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McIver v Australian Capital Territory; Williams v Australian Capital Territory [2024] ACTSC 112 (17 April 2024)

Last Updated: 19 April 2024

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CURTIN AJ:

Introduction

• 1․ These are two applications made under s 40C(3) of the Human Rights Act 2004 (ACT) (HRA) for extensions of time to sue the defendant for alleged breaches of the plaintiffs’ human rights under the HRA.
• 2․ The applications raise for decision four main matters, the latter three being questions of statutory interpretation.
• 3․ The first matter is the proper principles to apply to an application for an extension of time under s 40C(3) of the HRA.
• 4․ The second is the meaning of the phrase ‘unlawfully detained’ in s 18(7) of the HRA.
• 5․ The third is whether compensation or damages may be awarded against a public authority sued pursuant to pt 5A of the HRA because of the terms of s 40C(4) of the HRA.
• 6․ The fourth is whether s 18(7) of the HRA provides a freestanding cause of action separate and distinct from the operation of the HRA.
• 7․ The third and fourth matters frame the central issue, which is whether the Supreme Court of the ACT may award compensation (or damages) under the HRA to a person whose human rights were infringed by a public authority.
• 8․ The HRA was initially enacted in 2004. It has been subsequently amended. One amending act was the Human Rights (Complaints) Legislation Amendment Act 2023 (ACT) which came into force on 12 December 2023 after my decisions on these applications were reserved. This amended the HRA by, inter alia, inserting a new
  s 40C(3A), which was consequentially renumbered to s 40C(4): see Legislation Act 2001 (ACT) (Legislation Act) s 116(1)(o).
• 9․ The purpose of the new s 40C(4) is to identify the proper respondent to proceedings commenced under pt 5A of the HRA. The effect of this insertion triggered editorial amendments to the numbering of the balance of s 40C so that the old ss 40C(4), 40C(5) and 40C(6) are now ss 40C(5), 40C(6) and 40C(7) respectively. To avoid needless complication and possible confusion, in this judgment I shall use the section numbering in the HRA as it was before this amendment so that the numbering in this judgment is the same as the numbering used in earlier authorities which considered the HRA and which require consideration in this judgment.

The meaning of ‘rights’

• 10․ In this judgment I shall distinguish between two types of ‘rights’.

Enforceable rights

• 11․ The first category of ‘rights’ is that familiar to lawyers and courts in Australia and are what I will call enforceable rights. That is, a citizen may approach a court and obtain orders to enforce an enforceable right if it has been infringed. Some enforceable rights are creatures of the common law and equity, some have been created by statute. The latter I shall refer to in this judgment as ‘enforceable statutory rights’.

Human rights

• 12․ The second category of ‘rights’ more familiar to European lawyers is ‘human rights’. The United Nations Office of the High Commissioner for Human Rights (the OHCHR) describes ‘human rights’ (see ‘What are human rights?’, United Nations Office of the High Commissioner for Human Rights (Web Page) <https://www.ohchr.org/en/what-are-human-rights>) as follows:

  Human rights are rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color [sic], religion, language, or any other status.

  (Emphasis added.)

• 13․ In quoting that passage, I should not be seen as entering into a philosophical debate about what human rights are: see Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 (Lewis) at 333 [446]. I am simply pointing out (as a piece of the wider context relevant to statutory interpretation) that the use of the word ‘rights’ by the United Nations OHCHR in the two treaties to which I will come, and which were the parents of the human rights set out in the HRA, was different to how that word is used when referring to ‘rights’ created by states.
• 14․ So described, these ‘human rights’ are not, in and of themselves, enforceable statutory rights for damages. They may become so, but only if and when a state passes legislation making a human right an enforceable statutory right for damages. As will become apparent later in this judgment, the rights in the HRA are enforceable in a limited way against public authorities, such as obtaining declaratory relief, but this does not extend to the granting of damages to a person whose human rights were infringed.
• 15․ I make that distinction between the two ways the word ‘rights’ is used to try and avoid any confusion that may arise if I were to simply refer to ‘rights’. That word is ambiguous in the context of these applications.
• 16․ In summary, for the reasons set out below, it is my opinion that:

(a) the proper principles to apply to an application for an extension of time under pt 5A of the HRA are those set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley);

(b) ‘unlawful detention’ in s 18(7) of the HRA refers to the authority to detain, not the conditions of detention;

(c) s 40C(4) of the HRA excludes damages as a remedy for a claim brought against a public authority under pt 5A of the HRA; and

(d) s 18(7) of the HRA is not a freestanding enforceable statutory right.

• 17․ This judgment is broadly structured to first set out the background to the applications, then the pleadings, the statutory provisions, and the parties’ submissions, before turning the decisions I have to make and the reasons why I made them. I shall from time to time deal with certain submissions earlier in the judgment where it is convenient to do so.

Background

• 18․ At the time of the relevant events, the two plaintiffs were prisoners held at the Alexander Maconochie Centre (the AMC). The defendant in both matters is the Australian Capital Territory (the Territory).
• 19․ In different ways explained in more detail later in this judgment, the two plaintiffs allege that the Territory breached their human rights under the HRA whilst held at the AMC. In relation to those breaches, the plaintiffs seek various declarations, compensation, and damages.
• 20․ There are about 11 other prisoners at the AMC who have commenced similar proceedings in this Court.
• 21․ The 13 or so cases (collectively, the cohort cases) have been travelling together for case management purposes.
• 22․ All but two of the cohort cases were commenced after delivery of judgment in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 (Davidson) on 21 April 2022.
• 23․ In Davidson, it was agreed between the parties that the defendant in that case, the Director-General, Justice and Community Safety Directorate (the Director-General), was a public authority for the purposes of the HRA.
• 24․ Relevant for these applications is that in Davidson it was held that the Director-General had breached the plaintiff’s human rights under s 19(1) of the HRA. Justice Loukas-Karlsson held at 83:

  [416] The plaintiff correctly submitted that in denying the plaintiff access to the open air and an adequate space to exercise, the defendant had acted in a way that was incompatible with the plaintiff’s human rights contrary to s 40B(1)(a) of the Human Rights Act. Further, the plaintiff correctly submitted that the evidence at the hearing revealed that the defendant failed to give proper consideration to the plaintiff’s human rights contrary to s 40B(1)(b) of the Human Rights Act.

  ...

  [418] I therefore find that the defendant has acted inconsistently with the plaintiff’s human right pursuant to s 19(1) and has contravened its obligation in s 40B of the Human Rights Act. The plaintiff is therefore entitled to a declaration pursuant to s 40C, as set out below in dealing with the final issue.

• 25․ Justice Loukas-Karlsson made a number of declarations (see Davidson at 87-88 [439]) but refused the plaintiff’s application for his sentence to be backdated to account for the 63 days during which his human rights had been breached.
• 26․ Most of the cohort cases were commenced after, and generally speaking, because of, the above findings in Davidson. The problem with this was that all of the cohort cases were commenced outside of the limitation period provided for doing so in the HRA.
• 27․ Under s 40C(3) of the HRA, a proceeding brought against a public authority under
  s 40C(2)(a) of the HRA must be commenced not later than one year after the day (or last day) the act complained of happened i.e. the act constituting the breach of human rights, unless the court otherwise orders.
• 28․ In the cohort cases, the Territory contended that each case had been commenced out of time. For various reasons, the plaintiffs in the cohort cases disagreed with that contention, submitting that their claims were not governed by pt 5A of the HRA and thus not subject to the time limit in s 40C(3).
• 29․ To resolve various legal arguments which arose out of that dispute, one of the cohort cases, being Mr Derek Williams’ case, was selected with the consent of the parties to have those legal arguments determined. Accordingly, the Territory filed an application seeking orders that the HRA cause of action pleaded by Mr Williams be stayed.
• 30․ Associate Justice McWilliam (as her Honour then was) heard and determined that application in Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20 (Williams).
• 31․ In Williams at 23 [6], her Honour noted the parties’ position (in all of the cohort cases plus two others) that her Honour’s judgment would bind them all. Her Honour said:

  Accordingly, it has been agreed between the parties that the outcome of this application will also determine the outcome of the Territory’s application made in each of the aforementioned matters.

• 32․ Her Honour decided four issues.
• 33․ The first issue was whether the Territory was a “public authority” under the HRA. The Territory argued that it was a public authority, the plaintiff argued that it was not. Her Honour held that the Territory was a public authority.
• 34․ The second issue was whether the claim brought by the plaintiff was a proceeding to which the time limit in s 40C of the HRA applied. Her Honour held that it was a proceeding to which the time limit in s 40C of the HRA applied.
• 35․ The third issue was whether it was appropriate to determine any question of time limitation as a separate preliminary issue before a defence had been filed or in advance of a substantive hearing. Her Honour held that it was appropriate to determine the question separately.
• 36․ The fourth issue was whether, depending on how those issues were determined, it was appropriate to grant a stay. Her Honour held that it was appropriate to grant a stay.
• 37․ Her Honour made the following orders at 36 [87]:

  (1) Pursuant to r 40(1)(g) of the Court Procedures Rules 2006 or the inherent jurisdiction of the Court, that part of the plaintiff’s claim which is founded upon a statutory cause of action brought under the Human Rights Act 2004 is stayed until:

a. the plaintiff applies to the Court for an order otherwise under s 40C(3) of the said Act; and
b. the Court makes such an order.

• 38․ Subsequently, each plaintiff in the balance of the cohort cases filed an application for an extension of time pursuant to s 40C(3) of the HRA, as contemplated by her Honour’s orders.
• 39․ Sensibly, the parties kept the cohort cases together for case management purposes and they came before me as a group to hear and determine their applications for extensions of time under the HRA.
• 40․ At that time, I raised with the parties the questions raised in this judgment, and by consent of the cohort parties, Mr Anthony McIver’s and Mr Williams’ cases were selected to determine those questions.
• 41․ I took the view that the then operative pleadings filed by Mr McIver and Mr Williams were not as useful as they could have been in identifying the causes of action relied on. Because they would be test cases, on 15 June 2023 I invited the two plaintiffs to consider their pleadings and to file and serve any proposed amended statement of claim they may wish to rely on by 29 June 2023. The two plaintiffs adopted that course. Mr McIver filed an Amended Statement of Claim and Mr Williams filed a Further Amended Statement of Claim.
• 42․ The filing of those two documents was not in breach of the stay order made by McWilliam AsJ on 10 February 2023 because, having made the order for filing and service of the amended pleadings, I impliedly lifted the stay to allow that to happen. Having said that, and to avoid any possible misunderstandings, I shall make an order retrospectively lifting the stay for that purpose.
• 43․ Therefore, before me for decision are Mr McIver’s and Mr Williams’ applications for an extension of time under s 40C(3) of the HRA. The plaintiffs in the balance of the cohort cases accepted before me that they would be bound by my decision in this case.
• 44․ I should note that all parties, and correctly with respect, accepted that the terms of
  s 40C(3) of the HRA required the Court to be persuaded that an extension of time should be granted. That is, an extension of time was not something that could be granted simply because the parties might consent to it.

The relevant provisions of the Human Rights Act 2004 (ACT)

• 45․ Section 10(1)(b) of the HRA says:
  10. Protection from torture and cruel, inhuman or degrading treatment etc

(1) No-one may be—

...

(b) treated or punished in a cruel, inhuman or degrading way.

...

• 46․ Section 18 of the HRA says:
  18. Right to liberty and security of person

(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

...

(7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.

...

• 47․ Section 19(1) of the HRA says:
  19. Humane treatment when deprived of liberty

(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person must be segregated from convicted people, except in exceptional circumstances.

Note An accused child must also be segregated from accused adults (see s 20 (1))

(3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.

• 48․ Finally, ss 40-40D of the HRA say:
  40. Meaning of public authority

(1) Each of the following is a public authority:

(a) an administrative unit;

(b) a territory authority;

(c) a territory instrumentality;

(d) a Minister;

(e) a police officer, when exercising a function under a Territory law;

(f) a public employee;

(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).

(2) However, public authority does not include—

(a) the Legislative Assembly, except when acting in an administrative capacity; or

(b) a court, except when acting in an administrative capacity.

40A Meaning of function of a public nature

(1) In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:

(a) whether the function is conferred on the entity under a territory law;

(b) whether the function is connected to or generally identified with functions of government;

(c) whether the function is of a regulatory nature;

(d) whether the entity is publicly funded to perform the function;

(e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.

(2) Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.

(3) Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:

(a) the operation of detention places and correctional centres;

(b) the provision of any of the following services:

(i) gas, electricity and water supply;

(ii) emergency services;

(iii) public health services;

(iv) public education;

(v) public transport;

(vi) public housing.

40B Public authorities must act consistently with human rights

(1) It is unlawful for a public authority—

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

(3) In this section:

public authority includes an entity for whom a declaration is in force under section 40D.

40C Legal proceedings in relation to public authority actions

(1) This section applies if a person—

(a) claims that a public authority has acted in contravention of section 40B; and

(b) alleges that the person is or would be a victim of the contravention.

(2) The person may—

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person’s rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

(5) This section does not affect—

(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

(b) a right a person has to damages (apart from this section).

Note See also s 18 (7) and s 23.

(6) In this section:

public authority includes an entity for whom a declaration is in force under section 40D.

40D Other entities may choose to be subject to obligations of public authorities

(1) An entity that is not a public authority under section 40 may ask the Minister, in writing, to declare that the entity is subject to the obligations of a public authority under this part.

(2) On request under subsection (1), the Minister must make the declaration.

(3) The Minister may revoke the declaration only if the entity asks the Minister, in writing, to revoke it.

(4) A declaration under this section is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

Mr McIver’s pleaded claim and its background

• 49․ From around 1 December 2020 to 28 January 2021, Mr McIver said he was detained in Sentenced Cells A Unit 1 (SU1) at the AMC pursuant to an order for remand, and as a non-convicted detainee pursuant to the provisions of the Corrections Management Act 2007 (ACT) (CMA).
• 50․ Mr McIver alleged that by accommodating him in SU1 whilst on remand, the Territory failed to segregate him from convicted detainees, contrary to s 44(2) of the CMA. That section says:
  44. Treatment of convicted and non-convicted detainees

...

(2) The director‑general must also ensure that convicted detainees are accommodated separately from non-convicted detainees.

...

• 51․ During his detention on remand, Mr McIver was held with a mix of convicted and non-convicted detainees. Mr McIver shared a cell with a convicted detainee. During this period, other convicted and non-convicted detainees were freely able to enter Mr McIver’s cell and mix with Mr McIver in common areas.
• 52․ On 28 January 2021, Mr McIver was assaulted by a convicted person in SU1.
• 53․ On 24 June 2022, at the conclusion of a five-day trial, a jury found Mr McIver guilty of one count of recklessly inflicting grievous bodily harm. Mr McIver pleaded guilty to making a demand with a threat to endanger the health, safety or physical wellbeing of a person, possessing a knife without a reasonable excuse in a public place, and using a carriage service to menace, harass or offend.
• 54․ On 16 August 2022, Mr McIver was convicted and sentenced by Mossop J to imprisonment for those offences: see R v McIver [2022] ACTSC 206 (R v McIver).
• 55․ During the sentencing hearing, Mr McIver contended that the assault perpetrated on him whilst in SU1 had occurred because of the Territory’s breach of s 44(2) of the CMA, that that breach was a breach of Mr McIver’s human rights, and that any sentence should be reduced because of that fact.
• 56․ In R v McIver, Mossop J noted at [52] that:

  [P]ersons detained in custody in the ACT are to be detained in a manner consistent with the obligations imposed upon the executive government by the Human Rights Act...

• 57․ Justice Mossop held that prima facie Mr McIver’s human rights had been breached. His Honour said:

  [53] The offender in the present case was housed in accommodation at the AMC which mixed sentenced and remand prisoners. He was at all relevant times a remandee. The victim of his offending, who had earlier assaulted him, was a sentenced prisoner. Section 19(2) of the Human Rights Act provides that the offender, being a remandee, “must be segregated from convicted people, except in exceptional circumstances”. No exceptional circumstances or inconsistent law was pointed to which might avoid a contravention of s 19(2) either by reason of the terms of that provision or by operation of s 28 of the Human Rights Act. There was a causal link between the offender’s offending and his incarceration with sentenced prisoners because it was a sentenced prisoner who attacked him and against whom he retaliated. ...

  [54] In my view, the circumstances of mixing of sentenced and remand prisoners and the prima facie breach of his right under s 19(2) of the Human Rights Act are matters which may be taken into account in sentencing the offender. ...

• 58․ Critically for the present case, at [54] Mossop J rejected the submission made by Mr McIver that the breach of the HRA (which related to his conditions of detention) had the effect that the sentence of imprisonment imposed was not a sentence for an offence committed in "lawful custody" for the purposes of s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). His Honour held at [54] that s 64(2)(e):

  [S]hould not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention...

• 59․ Mr McIver appealed his sentence to the Court of Appeal, taking issue, inter alia, with his Honour’s holding that a breach of Mr McIver’s human rights did not render his custody ‘unlawful’ for the purposes of s 64(2)(e) of the Sentencing Act.
• 60․ At the time these present applications were heard by me, the Court of Appeal’s decision on Mr McIver’s appeal had not been delivered. It was subsequently delivered on 19 December 2023: see McIver v The King [2023] ACTCA 48; 20 ACTLR 303 (McIver v The King).
• 61․ Relevantly for the applications before me, the Court of Appeal rejected Mr McIver’s contention that Mossop J had misinterpreted s 64(2)(e) of the Sentencing Act.
• 62․ The Court of Appeal summarised Mr McIver’s contention in McIver v The King at 312 [43], as follows:

  The appellant contended before the primary judge, and on appeal, that because the conditions of his incarceration breached s 19(2) of the Human Rights Act, he was not in “lawful custody” at the time of the commission of the offence of recklessly inflict grievous bodily harm.

• 63․ The Court of Appeal dismissed this ground of appeal, holding that “lawful custody” in
  s 64 (and s 72) of the Sentencing Act meant custody that is authorised by law, and did not encompass any breach by the defendant of any obligations it had relating to the conditions of detention.
• 64․ Importantly, part of the Court of Appeal’s holding in McIver v The King at 316 [64] was that:

  In summary, we consider that the words “lawful custody” in ss 64 and 72 of the Sentencing Act should be read in accordance with their ordinary meaning: that is, detention which is authorised by law. As the appellant's detention was authorised by ss 16 and 18 of the Sentence Administration Act, it follows that he was in “lawful custody” within the meaning of ss 64 and 72 of the Sentencing Act.

• 65․ Mr McIver’s statement of claim and proposed amended statement of claim in the case before me are confusing documents and do not follow the requirements of pleadings to clearly identify the causes of action relied on and the material facts relevant to each element of each cause of action.
• 66․ Nevertheless, it is tolerably clear that Mr McIver relies solely on a claimed breach of his human rights under the HRA.
• 67․ The section he relies on to obtain damages is s 18(7) of the HRA, with breaches of
  ss 18(2) and 19(1)-(3) of the HRA being the matters relied on which he alleges amounted to unlawful detention under s 18(7).
• 68․ He pleads that:

  Pursuant to Section 18(7) of the HRA the defendant is liable to pay compensation in respect of the plaintiff’s unlawful detention.

