Interstate Human Rights Jurisprudence Confirms the Certainty and Coherence of the Victorian Charter, but We Can Learn a Thing or Two from Queensland

By Scott Walker

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

The Owen-D’Arcy judgment brings to mind observations made by the Castan Centre’s Executive Director, Professor the Hon Kevin H Bell AM QC earlier this year at the Castan Centre Human Rights Conference. In his presentation on the Victorian Charter of Human Rights and Responsibilities (Victorian Charter), Bell argued that the Victorian Charter has developed to operate ‘with certainty and coherence’, ‘but not always optimally’.[6]  It is the certainty and coherence of the Victorian Charter that I seek to here address.

The Facts

Michael Owen-D’Arcy (applicant) committed murder in July 2007 and was subsequently convicted and sentenced to life imprisonment.[7] 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] The MSO was issued ‘on 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’.[9] The MSO required that the applicant be accommodated within a single cell,[10] be permitted two telephone calls of 10 minutes duration each week,[11] be permitted the opportunity of at least two hours exercise in fresh air in daylight,[12] and be entitled one non-contact visit per week for one hour.[13] 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 ‘no association direction’ (No Association Decision) was made together with the MSO Decision.[15] The No Association Decision provided that the applicant was ‘not permitted contact associations with other prisoners … without approval’.[16]

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’s human rights under the HRA.[17] 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]

The Court’s Decision on Judicial Review and the Obligation to Give Proper Consideration

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’s human rights, which was a relevant consideration.[19] Martin J identified that s 58(1) of the HRA,[20] 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] required the decision-maker to consider whether the decision was compatible with the applicant’s human rights.

In reaching this conclusion, Martin J held that it was not sufficient for the decision-maker to refer broadly and imprecisely to ‘prisoner Owen-D’Arcy’s human rights’.[22] In particular, the decision-maker did not turn their mind to the applicant’s 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] As the attention given to the applicant’s human rights was ‘was superficial at best’,[24] the decision-maker failed to take into account a relevant consideration in the making of the No Association Decision. [25]

The Court’s Decision on the Human Rights Act Claim

The Applicant’s Claim

The applicant argued that the MSO Decision and the No Association Decision breached his human rights, namely he argued that:

  • the decisions resulted in cruel, inhuman, or degrading treatment contrary to HRA s 17(b);
  • the decisions resulted in the applicant not having liberty or security contrary to s 29;
  • the decisions resulted in the applicant, who was deprived of his liberty, not being treated with humanity and respect for his inherent dignity contrary to s 30.[26]

Interpreting the HRA

As this was the first substantive opportunity for the Court to consider the HRA’s 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 ‘[s]ome situations will call for more intensive examination of some issues’, Martin J identified the following steps in determining such a claim:

  • identification of the decision and the reasons for making it;
  • identification of the human rights engaged by the decision;
  • determining whether the applicant has shown whether the decision limits the human rights engaged, and, if so, whether the respondent has justified the limits as reasonable;[27]
  • whether the respondent has made a decision not compatible with human rights;[28]and
  • whether the respondent, in making their decision, has failed to give proper consideration of relevant human rights.[29]

The human rights recognised in the HRA ‘are not absolute’ and, as with the Victorian Charter,[30] the HRA has a general limitations provision.[31]This limitations provision ‘emobod[ies] a proportionality test’. [32] Relying on Victorian Charter jurisprudence, Martin J held that in determining whether a limitation had been justified

  • the onus of demonstrably justifying a limitation rests on the party seeking to rely on the limitation;
  • the standard of proof is ‘high’, such that it requires ‘a degree of probability commensurate with the occasion’ on ‘cogent and persuasive’ evidence; and
  • the  court’s role is here to ‘balance the competing interests of society, including the public interest, and to determine what is required for a person to obtain or retain the benefit of the rights recognised or bestowed by the statute.[33]

In interpreting the HRA, international law and the judgment of international courts and tribunals may be drawn upon.[34] Such interpretive assistance may also be drawn upon in Victoria[35] and has been done so extensively.[36] The HRA should be given a broad construction as the HRA is beneficial legislation.[37]

The Court’s Consideration of the Applicant’s Solitary Confinement

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] 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]He is allowed two hours of time outside his cell per day.[40]

