Background:
This case concerned the availability of compensation under the HRA for unlawful detention. Three separate matters were heard concurrently and involved decisions by the ACT Sentence Administration Board to revoke the plaintiffs’ periodic detention orders and commit them to full-time imprisonment.
The Sentence Administration Board had revoked Mr Morro’s periodic detention order based on an ‘incorrect interpretation’ of s 70 of the Crimes (Sentence Administration) Act 2005 (ACT). Section 70 requires an order to be cancelled if the offender is convicted of a further offence – in Mr Morro’s case the Board had relied on a prior conviction to cancel the order. In N and Mr Ahadizad’s case, the Board had revoked the orders without giving the plaintiffs notice or time to respond to the allegation that they had breached their respective periodic detention orders. The government did not dispute the facts and accepted liability for the unlawful detention of each of the plaintiffs.
The issue before the court concerned whether breach of the plaintiffs’ right to liberty (s 18 HRA) gave rise to an independent statutory right to compensation under s 18(7) HRA and if so, whether the amount of compensation differed from the amount of damages available at common law. The government argued that the plaintiffs were entitled only to damages at common law, and not under the HRA. The Human Rights Commissioner, who was given leave to intervene under s 36 HRA, argued that s 18(7) HRA gave rise to statutory right of compensation which was independent of any rights at common law.
Section 18(7) HRA provides:
Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
Decision:
The Court (Gray J) held that s 18(7) HRA confers a “substantive statutory right to compensation” (at 42). The Court further found that the s 18(7) right to compensation could be fully vindicated by recourse to the common law action of trespass to the person (at 49-50). It accordingly awarded general damages in the amount of $95000 (Morro), $40000 (N), and $55000 (Ahadizad). The Court also ordered the government to pay for the plaintiffs’ legal costs with regard to their initial habeas corpus proceedings.
Reasoning:
Does s 18(7) HRA confer an independent statutory right to compensation?
The government submitted that the plaintiffs were entitled to compensation only under the common law and not the HRA, arguing that the apparent meaning of s 18(2) HRA did not create a statutory right to compensation (s 139 of the Legislation Act 2001 (ACT)), and neither did s 18(7) convey such a meaning when read in the context of the HRA as a whole (s 140 of the Legislation Act 2001 (ACT); Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355 at [69-70]).
To support this argument, the government pointed out that the HRA (as it applied at the time) did not contain a general enforcement provision. Further, the Attorney-General in his presentation speech had stated that the 2004 Bill “[did not] create a new cause of action” (at 22); the explanatory statement also specified that ‘the Bill [was] not intended to create a new right to a new remedy for an alleged violation of a Part 3 [HRA] right” (at 21). The government also argued that the structure of the original HRA denied a substantive application of s 18(7) because Parts 4 and 5 HRA applied only to the interpretation of existing Territory laws and to the circumstance where there is parliamentary scrutiny of future laws.
Gray J dismissed these arguments. He considered that the apparent meaning of s 18(7) (and s 23(2) HRA, relating to the right to compensation for wrongful conviction) was to:
…provide for an independent cause of action in the circumstances specified by those sections. Those provisions appear, on their faces to provide for remedies in the circumstances that they predicate. It does not seem sensible to deny that effect because there is no general enforcement provision. (at 32)
He also considered the extrinsic materials as non-determinative or substitutive of the HRA (Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 69 ALJR 8 at [11]; Harrison v Melhem (2008) 72 NSWLR 380 per Spigelman CJ at [12]-[16], Mason P at [168]). While his Honour accepted that the statements in the presentation speech and the explanatory statement represented “an overall view relevant to whether a general enforcement remedy might be implied,” they however were “not consistent with at least the apparent meaning of s 18(7) [HRA] which on its face gives a statutory right to compensation” (at 38).
Finally, Justice Gray considered that the structural interpretation advocated by the government would ‘give a forced and unnatural operation to a very specific provision that provides for compensation where a right has been infringed’ (at 33). Further, it would not give effect to the purpose of Article 9(5) ICCPR (on which s 18(7) HRA is based) to create an enforceable right to compensation:
It seems to me that when a party, not being a State Party to the ICCPR, legislates to give effect to such a provision, it is not merely declaratory of a right but is intended to give effect to a substantive remedy where the right to which such a remedy is directed has been contravened. (at 35)
In concluding that s 18(7) HRA conferred a statutory right to compensation, his Honour left aside the question of whether a general remedy power could be read into the HRA as in Baigents Case. In Baigents Case the NZ Court of Appeal found that even though the NZBORA did not contain an express enforcement provision, effective remedies could nonetheless be available by necessary implication for a breach of rights (Simpson v Attorney-General [Baigents Case] [1994] 3 NZLR 667):
Whether a more general remedy can be implied as a consequence of giving effect to the [HRA’s] purpose is not to the point and not necessary for me to determine. It is enough that amongst the general purposes of the [HRA] reflected in the long title is the protection of human rights. A specific provision in the [HRA] which gives effect to the protection of a particular right by providing for compensation in the event of it being breached gives effect to that expressed purpose, in my view, should be interpreted accordingly. (at 39) ...