• 69․ The relief sought is relief by way of various declarations and compensation pursuant to s 18(7) of the HRA together with interest and costs.
• 70․ Of significance is that Mr McIver does not plead any absence of lawful authority for his detention.

Mr Williams’ pleaded claim and its background

• 71․ On 23 February 2017, Mr Williams pleaded guilty to eight indicatable offences and eleven related summary offences and was sentenced to full-time imprisonment: see R v Williams [2017] ACTSC 298.
• 72․ Mr Williams appealed that decision to the Court of Appeal.
• 73․ On 27 February 2018, the Court of Appeal dismissed the appeal, but amended the sentence in respect of the culpable driving offence: see Williams v The Queen [2018] ACTCA 4; 83 MVR 505.
• 74․ For various periods commencing from 26 December 2019 to 15 January 2021, Mr Williams was placed in solitary or separate confinement in the Management Unit (the MU) of the AMC.
• 75․ He pleaded that, to put it simply, whilst so confined he did not have access to at least one hour of open air and exercise each day. He alleges that this was in breach of various sections of the CMA and other applicable policies, operating procedures, and directions applying to the AMC, specifically the:

(a) Corrections Management (Human Rights) Policy 2010 (ACT);

(b) Corrections Management (Detainee Disciplinary) Policy 2012 (ACT);

(c) Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019 (ACT);

(d) Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT);

(e) Corrections Management (Management of Segregation and Separate Confinement) Policy 2019 (ACT); and

(f) Corrections Management (Management Unit) Policy 2011 (ACT)

(defined collectively in the pleadings as the CM Provisions).

• 76․ The CM Provisions related in one way or another to the conditions of his detention.
• 77․ In turn, Mr Williams alleged that these breaches of the CM Provisions were breaches of his human rights and particularly ss 10(1)(b), 18(1)-(2) and 19(1) of the HRA.
• 78․ The section he relies on to obtain damages is s 18(7), with breaches of
  ss 10(1)(b), 18(1)-(2), and 19(1) being the matters relied on which he alleges amounted to unlawful detention pursuant to s 18(7).
• 79․ Mr Williams seeks various declarations, general compensatory damages, compensation pursuant to s 18(7) of the HRA, aggravated damages, exemplary damages, interest, and costs.
• 80․ As with Mr McIver, Mr Williams does not plead any absence of lawful authority for his detention.

The plaintiffs’ submissions

The principles to apply to an application to extend time under the HRA

• 81․ The plaintiffs submitted that a refusal of an extension of time constitutes, in substance, summary dismissal of the plaintiffs’ HRA claims. Therefore, the submission continued, the principles to apply should be those applied in summary dismissal applications, and that if their pleaded cases were arguable, they should be allowed to proceed.
• 82․ They submitted that, applying those principles, I should not examine the merits of their claims beyond the question of whether they were arguable.
• 83․ The plaintiffs drew my attention to Perera v Genworth Financial Mortgage Insurance Pty Ltd (t/as Genworth) [2017] NSWCA 19; 94 NSWLR 83, in which Leeming JA summarised the authorities on summary dismissal. In that case, Leeming JA said at 92 [30] that the test has been variously described as being:

  [“S]o obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action” and “be manifest that to allow [the pleadings] to stand would involve useless expense”. ...

• 84․ The plaintiffs submitted that the counterpart of the stringency by which summary dismissal may be applied is the importance of jurisdiction being made available by courts wherever possible. What the plaintiffs mean by that is that it is important that parties’ claims are heard by courts on the merits rather than being summarily dismissed.
• 85․ The plaintiffs submitted that, as a general proposition, even where a component of a cause of action involves a novel proposition which is identifiable as a potential incremental development of the existing common law, it would not be appropriate for the Court to prevent a plaintiff from a hearing on the merits in relation to that novel proposition. Inconsistently with that submission, the plaintiffs also submitted that “the claims which the plaintiffs seek to advance do not involve strictly novel claims for relief.”
• 86․ The plaintiffs submitted that:

  It is well established that, both at a threshold level and as a matter of construction, the HRA must be construed “in the broadest possible way”.

• 87․ I think what was being conveyed was that the plaintiffs should not be summarily refused the right to argue at a fully contested hearing their claims under the HRA because it is a piece of beneficial legislation.
• 88․ In conclusion, the plaintiffs submitted that their HRA claims were arguable, and were not so untenable, manifestly groundless, or so weak as to justify (on a summary dismissal basis) a refusal of their applications for extensions of time.
• 89․ They submitted that there were conflicting authorities (at least on the point whether
  s 18(7) of the HRA created a freestanding enforceable statutory right) and therefore that conflict should be resolved at a final hearing rather than on these interlocutory applications.
• 90․ The plaintiffs submitted that their claims were “unarguably arguable” and thus not manifestly groundless or one of the other descriptors mentioned by Leeming JA.
• 91․ As will become clear, I do not accept the plaintiffs’ submission as to the proper principles to apply on these applications. I will come to those reasons in due course, but I should immediately mention that in relation to s 18(7) of the HRA, whilst I accept that there are conflicting obiter statements in earlier authorities, there is one authority, Lewis, in which the ratio included the holding that s 18(7) of the HRA did not create a freestanding enforceable statutory right.
• 92․ In those circumstances, I should follow Lewis unless persuaded it is clearly wrong. For the reasons set out below, I am not persuaded of that; I consider Lewis was correctly decided.

The meaning of ‘unlawful’ in s 18(7) of the HRA

• 93․ The plaintiffs submitted that ‘unlawful' should be given its ordinary English meaning such as "not conforming to, permitted by, or recognised by law or rules" or "contrary to, or forbidden by law, especially criminal law".
• 94․ The plaintiff submitted that unlawful detention for the purposes of s 18(7) includes detention which is specifically proscribed by other provisions of the HRA (such as under ss 18(1)-(2), 19(2) and 40B), or which fails to conform with another statutory provision (such as one of the CM Provisions), or which is legally tainted, such as by a breach of public law principles.
• 95․ They submitted that applying s 18(7) "in the broadest possible way" (because it is beneficial legislation) means that the term ‘unlawful’ cannot be assigned a narrow or constricted operation.
• 96․ The plaintiffs cited R v McIver. In that case, Mossop J found a prima facie breach of Mr Mclver's human rights under s 19(2) of the HRA because Mr McIver, as a remandee, was housed with sentenced prisoners. Nevertheless, his Honour held that there was no breach of s 64(2)(e) of the Sentencing Act (which concerned “lawful custody”) by reason of a breach of s 19(2) of the HRA. At [54], his Honour did not accept Mr McIver’s submission that a breach of s 19(2) of the HRA:

  has the effect that the sentence on the charge of recklessly inflicting grievous bodily harm is not a sentence for an offence committed in “lawful custody” within the meaning of s 64(2)(e) of the Crimes (Sentencing) Act. That section should not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention...

• 97․ The plaintiffs emphasised the word “may” in the last sentence of that quote.
• 98․ The plaintiffs submitted that Mossop J was not asked to consider, and did not consider, other dimensions of unlawfulness, such as non-compliance with s 44(2) of the CMA, the application of s 40B of the HRA, relevant Australian common law authority, or the scope of the remedial operation of s 18(7) of the HRA as including "a residual area of operation", which they submitted had been identified by Refshauge J in Lewis.
• 99․ Mr Williams (but not Mr McIver, because he made no such claim) submitted that, perhaps more significantly, there was established authority in Australia to support his pure common law claim for false imprisonment. It was submitted that the viability of Mr Williams' claim for false imprisonment was significantly enhanced by the highly prescriptive nature of the statute controlling segregation of prisoners, in this case, the mandatory effect of s 45(1) of the CMA. I do not see the relevance of this submission given that Mr Williams’ false imprisonment claim is not a claim under the HRA (which is what I am concerned with in these applications), was not stayed by Williams AsJ, and no extension of time is required for it to proceed.
• 100․ Mr Williams submitted that in Davidson, Loukas-Karlsson J found that s 19(1) of the HRA had been breached because of the failure of the defendant to comply with s 45(1) of the CMA. Mr Williams noted that her Honour found that non-compliance with
  s 45(1) of the CMA resulted in a declaration that the policy which purported to modify how that obligation could be met was held to be invalid. He submitted that that finding spoke clearly to the unlawfulness of detention.
• 101․ Mr Williams submitted that his claim at common law was undoubtedly arguable. As a claim in trespass, it was for the Territory to prove lawful authority. This submission was irrelevant to the issues to be determined on these applications because the common law claim for false imprisonment is not a claim made under the HRA, was not stayed by Williams AsJ, and no extension of time is required for it to proceed.
• 102․ The plaintiffs seemed to submit that because the onus is on a defendant to prove lawful authority in a common law claim for false imprisonment, the Territory therefore bore the onus of proving lawful detention for the purposes of s 18(7) in each of their cases. No authority was cited to support this submission, and no developed submission was made to support it. That point has never been raised in any of the other cases dealing with
  s 18(7) and I see no reason why the Territory should bear the onus. The usual rule is that he who asserts must prove, and whilst there is much common law history behind a defendant bearing the onus in a case concerning the tort of false imprisonment, no such history exists for s 18(7). I do not accept this submission. If a plaintiff alleges that they were unlawfully detained per s 18(7) of the HRA, the onus of proving the same rests on the plaintiff.
• 103․ The plaintiffs’ central submission essentially was that any breach of any statutory or other obligation by the Territory relating to the conditions of detention rendered the detention ‘unlawful’ for the purposes of s 18(7): see T 22.15-19.
• 104․ The plaintiffs drew my attention to Beazley JA’s judgment in State of New South Wales v McMaster [2015] NSWCA 228; 91 NSWLR 666, in which her Honour was said to have provided a definition of the word ‘unlawful’ at common law at 705 [202]. This submission was incorrect. There was no finding as to the meaning of the word ‘unlawful’ at common law. Her Honour simply provided a dictionary definition in the cited passage. All that her Honour said was:

  As a matter of ordinary English, the word “unlawful” means “contrary to law; prohibited by law; illegal”: Oxford English Dictionary. ...

• 105․ In that case, the NSW Court of Appeal was concerned with the meaning of the word ‘unlawful conduct’ when used in s 52 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) which relevantly says that a person does not incur a liability arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding was ‘unlawful’.
• 106․ Their Honours held that ‘unlawful conduct’ for the purposes of the statutory defence of self-defence in s 52 was not limited to criminal conduct but also applied to tortious conduct.
• 107․ I do not find that authority to be of any assistance in this case. The Civil Liability Act is a completely different statute, it has a different purpose to the HRA, and the HRA does not include any concept of ‘unlawful conduct’ in the sense used in the Civil Liability Act.
• 108․ The plaintiffs also cited a number of authorities in other jurisdictions which address the question whether prison authorities may act in such a way that the prisoner’s detention is regarded as false imprisonment.
• 109․ In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1 (Campbell), White J discussed various authorities and said at 87 [436] that the question whether persons lawfully imprisoned may sue for the tort of false imprisonment by reason of their unlawful placement in a particular prison or in part of a prison had produced different judicial responses. His Honour said the modern view in the United Kingdom was that the unlawful placement of a prisoner within a prison does not provide the basis for a claim of unlawful imprisonment, but that it was accepted (see Campbell at [442]) that there may be circumstances in which a prisoner subjected to a form of unauthorised confinement within a prison may be able to sue for false imprisonment.
• 110․ The plaintiffs also cited New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 (NSW v TD), in which the NSW Court of Appeal held that the tort of false imprisonment was established when a person ordered to be detained at a hospital as a result of mental illness was instead detained in a prison hospital which had not been gazetted as a hospital.
• 111․ Those two cases are directed to whether the tort of false imprisonment was committed, not the question whether the detention was unlawful within the meaning of ‘unlawful detention’ in the ACT’s HRA. I do not find them of any assistance in the face of existing ACT authority on the meaning of ‘unlawful detention’ (to which I will come later in this judgment).
• 112․ Another authority cited by the plaintiffs was Sleiman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor [2009] NSWSC 304, in which a prisoner challenged his detention in segregation and sought administrative law relief. In that case, Adams J said at [34] that the debate focused on whether the prisoner:

  had a right to what has been called in some cases “residual liberty”, unlawful interference with which rendered his imprisonment unlawful and therefore compensable by damages.

• 113․ Again, that case was concerned with the tort of false imprisonment and not the meaning of ‘unlawful detention’ in the HRA. I do not find it of any assistance.
• 114․ So far as those cases address the tort of false imprisonment, they may assist Mr Williams’ common law claim for false imprisonment (but not Mr McIver, who makes no such claim). But simply because those cases address the word ‘unlawful’ in their different legal contexts does not mean they bear on the meaning of the composite phrase ‘unlawful detention’ in the statutory regime of the HRA, particularly when that phrase has been consistently interpreted by previous judges of this Court to involve the question of authority to detain rather than the conditions of detention (simpliciter), and where neither plaintiff has pleaded any lack of authority in the Territory to detain them.
• 115․ No submissions were advanced by the plaintiffs supporting their interpretation of ‘unlawful detention’ based on the matters the High Court said were relevant to statutory interpretation (to which I will come in due course).

Does s 40C(4) of the HRA prevent an award of damages (or compensation) for breach of s 18(7)?

• 116․ On the assumption that any claim under s 18(7) must be brought under pt 5A of the HRA, the plaintiffs submitted that s 40C(4) of the HRA was “undoubtedly qualified” by s 40C(5), citing Mossop AsJ (as his Honour then was) in Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 (Monaghan) at 362 [255] (which was obiter). They submitted that an orthodox contextual approach to statutory construction made it untenable to contend otherwise, citing Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 (Graham) at 288-289 [25] and 289 [28], applied in Davidson at 36-37 [179].
• 117․ I note that both Graham and Davidson in turn cited and relied upon the judgment of Kiefel CJ, Nettle and Gordon JJ (which constituted a majority) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL), wherein their Honours said at 368 [14]:

  The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  (Citations omitted.)

• 118․ No detailed submission was made on the text or context of the HRA, and no submissions were made by the plaintiffs as to the HRA’s policy or purpose other than the general submission that it was beneficial legislation.
• 119․ In substance, the plaintiffs adopted a literal approach to interpretation and relied on Mossop AsJ’s obiter observations in Monaghan which they submitted favoured their interpretation of the section.
• 120․ The literal approach to interpretation has been rejected by the High Court for many years: see R v A2 [2019] HCA 35; 269 CLR 507 (R v A2) at 520-521 [32] per Kiefel CJ and Keane J (Nettle and Gordon JJ agreeing at 554 [148], Bell and Gageler JJ making the same point in substance at 545 [124]); SZTAL at 368 [14]. I will address those passages from R v A2 later in this judgment.
• 121․ The plaintiffs submitted that, as Mossop AsJ found in Monaghan, the more natural reading of s 40C(5)(b) of the HRA is to permit the rights stated in ss 18(7) and 23 of the HRA to be directly enforced without regard to whether or not there was an overlapping common law right. However, the plaintiffs did not address the matters Mossop AsJ referred to in the same judgment which did not favour the plaintiffs’ interpretation.

Does s 18(7) of the HRA create a freestanding cause of action separate and distinct from pt 5A?

• 122․ The plaintiffs submitted that s 18(7) of the HRA provides a freestanding enforceable statutory right (or cause of action) entitling a person to sue a public authority for damages for its breach irrespective of and free from the provisions of pt 5A of the HRA.
• 123․ The plaintiffs relied on Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan) as to the principles to apply to statutory interpretation, and on Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 (Morro) in support of their submission that s 18(7) of the HRA provides a freestanding enforceable statutory right.
• 124․ The plaintiffs recognised that the Presentation Speech when the HRA was first enacted (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003 (Jon Stanhope, Attorney-General)), and then when amended in 2008 to add pt 5A (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 6 December 2007 (Simon Corbell, Attorney-General)), were rather explicit in conveying that the HRA was not intended to create enforceable statutory rights, but correctly pointed out that the words of the Attorney-General or a Minister in a Presentation Speech must not be substituted for the text of the law, citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514.
• 125․ The plaintiffs cited Monaghan, and particularly 358-359 [237] and 362 [255], wherein Mossop AsJ expressed an obiter view that s 18(7) may amount to a freestanding enforceable statutory right, although there were considerations to the contrary which had not been the subject of submissions from the parties.
• 126․ The plaintiffs cited Eastman v Australian Capital Territory [2019] ACTSC 280; 14 ACTLR 195 (Eastman) and submitted that Elkaim J had no difficulty in finding that the plain terms of s 23 of the HRA, said to be an analogous provision to s 18(7), amounted to a freestanding enforceable statutory right. Justice Elkaim found that s 23 had been breached by the defendant in that case and awarded Mr Eastman $7,020,000 in compensation for that breach.
• 127․ The plaintiffs submitted that the upshot of the cases they cited was that the existence of a cause of action based on the proposition that s 18(7) was a freestanding enforceable statutory right was “unarguably arguable”. This submission picked up the plaintiffs’ reliance on their summary dismissal principles submissions and was to the effect that if their HRA claims were at least arguable then the applications for extensions of time should be granted and should not be, in substance, summarily dismissed.
• 128․ The plaintiffs drew my attention to the fact that Lewis was appealed to the Court of Appeal: see Lewis v Australian Capital Territory [2019] ACTCA 16. The plaintiffs submitted that the Court of Appeal left open the question of whether s 18(7) gave rise to a freestanding remedy. In that case, the Court of Appeal said at [73]:

  The Court does not consider it necessary to decide whether or not the HRA provides a separate right to damages, distinct from the tort of unlawful imprisonment. This is for two reasons: firstly, this question will be better decided in a case where the only available, or asserted, remedy is one arising from the HRA, and secondly, and more importantly for present purposes, because any damages that might have been awarded pursuant to s 18(7) would face precisely the same obstacle as the common law damages, namely the imposition on the claim of the inevitability that the appellant would have been sent to prison notwithstanding the unlawfulness of the SAB’s actions, as identified by the primary judge.

• 129․ The plaintiffs submitted that the decision in Lewis, insofar as it stands for the proposition that s 18(7) is not a freestanding right to compensation, is plainly wrong. They submitted that Refshauge J erred by not giving due consideration to the words of the HRA, erroneously went straight to the extrinsic materials, and then engaged in a balancing exercise between the words of s 40C(5) of the HRA and the extrinsic materials. The plaintiff submitted that in any event, Refshauge J’s decision on that point was obiter, and I am not compelled to follow it.
• 130․ The plaintiffs further submitted that Lewis also stands for the proposition that there is some “residual operation” to s 18(7) of the HRA even if, on its proper interpretation, the section does not create a freestanding enforceable statutory right.
• 131․ As I understood the submission, the plaintiffs were submitting that where there is some form of breach of the HRA that constitutes unlawfulness, but the Court is not satisfied of unlawfulness for the tort of false imprisonment, s 18(7) can provide a statutory remedy to fill that gap. That is, s 18(7) provides a right, and the general law would otherwise provide a remedy.
• 132․ What Refshauge J said on that point in Lewis at 346 was:

  [528] This is the first basis on which I find that the maxim should not be applied. On my analysis of the Human Rights Act as a whole, including, in this case, extrinsic material permissible for working out the meaning of the Act, I do not consider it can be construed as providing for the public law remedy suggested.

