Scepticism about human rights within the Australian legal tradition is long held[1] and takes many forms. Concerns abound, for instance, about the functions placed upon the courts by human rights instruments and about increased litigiousness. Some question the need for a human rights statute given the abundance of common law and other statutory protections.
The Human Rights Act 2019 (Qld) (‘HRA’), largely based upon, but with some key differences to, the Charter of Human Rights and Responsibilities 2006 (Vic) (‘Charter’), has sought to address such concerns by, amongst other things, requiring that human rights arguments piggy-back upon existing causes of action and expressly maintaining parliamentary sovereignty in its statutory interpretation provision. As a result, anecdotally, many lawyers query whether the HRA will make any difference at all.
In my view the HRA does make a difference albeit a more nuanced one than some human rights advocates might prefer. By requiring legislators, executive decision-makers, lawyers and judges to turn their minds to human rights in making and reviewing administrative decisions and in interpreting legislation, the HRA makes more visible, and more credible, the rights of those who are vulnerable to government action. There is now a legislative ‘hook’[2] for arguments about the impact on an individual of such decisions. There will, I think, be a gradual shift in legal culture and jurisprudence, to one which notices, engages with and respects human rights.
Whilst the HRA’s application to tribunals and courts performing administrative tasks is clear, the extent to which the regime will substantively affect outcomes in judicial proceedings is still being played out in Queensland. In a recent landmark decision — Owen-D’Arcy v Queensland Corrective Services[3] — the Supreme Court has delivered its first decision on judicial review and the HRA. In that context, the HRA has important work to do.
A review of Supreme Court cases where the HRA was applied in 2020 and 2021 indicates there has been a careful but steady influence of the HRA upon the judicial function. Human rights arguments have been primarily made by intervenors under the HRA, the Attorney-General and at times also the Queensland Human Rights Commission (‘QHRC’).
Australian Institute for Progress Ltd v Electoral Commission of Queensland & Ors [2020] QSC 54 (Applegarth J)
Background
This case concerned a challenge to the interpretation of s 274 of the Electoral Act 1992 (Qld) which defines “political donation” for the purposes of the prohibitions contained in s 275 of that Act, against political donations being made by or received from “prohibited donors”.
The protagonist, the AIP, was a Queensland “think tank” which proposed to engage in activities (education, advocacy etc.) aimed at promoting a particular political party from an “ideologically centre-right” perspective in the lead up to the recent State election. It received funding from prohibited donors (property developers).
The interpretative issue was whether s 274(1)(b) was to be read as limited to electoral expenditure on behalf of a party, member or candidate rather than, as its plain meaning seemed to suggest, applying to donations made to “another entity” such as the AIP which were gifted to enable them to incur electoral expenditure for the purposes of an election campaign.
Interpretation under the Human Rights Act
Applegarth J commenced with the conventional approach to statutory interpretation including by reference to the “principle of legality”,[4] concluding that the construction urged by the AIP was not supported by the text or structure of the Act and would not achieve the Act’s evident purpose. Further, the principle of legality did not assist the AIP.[5]
The AIP disavowed reliance upon the HRA, presumably because the AIP was not an individual whose rights the HRA protects.[6] Nevertheless, as Applegarth J found, the task of construction necessarily required effect to be given to s 48(1) HRA, which provides that all statutory provisions must, to the extent possible consistent with their purpose, be interpreted in a way that is compatible with human rights.[7]
Justice Applegarth noted the two aspects to s 48(1)’s command:[8]
- consistency with the statutory provision’s purpose; and
- an interpretation that is compatible with human rights, which, by s 8 HRA means an interpretation that either does not limit a human right or, if it does, limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
It was clear that the prohibition in s 275 was intended to, and did, limit freedom of expression (s 21 HRA) and the right to take part in public life (s 23 HRA) by property developers.[9] Accordingly, the question was whether it did so in a reasonable and demonstrably justifiable way as mentioned in s 13 HRA.
Section 13(1) provides that human rights may be subject “only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.” Section 13(2) HRA sets out factors that “may” be relevant in deciding if a limit is reasonable and justifiable. Applegarth J considered each factor in turn, ultimately concluding the limit was reasonable and justified, indeed, his Honour found the prohibition to be consistent with a free and democratic society, and therefore the interpretation reached under standard approaches to construction was compatible with human rights.[10] His Honour did not therefore need to consider s 48(2).
