Right to Liberty and Redress for Unlawful Detention

Morro & Ahadizad v Australian Capital Territory [2009] ACTSC 118 (10 September 2009) Gray J of the Supreme Court of the Australian Capital Territory found that s 18(7) of the Human Rights Act 2004 (ACT) (‘ACT Act’) creates an independent statutory right to compensation for unlawful arrest or detention.  On the facts before him, however, he found that the tort of false imprisonment provided a sufficient remedy and that additional public law compensation under the Human Rights Act was not necessary.

Facts

Three plaintiffs brought claims of false imprisonment against the ACT.  The false imprisonment arose out of breaches of ACT sentencing legislation and breaches of procedural fairness by the Sentence Administration Board of the ACT.  The ACT admitted liability.

The question for his Honour concerned the proper basis of the compensation payable to each of the plaintiffs and, in particular, whether s 18(7) of the Human Rights Act creates a new statutory right to compensation.  Section 18(7) states that 'anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention'. 

The ACT argued that the Human Rights Act does not provide a statutory right to compensation, and nor should a general right to compensation be implied.  The ACT submitted that an interpretation of the Human Rights Act consistent with its purpose should be preferred.  It submitted that the purpose of the Human Rights Act could be found in extrinsic materials such as the Attorney-General's presentation speech and the Explanatory Statement, which both clarify that the Human Rights Act was not intended to create a new right of action against a public authority.

Decision

His Honour held that s 18(7) of the Human Rights Act confers a substantive statutory right to compensation.  He noted that the use of extrinsic materials is not a substitute for the text of the legislation.  He referred to Spigelman CJ's statement in Harrison v Melhem (2008) 72 NSWLR 380 that:

The task of the court is to interpret the words used by Parliament.  It is not to divine the intent of the Parliament.  The courts must determine what Parliament meant by the words it used.  The courts do not determine what Parliament intended to say.

His Honour concluded that statements in the extrinsic materials that the Human Rights Act was not intended to create a new right of action against a public authority were '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'.  He stated:

It is enough that amongst the general purposes of the Human Rights Act reflected in the long title is the protection of human rights.  A specific provision in the Human Rights 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.

He held that it was not necessary for him to determine whether a more general remedy could be implied into the Human Rights Act.

His Honour then considered the amount of compensation that should be awarded under s 18(7).  He cited Elias CJ, who said in Taunoa v Attorney General [2008] 1 NZLR 429 that:

Where remedies for other wrongs arising out of the same facts are provided under separate claims, they may need to be taken into account in considering what is required for effective remedy of the independent Bill of Rights Act violation.

Gray J concluded that:

The fact that express provision for compensation has been made by s 18(7) of the Human Rights Act does not necessarily require a notion of public law vindication to be imported into the expression of a right to compensation if the existing remedy at common law would achieve that vindication.

He then stated that the unlawful detention referred to in s 18(7) of the Human Rights Act could be remedied by reference to the action of false imprisonment.  He considered the scope of damages at common law for false imprisonment, namely general, aggravated and exemplary damages.  He found that an award of exemplary or aggravated damages was not warranted.  He awarded the plaintiffs general damages.

Relevance to the Victorian Charter 

Section 21(2) of the Victorian Charter states that 'a person must not be subjected to arbitrary arrest or detention'.  However, the Victorian Charter does not contain a provision that provides for compensation if this right is breached, such as that in s 18(7) of the Human Rights Act.  Morro v ACT may therefore be of limited relevance to the Victorian Charter.

Similarly, any statements by his Honour relating to the implication of a general right to compensation such as that implied into the New Zealand Bill of Rights Act 1990 (NZ) in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, a point which his Honour found he did not have to decide, would arguably not have been applicable to the Victorian Charter.  This is because s 39(3) of the Victorian Charter provides that 'a person is not entitled to be awarded any damages because of a breach of this Charter'.  Section 39(4) of the Victorian Charter states that section 39 does not affect any right a person may have to damages apart from the operation of that section.

Had this case been brought in Victoria, the result might have been similar, given that no additional damages were awarded for the breach of the right above and beyond those awarded in respect of the tort of false imprisonment.  Differences in the operation of the Victorian Charter and the Human Rights Act may arise if additional damages, referable to the human rights breach and awarded above common law or other statutory damages, were awarded.

The decision is available at http://www.courts.act.gov.au/supreme/judgments/morro.htm.

Jessica O’Brien is a lawyer with Allens Arthur Robinson