  [529] In the event that this is too wide a conclusion, it seems to me that there is no basis for finding a remedy on the basis of this maxim for a breach of s 18(1) or (2) of the Human Rights Act. There is a remedy- the tort of false imprisonment provides one. There is, in this case, no basis for the finding of the required pre-condition to finding such a remedy exists or should be implied, namely that there is no remedy for the right.

  [530] Again, should there be a residual area of operation, namely that a breach of the right to be arbitrarily detained, being wider that the requirement for which the tort of false imprisonment is a remedy, namely that the imprisonment be unlawful, so that this breach is not so remediable, then that does not apply in this case for there is no doubt that the imprisonment of Mr Lewis was unlawful.

• 133․ I must confess that I had difficulty understanding the plaintiffs’ submission. In any event, the submission fails because Refshauge J did not hold that there existed any “residual operation”.
• 134․ In Lewis at 346 [528], his Honour rejected the proposition that the maxim ‘where there is a right, there is a remedy’ (set out at 345 [520]) should be applied. One reason for rejecting the proposition was given at 346 [528], and a second reason was given at 346 [529].
• 135․ At 346 [530], all that his Honour was saying was that if his Honour was wrong at 346 [528]-[529], and assuming there was this so-called residual area of operation, then that residual area of operation did not apply because there was no doubt that the imprisonment of Mr Lewis was unlawful.

Explanation for the delay in commencing HRA proceedings – Mr Williams

• 136․ The relevant last day the act complained of happened (per s 40C(3) of the HRA) to Mr Williams was 15 January 2021.
• 137․ On 10 November 2021, he retained solicitors.
• 138․ On 16 January 2022, the 12-month period provided for by s 40C(3) of the HRA expired.
• 139․ On 21 April 2022, the judgment in Davidson was published.
• 140․ On 15 July 2022, Mr Williams commenced his proceedings in this Court. At that point in time, his legal advisors contended that the defendant in this case was not a “public authority” for the purposes of the HRA, and hence the HRA part of the proceedings were not subject to the 12-month limitation period found in s 40C(3). McWilliam AsJ found otherwise in Williams on 10 February 2023.
• 141․ In an affidavit affirmed by Mr Mark Barrow, Mr Williams’ solicitor, on 6 April 2023, Mr Barrow said that the suggestion that the Territory was a “public authority” for the purposes of s 40C of the HRA was not clear prior to the decision of McWilliam AsJ in Williams because:

(a) the definition of “public authority” under s 40(1) of the HRA appeared to be exhaustive;

(b) the Territory was not listed as a public authority in s 40(1), and it seemed curious to Mr Barrow that the ACT Legislative Assembly had not included the Territory in s 40(1), as if the Legislative Assembly had intended for the Territory to be included as a public authority for the purposes of the HRA, it would have expressly included the Territory within s 40(1); and

(c) the Territory did not appear to Mr Barrow to obviously come within the definition under s 40(1)(g).

• 142․ Mr Barrow said that for those reasons, he did not consider that the limitation period in
  s 40C(3) applied to Mr Williams’ proceedings.

Explanation for the delay in commencing HRA proceedings – Mr McIver

• 143․ The relevant last day the act complained of happened to Mr McIver was 28 January 2021.
• 144․ On 29 January 2022, the 12-month period provided for by s 40C(3) of the HRA expired.
• 145․ On 21 April 2022, the judgment in Davidson was published.
• 146․ On 30 August 2022, he retained solicitors.
• 147․ On 30 November 2022, Mr McIver commenced his proceedings in this Court. At that point in time, his legal advisors contended that the Territory in this case was not a public authority for the purposes of the HRA, and hence his proceedings were not subject to the 12-month limitation period found in s 40C(3). McWilliam AsJ found otherwise on 10 February 2023 in Williams.
• 148․ In another affidavit affirmed by Mr Barrow on 6 April 2023, Mr Barrow identified the same reasons outlined above at [142] for why he did not consider that the limitation period in
  s 40C(3) applied to Mr McIver’s proceedings.
• 149․ No explanation was given for the delay in commencing proceedings between the end of the limitation period and first retaining solicitors, other than that he did not know anything about human rights and did not know he had to commence a claim in Court within one year of the assault on him.

The defendant’s submissions

The principles to apply to an application to extend time under the HRA

• 150․ The Territory submitted that the relevant principles to apply were those applied in many different areas of the law in circumstances where an extension of time was sought and the exercise of the discretion was unfettered, and that I could consider, inter alia, the merits of the plaintiffs’ claims beyond whether they were merely arguable. They submitted that it was permissible for me to, if necessary, examine the plaintiffs’ claims in detail and, if I decided they were hopeless, refuse the leave sought.
• 151․ The Territory submitted that an unfettered discretion to grant leave for a claim to proceed outside a statutory timeframe is found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That section was considered in the ‘classic authority’ of Hunter Valley. In that case, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point, the three principal ones being any explanation for the delay, any prejudice to the respondent or other parties, and the prospects of success (i.e. merits) of the proceeding if leave were granted.
• 152․ The Territory submitted that the considerations articulated in Hunter Valley had been repeatedly endorsed and applied in decisions of this Court. For example, on the question of whether the Court's discretion should be exercised to grant an extension of time to appeal, the Territory cited Merrilees v The Queen [2014] ACTCA 10, R v Meyboom [2012] ACTCA 2; 256 FLR 450, Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1, Vojneski v The Queen [2015] ACTCA 44, Steel Contracts Pty Limited v Simons t/as Little Lifter, Poiner and Adjudicate Today Pty Limited [2014] ACTSC 146, and Endresz v Commonwealth of Australia [2020] ACTCA 48.
• 153․ The Territory drew my attention to Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 (Tu'uta), in which the High Court considered the power to extend time under s 477A(2) of the Migration Act 1958 (Cth) (Migration Act). That section, like s 40C(3) of the HRA, provides no express mandatory considerations a court is to take into account in considering whether to extend time.
• 154․ In Tu'uta at 825-826, the plurality said:

  [18] However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

  [19] It follows that the Full Court in DHX17 was wrong to say that “the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.

  (Citations omitted, emphasis added.)

• 155․ Counsel also drew my attention to the judgment of Mortimer J (as her Honour then was) in Stepien v Department of Human Services [2018] FCA 1062 at [21], in which her Honour observed that:

  Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court's core function.

• 156․ The Territory drew my attention to Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 (Ezekiel-Hart v Reis (No 2)) wherein Crowe AJ declined to make an order extending time under s 40C(3) of the HRA. His Honour said:

  [82] This provision certainly contains a broader discretion than that under s 21B. The court is required to consider all of the relevant circumstances paying particular attention to the length of the delay in commencing proceedings, the explanation for that delay and any prejudice which might have been suffered by the defendants. It is relevant, in my view, to also consider the strength, or weakness, of the case propounded by the plaintiff. All of this is to be done in the context of the rationale for the imposition of a time limit in the first place (see Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552-3.

  [83] In the absence of full information as to the evidence in support of the plaintiff’s claims under the HRA I might well have given the plaintiff the benefit of the doubt and extended time under sub-s 40C(3) to 6 November 2017. In particular, I note that there would be no apparent prejudice for the defendants flowing from the time between the relevant causes of action accruing and the commencement of proceedings, or indeed, the hearing of the claims. However, for the reasons which follow I have concluded that the plaintiff’s claims under the HRA against all three defendants are hopeless and must fail. In that context I refuse the plaintiff’s application to extend time under sub-s 40C(3).

  (Emphasis added.)

• 157․ The Territory submitted that, contrary to the submission of the plaintiffs, it is not necessary for the Territory to demonstrate that the relief sought is unarguably not available. It submitted that the plaintiffs' reliance on the principles pertaining to summary dismissal was inapt.
• 158․ The Territory submitted that in summary dismissal applications, a defendant bears the onus of persuading the court that proceedings, which have been properly commenced, should not proceed to trial in the usual way, and should be disposed of early. This is in contradistinction to cases such as the present in which the plaintiffs commenced their respective HRA claims outside the statutory time limit. Therefore, it was the plaintiffs who required the grant of leave in order to proceed and therefore they bore the onus of persuading the Court that it was in the interests of justice to grant them the indulgence sought. That submission picks up the general maxim that he who asserts must prove.
• 159․ The Territory submitted that the plaintiffs' reliance on the "importance of jurisdiction being made available by courts wherever possible" was misplaced because the legislature had expressly limited the Court's jurisdiction through s 40C(3) of the HRA. It was for the plaintiffs to demonstrate why that statutory limit should not apply in their respective cases.
• 160․ The Territory submitted that it did not submit that the novelty of the propositions put by the plaintiffs should compel a decision adverse to the plaintiffs. Rather, it submitted that a novel proposition is different from an untenable proposition, and that the plaintiffs’ HRA cases were untenable.

The meaning of ‘unlawful’ in s 18(7) of the HRA

• 161․ The Territory submitted that the plaintiffs’ HRA claims for damages, based on s 18(7), were untenable because the allegations made could not amount to ‘unlawful detention’ within the meaning of that concept in s 18(7).
• 162․ The Territory, correctly with respect, submitted that the question was not what was the meaning of ‘unlawful’, but rather what was the meaning of the composite phrase ‘unlawful detention’ for the purposes of s 18(7).
• 163․ The Territory submitted that a person's confinement or accommodation in a particular part of a prison will only render their detention unlawful if something about that confinement or accommodation so changes the nature of the detention as to take it beyond the scope of the authority to take and keep custody of the person. Attention is directed in this regard to the legal authority for the custody, and the relevant enquiry is whether there is, in substance, a new or different detention.
• 164․ The Territory submitted that whilst each plaintiff relied on different human rights, CM Provisions, and other matters to found a breach of s 18(7), those human rights, CM Provisions, and other matters, all related to the plaintiffs’ conditions of detention, rather than whether there was authority to detain, and s 18(7) only related to the authority to detain.
• 165․ The Territory pointed out that neither plaintiff had pleaded that there was any lack of authority to detain either of them.
• 166․ Rather, the Territory submitted that the plaintiffs’ pleadings related to the conditions of detention and not whether the various breaches of human rights, CM Provisions, and other matters so changed the nature of their detention as to take their detentions beyond the scope of the authority to take and detain them.
• 167․ The Territory rejected the plaintiffs’ contention that any breach of any statute or other obligation could or would amount to unlawful detention.
• 168․ The Territory submitted that, contrary to the plaintiffs’ submissions, the finding in Davidson did not speak clearly to the unlawfulness of detention when non-compliant with s 45(1) of the CMA. There was no finding of ‘unlawful detention’ for the purposes of
  s 18(7) in Davidson.
• 169․ The Territory submitted that Mossop AsJ rejected a similar argument in Monaghan. In Monaghan, Mossop AsJ described the plaintiff’s chain of reasoning in that case as essentially being that because of contraventions of ss 18(1) and 18(2) of the HRA, the police officers engaged in conduct which was ‘unlawful’ under s 40B of the HRA and therefore the arrest and detention of the plaintiff was ‘unlawful’ for the purposes of
  s 18(7).
• 170․ In analysing that chain of reasoning in Monaghan, Mossop AsJ needed to determine the relationship, if any, between ss 18(1), 18(2) and 18(7), and whether ‘arbitrary’ arrest or detention in s 18(1), or deprivation of liberty otherwise than in accordance with the “procedures established by law” in s 18(2), could amount to ‘unlawful’ arrest or detention for the purposes of s 18(7).
• 171․ Associate Justice Mossop rejected the plaintiff’s chain of reasoning. His Honour said at 358:

  [233] Accepting that “arbitrary” is a term which extends beyond unlawfulness to unreasonable conduct, is it possible, by the chain of reasoning outlined above, to convert s 18(7) from requiring compensation for unlawful detention to an obligation which requires compensation for lawful but unreasonable detention. However, in my view, it is not permissible to achieve this transformation by the chain of reasoning contended for by the plaintiff. That is because s 18(7) must be read in the context of the other provisions of s 18, particularly s 18(1) and (2). The text of s 18(7) refers to “unlawful”, not to “arbitrary”, arrest and detention. That is in a context where s 18(1) refers to the distinct concept of arbitrariness. The use of different words is a strong indication that the entitlements under the subsection are of different content. Similarly, in s 18(2) the absence of compliance with “procedures required by law” may or may not render arrest or detention unlawful but it is unlawfulness that is the touchstone in s 18(7). Because of the different language used in the subsections of s 18, it would be inconsistent with the text and structure of s 18 to permit the reference in s 40B to convert the rights in s 18(7) from that which is stated in the subsection to something else. That is particularly so when the purpose of the exercise is not to obtain a remedy under Pt 5A of the Act, in which s 40B appears, but a freestanding remedy outside the scope of Pt 5A.

  [234] In the light of the above, because the arrest and detention of the plaintiff by the members of the AFP was legally justified and hence not unlawful, s 18(7) would not, even if it provided a free standing cause of action, provide a remedy in this case.

• 172․ That chain of reasoning is similar to the plaintiffs’ chain of reasoning here in that the plaintiffs submitted that by various breaches of the HRA and the CM Provisions (which relate to the conditions of detention rather than the authority to detain) the Territory “unlawfully...detained” the plaintiffs within the meaning of that term in s 18(7).
• 173․ The Territory submitted that Mr McIver had mounted essentially the same argument in R v McIver.
• 174․ I have outlined the salient passages from that case and the subsequent decision by the Court of Appeal (McIver v The King) above. It is pertinent to note, however, that that case dealt with whether a breach of human rights meant that Mr McIver was not in “lawful custody” for the purposes of ss 64 and 72 of the Sentencing Act, and not whether those breaches amounted to ‘unlawful detention’ for the purposes of s 18(7) of the HRA.
• 175․ Be that as it may, coherence in the law should be maintained if an interpretation to achieve those ends is reasonably available: see Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 at 252 [255] 160 per Callinan J. Coherence would be promoted if “lawful custody” in the Sentencing Act and ‘unlawful detention’ in s 18(7) of the HRA bore consistent meanings.
• 176․ The Territory drew my attention to Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43, in which the visa of a Syrian national (AJL20) had been cancelled by the Minister for Immigration and Border Protection on character grounds under s 501(2) of the Migration Act and he was therefore placed in immigration detention as an unlawful non-citizen pursuant to s 189(1) of that Act. After five years in detention, AJL20 commenced a proceeding in the Federal Circuit Court (which was subsequently transferred to the Federal Court) seeking an order that he be released from detention. The primary judge found that AJL20 had not been removed from Australia “as soon as reasonably practicable” as required by s 198(6) of the Migration Act and ordered that AJL20 be released forthwith and, subsequently, made a declaration that his detention was unlawful: see AJL20 v Commonwealth [2020] FCA 1305; 279 FCR 549. The Commonwealth’s appeal to the Full Court of the Federal Court was removed to the High Court.
• 177․ The critical issue was the lawfulness of the detention. The Commonwealth contended that the respondent’s detention under s 189(1) of the Migration Act was lawful because it was authorised and required by s 196(1) of the Migration Act. The respondent argued that s 196(1) did not authorise the Executive to detain an unlawful non-citizen where its officers had failed to remove the unlawful non-citizen from Australia as soon as reasonably practicable as required by s 198(6) of the Migration Act.
• 178․ In written submissions before me, the Territory submitted:

  Their Honours, Kiefel CJ, Gageler, Keane and Steward JJ, held that AJL20's detention was lawful because it was authorised and required by s 196(1) of the Act. In particular, the operation of ss 189(1) and 196(1) in authorising his detention was not conditioned on the actual achievement of his removal as soon as practicable by the Executive in accordance with s 198(6). Their Honours also held that the appropriate remedy for non-compliance by the Executive with the duty to remove imposed by s 198(6) of the Act was an order mandating performance of that duty, not an order releasing the unlawful non-citizen into the community.

• 179․ I do not find that authority to be of much assistance given it concerns a very different statute and involved constitutional considerations, amongst other differences. However, the case does provide an example of the divide in another statute, being the Migration Act, between the notions of authority to detain and the conditions of detention, and that breaches of the latter did not give rise, in and of themselves, to breaches of the former.
• 180․ The Territory submitted, citing Monaghan at 358 [233]-[234] and Lewis at 330 [431]-[433], that it is clear that a breach of ss 18(1) and 18(2) of the HRA does not necessarily mean s 18(7) is invoked, unless that breach is also unlawful detention. The Territory further submitted that if unlawful detention could be based on no more than another breach of the HRA, that would undermine the legislative scheme for detention.
• 181․ The Territory submitted that the proper definition of unlawful detention under s 18(7) of the HRA is being detained without legal authority (or beyond the scope of authority). The Territory further submitted that the conditions of detention, even if unlawful, do not change the nature of the detention to the point where it would take the detention beyond the scope of its legal authority so as to render it unlawful detention.
• 182․ The Territory drew my attention to the judgment of Refshauge J in Re an application for bail by Chris Merritt [2009] ACTSC 56. In that case, his Honour said at [42]:

  While the conditions described are at the very least undesirable they can hardly be called intolerable, that is in the sense that they cannot be tolerated. It has been held that even intolerable conditions do not make incarceration unlawful: R v Deputy Governor of Parkhurst Prison & Ors; Ex parte Hague [1992] 1 AC 58 at 165. In that case, Lord Bridge said at 165:

The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful. I see no real difficulty in saying that the law can provide such a remedy.

(Emphasis in original).

• 183․ The Territory submitted that neither Mr Williams nor Mr McIver had pleaded an absence of lawful authority for their detention. The plaintiffs accepted the accuracy of that submission at the hearing and agreed no issue of onus as to their detention being lawfully authorised arose. At T 29.33, I had the following exchange with the plaintiffs’ counsel:

  HIS HONOUR: One submission put against you is that the pleadings don’t allege unlawful detention in a sense of no authority to detain in the AMC.

  MR TIERNEY: We don’t need to do that. We don’t go to the -

  HIS HONOUR: I’m not saying you have to.

  MR TIERNEY: No, no.

  HIS HONOUR: I’m just saying that’s not in issue.

  MR TIERNEY: No, no, no.

  HIS HONOUR: So in terms of that part of the case there’s no issue, so we don’t have to worry about onus.

  MR TIERNEY: No, your Honour.

  (Emphasis added.)

• 184․ The ‘no’s’ emphasised in bold in that passage were said in a way that indicated agreement with the preceding proposition.
• 185․ The Territory submitted that the claimed breaches of human rights could not, in and of themselves, constitute unlawful detention. Rather, there needed to be something more which would render the detention unlawful.
• 186․ The Territory submitted that the Court in this jurisdiction has not accepted any concept of residual liberty, and further submitted that White J’s decision in Campbell at 90 [452] onwards and Basten JA’s decision in NSW v TD at 579 [54] concerned detention that was not authorised, which is not the plaintiffs’ cases here.
• 187․ In addition, the Territory submitted that in examining cases like Campbell and NSW v TD, it had to be kept in mind that s 18(7) does not exist in a vacuum.
  Sections 18(1) and 18(2), for example, cover matters which might also fall within the concept of unlawfulness discussed in those cases. The point of this submission was simply to highlight the very real difference between the phrase ‘unlawful detention’ in
  s 18(7) and the concept of ‘unlawfulness’ discussed in those other cases.