Commentary
There was no question in AIP v ECQ that s 275 limited human rights. This will often be the case. In such circumstances, the interpretative approach of Applegarth J, of ascertaining the meaning of the provision under traditional methods, consistent with the Act’s purpose, and then applying s 13(2) in order to answer the test for compatibility in s 13(1) was appropriate.
It is consistent with the interpretative approach summarised by Tate JA when appearing as Solicitor-General in an early Charter case in Victoria, as answering the following question: “On the ordinary principles of statutory interpretation, does the statutory provision limit a Charter right in a manner that is unjustifiable?”[11] It is also consistent with the approach of the majority of the Supreme Court of New Zealand under s 6 of the New Zealand Bill of Rights Act 1990[12] in R v Hansen[13] and which found favour in the judgments of Gummow and Hayne JJ, and Bell J in the High Court, in Momcilovic v R.[14]
Whilst a sequential approach will not apply in all scenarios — and it should be recognised that it is less apt where a provision leaves open a number of readings more or less compatible with human rights — the approach adopted in Hansen, and reflected by those members of the High Court in Momcilovic, would appear to be as follows:
- Determine the standard meaning of the legislative provision by using standard interpretative principles (including the principle of legality).
- Does the provision (in its standard meaning) limit any protected rights? (The principle of legality may have some work to do where the text, purpose and context of the provision leaves open a meaning that does not limit a human right.) If not, adopt the standard meaning, as it will be compatible.
- If so, are the limits demonstrably justified in accordance with s 13? If yes, then adopt the standard meaning.
- If not, is the provision capable of being interpreted in a more compatible way? If yes, adopt the most compatible interpretation (s 48(2)).
- If not, adopt the standard meaning and consider a declaration of incompatibility (under s 53).
My own suggestion, with respect to Step 1, is that the standard approach taken to reach a particular meaning would be informed by the context of the Queensland Parliament’s statutory recognition and protection of people’s human rights in the HRA. Consistent with the modern approach to statutory interpretation, a clear meaning for any provision should not be reached without regard to context and purpose, which now include that statutory protection. Ambiguity is not the reference point; it may be that recourse to a context of human rights resolves ambiguity, but it may also give rise to it. Quarantining s 48(1) HRA from conventional approaches to interpretation at the first stage of the inquiry under it, in my view, risks the development of an artificial and inconsistent approach to statutory interpretation, whereby protections afforded at common law are more or less protected than those under the HRA. I see the HRA interacting with, being informed by and informing, the development of principles adopted in public law areas with respect to the interpretation and application of statutes and the discretions granted in them.
Ultimately, as McGrath J in Hansen said of the New Zealand equivalent, s 48(1) can be seen to make Queensland’s commitment to human rights:
“… part of the concept of purposive interpretation. To qualify as a meaning that can be given under [s 48(1)] what emerges must always be… a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the court must prefer it to any inconsistent meaning.” [15]
Attorney-General (Qld) v Sri & Ors [2020] QSC 246 (Applegarth J and Dalton J)
Background
In a relatively novel proceeding, the Attorney-General sought urgent injunctive relief at common law to prevent a planned protest on the Story Bridge. The protest organisers had not, rather unfortunately but not unlawfully, engaged in the usual processes under the Peaceful Assembly Act 1992 (Qld) to obtain approval. The protest was billed as an indefinite ‘sit in’ that would continue to block all lanes of the Story Bridge until, essentially, the police arrested protestors.
Orders in respect of an initial protest were granted on an urgent ex parte basis by Applegarth J on 8 August 2020 and in relation to a postponed similar protest by Dalton J on 12 August 2020. Only the decision of Applegarth J is publicly available. Justice Applegarth considered the disruption to the traffic over the Story Bridge, in circumstances of an unlimited (in timeframe or extent of incursion) sit-in, with the additional features of no COVID-safe plan and inevitable physical interaction with police to be of significance to making the ex parte order.[16] The COVID-related reasons had greater significance to Dalton J.
Applegarth J’s original orders contained an injunction against the planned sit-in, but also a broader prohibition against interfering with the traffic on the Story Bridge. This was set aside by his Honour on 10 August 2020. Before Dalton J, the Attorney-General initially sought broad orders in respect of future unknown events. Her Honour declined to grant the broadly described relief but made an injunction specifically tailored to the postponed planned sit-in.
Relevance of human rights
This was a judicial power being exercised at common law. Therefore, ss 48(1) and 58(1) had no relevance and the full extent of how human rights would be considered by courts was unclear.