The applicant’s evidence engaged s 30 of the HRA (the right to humane treatment when deprived of liberty).[41] The respondent did not justify the limitation placed upon the applicant’s 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 ‘is 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’.[42]This respondent did not attempt to call any evidence in support of justification.[43] Further, the decision-maker failed to adequately (or at all) appreciate that the MSO was ‘for a further six months – on to of more than seven years of MSOs’.[44]As such, the cumulative effect of the applicant’s solitary confinement as a burden on his right ought to be considered.[45] The No Association Decision also went to the solitary confinement of the applicant as much as the MSO, as it worked ‘to prevent the applicant from engaging in any meaningful conversations or exchanges’, thus placing ‘him in a cocoon of isolation from all but the slightest interaction with other human beings’.[46]

In upholding the applicant’s 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] and the decision-maker also failed to adequately consider the decision’s burden on the applicant’s rights.[48]In relation to the No Association Decision, while the decision-maker considered the applicant’s 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] 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]Accordingly, the No Association Decision was also unlawful.[51]

The Impact of Victorian Charter Jurisprudence

The Owen-D’Arcy 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] 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.

The Procedural Limb

The obligation on public authorities to give proper consideration to relevant human rights in making decisions[53] has been the subject of much consideration by Victorian courts. In Castles v Secretary, Department of Justice, Emerton J recognised that there was no ‘strict formula’, but that the decision-maker must perform a number of steps in order to be found to have given proper consideration, including ‘understanding 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] However, the decision-maker need not identify the specific or correct rights which are engaged.[55]

Under the HRA, a decision maker is required to specify the rights engaged by a decision, ‘in a common sense and practical manner’, [56] because of s 58(5) which defines ‘proper consideration’ non-exhaustively as including:

  • identifying the human rights potentially affected by the decision; and
  • considering whether the decision would be compatible with human rights.

This is a preferable situation because it explicitly prevents a cursory or general assessment of a person’s human rights by requiring a decision-maker to give a higher degree of attention to the specific rights engaged.

The Substantive Limb

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,[57] 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] For its part, the HRA does away with any such confusion by adopting a single definition of ‘compatible with human rights’[59] which applies wherever that expression is used within the HRA.[60] This definition is consistent with early judgments under the Victorian Charter which adopted a proportionality analysis at the interpretation stage.[61] 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]

This position renders the Charter as less than ‘optimum’, such that it impedes ‘the fulfilment of its purpose of promoting and protecting human rights of individual Victorians’.[63] Indeed, of the most important factors of human rights compliance is the promotion and embedding of a culture which respects human rights.[64] 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] 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’s intricacies. This requires an understanding of human rights, which is generally considered to be lacking in Australia, [66] 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.


References

[1] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 (‘Owen-D’Arcy’).

[2] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).

[3] Human Rights Act 2004 (ACT).

[4] Julie Debeljak and Laure Grenfell, ‘Diverse Australian Landscapes of Law-Making and Human Rights: Contextualising Law-Making and Human Rights’ in Julie Debeljak and Laura Grenfell, Law Making and Human Rights (Lawbook Co, 2020) 1, 2.

[5] Prior to Owen-D’Arcy, the most extensive consideration was by Ryan J sitting in the Court of Disputed Returns in Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 632 (‘Innes’). While the underlying cause of action was dismissed such that it was ultimately not necessary to consider the applicant’s 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’s endorsement of the Attorney-General of Queensland’s submission that the HRA should be approached consistently with the Victorian Charter, which Ryan J considered to be a ‘reasonable’ approach: 668 [202] (Ryan J).

[6] Kevin Bell, ‘Certainty and Coherence in the Charter of Human Rights and Responsibilities Act 2006 (Vic)’ (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&gt;.

[7] Owen-D’Arcy (n 1) [1].

[8] Ibid [4], [18].

[9] Ibid [18]. The MSO Decision was made pursuant to s 60 of the Corrective Services Act 2006 (Qld) (‘CSA’).

[10] Ibid [21(a)].

[11] Ibid [21(c)].

[12] Ibid [21(d)].

[13] Ibid [21(e)].

[14] Ibid [19].

[15] Ibid [20].The No Association Decision was made pursuant to s 62(1)(a) of the CSA.

[16] Ibid.

[17] Ibid [3].

[18] Human Rights Act 2019 (Qld) s 59(1) (‘HRA’). This is analogous to s 39 of the Victorian Charter.

[19] Owen-D’Arcy (n 1) [81].

[20] 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.

[21] 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.

[22] Owen-D’Arcy (n 1) [79] (Martin J).

[23] HRA (n 22) ss 17(b), 30.

[24] Owen-D’Arcy (n 1) [80] (Martin J).

[25] HRA (n 22) s 58(1)(b).

[26] Owen-D’Arcy (n 1) [124].