Does s 40C(4) of the HRA prevent an award of damages (or compensation) for breach of s 18(7)?

• 188․ The Territory submitted that the text of s 40C(4) of the HRA clearly expresses an exclusion to compensatory relief. Section 40C(4) says:

...

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

...

(Emphasis added.)

• 189․ The Territory submitted that the clear meaning of the text, as apparent in s 40C(4), cannot be displaced by extrinsic materials, including legislative notes, citing Alcan.
• 190․ This submission, which was essentially the same as that made by the plaintiffs, in my view, goes a little too far. At least in the terms in which it was put, it seemed to be a submission in favour of a literal interpretation. As a majority of the High Court held in
  R v A2 and SZTAL at 368 [14] (quoted earlier in this judgment), if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and the objects of the legislation, those words may wear a very different appearance. In addition, when a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for courts to depart from the literal meaning of the words used. R v A2 will be discussed later below.
• 191․ The Territory submitted that s 40C(5) of the HRA does not negate the exclusion in
  s 40C(4) or create a separate avenue for relief under s 18(7). Section 40C(5) begins with the words: “This section does not affect‑”. Those words mean that s 40C (being “this section”) does not affect the rights expressly referred to in s 40C(5), but it does not mean that those expressly identified rights operate as limitations or qualifications on the exclusion in s 40C(4).
• 192․ The Territory further submitted that it is evident from the terms of s 40C(5) that the section seeks to preserve other rights (the focus being on the right not the remedy) that a person has under and apart from the HRA. Section 40C(5)(a) clarifies that s 40C does not affect or qualify any rights a person has against a public authority sourced from outside the HRA. The effect of s 40C(5)(b) is to preserve any rights existing within the HRA to compensation (as identified in the note to s 40C(5)) against non-public authorities and/or against public authorities but not derived from s 40C, or rights within the HRA which a plaintiff may rely upon in a proceeding under s 40C(2) in order to obtain relief other than compensation (e.g. an injunction). The existence of such rights for that other purpose does not negate the exclusion of an award of damages under s 40C(4).

Does s 18(7) create a freestanding cause of action separate and distinct from pt 5A?

• 193․ The Territory submitted that the plaintiffs’ reliance on Morro had limitations. Morro considered a previous version of the HRA before the introduction of pt 5A. Therefore, the issue considered in Morro was considered in the absence of s 40C of the HRA (which is in pt 5A) and so Morro had limited utility in these applications where s 18(7) must be interpreted in the current statutory context.
• 194․ I do not agree wholly with this submission. The genesis and history of the HRA is relevant to the issues of statutory interpretation I have to consider, and an authority dealing with an earlier iteration of the HRA would not be irrelevant by reason of that fact alone. Nevertheless, I agree that s 18(7) must be interpreted in the current statutory context.
• 195․ Furthermore, in Morro, the plaintiff did not argue a breach of the HRA (as is argued in this case), and only invoked the HRA to assert a right to compensation under s 18(7). Accordingly, Gray J treated the s 18(7) right as co-extensive with the remedy at common law. At 90 [43], Gray J said:

  The fact that the legislature has provided for compensation in the specific circumstances where the right predicated by s 18(7) of the ACT Act against arbitrary arrest or detention 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.

• 196․ The Territory further submitted that, in any event, Gray J’s discussion of s 18(7) in Morro was obiter dicta for the reasons given by Penfold J in Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134 (Strano) at 140 [21].
• 197․ The Territory submitted that in Strano, Penfold J doubted the findings of Gray J in Morro. Justice Penfold relevantly said at 142 [31]:

  As well, I am not convinced by the process of reasoning by which his Honour reached the conclusion that s 18(7) created a separate statutory cause of action.

• 198․ The Territory submitted that Mossop AsJ in Monaghan was not inclined to agree with the view of the plaintiffs as to whether s 18(7) gave rise to a freestanding right. His Honour only canvassed the arguments for and against the proposition but in the end did not decide the point.
• 199․ The Territory submitted that the extrinsic material described in Monaghan identified a legislative purpose to disallow damages to be awarded for any claim under s 40C of the HRA. Therefore, it supported a reading of s 40C(4) so as to exclude damages as a remedy, including a right to compensation under s 18(7).
• 200․ The Territory submitted that the plaintiffs gave the note to s 40C(5) much work to do. The note is not a part of the HRA and that was acknowledged in Monaghan at [237], referencing s 127(1) of the Legislation Act.
• 201․ In oral submissions, the Territory further submitted that even if the note was taken into account, it could be read in a number of ways. It could be read as simply outlining where in the HRA to find provisions giving a person a right to damages, with the enforceable right existing somewhere else e.g. at common law. The Territory submitted that such a reading would indeed be preferable, being consistent with the legislative history and other extrinsic material outlined above which indicate a legislative intention to exclude damages from claims against public authorities.
• 202․ In Deng v Australian Capital Territory (No 3) [2022] ACTSC 262; 372 FLR 227, Loukas-Karlsson J said at 267 [253] that there was force to Mossop AsJ’s observations regarding the interpretative note in Monaghan. The Territory submitted that Mossop AsJ and Loukas-Karlsson J placed too much weight on the note, and that the note could not qualify or undermine the actual text of the subsection.
• 203․ The Territory submitted that ss 23 and 18(7) of the HRA could not be considered analogous sections. There was no correlation in common law for a right to compensation for wrongful conviction (s 23) as there was for unlawful detention (being the tort of false imprisonment). In Eastman at 223 [149], Elkaim J explicitly observed that s 23 does not have that same objective or breadth as s 18(7):

  I do not think that s 18(7) has either the same objective or breadth. My reading of s 18(7) is that it is intended to address wrongful arrest and detention situations, normally treated as a common law tort.

• 204․ The Territory submitted that construing s 18(7) as a freestanding right to compensation was plainly inconsistent with the legislative purpose of the HRA, which was to recognise and protect existing rights. This was said to be evident in the long title to the HRA, which is: “An Act to respect, protect and promote human rights”. This was also said to be evident in the preamble to the HRA, which says:

  ...

2. Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community.
3. Human rights are set out in this Act so that individuals know what their rights are.
4. Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation.

   ...

• 205․ This purpose, the Territory submitted, is also evident form the Explanatory Statement to the Human Rights Bill 2003 (ACT) (the Human Rights Bill 2003) which included the following statements at 2-4:

  The main purpose of this Bill is to recognise fundamental civil and political rights in Territory law.

  ...

  Clauses 8 to 27 give express recognition to certain civil and political rights enshrined in international human rights law.

  ...

  The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.

• 206․ In identifying this purpose, the Territory further relied on the Presentation Speech to the Human Rights Bill 2003 of Attorney-General, Jon Stanhope (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003), in which he stated at 4248:

  And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.

• 207․ Indeed, this purpose accorded with Refshauge J’s view of the HRA in Lewis at 334-335, namely:

  [458] In earlier consideration of this section, there has been something of a category mistake made. Part 3 of the Human Rights Act, in which s 18(7) appears, set out rights. The provisions in it, as a matter of statutory construction, are not procedural nor are they intended to amend or change the law. They are there to state, or as Richardson J would have it, to declare, the rights which are to be respected, protected and promoted in the Territory.

  [459] Thus, s 18(7) of the Human Rights Act states a right that is to be respected, protected and promoted. Like the other rights set out in the Part, such as fair trial rights to which I have already referred (at [453]), it is not necessarily, indeed it is unlikely, that it is a right that is not already recognised in the legal system of the Territory.

• 208․ Thus, the Territory submitted, interpreting s 18(7) as a freestanding right would imply an operation plainly contrary to its intended purpose.
• 209․ The Territory submitted that Lewis did not accept that s 18(7) conferred a right to compensation independent of the common law right to damages for false imprisonment. Justice Refshauge said at 337:

  [473] I am not satisfied that the words of s 40C(5) of the Human Rights Act together with the cogent argument, set out by Mossop AsJ in Monaghan v Australian Capital Territory, to which I have referred above (at [414]-[419]), as to the effect of that sub-section and the note to it, overcomes the weight of the approach I have taken to the Act and a balancing of the other, inconsistent extrinsic material.

  [474] I am not satisfied that s 18(7) of the Human Rights Act is intended to go further than to state the right that it expresses, namely that a person should have a right to compensation for unlawful detention. I am further satisfied that the tort of false imprisonment meets that right and amounts to such protection as that right requires. The right is simply to compensation; there is no reference express or implied to the quantum and to require additional compensation from that which a proper calculation of damages for false imprisonment provides.

• 210․ Justice Refshauge further said at 345 [519]:

  The only support from the extrinsic material to a free-standing public law remedy appears to be the Note to s 40C(5) of the Human Rights Act. This seems to me to be too weak a reed to weave into a remedy as contended for by Mr Tierney. For the reasons I have set out above, the construction of s 18(7) as creating a free-standing remedy is, if so construed, based on a category mistake.

• 211․ The Territory submitted that Refshauge J’s decision on that point was ratio and should be followed as it is plainly correct (or not plainly wrong).
• 212․ The Territory submitted that Refshauge J did not in fact accept that there was a residual area of operation per the maxim “where there is a right, there is a remedy”.
• 213․ The Territory submitted that his Honour, at 346 [530], expressly assumed the plaintiff’s argument that there should be a residual area of operation in order to dismiss it in relation to Mr Lewis because, in any event, Mr Lewis’ detention was unlawful.
• 214․ The Territory submitted that Murrell CJ in Brown v Australian Capital Territory [2020] ACTSC 70; 350 FLR 417 (Brown) also doubted the proposition that there was a residual area of operation to s 18(7) at 429 [97].
• 215․ The Territory submitted that if s 18(7) was a freestanding right, there would arise a separate regime under the HRA through which compensation could be claimed against non-public authorities, including against individual Australian Federal Police (AFP) officers: see Monaghan at 362 [257]. The Territory submitted that if the legislature intended such a regime, it would have been expressly provided for.
• 216․ The Territory further submitted that the existence of a separate regime of liability would seem inconsistent with s 40D, which provides a mechanism for non-public entities to opt into the obligations of public authorities.
• 217․ The Territory submitted that the effect of the plaintiffs’ interpretation would be that monetary compensation could be awarded against public authorities for breaches of
  ss 18(7) and 23 of the HRA, yet not for breaches of the other human rights in pts 3 and 3A. The Territory submitted that the plaintiffs provided no explanation for why this should be so. The Territory submitted that to construe ss 18(7) and 23 as freestanding rights would create a super category of rights unlike and separate from other rights in the HRA, and, as per Penfold J in Strano at 144 [48]-[49], there was no basis upon which to afford ss 18(7) and 23 a privileged position above and beyond the other human rights contained in the HRA.

The exercise of discretion

• 218․ The Territory submitted that if its submissions on the applicable principles were accepted, then the applications should be refused because the plaintiffs’ HRA claims were futile and therefore it was not in the interests of justice to permit the plaintiffs to proceed with their HRA claims.
• 219․ The Territory also submitted that the plaintiffs’ explanations for the delay in not commencing their HRA claims within time were insufficient to justify the exercise of the discretion in their favour.
• 220․ In relation to Mr McIver, the Territory submitted there was no utility in letting the HRA claim proceed (assuming it was limited to the making of declarations) because a finding had already been made by Mossop J in R v McIver that there had been a prima facie breach of the requirement to segregate him from convicted detainees and a further declaration to that effect would not add anything significant to that finding.
• 221․ The Territory submitted that there was, in substance, no explanation for delay because the last date of the act complained of occurred on 28 January 2021 and Mr McIver first approached solicitors on 30 August 2022, being some six or seven months after the expiry of the 12-month limitation period. There was no evidence for why proceedings were not commenced between 28 January 2021 and 30 August 2022.
• 222․ In relation to Mr Williams, the Territory submitted that there was no utility in letting the HRA claim proceed (assuming it was limited to the making of declarations) because Mr Williams’ HRA claims were essentially based on a policy that was no longer in force, hence a declaration to the effect that a policy no longer in force breached Mr Williams’ human rights was of no or very little utility.

The plaintiffs’ submissions in reply

• 223․ The plaintiffs made (on their count) 20 submissions in reply. I shall mention those the substance of which has not been dealt with in other parts of this judgment.
• 224․ The plaintiffs submitted that the principles set out in Hunter Valley should not be applied because in Hunter Valley Wilcox J did not conduct an evaluation on the substantive merits of the case. That submission was correct insofar as the respondent in that case had indicated that his client would not oppose the application for an extension of time upon the basis that there would be no merit in the substantive application, hence Wilcox J extended time. But those particular facts do not detract from the statement of principle that Hunter Valley set out and which was reaffirmed in Tu’uta.
• 225․ The plaintiffs submitted that the reading of Monaghan proffered by the Territory was “far too narrow”.
• 226․ Instead, the plaintiffs submitted that Mossop AsJ’s comments should be read in light of the argument before his Honour, namely that a breach of s 18(1) of the HRA, the right to protection from arbitrary arrest or detention, could engage the right in s 18(7).
• 227․ The plaintiffs further submitted that a breach of s 45 of the CMA does not just go to the conditions of detention but engages with an established line of authority described as “residual liberty”, and therefore should still be considered to be unlawful detention.
• 228․ The plaintiffs submitted that the absence of a regime for liability and the Territory’s point about s 40D of the HRA were not relevant matters for consideration on this application as the plaintiffs had brought claims against the Territory rather than any other entity which had opted-in under s 40D. I do not accept this submission. On any matter involving statutory interpretation, other provisions and the consequences of interpreting a statute one way or the other should be (and commonly are) considered to see whether a particular interpretation favoured by a party would, for example, not fit with the purpose of the statute, or might give rise to unjust or anomalous consequences.

The principles of statutory construction

• 229․ Chapter 14 of the Legislation Act applies to statutory interpretation in the ACT, in conjunction with common law presumptions: Legislation Act s 137(3).
• 230․ Interpretation of part of a statute requires consideration of that part in the context of the whole of the statute: Legislation Act s 140; Alcan at 46-47 [47]; R v A2 at 521 [33].
• 231․ Material forming part of a statute includes a heading to a chapter, part, division, subdivision, schedule, or another provision, a preamble or other recital to an Act, and a schedule, dictionary, or appendix to an Act: Legislation Act s 126(1). Section 126(2)(a) says that a heading to a section or subsection of an Act also forms part of the Act if the Act was enacted after 1 January 2000, which the HRA was.
• 232․ In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: Legislation Act s 139.
• 233․ Material not forming part of the Act may be considered: Legislation Act s 141. Section 127 of the Legislation Act says that such material includes footnotes, endnotes, or other notes (s 4 of the HRA also provides that a note included in the HRA is explanatory and is not part of the HRA). Section 142(1) says that such material further includes any explanatory statement (however described) for the bill that became the Act, or any other relevant document that was presented to the Legislative Assembly before the Act was passed, the Presentation Speech made to the Legislative Assembly during the passage of the bill that became the Act, and any relevant treaty or other international agreement to which Australia is a party.
• 234․ For convenience, since the last sentence above referred to treaties, I immediately note that, relevantly for these cases, Australia is a party to two particular treaties, being the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)) (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)) (ICESCR). Thus, these treaties may be considered in interpreting the HRA.
• 235․ The Dictionary to the HRA, which s 3 says is part of the HRA, provides that “international law” includes the ICCPR and “other human rights treaties to which Australia is a party”, which the ICESCR is one of.
• 236․ Section 31 of the HRA provides that “international law” and the judgments of foreign and international courts and tribunals relevant to a human right may be considered in interpreting the “human right”. Section 5 provides that “human rights” means the rights set out in pts 3 and 3A of the HRA.
• 237․ In terms of the common law, Hayne, Heydon, Crennan and Kiefel JJ (as her Honour then was) said in Alcan at 46-47 [47]:

  This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

  (Citations omitted.)

• 238․ That passage does not support literalism. Context must be considered in the first instance. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (CIC Insurance), Brennan CJ, Dawson, Toohey and Gummow JJ, with Gaudron J agreeing, said at 408:

  Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. ...

  (Citations omitted).

• 239․ In Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40, Allsop CJ said at 43 [7] that that passage from CIC Insurance had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
• 240․ That proposition, together with other pertinent remarks concerning the displacement of the literal meaning of words in favour of a meaning which achieves the evident purpose or policy of a particular statute or statutory provision, was recently restated by a majority of the High Court in R v A2.
• 241․ In that case, Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, said the following at 520-522:

  [32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

  [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

  [34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

  [35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

  [36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

  [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

  (Citations omitted, emphasis added.)

• 242․ In substance, Bell and Gageler JJ made the same observations. At 545 [124], their Honours said:

  The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. ...

  (Citations omitted.)

Is a claim for damages available under the Human Rights Act?

• 243․ The legislative history, extrinsic material and previous authorities which bear on the issues I have to decide are set out hereunder mostly in chronological order.
• 244․ Many of these matters were comprehensively traversed by Mossop AsJ in Monaghan and Refshauge J in Lewis. Rather than repeating those matters in a less eloquent fashion, I shall quote the relevant extracts from their Honours’ judgments where appropriate and shall add some additional material where relevant.
• 245․ I have approached these matters broadly chronologically because historical considerations are relevant (per Alcan and R v A2) and because it is open to me to examine an earlier statute in order to interpret the later amended version of that statute, not least because doing so will cast light on what the statute was intended to achieve: see DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) at [3.41].
• 246․ For ease of comprehension, I shall also set out my holdings on the proper interpretation of the last two questions of statutory interpretation (which concern the central question whether damages are available in proceedings brought against a public authority under the HRA) immediately after referring to Lewis and before considering later authorities.
• 247․ I do so because I consider that I must follow Lewis on the question whether s 18(7) amounts to a freestanding right to damages unless convinced it is clearly wrong, and it is the only authority which has that status on that question. Not only am I not persuaded that Lewis was wrongly decided, but it is also my opinion that Lewis was correct. It will therefore hopefully assist an understanding of my reasoning to, in the one place, discuss Lewis, express my agreement with the ratio in Lewis, and then add my additional reasons for coming to the same holding.

Discussion and decision

• 248․ The HRA was first enacted in 2004.
• 249․ At that time, it did not include pt 5A. Part 5A was inserted by the Human Rights Amendment Act 2008 (ACT) (2008 Amending Act).
• 250․ The HRA as originally enacted included pt 3, which set out the civil and political rights in the ICCPR but did not include pt 3A. Part 3A was inserted by the Human Rights Amendment Act 2012 (ACT), which set out the economic, social, and cultural rights in the ICESCR.
• 251․ The mischief (in the sense used in R v A2 at 521 [33], namely the state of affairs which to date the law had not addressed) when the HRA was originally enacted, and evident from the extrinsic materials referred to below, was, as the long title says, to respect, protect and promote human rights. In a loose sense, its goals were aspirational in the sense of setting a goal pursuant to which various later laws would, over time, become consistent (or more consistent) with. Or, as Refshauge J perhaps better described it in Lewis at 337 [472], the HRA’s goal was to set standards.
• 252․ In the Explanatory Statement to the Human Rights Bill 2003, it was said at 2 that:

  The main purpose of this Bill is to recognise fundamental civil and political rights in Territory law. In particular, the Bill ensures that, to the maximum extent possible, all Territory statutes and statutory instruments are interpreted in a way that respects and protects the human rights set out in Part 3 of the Bill.

