Detainees not able to seek damages as a remedy under section 18(7) of the Human Rights Act 2004 (ACT)
McIver v ACT [2024] ACTCA 36
Summary
The Australian Capital Territory Court of Appeal (the Court of Appeal) considered the operation of section 18(7) of the Human Rights Act 2004 (ACT) (the HRA) and specifically whether this section gives right to a freestanding cause of action for damages and the meaning of ‘unlawfully detained’. Ultimately, in dismissing the appeals, the Court found that the section did not create any separately enforceable right and the reference to “unlawfully … detained” did not refer to the conditions of the detention.
Facts
The applications for leave to appeal were brought by two prisoners at the Alexander Maconochie Centre (AMC). Mr Anthony McIver and Mr Derek Williams (the applicants) each sought declaratory relief with respect to alleged breaches of their human rights while detained at the AMC.
The applicants sought an extension of time which, if granted, would allow them to seek compensation under section 18(7) of the HRA for breaches of their human rights.
The principal issue concerned the interpretation of section 18(7) of the HRA, that is:
‘anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention’.
The applicants’ claims raised two key issues in relation to the above section, in particular:
whether the section gave rise to a freestanding cause of action for compensation or damages, notwithstanding the lack of power to award damages under section 40C of the HRA (the existence of a separately enforceable right); and
whether the reference to “unlawfully … detained” covered circumstances in which the detention of the prisoner was lawfully justified by the sentence of imprisonment but there was a breach of the law in relation to the conditions of detention (the meaning of ‘unlawfully detained’).
The primary judge determined both of these issues adversely to the applicants.
Decision
The existence of a separately enforceable right
The Court of Appeal found that the primary judge was correct to conclude that section 18(7) of the HRA did not create a freestanding right to compensation. The Court stated that this conclusion could be reached through the straightforward exercise of statutory interpretation.
Despite making reference to ‘compensation’ as part of its subject matter, the Court of Appeal concluded at [78] that this did not provide a basis for rendering section 18(7) independently enforceable when compared with other rights in Part 3 of the HRA.
The Court of Appeal also considered the interaction of section 40C with section 18(7) of the HRA.
Section 40C defines the ways in which a person who claims that a public authority has acted unlawfully can deploy the human rights in Part 3. Section 40C(4) provides that “‘the Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except for damages”.
Section 40(5) clarifies that section 40C does not affect either:
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) right a person has to damages (apart from this section).
The Court of Appeal explained at [98] that the terms of section 40C “ … are quite clear insofar as they preclude a grant damages as relief under s 40C. It is also clear from s 40C(5) that any right to damages outside of s 40C is preserved.”
Therefore, it was accepted at [98] that the terms of section 18(7) did not impliedly fall within the entitlement to damages exclusion under section 40C.
The Court of Appeal at [99] concluded that there was a clear legislative intent not to create a freestanding cause of action in section 18(7) and not to impliedly create a right to damages or compensation where one did not previously exist.
The meaning of “unlawfully detained”
The applicants argued that a breach of any statutory obligation by the Territory relating to the conditions of detention rendered the detention ‘unlawful’ for the purposes of section 18(7).
The Court of Appeal emphasised at [116] that the manner in which the applicants framed their claim, and their interpretation of section 18(7) would give it an extremely broad operation and provide a very wide-ranging entitlement to monetary compensation. The Court stated at [119] that, “allowing section 18(7) to extend beyond the lawful justification for the detention itself would give it an operation inconsistent with the position of s 18(7) in the HRA as a whole.”
In arriving at this decision, the Court of Appeal explained at [119]:
“The statutory context provided by other subsections in section 18, and the broader statutory context of the provisions in Part 3, and other statutory provisions applicable in the Territory regulating the conditions of detention of detainees, all point very strongly against the interpretation contended for by the applicants.”
It was on this basis, the Court of Appeal concluded at [110] that “section 18 focused upon the legal justification for the arrest or detention as distinct from anything else.”
The Court of Appeal also made clear at [112]:
“Given that s 18(6) provides the immediate context for the subsequent right to compensation in s 18(7), it is a very strong indicator that s 18(7) is focused upon the deprivation of liberty by arrest or detention rather than unlawfulness that occurs in the context of a detention that is otherwise justified by the law.”
Overall, the Court found that when section 18(7) is understood in the context of the HRA as a whole, there is no doubt that the reference to “unlawfully detained” relates to the legal justification for the deprivation of liberty and does not extend to any breach of the law relating to the conditions of the detention.
Commentary
This decision by the ACT Court of Appeal has reinforced an interpretation of section 18(7) of the HRA as a human right, not a remedy. It is intended to be a standard against which statutes and the common law are to be assessed as opposed to a separate and directly enforceable right.
The Court of Appeal has clarified that the operation of section 18(7) and the meaning of “unlawfully … detained” which relates to the legal justification for the deprivation of liberty, as opposed to the conditions of detention.
Consequently, where a detainee encounters a breach of their human rights with respect to the conditions of their detention, and wish to seek damages as a remedy, they will not be able to do so under this section.
This case note was prepared by Alexa Swart and Olivia Tate at Clyde & Co.