Even if no general remedy is to be implied in the [HRA], the specific provision for compensation in s 18(7) [HRA] should be read as to give substantive effect to the right that it protects. (at 41)
Does the quantum of compensation differ?
Gray J considered that:
[T]he right predicated by s 18(7) ... may provide a public law remedy in one sense but it can also be treated as a co-extensive remedy to that provided at common law (at 43)
His Honour accepted that in New Zealand ‘ a clear distinction ha[d] been made …between the public law rights that the NZ [BORA] protects and what have been described as the private rights, founded in tort and contract under the general law” (at 45): Taunoa v Attorney General [2008] 1 NZLR 429. In this respect, Justice Gray observed the dissenting opinion of Thomas J in Dunlea v Attorney General [2000] 3 NZLR 136 at 66-72:
As recommended in Baigent’s Case the question of compensation under the Bill of Rights can be approached globally. Where the breach is both a tort and a breach of the Bill of Rights, however, compensation for the latter must include compensation for the intrinsic value to the plaintiff of a right having constitutional significance. There is no other effective method of vindicating and affirming that right.
His Honour however considered that the New Zealand approach may be distinguished on the basis of the constitutional nature of the rights protected in the NZBORA. The HRA, his Honour reasoned, did not have the same constitutional significance (at 48).
Consequently, he concluded that while there was an independent statutory right to compensation under s 18(7) HRA, this did not necessitate a public law vindication by the Court if the existing remedy at common law would achieve that vindication:
[T]he fact that express provision is made for compensation has been made by s 18(7) does not necessarily require a notion of public law vindication to be imported into the expression of a right to compensation if the existing remedy at common law would achieve that vindication (at 48). ...
False [or] wrongful imprisonment is founded upon the common law action of trespass to the person. It is committed when the voluntary conduct of one person directly subjects another to total deprivation of freedom of movement without lawful justification. Special damage is not required ... The unlawful detention referred to in s 18(7) [HRA] can be remedied by recourse to this action.... (at 49-50)
His Honour then went on to consider the scope of the damages available to the plaintiffs at common law, without further mention of the HRA.
Comment:
This is a significant decision for its confirmation that s 18(7) and s 23 of the HRA give rise to an independent statutory right to compensation for unlawful detention and wrongful conviction respectively. The HRA is unique in expressly protecting these ICCPR rights; the Victorian Charter, for example, specifically omitted their inclusion out of concern that they may amount to a right to damages.
Nevertheless, the decision leaves uncertain whether the public law right to compensation will be met in every case by the common law remedy. If it cannot, the issue remains as to what course of action the court would take to achieve the necessary public law vindication.
It is also regrettable that his Honour considered the HRA to be of lesser “constitutional” significance than the NZBORA - ostensibly because the ACT is not a direct signatory to the ICCPR; and the HRA does not expressly “affirm” the ICCPR (and did not originally contain an express application provision) as the NZBORA does (at 19). The HRA is intended to give effect to the rights in the ICCPR (see, for example, the cross referencing of Part 3 rights to the relevant ICCPR article in Schedule 1). As such, the HRA gives domestic force in the ACT to those rights that are already afforded to all Australians, including Territorians, under international law.
Another interesting question is whether the enforcement provision in new Part 5A of the HRA, which came into effect on 1 January 2009, will make any difference to similar cases in future. Under new s 40C (4) HRA, the Supreme Court is expressly prevented from awarding damages for a HRA breach. Under s 40C(5), however, any pre-existing right to damages for the same conduct remains undisturbed; a note to this provision makes specific reference to s 18(7) and s 23 HRA (NB. A note is not part of the Act: s 127 of the Legislation Act 2001 (ACT)). According to the Explanatory Statement to the 2007 Amendment Bill, the note clarifies that s 40C does not restrict the right to compensation that arises under s 18(7) and s 23 of the HRA. While Justice Gray noted that these amendments highlighted the fact that the original HRA was silent on the question of remedies for breach of its provisions (at 12), he did not consider their possible significance to future cases. |
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