  The Bill also promotes respect for and protection of human rights in the development of new law and increases transparency about the consideration of human rights in parliamentary procedures.

  (Emphasis added.)

• 253․ Clause 3(a) of art 2 of the ICCPR says that:

  Each State Party to the present Covenant undertakes:

  (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

  ...

  (Emphasis added.)

• 254․ But that article was deliberately excluded from the HRA. The Explanatory Statement said at 4:

  The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.

  (Emphasis added.)

• 255․ In the Presentation Speech to the Human Rights Bill 2003, the Attorney-General (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003) said the following at 4246-4250 about the purpose of the HRA:

  The object of this bill is to give recognition in legislation to basic rights and freedoms. It is a clear and unequivocal commitment by this government and by this community about those values that bind us together as a democratic, multicultural and rights-respecting people. By passing this bill we commit ourselves to minimum standards in our law making. It is a bottom line, a floor below which we should not fall.

  ...

  Mr Speaker, I now turn to some of the major features of the bill. The first is individual civil and political rights. First, this bill will recognise in legislation fundamental rights and freedoms drawn from the International Covenant on Civil and Political Rights. Consequently, rights such as equality before the law, the protection of family life and children, personal freedoms such as freedom of religion, thought conscience and expression, the right not to be arbitrarily detained, the right to a fair trial and so forth, will be interpreted and applied in the ACT context.

  To achieve that goal the bill requires that all ACT statutes and statutory instruments must be interpreted and applied so far as possible in a way that is consistent with the human rights protected in the act. Unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. Decision makers in all government areas will have to incorporate consideration of human rights into their decision-making process, and a statutory discretion must be exercised consistently with human rights unless legislation clearly authorises an administrative action regardless of the human right.

  ...

  The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.

  If, in the ordinary course of litigation, the question is raised in the Supreme Court about whether a territory law is consistent with human rights and the Supreme Court is unable to conclude that the law is consistent, the court will have the power to issue a declaration of incompatibility. The bill is abundantly clear that a declaration does not invalidate either primary or subordinate legislation. Nor would it make the operation or enforcement of the law invalid or in any way affect the rights or obligations of anyone.

  ...

  The bill I introduced today does not create a new right of action against a public authority on the ground that conduct is inconsistent with human rights as recommended by the consultative committee. My government considers that at this time creating a new right of action would not be appropriate. However, an action that is allegedly based on an incorrect interpretation of the law will be open to judicial review and administrative law remedies. These remedies are already available.

  ...

  The government’s model will not encourage unnecessary litigation, but it will ensure that human rights are taken into account when developing and interpreting all ACT laws. It will promote a dialogue about human rights within the parliament, between the parliament and the judiciary, and, most importantly, within the Canberra community. It will also serve to educate us and foster respect for the rights of others and greater understanding of our responsibilities towards each other. By enshrining the values of inclusiveness and decency in our law, we are laying a solid foundation for human rights protection in the ACT—at home, at work, at school and in our neighbourhoods.

  (Emphasis added.)

• 256․ The preamble to the HRA, as originally enacted, included:

  ...

3. Human rights are set out in this Act so that individuals know what their rights are.
4. Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation.
5. This Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others.

   ...

• 257․ The human rights set out in the ICCPR (and the ICESCR) are not, by reason of their inclusion in those treaties, enforceable statutory rights. Whilst Australia has ratified those treaties, ratification simply means that Australia is bound to observe the treaty. Ratification of those treaties by the Commonwealth does not give rise to domestic, enforceable statutory rights in the ACT.
• 258․ As noted above, the Dictionary to the HRA defines “international law” as including the ICCPR (and later the ICESCR), and s 31 provides that international law may be considered in interpreting a human right. That is an indicator to me that the human rights set out in the HRA are more probably not enforceable statutory rights because it is less likely that the legislature would enact enforceable statutory rights over which external (to Australia) laws may have an influence in their interpretation. However, if the rights are human rights (as I have distinguished them) whose object is to set standards, then allowing international law to influence their interpretation is readily explainable.
• 259․ Section 5 of the HRA defines “human rights” as those rights set out in pt 3 (and later pt 3A).
• 260․ The heading to pt 3 is “Civil and political rights” which is followed by a note which says:

Note The primary source of these rights is the International Covenant on Civil and Political Rights.

• 261․ A note is not part of the HRA, but a schedule is. Schedule 1 says:

Schedule 1 ICCPR source of human rights

(see pt 3)

Note The primary source of the rights in s 27 (2) is the United Nations Declaration on the Rights of Indigenous Peoples, art 25 and art 31.

• 262․ Part 3A is headed “Economic, social and cultural rights”, and is followed by a note which says:

Note The primary source of these rights is the International Covenant on Economic, Social and Cultural Rights.

• 263․ Schedule 2 then says:

Schedule 2 ICESCR source of human rights

(see pt 3A)

Note The primary source of the right in s 27B (4) is the International Labour Organisation Right to Organise and Collective Bargaining Convention, art 1.

• 264․ Those textual matters, being part of the HRA, point more toward the HRA’s rights being human rights in the sense used by the United Nations OHCHR quoted at the beginning of this judgment rather than enforceable statutory rights.
• 265․ The HRA’s limited remedies when first enacted were described by Mossop AsJ in Monaghan at 358 [236], as follows:

  Prior to the 2008 Amending Act the only remedy expressly provided for in the HR Act was a declaration of incompatibility under s 32. The HR Act was confined to imposing obligations upon those presenting legislation to the Legislative Assembly (ss 37-39) and an interpretive provision designed to encourage the interpretation of legislation in a manner consistent with the human rights stated in the Act (s 30).

• 266․ At 359 [238], Mossop AsJ expressed the view that the extrinsic materials were inconsistent with the notion that ss 18(7) and 23 were freestanding enforceable statutory rights. His Honour said:

  The indication that ss 18(7) and 23 might themselves provide freestanding causes of action was plainly inconsistent with what was said at the time of the introduction of the HR Act in 2004. ...

• 267․ Justice Refshauge explained the genesis of the HRA in Lewis at 331-332, as follows:

  [434] In order to understand s 18(7) of the Human Rights Act, it is, in my view, necessary to consider first the nature and genesis of the Act itself. For these purposes, as I explained in Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48; (2009) 3 ACTLR 127; 227 FLR 462 at [73], I may, and will, have regard to the Report of the ACT Charter Consultative Committee, Towards an ACT Human Rights Act (Canberra, May 2003).

  [435] The Consultative Committee proposed a “dialogue model” which it explained in its Report at [4.5], as follows:

To create a dialogue, the judiciary should not be able to invalidate legislation but rather be able to give its opinion that a law is incompatible with the Human Rights Act. It should then be a matter for the legislature to determine whether or not to amend the legislation so that it conforms to the Human Rights Act.

[436] Thus, the Consultative Committee proposed that the Supreme Court would not be able to invalidate legislation which was inconsistent with a human right but would be able to make a Declaration of Incompatibility which was, it stated at [4.33], “a sufficiently strong and appropriate enforcement mechanism to underpin the dialogue approach”. This mechanism was included in the Human Rights Act as s 32. This was the only real remedy in the Act as initially made.

[437] Helpful discussions of the dialogue model, its operation and its effects are to be found in Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75 and Leighton McDonald, “Rights, ‘Dialogue’ and Democratic Objections to Judicial Review”  [2004] FedLawRw 1 ; (2004) 32 Federal Law Review 1. In the Commonwealth sphere, see The Hon Michael McHugh AC QC, “A Human Rights Act, the Courts and the Constitution” (Presentation given at the Australian Human Rights Commission, 5 March 2009).

[438] The dialogue model was the approach that underpinned the Bill as presented. Thus, in the Presentation Speech, Hansard 18 November 2003 p 4248, the Attorney-General and Chief Minister, Mr John Stanhope MLA said:

The facility for a declaration of incompatibility is a vital component of the dialogue model this will seeks to establish. While preserving parliamentary sovereignty, the declaration will function as a signal to the government and the Assembly. It will make an important contribution to rational and coherent debate about human rights issues.

[439] The Consultative Committee did consider other remedies. It addressed the issue of damages at [4.78], as follows:

The Consultative Committee recommends that the ACT Human Rights Act should not encourage the court to make substantial pecuniary damages payments as the primary remedy for a contravention of human rights. Damages should only be awarded if other remedies have been considered and the court considers that those remedies are not sufficient to provide an effective remedy in relation to the human rights that have been infringed by a public authority. The Consultative Committee believes that the focus of Human Rights Act remedies should be to change behaviour and prevent future breaches. This is consistent with the dialogue model on which the legislation is based and will more effectively build a culture of respect for human rights in the ACT.

[440] In discussion, the major features of the proposed legislation, the Consultative Committee at [4.8], did refer to:

• Effective remedies for breach of the Human Rights Act, including the limited power of the Court to award damages

[441] Unlike the process regularly and helpfully used by the Australian Law Reform Commission, Towards an ACT Human Rights Act did not include a draft of proposed and recommended legislation.

[442] Ultimately, the only remedy actually provided in the Human Rights Act, when originally made, was the power of the Supreme Court to make a Declaration of Incompatibility, with no provision for damages or, indeed, any other express remedial provision. Such a Declaration was made in Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235. As noted earlier (at [409]), the Act was later amended in 2008 to include Pt 5A which gave the Supreme Court power to respond to contraventions by governmental or public authorities of rights set out in the Act by granting “the relief it considers appropriate except damages”: s 40C(4).

• 268․ In Morro, Gray J held that s 18(7) in the HRA as originally enacted conferred a freestanding right to compensation. As I read his Honour’s judgment, his Honour did so primarily because of the text of the section.
• 269․ At 87 [28], Gray J said:

  Were it not for the extrinsic materials declaring an intention not to create a cause of action, the words of ss 18(7) and 23(2) of the ACT Act are apt to declare a remedy by way of compensation in the circumstance predicated in those subsections. If those sections have that effect, it is unnecessary to consider whether a more general remedy for breach of any of the rights set out in Pt 3 of the ACT Act may be implied (cf Baigent’s Case).

• 270․ At 88 [32], Gray J also found that the text of s 18(7) “on its face” provided for a freestanding cause of action:

  In construing the ACT Act the defendant’s initial premise is that there is no general cause of action created by the ACT Act. However, the apparent meaning of s 18(7) (and, for that matter, s 23(2)) is 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.

• 271․ In deciding to disregard the extrinsic materials, Gray J said at 90:

  [38] Whilst I accept the Chief Minister’s comments in the Explanatory Statement and the Presentation Speech as representing an overall view relevant to whether a general enforcement remedy might be implied, those statements are not consistent with at least the apparent meaning of s 18(7) of the ACT Act which on its face gives a statutory right to compensation.

  [39] Whether a more general remedy can be implied as a consequence of giving effect to the ACT Act’s purpose is not to the point and not necessary for me to determine. It is enough that amongst the general purposes of the ACT Act reflected in the long title is the protection of human rights. A specific provision in the ACT Act 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.

• 272․ In my view, his Honour’s observations were obiter for the reasons expressed by Penfold J in Strano, which I shall shortly consider. Having said that, I disagree with Gray J.
• 273․ The words of s 18(7) only appear to have the meaning ascribed to them by his Honour if one ignores the fact that there are (as a matter of language, or in terms of discourse in the human rights area) ‘rights’ other than enforceable rights (whether statutory or otherwise). Namely, there exists a species of rights, called human rights, which, as described by the United Nations OHCHR, are rights we have simply because we exist as human beings – they are not granted by any state.
• 274․ Put another way, it does not seem to me on a reading of Morro that Gray J contemplated that the legislature might use the word ‘rights’ to refer to something other than enforceable rights.
• 275․ Human rights (as described by the United Nations OHCHR) are the type of rights in the ICCPR, an international treaty to which Australia became a party and which the Presentation Speech and the Explanatory Statement to the Human Rights Bill 2003 said should be legislated for the various reasons set out therein, with the deliberate exclusion of the obligation in art 2 to ensure that, so it was said, any person whose rights or freedoms in the ICCPR were breached did not have a remedy in damages.
• 276․ I recognise, of course, that a declaration is a remedy. But I see declaratory and perhaps injunctive relief in the context of the HRA as being more toward the standard setting end of the continuum (particularly so given the terms of ss 32-36 and s 40B(2) of the HRA), as opposed to an award of damages. The stated policy or purpose behind the exclusion of art 2 was to exclude damages as a remedy, not declaratory or injunctive relief.
• 277․ In my view, Gray J erred, per R v A2, in not examining context in the first instance, not having any regard to the mischief the HRA was enacted to address, and not preferring an interpretation which best achieved the purpose of the HRA, as required by s 139 of the Legislation Act.
• 278․ Rather, his Honour seems to have applied a literal interpretation to the terms of s 18(7), ignoring the fact that the text and context of the HRA made plain that the legislature was statutorily recognising a human right to compensation for unlawful detention, and not creating an enforceable statutory right.
• 279․ In Strano, also decided on the pre-2008 version of the HRA (although decided after the amendments made by the 2008 Amending Act), Penfold J doubted whether, on a proper reading of his Honour’s judgment, Gray J did in fact hold in Morro that s 18(7) created a directly enforceable right and expressed considerable doubt about the correctness of the decision if his Honour did.
• 280․ In Strano, the plaintiff contended that s 18(7) of the HRA created an independent cause of action in respect of ‘unlawful arrest or detention’.
• 281․ Justice Penfold was of the view that Gray J’s opinion that s 18(7) created a freestanding right to compensation was obiter: see Strano at 140 [21]. Her Honour went on to say that her Honour was not persuaded by Gray J’s reasoning, an opinion with which, with respect, I agree for the reasons her Honour gave.
• 282․ Justice Penfold’s views were summarised at 144 [45], as follows:

  In summary, the difficulty that I have with Gray J’s reasoning is that his Honour, without any proper consideration of the text of s 18(7) or the legislative context of that provision, without any consideration of the extrinsic materials that are under the Legislation Act available for interpretation purposes, and without offering any explanation of his conclusion by reference to the text of s 18(7), adopted a particular interpretation of that provision and then relied on that unexplained interpretation to reject the extrinsic material as inconsistent with the text as he had already interpreted it.

• 283․ Justice Penfold did not need to come to any conclusion about whether s 18(7) created an independent cause of action because, as her Honour said at 145 [52]:

  For present purposes, however, I do not need to make any finding about whether the s 18(7) cause of action exists, and therefore, I do not need to reject Gray J’s conclusion, or alternatively agree with it for other reasons. All I need to consider is whether, if the s 18(7) cause of action does exist, Mr Strano’s claim was made before the expiry of the applicable limitation period.

• 284․ Justice Penfold ultimately decided at 155 [99] that Mr Strano’s claim was filed after the expiry of the applicable limitation period, and therefore could not be maintained.
• 285․ An appeal to the ACT Court of Appeal against Penfold J’s orders was dismissed: see Strano v Australian Capital Territory [2017] ACTCA 51. The existence of any statutory right to compensation under the HRA did not form part of the appeal.
• 286․ As was observed in Monaghan and Lewis, Penfold J’s reasons for disagreeing with Gray J were themselves obiter.
• 287․ Section 43 of the HRA, as originally enacted, required the Attorney-General to review the first year of operation of the HRA and to present a report of the review to the ACT Legislative Assembly not later than 1 July 2006. That review took place, as explained by Mossop AsJ in Monaghan, with a recommendation for the inclusion of a duty on public authorities but with a bar on any remedy for compensation or damages. Associate Justice Mossop said at 359-360:

  [241] In the 12-month review report prepared by the Department of Justice and Community Safety dated June 2006 a recommendation was made to introduce a direct right of action based upon the then recently adopted Victorian model.

Recommendation 6: The Government should examine options for amending the HRA to include a direct duty on public authorities to comply with human rights and a direct right of action. Any proposal will need to address the scope of the duty and the sanctions, if any, for breach. These should be subject to a bar on any new right to compensation arising from breach, following the model recently adopted in Victoria.

[242] At that time s 39 of the Charter of Human Rights and Responsibilities 2006 (Vic) provided:

Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

(As a model to be followed, s 39 was not without its own difficulties: see J Gans “The Charter’s irremediable remedies provision” [2009] MelbULawRw 4; (2009) 33(1) Melbourne University Law Review 105.)

• 288․ Part 5A of the HRA was introduced by the Human Rights Amendment Bill 2007 (ACT) (Human Rights Amendment Bill 2007) and was passed by the Legislative Assembly on 4 March 2008. The Explanatory Statement to the Human Rights Amendment Bill 2007 said at 2:

  The Human Rights Amendment Bill 2007 amends the Human Rights Act 2004 to:

  ...

  • provide a direct right of action flowing from a duty on public authorities to comply with human rights...

• 289․ The Explanatory Statement also said at 2 that the amendments were “in line with the recommendations of the 12-Month Review”, which included the stated aim of not introducing a right to compensation.
• 290․ In relation to s 40C, the Explanatory Statement included the following statements at 6-7:

  Section 40C Legal proceedings in relation to public authority actions

  Section 40C provides guidance regarding legal proceedings that may be available in relation to an unlawful act or decision of a public authority.

  ...

  Paragraph 40C(2)(b) provides that a victim of an unlawful act by a public authority may also rely on human rights as part of any other legal proceeding in a court or tribunal. This may include, for example, in an action brought against a public authority under the Administrative Decisions (Judicial Review) Act 1989, or an order in a civil or criminal proceeding, a stay of proceedings or exclusion of evidence.

  ...

  Sub-section 40C(3) provides that a proceeding which is brought under paragraph 40C(2)(a) must be brought within one year (or less) of the date on which the act complained of took place. That period can be extended by the Court if it considers it is fair to do so in the circumstances.

  Sub-section 40C(4) provides that the Court may grant such relief it considers appropriate in relation to the unlawful act, except for damages. However, sub-section 40C(5) makes clear that if the same conduct is independently unlawful and compensable, this section does not take away that right to damages.

  Paragraph 40C(5)(a) makes clear that nothing in this section restricts any existing rights that a person might have to seek a remedy in respect of an act or decision of a public authority.

  Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.

  (Emphasis added.)

• 291․ The statement about the note to s 40C(5)(b) is ambiguous. Read one way, it can be seen as supporting the plaintiffs’ interpretation of the section, but it can also be read as saying that it does not restrict the human right (as opposed to enforceable statutory right) to compensation which is found in s 18(7).
• 292․ Associate Justice Mossop described the relevant amendments made in the 2008 Amending Act in Monaghan at 358-359 [237] as follows:

  The amendments to the legislation in 2008 introduced the potential that remedies could be granted by the Supreme Court where a public authority had acted in contravention of its obligation not to act in a manner incompatible with a human right or failing to give proper consideration to a relevant human right. The nature of the remedy that could be granted was both defined and limited by s 40C(4) which provided that the Supreme Court could “grant the relief it considers appropriate except damages”. However, s 40C(5)(b) provided that the section did not affect “a right a person has to damages (apart from this section)”. A note under subs (5) provides “Note: See also s 18(7) and 23.” Notes do not form part of the Act (Legislation Act 2001 (ACT), s 127), however, because they appear in an authorised version of the Act, they are extrinsic material which may be taken into account in interpreting the Act: Legislation Act, s 142, Table 142 item 1. The existence of s 40C(5)(b) and the note are consistent with the legislature having amended the Act on the assumption that s 18(7) provides a separately enforceable right to damages. That is reinforced by the terms of the Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) which provided in relation to what became s 40C(5)(b):

Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.