[27] HRA (n 22) s 13.

[28] Ibid s 58(1)(a).

[29] Owen-D’Arcy (n 1) [95] (Martin J).

[30] Victorian Charter (n 2) s 7(2).

[31] HRA (n 22) s 13.

[32] Owen-D’Arcy (n 1) [104], citing Momcilovic v The Queen (2011) 245 CLR 1, 39-40 [22], 44-5 [34[ ( French CJ), 172 [432] (Heydon J), 213-4 [555]0[557] (Crennan and Kiefel JJ).

[33] Ibid [108]-[109] (Martin J), quoting Re Application under the Major Crimes (Investigative Powers Act 2004 (2009) 24 VR 415, 448-9 [147] (Warren CJ).

[34] Ibid [112]-[117] (Martin J); HRA (n 22) s 48(3).

[35] Victorian Charter (n 2) s 32(2).  

[36] See, eg, PBU & NJE v Mental Health Tribunal (2018) 56 VR 141 (Bell J); Loielo v Giles (2020) 63 VR 1 (Ginnane J).

[37] Owen-D’Arcy (n 1) [118] (Martin J).

[38] Ibid [151].

[39] Ibid.

[40] Ibid [152].

[41] Ibid [240].

[42] Ibid [250].

[43] Owen-D’Arcy (n 1) [175].

[44] Ibid [253].

[45] Ibid.

[46] Ibid [264].

[47] Ibid [261] (Martin J).

[48] Ibid [262] (Martin J).

[49] Ibid [265] (Martin J).

[50] Ibid [266] (Martin J).

[51] Ibid.

[52] These include the Bill of Rights Act 1990 (NZ), the Human Rights Act 1998 (UK), the Canadian Constitution 1982 pt 1 (‘Canadian Charter of Rights and Freedoms) and the Constitution of the Republic of South Africa.

[53] Victorian Charter (n 2) s 38(1)(b).

[54] Castles v Secretary, Department of Justice (2010) 28 VR 141, 184 [185] (Emerton J).

[55] Ibid [185]-[186] (Emerton J).

[56] Owen-D’Arcy (n 1) [136], endorsing Castles (n 54) 185 [185]-[186]. For a recent discussion of these principles in a similar context see Minogue v Thompson [2021] VSC 56 (Richards J).

[57] A majority of the High Court in Momcilovic v The Queen held that s 7(2) (proportionality analysis) did not have a role in interpreting a provision in accordance with s 32(2):(2011) 254 CLR 1, 44 [35] (French CJ), 219 [572]-[574] (Crennan and Kiefel JJ), 92 [168] (Gummow J), 132 [168] (Hayne J), 247-9 [678]-[682] (Bell J). For a summary of the effect of the High Court in Momcilovic see DPP v Kaba (2014) 44 VR 526, 587 [211] (Bell J).

[58] Bell (n 6) 10.

[59] HRA (n 22) s 8.

[60] Bell (n 6) 11.

[61] See Re Kracke and Mental Health Review Board (2009) 29 VAR 1, 31 [88], 33 [96]-[97] (Bell J).

[62] Michael Brett-Young, From Commitment to Culture: 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (Report, 2015) 146 (recommendation 28).

[63] Bell (n 6) 12.

[64] Melissa Castan and Paula Gerber, ‘Taking the Temperature of Human Rights in Australia’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 1, 9.

[65] See, eg, Simon Katterl and Chris Maylea, ‘Keeping Human Rights in Mind: Embedding the Victorian Charter of Human Rights into the Public Health System’ (2021) Australian Journal of Human Rights 10.1080:1-21.

[66] See Kevin M Dunn and Rachel Sharples, ‘Do Australians Care about Human Rights? Awareness, Hierarchies of Sympathy and Universality’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Lawbook Co, 2021) vol 1, 589.


Scott Walker is a final year LLB (Hons) student at Monash University. He is a Researcher at the Castan Centre for Human Rights Law and Eleos Justice and a Research Assistant to Professor the Hon Kevin H Bell AM QC. Scott’s Honours thesis was on the implementation of art 12 of the UN Convention on the Rights of Persons with Disabilities.

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Castan Centre

The Castan Centre for Human Rights Law seeks to promote and protect human rights through the generation and dissemination of public scholarship in international and domestic human rights law. In pursuit of this mission, the Centre brings the work of human rights scholars, practitioners and advocates from a wide range of disciplines together in the Centre’s key activities of research, teaching, public education (lectures, seminars, conferences, speeches, media presentations, etc), applied research, advice work and consultancies.

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