At the same time it signals a triumph for our dialogue model and gives us the opportunity for robust consideration of the issues raised and for our further development as a human rights jurisdiction.
Having said that, because the declaration is a conclusion of the court, to the extent that the government wishes to take issue with the decision in the court we are governed, like other litigants, by the court’s time lines in relation to appeal processes. At this stage the government’s position in relation to the litigation is that it disagrees with the conclusion that Her Honour reached about this particular law and the analysis that led Justice Penfold to her decision.
In the circumstances, I take the opportunity to inform the Assembly that on 17 December last year I filed an appeal from Justice Penfold’s decision in the matter of an application for bail by Isa Islam that section 9C of the Bail Act is not compatible with the Human Rights Act.
As it happens, in the meantime these matters are, in part, also being addressed by the High Court in another case currently on appeal from Victoria, Monsilovic v the Queen and others, in relation to the operation of Victoria’s human rights legislation. The ACT is an intervener in those proceedings, which were heard by the High Court on 8 February this year.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video