• 293․ As can be seen, his Honour considered that s 40C(5)(b) and the note which immediately followed it were consistent with the legislature having amended the HRA on the assumption that s 18(7) provided a separately enforceable right to damages, and that that hypothesis was reinforced by the terms of the Explanatory Statement to the Human Rights Amendment Bill 2007.
• 294․ His Honour acknowledged at 359 [238] that that hypothesis was inconsistent with the Presentation Speech in which the Attorney-General said that the Human Rights Bill 2003 did not create a new cause of action: see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 18 November 2003, 4248.
• 295․ Associate Justice Mossop also recognised at 360 [244] that:

  The legislative history of the bill that became the 2008 Amending Act does not indicate that there was any recognition of, or support for, the implication that might be drawn from the inclusion of the note or the terms of the explanatory statement.

• 296․ His Honour then described the introduction of pt 5A at 360-361, as follows:

  [245] The bill was referred to the Standing Committee on Legal Affairs (performing the duties of a Scrutiny of Bills and Subordinate Legislation Committee). Report 50 of the Committee (4 February 2008) referred to the proposed s 40C(4), which provided that the Supreme Court may grant the relief it considers appropriate except damages. The Committee recorded:

The Committee draws attention to these provisions and notes that there are quite divergent views on the issue of whether the Supreme Court should or should not be permitted to award damages simply on the basis that there has been a contravention of a human right (as stated in the Act) in the performance of some action by a public authority.

[246] The government’s response to this is recorded in the Committee’s Report 51 (3 March 2008) in which the then Attorney-General stated:

I note the committee’s comment that there are quite divergent views on the issue of whether the Supreme Court should or should not be permitted to award damages for a breach of duty to comply with human rights. I believe that it is not appropriate, given this divergences of views, for the Court to be permitted to award damages for a breach of the duty to comply with human rights. The amendments do not, however, affect any existing right to damages.

[247] During the course of the Legislative Assembly debates upon the bill which became the 2008 Amending Act there was no reference to the possible operation of ss 18(7) and 23 in the context of proposed s 40C(5)(b). In his presentation speech the Attorney-General said (Hansard, 6 December 2007, page 4030):

I turn to the issue of remedies. In line with the recommendation of the 12-month review and the Victorian Charter, damages will not be available for a breach of the Human Rights Act. Rather, a finding of a breach could, for example, be a basis for setting aside an administrative decision or for a declaration that the public authority's actions breached were not in compliance with human rights. [Sic]

[248] The Leader of the Opposition (Mr Seselja), who opposed that part of the bill which introduced Pt 5A, said during the debate in principle that individuals could start proceedings in the Supreme Court against a public authority and continued (Hansard for March 2008 page 381):

In such cases, the Supreme Court will grant relief but not damages.
The provision does not prevent individuals from pursuing other legal avenues should they wish to seek damages.

[249] Later in his speech he referred to the report of the Standing Committee on Legal Affairs and the response by the Attorney-General set out above.

[250] Mr Mulcahy, by then an independent member of the Assembly, said (Hansard 4 March page 399):

I had some lengthy discussion with my advisers in relation to the matter of remedies. I have been persuaded to the view that damages are not appropriate. I would contend that it is more appropriate, for example, that a breach of the act could lead to the setting aside of the administrative decision or a public notification of a breach. We must be very cautious about turning the ACT into a choice of venue for litigation. I believe that not making the remedy of damages available for this sort of breach of voids this issue.

[251] Later in his speech he said “I do not believe that damages are appropriate.”

[252] In his speech in reply in the Attorney-General said (Hansard 4 March 2008 page 393):

As members have pointed out, the legislation does not create any new remedies. It does not give the Supreme Court powers it does not already have. The court can only grant a remedy which is already within its power. For example, it may quash an unlawful decision or order a public authority to take or not to take proposed action. It cannot, however, awards [sic] damages for a breach of human rights. The government does agree with the committee's comments on this point. There is a lack of consensus on whether damages should be awarded for a breach of human rights. The government believes it would not be appropriate, however, given this divergences of views, for the court to be permitted to award damages for a breach of duty to comply with human rights.

(Emphasis added.)

• 297․ The facts in Monaghan were that the plaintiff had his bail conditions varied, but the variation was not communicated to the police. The plaintiff was arrested for breaching his bail conditions when, in fact, he was not in breach. He spent about 24 hours in custody. The plaintiff sued the Australian Capital Territory in negligence, alleging that it breached a duty of care owed to the plaintiff and that his arrest and detention arose from that breach. The plaintiff also claimed that he was entitled to compensation under s 18(7) of the HRA.
• 298․ Associate Justice Mossop found that the defendant owed a duty of care to the plaintiff and that that duty had been breached. Associate Justice Mossop awarded the plaintiff the sum of $2,453 as damages and interest in relation to the claim in negligence.
• 299․ His Honour also addressed the claim for damages under s 18(7) of the HRA. The plaintiff claimed that he had a separate and additional entitlement to compensation pursuant to s 18(7).
• 300․ His Honour found that the plaintiff had not been unlawfully arrested or detained: see Monaghan at 355 [216]-[217], 358 [233]-[234]. His Honour held that ‘unlawful detention’ in s 18(7) of the HRA went to the question of authority to detain, and thus his Honour did not need to decide whether s 18(7) provided a freestanding cause of action because
  s 18(7) was not breached.
• 301․ Nevertheless, his Honour did examine s 18(7) and provided some insightful analysis on that question. Much of that analysis has been set out earlier in this judgment.
• 302․ His Honour seemingly expressed some inclination toward the view that the rights stated in ss 18(7) and 23 could be directly enforced without regard to whether or not there was an overlapping common law right. His Honour’s reasoning was encapsulated at 362, wherein his Honour said:

  [255] Had the only provision been that in s 40C(4) then the natural interpretation of the Act after the 2008 Amending Act would have been that any remedy for a breach of the rights articulated in the Act would have to be one which did not itself involve the award of damages. That would mean that, consistently with the intention of the Chief Minister expressed in relation to the Act in its original form, s 18(7) would not have been able to have been directly enforced. That would have the effect of encouraging claimant’s to exercise the undoubted common law rights in the first instance. However, the existence of s 40C(5)(b) makes the more natural reading of the Act in its amended form one which permits the rights stated in the ss 18(7) and 23 to be directly enforced without regard to whether or not there is an overlapping common law right. That is because of:

(a) the reference in s 40C(5) to “apart from this section” as opposed to “apart from this Act”; and
(b) the terms of the note after paragraph (b).

[256] It is really the note which gives force to the contention that the Act, read as a whole, requires that ss 18(7) and 23 provide freestanding rights. The note constitutes extrinsic material which must be weighed against the other extrinsic material from Hansard which is indicative of the intention of the Legislative Assembly at the time of the original Act and the 2008 Amending Act.

• 303․ Having said that, his Honour then referred to some other important matters relevant to the question of statutory interpretation which had not been the subject of submissions. At 362 [257], his Honour said:

  The decision in Strano was handed down after judgment was reserved in the present case. The submissions of the parties did not address in detail the obvious tension which exists between the terms of the note to s 40C(5) and the legislative history which I have referred to above. Further, the parties did not address the consequences that might arise if a cause of action existed against individual police officers under s 18(7) for unlawful arrest or detention in circumstances where the cause of action was not one in tort and hence the police officers would be personally liable without the benefit of s 64B of the Australian Federal Police Act. Having regard to the conclusion which I have reached above in relation to the scope of s 18(7) and the conclusion that I reach below in relation to the quantum of any compensation that would be payable if there was a freestanding cause of action, it is not essential that I express a concluded view as to the operation of s 40C and I do not do so.

• 304․ The issue of whether s 18(7) was a freestanding right next arose in Lewis.
• 305․ In that case, the Sentence Administration Board (the Board) had cancelled Mr Lewis’ periodic detention order and Mr Lewis spent 82 days in custody. Justice Refshauge held that the Board’s decision was invalid. Mr Lewis then sought damages as compensation for the 82 days he spent in custody as a result of the invalid decision of the Board. His claim was based on two grounds: first, a common law action for false imprisonment, and second, a claim for compensation under s 18(7) of the HRA.
• 306․ Justice Refshauge found that Mr Lewis had been falsely imprisoned: see Lewis at 304 [217]. The plaintiff was awarded $1 by way of nominal damages for that cause of action.
• 307․ Justice Refshauge then proceeded to decide the s 18(7) claim. His Honour referred to the plaintiff’s reliance on Morro, Penfold J’s opposing view in Strano, and Mossop AsJ’s judgment in Monaghan.
• 308․ Justice Refshauge noted Mr Lewis’ submission at 330 [427] that his detention was ‘unlawful’ because it was not supported by a lawful decision of the Board and was therefore arbitrary and in breach of s 18(1) of the HRA. His Honour rejected the submission that, assuming the detention was arbitrary, it was therefore unlawful: see Lewis at 330 [431]-[433].
• 309․ Justice Refshauge expressed the view that the HRA did not create (statutorily enforceable) rights, but rather ‘recognised’ them: see Lewis at 333-335 [447]-[459]. His Honour held at 337:

  [473] I am not satisfied that the words of s 40C(5) of the Human Rights Act together with the cogent argument, set out by Mossop AsJ in Monaghan v Australian Capital Territory, to which I have referred above (at [414]-[419]), as to the effect of that sub-section and the note to it, overcomes the weight of the approach I have taken to the Act and a balancing of the other, inconsistent extrinsic material.

  [474] I am not satisfied that s 18(7) of the Human Rights Act is intended to go further than to state the right that it expresses, namely that a person should have a right to compensation for unlawful detention. I am further satisfied that the tort of false imprisonment meets that right and amounts to such protection as that right requires. The right is simply to compensation; there is no reference express or implied to the quantum and to require additional compensation from that which a proper calculation of damages for false imprisonment provides.

• 310․ In my view, part of the ratio of Lewis was that s 18(7) of the HRA did not provide a freestanding enforceable statutory right to damages. Being a decision of another judge of this Court, I am obliged to follow it unless convinced it is clearly wrong. Not only do I not think it was clearly wrong, but I am also of the opinion the decision in relation to
  s 18(7) was correct, taking into account, per R v A2, the wider context, the mischief to be addressed, and the purpose the HRA sought to achieve, as required by s 139 of the Legislation Act.
• 311․ The plaintiffs submitted that what Refshauge J held in that regard was not ratio. Counsel for the plaintiffs submitted at T 104.35-43 that:

  I am not satisfied and [sic] that Justice Refshauge’s analysis of section 18(7) rises to the point of ratio. I am not persuaded that it does. Justice Refshauge had determined unlawfulness and determined that the plaintiff had been unlawfully detained and then went on to consider 18(7). So, strictly speaking, I am not sure even though there was a claim under section 18(7) that it does stand as ratio. In any event, in this day and age, your Honour, I say there is relatively very little difference between carefully considered obiter and ratio.

• 312․ I do not accept that submission. First, the submission was inaccurate in submitting that Refshauge J first found that Mr Lewis had been unlawfully detained and then went on to consider s 18(7). His Honour first found that Mr Lewis had been falsely imprisoned, before proceeding to determine whether s 18(7) of the HRA gave rise to a right to damages. Second, having awarded Mr Lewis nominal damages of $1 for his cause of action in tort, Refshauge J went on to determine, as his Honour was required to, the alternative claim for greater damages for breach of s 18(7) as a freestanding cause of action. Mr Lewis submitted that he should be entitled to $120,000 for that claim: see Lewis at 349 [558]. Thus, his Honour’s decision on that aspect of the case was ratio. Third, there was clearly a claim made under s 18(7) of the HRA. Fourth, there remains a very real difference between obiter and ratio. I must follow the latter when delivered by another single judge of this Court unless convinced the decision is plainly wrong. I am under no obligation to follow obiter although, of course, obiter may be persuasive.
• 313․ In submissions, the plaintiffs criticised his Honour’s reasoning and said that his Honour had erred in the interpretation process as his Honour “went straight to the [e]xtrinsic materials” without “giving due consideration” to the statutory text.
• 314․ Whilst it may be true that some extrinsic materials are mentioned in his Honour’s judgment before references to the text, that is not erroneous. As the High Court said in R v A2, context is to be considered in the first instance. His Honour considered the genesis of the HRA and the context in addition to the text, and it is not erroneous to put one before the other as long as the ultimate exercise of judgment is performed correctly, which, in my view, it was. It is apparent that his Honour also considered the text of the HRA: see Lewis at 342 [494], 343 [503]-[504], 344 [509], 344 [515].
• 315․ As the reader would appreciate, the wider context to the HRA and the relevant provisions were comprehensively discussed in Monaghan and Lewis.
• 316․ I have included above some further context by way of additional extracts from the Explanatory Statement and the Presentation Speech to the Human Rights Bill 2003 (in which ss 18(7) and 23 of the HRA were included) which, on balance, strongly favour the view that the purpose of the HRA was to recognise in the Territory this species of ‘rights’ called human rights, and to (as the Attorney-General said) ensure that these human rights would be taken into account when developing and interpreting all Territory laws to promote a dialogue about human rights within the parliament, between the parliament and the judiciary, and within the Canberra community, and to educate the community and foster respect for the rights of others and a greater understanding of citizens’ responsibilities towards each other.
• 317․ I do not perceive any inconsistency in the extrinsic material for the HRA as originally enacted. All of that material indicated that the HRA as originally enacted did not create any freestanding statutory rights to damages.
• 318․ What was imported into the Territory by the HRA, as originally enacted, were the human rights listed in the ICCPR, being those rights described by the United Nations OHCHR as rights we have simply because we exist as human beings and not being (enforceable statutory) rights granted by any state. That is consistent with the extrinsic material and the purpose of the HRA. It was the mischief sought to be addressed.
• 319․ Importantly, and as part of the wider context, art 2 of the ICCPR was deliberately excluded from the HRA, as originally enacted.
• 320․ In relation to the HRA, as originally enacted, Gray J considered that s 18(7) gave rise to a freestanding right to damages. Justice Penfold came to the opposite conclusion. Justice Refshauge favoured Penfold J’s view. I also favour Penfold J’s view for the reasons given by her Honour and for the additional reasons set out in this judgment.
• 321․ That brings me to the effect of the 2008 Amending Act which inserted pt 5A.
• 322․ I have included in this judgment some further context in relation to the 2008 Amending Act (in addition to that referred to by Mossop AsJ and Refshauge J) by way of additional extracts from the Explanatory Statement and the Presentation Speech to the Human Rights Amendment Bill 2007, and additional textual and contextual analysis.
• 323․ The wider context includes the important fact that the 2008 Amending Act did not insert an equivalent provision to art 2 of the ICCPR, but instead opted for something different, namely pt 5A, which on any view provided a lesser bundle of enforceable statutory rights than would have occurred had an equivalent to art 2 been inserted.
• 324․ Part 5A was, I think indisputably, inserted to provide remedies against public authorities which breach a person’s human rights. This was the “mischief” sought to be addressed; the state of affairs which the law had not addressed to that point.
• 325․ The dispute is whether the amended HRA thereby came to include a remedy in damages against public authorities and any non-public authorities which opted in to the obligations under the HRA.
• 326․ Further relevant context on that question, per R v A2 at 521 [33], lies in an examination of surrounding statutory provisions, what may be drawn from other aspects of the statute, and the statute as a whole.
• 327․ One significant aspect of the statute, and the statute as a whole, is that one finds many human rights which, in the terms in which they are expressed, have the strong flavour of human rights rather than enforceable statutory rights (being the distinction I drew at the commencement of this judgment).
• 328․ For example, s 9(1) of the HRA says that everyone has the “right to life”. Section 11(1) says that the family is the natural and basic group unit of society and is entitled to be protected by society. Section 13 says that everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT. Section 14(1) says that everyone has the right to freedom of thought and conscience. Section 16(1) says everyone has the right to hold opinions without interference. Section 18(8) says that no-one may be imprisoned only because of the inability to carry out a contractual obligation. Section 27A(2) says that everyone has the right to have access to further education and vocational and continuing training. Section 27B(1) says that everyone has the right to work, including the right to choose their occupation or profession freely.
• 329․ There are a number of stated rights in the HRA which might be seen as reflected in the domestic laws of the Territory, such as s 21, which provides for the right to a fair trial, s 22, which provides for the presumption of innocence, and s 24, which prohibits double jeopardy.
• 330․ However, the fact that some of the rights in the HRA may be reflected in other domestic laws of the Territory does not, to my mind, mean that those that are not so reflected should be imported into the domestic law of the Territory as enforceable statutory rights because of their inclusion in the same Act as those that are.
• 331․ That is, I see no textual or contextual warrant for distinguishing those rights in the HRA from s 18(7) (or s 23).
• 332․ Justice Penfold held a similar view in Strano in relation to the HRA, as originally enacted. Her Honour makes this point more eloquently than I ever could, and I see it as equally applicable to the amended HRA. Her Honour said at 144-145:

  [47] Section 18(7) sits within a section which confers a variety of rights that give substance to the right to liberty and security of person set out in s 18(1). These include a person’s rights to be told the reasons for his or her arrest (s 18(3)); to be brought promptly before a judge or magistrate after arrest (s 18(4)(a)); to be tried within a reasonable time or released (s 18(4)(b)); and to apply to a court for determination of the lawfulness of his or her detention (s 18(6)).

  [48] All these rights are to a greater or lesser degree protected by the laws of the ACT; where any such law is said to protect the relevant right inadequately, there is scope for interpreting that law to enhance the protection it provides so as to achieve greater consistency or compatibility with s 18 or, as a last resort, declaring that the law is incompatible with the Human Rights Act. To that extent, s 18(7) appears to have no different significance from that of any of the other provisions of s 18.

  [49] The proposition put by counsel in reliance on the conclusions reached by Gray J, and those conclusions themselves, seem to depend on the proposition that a provision mentioning compensation must therefore have a different status and operation from a provision mentioning, for instance, a right to have the lawfulness of one’s detention considered by a court. That proposition may or may not be correct, but I have heard no explanation for why it should be correct. The “textual analysis” offered by counsel, if it can be called such, which effectively goes no further than pointing to the word “compensation” in the relevant provision, in my view establishes nothing.

  [50] Second, the specification within the Human Rights Act of what can be “done” with the rights set out in that Act, and the absence of any specification that the recognition of those rights in turn creates new rights of action, must also be taken into account in interpreting the various provisions of the Human Rights Act that set out particular rights. In this context, the statements made in the extrinsic material disregarded by his Honour as inconsistent with his interpretation of the text of s 18(7) may become relevant, in that they are in fact consistent with the overall structure and content of the Human Rights Act, and may therefore support the inferences that can be drawn from that overall structure.

• 333․ I would add three things to what her Honour said.
• 334․ First, I would also include the rights I mentioned at [329] above with the rights her Honour mentions at 144 [47] in terms of the observations her Honour made at 144-145 [49]-[50].
• 335․ Second, I would add to the observation made by her Honour at 144 [49] that I see no textual or contextual warrant for treating s 18(7) (and s 23) as some sort of super category of right which stands apart from the other rights mentioned in pts 3 and 3A.
• 336․ Third, ss 18(7) and 23 do not amount to causes of action themselves. Part 5A provides the cause of action. That is because s 40B, in terms, makes it ‘unlawful’ for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. That is, s 40B, in the terms in which it is expressed, professes to create the ‘unlawfulness’, as distinct from a mere breach of a human right being unlawful without regard to s 40B.
• 337․ To my mind, there would be no need for the word “unlawful” in s 40B(1) if ss 18(7) and 23 amounted to freestanding rights.
• 338․ In addition, s 40C is headed “Legal proceedings in relation to public authority actions”. A heading is part of the HRA and that heading indicates to me that it is the section which provides the statutory cause of action. Section 40C goes on to say that if a person claims that a public authority has acted in contravention of s 40B and alleges that the person is or would be a victim of the contravention, then that person may start a proceeding in the Supreme Court against the public authority.
• 339․ That section therefore describes the elements of the cause of action, being:

(1) a contravention of s 40B;

(2) by a public authority; and

(3) which affects a person (the victim).

• 340․ Further, s 40B does not distinguish between ss 18(7) and 23 and the balance of the human rights set out in pts 3 and 3A. That is an indicator that ss 18(7) and 23 are not to be treated differently to the other human rights.
• 341․ Simply because ss 18(7) and 23 expressly mention a remedy (compensation) is neither here nor there because if the other rights were actionable, it is clear that a remedy would be available (being declaratory or injunctive relief). Thus, the express mention of a particular remedy in ss 18(7) and 23 conveys nothing of importance to my mind in terms of setting ss 18(7) and 23 apart from the other human rights in pts 3 and 3A of the HRA.
• 342․ Section 40B(2) also points away from ss 18(7) and 23 being freestanding rights. That is because, by the terms of s 40B(2), it is not unlawful for a public authority to act incompatibly with any human right if the law expressly requires the act to be done or the law cannot be interpreted in a way that is consistent with a human right.
• 343․ It is incongruous to suggest that ss 18(7) and 23 could operate as freestanding rights in circumstances where s 40B(2) may, in a given set of circumstances, have the effect of determining the actions of the public authority not to be ‘unlawful’ and therefore not actionable under pt 5A.
• 344․ I would also add the following.
• 345․ Section 28 of the HRA points away from human rights in the HRA being freestanding enforceable statutory rights for damages. It provides:
  28. Human rights may be limited

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

• 346․ The existence of s 28 is explainable if the human rights in the HRA are not freestanding rights, but rather exist as a means of standard setting: see Lewis at 337 [472]. Its purpose becomes more difficult to explain if the human rights in the HRA are freestanding rights. The limits spoken of in the section must be limits in other statutes at least, and possibly things like policies governing prisoners’ detention. Assuming such a limit is in a statute, any conflict between the freestanding HRA-right and the limiting provision in another statute would ordinarily be worked out in the traditional way.
• 347․ Ordinarily, if provisions of different statutes are incompatible with one another, then the court first determines whether the two provisions can stand together and favours an interpretation to achieve that result. However, where the two provisions are so inconsistent or repugnant that they cannot stand together, then the later statute impliedly repeals the former: see DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) at [7.10]-[7.12].
• 348․ If those principles were applicable, it would have the following consequences. If a human right in pts 3 or 3A was wholly inconsistent with any earlier statutory provision in any other statute, the HRA would impliedly repeal it. If a provision in a later statute was wholly inconsistent with a human right in pts 3 or 3A, the later statute would impliedly repeal that HRA human right.
• 349․ Accordingly, I cannot perceive any role for s 28 in that exercise. If for no other reason,
  s 28 does not provide for a consequence if a court were to hold that a limit in another statute was not reasonable according to the criterion in s 28(2).
• 350․ Sections 28 and 30 and pt 4 (and particularly s 32) of the HRA point to a different outcome. Namely, that pts 3 and 3A are standard setting, and hence influence the interpretation of other statutes (s 30), set standards for reasonable limitations on human rights (s 28), with the remedy being a declaration of incompatibility (s 32) which the Attorney-General must bring to the attention of parliament (s 33).
• 351․ Part 5 of the HRA, headed “Scrutiny of proposed Territory laws”, also points in the direction of the human rights in the HRA existing for the purpose of standard setting rather than creating enforceable statutory rights for damages.
• 352․ Of course, as mentioned earlier, the rights in pts 3 and 3A are enforceable against a public authority in the limited circumstances set out in pt 5A, but they do not create freestanding rights outside of that limited statutory mechanism. Rather, ss 40B and 40C create an enforceable statutory right against public authorities limited in several ways, including excluding any remedy in damages.
• 353․ The language of those sections also favours an interpretation that pts 3 and 3A in general, and ss 18(7) and 23 in particular, are not freestanding rights. That is because
  ss 40B and 40C include express provisions for the commencing of proceedings in those limited circumstances. If pts 3 and 3A included freestanding rights, there would be no need for provisions such as ss 40B(1)(a) and 40C(2)(a). Any freestanding right could be sued upon without resort to pt 5A, which is the position the plaintiffs originally adopted.
• 354․ It also seems to me that the existence of s 40D is inconsistent with the notion of creating enforceable statutory rights to damages. In the Presentation Speech to the Human Rights Amendment Bill 2007, the Attorney-General, Simon Corbell, described the purpose of s 40D (see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 6 December 2007 at 4030) as follows:

  I turn to the issue of the opt-in option. In the spirit of promoting a human rights culture in the ACT, community organisations and corporations that do not perform a public function will be provided the opportunity to voluntarily opt in to the duty to act consistently with human rights, similar to the duty on public authorities. Such a provision will be unique among human rights jurisdictions and will promote a meaningful dialogue within the community about human rights, in line with the overall aims of the Human Rights Act and the growing interest among public and private bodies for triple-bottom-line reporting or reporting against the three major dimensions of sustainability: economic, social and environmental.

• 355․ I suppose one should never say never, but it seems to me unlikely that any entity would voluntarily opt-in to the obligations of a public authority under pt 5A and thereby become exposed to claims for damages. On the other hand, one can imagine publicly spirited entities opting-in for the purpose of promoting human rights in the Territory where the only remedies against them might be, for example, declarations.
• 356․ It seems to me to be a strange proposition (which I should note neither party put) for parliament to enact a law which created an enforceable statutory right to damages against public authorities, whilst also inserting a provision by which other non-government entities might volunteer to also subject themselves to claims for damages.
• 357․ On the other hand, if the purpose of the HRA was to create an enforceable statutory right to declaratory and other relief (but not damages) against public authorities, and if the purpose was to foster, recognise, promote, and protect human rights in the Territory, then the inclusion of s 40D is more readily explainable. One could readily understand publicly spirited entities wishing to partake in promoting human rights in that way.
• 358․ It is not relevant to the task of interpretation, but I note that seven entities have exercised their rights under s 40D and are the subject of declarations by the Attorney-General, those being:

(a) Companion House Inc. (see Human Rights (Private Entity) Declaration 2009 (ACT));

(b) Women’s Legal Centre (ACT and Region) Incorporated (see Human Rights (Private Entity) Declaration 2010 (No 1) (ACT));

(c) Centre for Australian Ethical Research (see Human Rights (Private Entity) Declaration 2010 (No 2) (ACT));

(d) Relationships Australia Canberra and Region (see Human Rights (Private Entity) Declaration 2012 (ACT));

(e) Amnesty International Australia (see Human Rights (Private Entity) Declaration 2012 (No 2) (ACT));

(f) ACT Disability, Aged and Carer Advocacy Service (see Human Rights (Private Entity) Declaration 2012 (No 3) (ACT)); and

(g) Advocacy for Inclusion Incorporated (see Human Rights (Private Entity) Declaration 2013 (ACT)).

• 359․ Further, I see nothing in the 2008 Amending Act which would convert s 18(7) from a human right, as it originally was in my view, into an enforceable statutory right.
• 360․ Per R v A2, the mischief that the 2008 Amending Act intended to address, being the state of affairs which to that date the law had not addressed, was to provide some remedies against public authorities which had breached a person’s human rights. The question is whether those remedies included damages.
• 361․ Sections 18(7) and 23 were already in the HRA.
• 362․ Section 40C(4) clearly excludes an award of damages as a remedy.
• 363․ Section 40C(5)(a) provides that s 40C does not affect a right a person has (otherwise than because of the HRA) to seek relief in relation to an act or decision of a public authority.
• 364․ Section 40C(5)(b) provides that s 40C does not affect a right a person has to damages apart from s 40C.
• 365․ Section 40C(1) says that the section applies if a person claims that a public authority has acted in contravention of s 40B (acting incompatibly with a human right or in making a decision, failing to give proper consideration to a relevant human right) and alleges that the person is or would be a victim of the contravention.
• 366․ To my mind, all that the terms of s 40C(5)(b) are conveying is that, whilst damages are not an available remedy for a proceeding brought pursuant to s 40C, s 40C does not prevent any non-s 40C right to damages. That is, if there is a right to damages against a public authority for breach of a person’s human rights outside of s 40C (because s 40C(4) excludes damages), then s 40C does not interfere with that (outside) right.
• 367․ This interpretation is consistent with the purpose of the section as outlined in the Explanatory Statement to the Human Rights Amendment Bill 2007, which included the following statement at 7:

  Sub-section 40C(4) provides that the Court may grant such relief it considers appropriate in relation to the unlawful act, except for damages. However, sub-section 40C(5) makes clear that if the same conduct is independently unlawful and compensable, this section does not take away that right to damages.

  (Emphasis added.)

• 368․ I also place some importance on the use of the word “damages” in ss 40C(4)-(5), but not the words “compensation” or “compensated”, and the use of the words “compensation” in s 18(7) and “compensated” in s 23, but not the word “damages”. Those two words only appear in those sections of the HRA and nowhere else.
• 369․ At first, I thought that those differences were immaterial, and that the use of the different words in the HRA was simply loose language. However, on reflection I do not think that that is so.
• 370․ The Territory made the following submission about the differences between the two words:

  It is noted that both terms "damages" and "compensation" are used in the relevant extrinsic materials referred to ... above, and that the plaintiffs use both terms in their pleadings. "Damages is the term commonly given to monetary awards granted by a court, to compensate a party for loss suffered (although damages can be awarded for purposes other than to compensate, for example to punish or vindicate). "Compensation" may be a broader term that includes damages, but also encompasses monetary relief that is available via avenues other than courts (for example, a statutory scheme such as workers compensation), or other forms of relief that a court may grant aside from monetary awards.

  (Citations omitted.)

• 371․ The words “compensation” and “compensated” appear in arts 9(5) and 14(6) of the ICCPR, from which ss 18(7) and 23 came, respectively. The word “damages” or “damage” does not appear in the ICCPR at all.
• 372․ The word “damages” is however frequently used in the Territory when referring to that remedy as being available for breach of an enforceable right, such as a tort, or a breach of contract.
• 373․ That textual difference seems to me a further indication that s 18(7) (and s 23) was (were) intended to be a recognition of certain human rights (together with the other human rights in the HRA) because it used the words “compensation” and “compensate” taken from the (non-enforceable) ICCPR and neither of those sections use the word “damages”.
• 374․ It seems to me more probable that when pt 5A was inserted, it used the word “damages” because it was addressing a well-known legal remedy in the Territory and it was making it clear that that legal remedy was not available against public authorities, whilst also making it clear that s 40C would not affect a right to damages that existed outside that section. As s 18(7) (and s 23) did not refer to a right to damages, it (they) was (were) textually irrelevant to s 40C. That brings me back to the purpose I perceive the human rights in ss 18(7) and 23 to have, namely, standard setting.
• 375․ That is, whilst the standard set in ss 18(7) and 23 was compensation, that standard is yet to be met (which is parliament’s prerogative). Parliament made clear that “damages” was not an available remedy in s 40C(4), as was made clear in much of the extrinsic material.
• 376․ This distinction between “damages” and “compensation” seems a fine one, but as Mossop AsJ noted in Monaghan at 358 [233]:

  The use of different words is a strong indication that the entitlements under the subsection are of different content. ...

• 377․ I think that ss 40C(4) and 40C(5)(b) work together this way. Section 40C(4), in terms, excludes any remedy in damages in proceedings brought against a public authority under s 40C(2). Section 40C(5)(b) means that s 40C (not just s 40C(4) alone) does not affect a right a person has to damages apart from (or ‘but for’) s 40C. Since
  s 40C includes ss 40C(1)-(3), what is being conveyed is that if a person is able to sue a public authority for breach of the person’s human rights otherwise than in a proceeding commenced pursuant to s 40C(2), then s 40C is no bar in those other proceedings to that person obtaining damages.
• 378․ Even if s 40C(5)(b) was regarded as ambiguous, I would prefer the interpretation I believe it should have. That is because the majority of the High Court said in R v A2 at 522 [37], after referring to Alcan and other cases:

  None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

  (Citations omitted, emphasis added.)

• 379․ Another matter of context is the complete lack of reference in the HRA to the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) or the inclusion of provisions which appear in the Wrongs Act, and which one would think would be included in the HRA if the latter provided for claims for damages for personal injury (as the plaintiffs allege in these applications).
• 380․ The Wrongs Act addresses many issues which arise in claims for damages for physical and mental injury in the ACT (which may arise under s 18(7) of the HRA if it created an enforceable statutory right to damages), including apologies, survival of actions on death, compensation to relatives claims, restrictions on damages including restrictions on mental harm, pre-court procedures and, most particularly perhaps, the liability of public authorities: see Wrongs Act ch 8.
• 381․ It seems strange to me, if the HRA was to provide an enforceable statutory right to damages, that nothing would be said about those sorts of issues in the HRA, or at least there be some reference to the applicability (or not) of the Wrongs Act.
• 382․ It is a similar situation in relation to the extension of time provision in
  s 40C(3) of the HRA.
• 383․ Under the HRA, time begins to run from the date the last act complained of happens. Yet, the plaintiff may be unaware within that time of the occurrence of damage such as, for example, mental harm. It seems incongruous to me that, if the construction for which the plaintiffs contend is correct, that time would begin running from the date of breach for a claim for mental harm caused by a breach of the HRA rather than running from the date of the occurrence of damage (as is the case in tort).
• 384․ It is true that in those circumstances a plaintiff could seek an extension of time under
  s 40C(3), but there are no considerations set out in the HRA similar to those set out in
  s 36 of the Limitation Act 1985 (ACT) (Limitation Act). Why the HRA would be silent on those matters if there were enforceable statutory rights to damages under the HRA is difficult to see.
• 385․ Further still, if the plaintiffs are correct and they may sue the Territory for personal injuries for breach of their human rights, it would appear that, prima facie, s 36(1) of the Limitation Act would apply, because it says:
  36. Personal injuries

(1) This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.

...

• 386․ Section 36 of the Limitations Act provides for extensions of time for claims for personal injuries and the matters to be considered. Yet, there is no reference to s 36 in the HRA and, in particular, it is not mentioned in s 40C(3).
• 387․ Given those complications, I think the better view is that the absence of mention of the Wrongs Act in the HRA (or insertion of appropriate equivalent provisions in the HRA) points contextually toward the conclusion that damages are not available under the HRA for a breach of a person’s human rights by a public authority.
• 388․ In addition, the HRA does not provide for the postponement of the limitation period of 12-months if the plaintiff is under a disability. Such a provision exists in the Limitation Act, but it only applies to limitation periods fixed by that Act: see Limitation Act s 30(1)(b).
• 389․ Another matter to consider is the problem identified in Monaghan at 362 [257]. The problem raised was the position of individual AFP officers who might be sued under s 18(7) (if that section provided a freestanding right to damages) where the cause of action was not one in tort and hence the AFP officers would be personally liable because they would not have the benefit of s 64B of the Australian Federal Police Act 1979 (Cth). Section 64B(1) says:

64B Liability for wrongful acts of members

(1) The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties as such a member or a protective service officer in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member or the protective service officer.

...

• 390․ As one can see, that provision is limited to torts, and prima facie would not seem to include breaching a person’s human rights (assuming s 18(7) provided a freestanding right).
• 391․ I specifically sought a submission on that point from the plaintiffs but did not receive one. It is true that in the present case I am not dealing with AFP officers, but the point raised by Mossop AsJ in Monaghan remains a valid one to consider when interpreting this legislation.
• 392․ On the face of it, this circumstance seems to me to be another matter of context pointing away from s 18(7) being a freestanding right. If s 64B did not pose the problem described by Mossop AsJ, the plaintiffs did not explain why that was so in the applications before me.
• 393․ The high point of the extrinsic materials favouring the plaintiffs’ construction is the note to s 40C(5). As Mossop AsJ correctly pointed out at 362 [256] of Monaghan:

  It is really the note which gives force to the contention that the Act, read as a whole, requires that ss 18(7) and 23 provide freestanding rights. The note constitutes extrinsic material which must be weighed against the other extrinsic material from Hansard which is indicative of the intention of the Legislative Assembly at the time of the original Act and the 2008 Amending Act.

• 394․ In Lewis, Refshauge J said at 345 [519] that his Honour considered that that note was “too weak a reed to weave into a remedy”, a statement with which I agree taking into account what was said in R v A2 at 522 [37] about preferring the policy and the purpose of the provisions to the literal meaning of words where their literal meaning does not conform to the evident purpose or policy of the particular provision. Even more must this be the case when the best textual support for the plaintiffs’ contention is not part of the HRA but is a note.
• 395․ In any event, to my mind, at its highest, the note to s 40C(5) is ambiguous, and is therefore not of any great significance.
• 396․ What is of some significance is the word “also” in the note. The difference between “compensation” and “compensate” in ss 18(7) and 23 on the one hand, and the word “damages” in s 40C on the other, more easily explains the use of the adverb “also”, meaning ‘in addition’ or ‘too’, than if compensation/compensate and damages were used interchangeably.
• 397․ If s 40C excludes any remedy of damages under pt 5A of the HRA, the use of the word “also” is readily explained by that interpretation. One would think that if the note meant to convey that ss 18(7) and 23 provided a remedy in damages, and those sections were excluded by s 40C(5)(b) from the operation of s 40C(4), the note would simply have said “See s 18(7) and s 23” and not “See also s 18(7) and s 23”.
• 398․ Of course, whilst the note may be considered, it is not part of the HRA. To my mind, and to the extent it may assist the plaintiffs, it pales in comparison to the clear statements of purpose made in the Presentation Speeches, the other material referred to above, that referred to in Monaghan and Lewis, and the High Court’s statement in R v A2 at 522 [37] in terms of context and purpose.
• 399․ The Explanatory Statement to the Human Rights Amendment Bill 2007 provides stronger support for the plaintiffs’ interpretation, wherein it said:

  Paragraph 40C(5)(b) confirms that nothing in this section affects any right a person may have to damages apart from the operation of this section. The note explains that nothing in this section restricts the right to compensation that arises under section 18(7) and section 23 of the Human Rights Act 2004.

• 400․ However, I read the second sentence in that quote more as an assumption than a statement of explanation. Sections 18(7) and 23 were both in the HRA as originally enacted, and so that particular statement is not explanatory of the amendments made by the 2008 Amending Act but rather an opinion by the draftsperson of the meaning of unamended sections of the HRA. As I read 358-359 [237] of Monaghan, Mossop AsJ seems to have read that sentence in the same way.
• 401․ I shall now turn to two authorities which post-dated Lewis.
• 402․ Sections 18(7) and 23 were examined in Eastman.
• 403․ In that case, Mr Eastman sought compensation for wrongful conviction under
  s 23(1) of the HRA and also claimed compensation under s 18(7). Justice Elkaim awarded compensation under s 23(1) for the wrongful conviction but found that there was no right to compensation under 18(7).
• 404․ In my view, s 23 requires some attention because it is the only other human right in the HRA which expresses the notion that on certain events a person should be entitled to compensation. Therefore, it seems to me that, when determining whether the very similar human right in s 18(7) does or does not create a freestanding enforceable statutory right, I should also consider this section. As the High Court said in R v A2 at 521 [33], context includes surrounding statutory provisions, what may be drawn from other aspects of the statute, and the statute as a whole.
• 405․ His Honour’s reasons for finding that s 23 provided a freestanding cause of action were brief to say the least. In Eastman at 200-201 [13]-[16] and 207-208 [54]-[59], his Honour in substance held that the ordinary meaning of the words in that section meant that Mr Eastman was entitled to be awarded compensation for wrongful imprisonment under s 23 of the HRA by a court of competent jurisdiction.
• 406․ The nub of his Honour’s reasoning is found at 207 [57], in which his Honour said:

  The difficulty with the submission is to understand what else besides creating a cause of action the words “the person has the right to be compensated” could mean. The right is given and must be capable of being enforced. Unlike the United Kingdom no section in ACT legislation imposes an obligation on a statutory body to pay compensation.

• 407․ I shall return to that matter shortly.
• 408․ The Territory’s alternative submission in Eastman was that s 23(2) of the HRA merely created an obligation on the Territory to provide a remedy for wrongful conviction and that this obligation was satisfied by the availability of act of grace payments under the Financial Management Act 1996 (ACT). His Honour rejected that submission, but I do not see any particular relevance of that issue to the issues before me.
• 409․ In relation to s 18(7), Elkaim J said that he did not need to decide the contest over that section given the holding in relation to s 23: see Eastman at 223 [147]. Nevertheless, Elkaim J expressed the obiter view that s 18(7) was intended to address wrongful arrest and detention situations, normally treated as a common law tort, and, at 223 [153], said that there was no suggestion that Mr Eastman’s original arrest was unlawful.
• 410․ Although this judgment is not concerned with s 23, that section is relevant in that it is expressed in similar terms to s 18(7), and in statutory interpretation, the whole of a statute should be considered.
• 411․ After much consideration, and with the greatest of respect, I consider the holding in Eastman on s 23 to be plainly wrong. I shall explain why.
• 412․ Justice Refshauge’s decision in Lewis, which would have been relevant even in relation to s 23, was cited to Elkaim J, but is not referred to or discussed in the judgment.
• 413․ Monaghan was not cited or referred to, despite its apparent relevance to the
  s 23 issue.
• 414․ Both of those omissions were unfortunate, given they both provide answers to the very question posed by Elkaim J at 207 [57] quoted above, namely answering the question “what else besides creating a cause of action the words ‘the person has the right to be compensated’ could mean”.
• 415․ Both Lewis and Monaghan set out in detail the reasonably extensive extrinsic material which rather strongly suggested that the purpose of the HRA (including s 23) was different to that found by Elkaim J, which is important when s 139 of the Legislation Act requires the interpretation that best achieves the purpose of the HRA to be preferred to any other interpretation.
• 416․ I also consider that Elkaim J erred in failing to consider context in the first instance as the High Court requires. It is true that R v A2 was handed down two days after Eastman, but what the High Court said in R v A2 was not new law. That approach had been the law since CIC Insurance in 1997.
• 417․ I also consider there to be a want of reasoning or analysis by Elkaim J of the surrounding statutory provisions to s 23, what may be drawn from other aspects of the statute, and the statute as a whole. Further, there was no examination of the mischief the statute was intended to remedy.
• 418․ I shall now turn to the final authority I should consider, and which was referred to me in submissions.
• 419․ In Brown, the plaintiff spent 43 days in custody in the ACT for an assault erroneously said to have occurred in the Jervis Bay Territory when in fact it had happened just over the border in NSW.
• 420․ The plaintiff claimed compensation for unlawful detention in the ACT and, alternatively, damages for false imprisonment.
• 421․ Chief Justice Murrell held that the plaintiff’s detention in the ACT was lawful: see Brown at 426 [77]. In relation to the meaning of ‘unlawful detention’ in s 18(7) of the HRA, her Honour said at 427-428:

  [84] I do not accept that the s 18(7) term “unlawful detention” can be defined by reference to conduct that is neither expressly authorised nor expressly prohibited by law. The expression “unlawful” implies something more than legal neutrality.

  [85] In any event, for present purposes, it is unnecessary to decide the limits of s 18(7) “unlawful detention” because where-as in the present case-detention is expressly authorised or required by law, the detention is lawful, not unlawful.

• 422․ Chief Justice Murrell referred with evident approval to Monaghan, Eastman, and Lewis on this point at 428-429 [87]-[93] and held at 430:

  [100] As stated above, in this case the actions of individual magistrates, the Court, and the Director-General were not unlawful. They were lawfully justified, if not lawfully required. They accorded with the procedures established by law for bringing a person before the Court to answer an allegation that the person had committed an offence that fell within the Court’s jurisdiction (including the Court’s territorial jurisdiction).

  [101] Consequently, the plaintiff’s claim under s 18(7) of the HRA fails at the threshold.

• 423․ Having so concluded, Murrell CJ did not need to decide whether s 18(7) provided a freestanding cause of action: see Brown at 430 [102]-[108]. Her Honour dismissed the claim for false imprisonment: see Brown at 431 [119].
• 424․ Therefore, in conclusion, in my view, s 18(7) of the HRA does not create a freestanding right. I read Lewis to the same effect.
• 425․ In relation to ss 40C(4)-(5), it is my view that s 40C excludes any right to damages for claims made against public authorities under pt 5A. Section 40C(5)(b) does not have the effect of excepting ss 18(7) and 23 from the prohibition in s 40C(4).

Decisions on remaining matters

The principles to apply to an application to extend time under the HRA

• 426․ In my view, the Territory’s submission that the principles to apply are those which were applied in Ezekiel-Hart v Reis (No 2) and were described in Hunter Valley is correct for four reasons.
• 427․ First, the decision of Ezekiel-Hart v Reis (No 2) is a decision of another single judge of this Court, and I should depart from it only if I consider it plainly wrong. I do not consider it plainly wrong. Indeed, I think it is plainly correct.
• 428․ Second, in Tu’uta, Kiefel CJ, Gageler, Keane and Gleeson JJ said at 824 [13]:

  In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. ...

  (Citations omitted.)

• 429․ Equally, s 40C(3) does not contain any mandatory considerations a judge must consider in deciding whether to extend time and, as the High Court pointed out, the principles in Hunter Valley are well established as being applicable in such circumstances.
• 430․ Third, the considerations referred to in Hunter Valley are commonly applied in extension of time applications in other areas of the law. I see no warrant for not applying them here.
• 431․ Fourth, whilst the plaintiffs are correct in observing that the refusal of an application to extend time would effectively bring that part of the plaintiffs’ proceedings to an end, that circumstance is the same in other areas of the law where extensions of time are sought and refused.

The meaning of ‘unlawful detention’ in s 18(7) of the HRA

• 432․ In Monaghan at 357-358 [232]-[234] and Lewis at 330 [431]-[433], it was found that in order to prove a breach of s 18(7), there must be, in cases such as this, unlawful detention of the relevant kind. Breaches of other provisions of the HRA, in and of themselves, were insufficient to satisfy s 18(7). As Refshauge J said in Lewis at 330 [433]:

  Thus, I reject the contention by Mr Lewis that a breach of s 18(1) of the Human Rights Act will by itself entitle a plaintiff to compensation as stated under s 18(7). ...

• 433․ Therefore, the plaintiffs must show that their detention was unlawful within the meaning of s 18(7) so as to be captured by that provision.
• 434․ A mere breach of ss 18(1) or 18(2) (or the other sections of the HRA pleaded by the plaintiffs) is not sufficient, in and of itself, to establish a breach of s 18(7), which is the plaintiffs’ pleaded cases.
• 435․ Rather, there must be some act or omission which, even if it satisfies ss 18(1) or 18(2) or other sections relied on, also satisfies the requirement in s 18(7) that the detention or arrest be unlawful.
• 436․ ‘Unlawful detention’ in s 18(7) must be considered as a composite phrase. The subject matter of the section is ‘unlawful detention’, that is, a particular type of detention. The cases referred to above refer to that type of detention as being one for which there was no lawful authority. It does not mean detention that is authorised but during which something ‘unlawful’ happens, such as a breach of a human right or a CM Provision.
• 437․ That conclusion is supported by Monaghan, Lewis, and Eastman, in which Elkaim J said at 223-224:

  [153] Returning to the scope of s 18(7), there is no suggestion that the plaintiff’s original arrest was unlawful.

  [154] Although it is possible to argue that the conviction was unlawful because s 18(2) says no person may be deprived of liberty “except on the grounds and in accordance with the procedures established by law”, the contrary argument is that the trial ran according to law.

  [155] His detention was a product of his conviction. It was the only lawful course open consequent upon that conviction.

• 438․ That conclusion is also supported by Brown, in which Murrell CJ said at 427-428:

  [82] The plaintiff submitted that the term “unlawful” should be distinguished from the term “illegal”; that “illegal detention” means detention that is expressly prohibited by law but, for the purposes of s 18(7) of the HRA, “unlawful” detention extends to other detentions that are neither expressly authorised nor expressly prohibited by law, including “arbitrary” detention within the meaning of s 18(1) and detention otherwise than on the grounds and in accordance with the procedures established by law, as proscribed by s 18(2) of the HRA.

  [83]. Further, the plaintiff submitted that s 18(1) “arbitrary detention” extends to a detention that is “tainted in a manner which can attract remedial consequences” (to adopt the plaintiff’s expression).

  [84] I do not accept that the s 18(7) term “unlawful detention” can be defined by reference to conduct that is neither expressly authorised nor expressly prohibited by law. The expression “unlawful” implies something more than legal neutrality.

  [85] In any event, for present purposes, it is unnecessary to decide the limits of s 18(7) “unlawful detention” because where—as in the present case—detention is expressly authorised or required by law, the detention is lawful, not unlawful.

  (Emphasis added.)

The exercise of the discretion

• 439․ In determining whether to grant an extension of time, I am entitled to examine the merits of the claims, including whether the relief by way of damages, as claimed by the plaintiffs, is futile. As was said in Tu’uta at 822 [4]:

  The primary judge did not err in dismissing the extension of time application. His Honour was entitled to exercise the power in s 477A(2) by forming the view that the substantive application lacked merit in the manner recorded in his Honour’s reasons.

• 440․ For the reasons set out earlier in this judgment, I consider that the plaintiffs’ claims under the HRA for damages are futile because the HRA does not provide them a remedy in damages, and there is no merit in the pleaded claims that the plaintiffs were unlawfully detained.
• 441․ The plaintiffs do not rely on (i.e. plead) any lack of authority to detain, and the alleged breaches of s 18(1) and other provisions of the HRA relied upon, in and of themselves, have been authoritatively determined in earlier decisions of the Court to be insufficient to amount to ‘unlawful detention’ in s 18(7).
• 442․ That leaves for consideration whether I should allow the parts of the plaintiffs’ HRA proceedings that do not seek damages and are not based on allegations of unlawful detention to proceed.

Mr McIver

• 443․ Mr McIver’s latest pleading seeks two declarations, namely that:

(1) in December 2020 and January 2021, the plaintiff was unlawfully detained by the defendant in a non-segregated section of the Alexander Maconochie Centre in breach of s 44(2) of the Corrections Management Act 2007 (ACT) and s 19(2) of the Human Rights Act 2004 (ACT); and

(2) the detention of the plaintiff by the defendant in December 2020 and January 2021 in a non-segregated section of the Alexander Maconochie Centre constituted a breach of the plaintiff's human rights under ss 18(2) and 19(2) of the Human Rights Act 2004 (ACT).

• 444․ The first of those two declarations may not proceed because it is based on an allegation that he was unlawfully detained. For the reasons I have given, that claim is futile.
• 445․ Turning to the second declaration sought, s 18(2) of the HRA says:
  18. Right to liberty and security of person

...

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

...

• 446․ However, there is no pleading of any breach of s 18(2) nor any pleading (in any clear way) of the material facts said to be relevant to establishing the elements of any alleged breach of this human right. It is only mentioned as a ‘further particular’.
• 447․ Section 19(2) of the HRA says:
  19. Humane treatment when deprived of liberty

...

(2) An accused person must be segregated from convicted people, except in exceptional circumstances.

...

• 448․ Again, it only appears as a particular and not a pleading.
• 449․ I would not grant leave to Mr McIver to pursue the second declaration for the following reasons.
• 450․ First, there are no proper pleadings (as distinct from particulars) pleading breaches of
  ss 18(2) and 19(2).
• 451․ Second, Mossop J found in R v McIver that Mr McIver’s human rights had been breached by reason of the fact he had been detained in a non-segregated section of the AMC, so another declaration to that effect would seem to be of no utility.
• 452․ Third, there was no explanation provided by Mr McIver as to why he did not commence proceedings between the last date of the act complained of (28 January 2021) and when he first instructed his present solicitors some 18 months later (30 August 2022). The time after he instructed his present solicitors was explained, but no persuasive explanation was offered for the period of about six months which preceded that date and post-dated the expiry of the one year limitation period referred to in s 40C(3) of the HRA.
• 453․ Mr McIver was represented at his sentencing hearing before Mossop J on 16 August 2022. I infer that he was legally represented for some time prior to that date, but no evidence was led from Mr McIver’s previous solicitors about any advice, or lack thereof, in relation to any claim under the HRA.
• 454․ Mr McIver says in his affidavit that he “didn't know anything about human rights” until he retained his present solicitors, and after speaking to them he “liked the idea that [he] could get some compensation”.
• 455․ I am not satisfied that ignorance of the HRA is a persuasive reason to extend time, especially in circumstances where Mr McIver had access to legal advice from his previous solicitors and no evidence is led about what, if any, legal advice was provided to Mr McIver about the HRA by those solicitors.

Mr Williams

• 456․ Mr Williams has pleaded a tortious claim for false imprisonment. That claim was not stayed by McWilliam AsJ and is unaffected by this judgment.
• 457․ Mr Williams’ latest pleading seeks three declarations, namely that:

(1) detaining the plaintiff in breach of s 45(1) of the Corrections Management Act 2007 (ACT) breached the plaintiff’s human rights;

(2) detaining the plaintiff in breach of s 45(1) of the Corrections Management Act 2007 (ACT) was unlawful; and

(3) pursuant to s 40C of the Human Rights Act 2004 (ACT), the defendant has breached the plaintiff’s human rights under s 19(1) of the Human Rights Act 2004 (ACT).

• 458․ Section 45(1) of the CMA says that the Director‑General must ensure, as far as practicable, that detainees have access to the open air for at least one hour each day and can exercise for at least one hour each day.
• 459․ The last day on which an act is complained of by Mr Williams is 15 January 2021. He first conferred with his present solicitors on 10 November 2021, and was not advised of any potential claim under the HRA at that time or before the expiration of the one year limitation period under s 40C(3) of the HRA because of the not unreasonable (but ultimately incorrect) views his solicitors had as to the state of the law at that time.
• 460․ In my view, a sufficient explanation has been provided in relation to the first declaration, and that claim should be allowed to proceed.
• 461․ The second declaration is futile for the reasons I have given earlier and should not be allowed to proceed.
• 462․ The third declaration is the relief sought in relation to two pleadings.
• 463․ The first is paragraph 22B of the Further Amended Statement of Claim which says that cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) was incompatible with the plaintiff’s human rights under s 19(1) of the HRA to be treated with humanity and with respect for the inherent dignity of the human person. Clause 4.3 ceased to have effect on 20 May 2022 when the Corrections Management (Separate Confinement) Operating Procedure 2022 (ACT) came into force, which did not contain the old cl 4.3. It seems to me that there is no utility in having litigation about a policy that is no longer in force when the only relief sought is a declaration.
• 464․ The second pleading underlying the third declaration is paragraph 29 of the Further Amended Statement of Claim. It pleads, in substance, that the Territory breached s 45(1) of the CMA, and that breach operated as a breach of, or was incompatible with, s 19(1) of the HRA. Section 45(1) remains in operation, and I see some utility in allowing that claim for a declaration to proceed.
• 465․ The Territory submitted that while it may be accepted that vindication of a right may justify the grant of a declaration, no reasons were advanced by Mr Williams as to why it is appropriate to make a declaration in the circumstances of this case.
• 466․ Be that as it may, in my view the declarations mentioned should proceed because, as Refshauge J and I agree, the HRA is about standard setting, and when the Territory is alleged to have breached those standards in relation to members of a generally powerless class of citizens, then those citizens should have the opportunity to ventilate their claim in court.
• 467․ Prisoners are punished for their crimes by being incarcerated according to the standards set by parliament (e.g. s 45(1) of the CMA) and governments, not some lesser standard. It is important, I think, for the Territory to be held to the standards it set under the HRA for all the reasons advanced in the Explanatory Statements, Presentation Speeches, and other extrinsic materials discussed above.
• 468․ I will not make an order about it in this judgment as I have not heard from the parties, but I would think it useful going forward if Mr Williams’ pleading was further amended so that his pleaded case accords with the findings and holdings in this judgment.

Costs

• 469․ Ordinarily costs follow the event, but these were two test cases brought on behalf of a number of other plaintiffs.
• 470․ I will hear the parties on costs.

Orders

• 471․ I make the following orders:

(1) The stay order made by McWilliam AsJ in Williams v Australian Capital Territory [2023] ACTSC 18 on 10 February 2023 is lifted on and from 15 June 2023 to the date of this judgment for the limited purpose of the filing and determination of the plaintiffs’ applications in proceeding dated 6 April 2023 and any matters incidental thereto.

(2) Mr McIver’s application in proceeding dated 6 April 2023 is dismissed.

(3) In relation to Mr Williams’ application in proceeding dated 6 April 2023, Mr Williams is granted leave to proceed with his claims in these proceedings under the Human Rights Act 2004 (ACT) as pleaded in his Further Amended Statement of Claim dated 29 June 2023 limited to declaratory relief in accordance with the findings and holdings in this judgment.