Applegarth J recognised that the human rights involved — including the democratic right to protest through peaceful assembly — had long been recognised at common law such that a court would pay great heed to them when being asked to stop or restrict them.[17] Reference was made to recent New South Wales decisions in that regard.[18]
As to the balancing of human rights under the HRA, his Honour stated that it is important to recognise that human rights are not absolute; that they are subject to reasonable and justifiable limitations in favour of other persons’ rights or demonstrated public good.[19]
The resolution of the application turned upon the specific facts, and the extent of the hazard and threat to the public of the particular proposed protest.[20]
Innes v Electoral Commission of Queensland & Anor [2020] QSC 293 (Ryan J)
Background
This was an application to quash the results of the Sunshine Coast Regional Council election by an unsuccessful mayoral candidate on the basis that the decision to hold the election during a pandemic had breached human rights.
In this case, Ryan J noted that the court did not have the benefit of a contradictor making submissions about human rights. Accordingly, the case was not an appropriate vehicle for reaching solid conclusions about the operation of the HRA.[21] Unlike the other decisions discussed here, the QHRC was not an intervenor and only the Attorney-General made submissions about the HRA.
Relevance of human rights
Justice Ryan noted that human rights do not have free-standing operation, but are protected and promoted in the ways set out in the HRA.[22] These were:
- under s 48, when interpreting legislation;
- under ss 58 and 59, when considering a claim about a breach of s 58(1) in the context of an independent cause of action in relation to the unlawfulness of the same act or decision; and
- by direct application under s 5(2)(a).
As to s 48(1) HRA, her Honour found no ambiguity in the Act, adopting a standard approach to interpretation such that s 48 did not arise for consideration. In doing so, her Honour referred to the approach adopted in a QCAT decision[23] which essentially adopted a (in my view) reductionist view that might be taken from all of the judgments in the High Court in Momcilovic v R, that human rights statutes do not require courts to depart from established understandings of the limits of statutory interpretation.[24]
As to s 58 HRA, her Honour referred to Victorian Supreme Court Justice Bell’s decision in PJB v Melbourne Health (Patrick’s Case)[25] describing the procedural limb of s 58 of “proper consideration” of human rights. It may be noted that more comprehensive discussion of that obligation can be found in other Victorian cases, of Bare v Independent Broad-Based Anti-Corruption Commission,[26] Castles v Secretary of the Department of Justice,[27] Certain Children v Minister for Families and Children[28] and Certain Children v Minister for Families and Children & Ors (No 2).[29]
This issue was further developed by Martin J in Owen-D’Arcy,[30] discussed below.
In undertaking a review of compliance with the substantive component of s 58(1) by the Electoral Commission under s 59, Ryan J:[31]
- first considered whether the decisions or actions by the ECQ were mandated by the statute — here certain decisions were required by law, and therefore s 58(1) was negated: see s 58(2) HRA;
- next identified the limits on human rights caused by the decisions or actions — here, her Honour indicated that limits could be found by either actual or potential interference or restriction to any extent; and
- lastly considered whether the limits were reasonably and demonstrably justifiable under s 13.
Ultimately, her Honour concluded the decisions around the holding of the election were compatible with human rights in the sense of placing only reasonable and justified limits upon human rights.[32]
As to s 5(2)(a) HRA, Ryan J adopted the intermediate functional approach adopted by courts in Victoria, where human rights will be relevant depending upon the function the court is undertaking. In doing so, her Honour expressly adopted the statement of Bell J in Kracke, that “requiring courts to consider rights which relate to the substance of the proceeding, as well as its process, enhances their legitimacy as institutions of justice with responsibility for interpreting and enforcing human rights.”[33]
Like Applegarth J in the common law context in Attorney-General v Sri, Ryan J found that the right to participation in public life (s 23) was a somewhat superfluous consideration as it was already incorporated in, and underpinned, the role of the Court of Disputed Returns as established by the Local Government Electoral Act 2011.[34] Accordingly it was unnecessary to decide whether s 5(2)(a) required the direct application of s 23 HRA in the proceedings. Her Honour considered that right anyway because the task under the legislation at hand required the court to apply and preserve rights which were arguably broader than those expressed in the HRA.[35]
Attorney-General for the State of Queensland v GLH [2021] QMHC 4 (Wilson J)
In a rare, published decision of the Mental Health Court,[36] Wilson J found the regime established by the Mental Health Act 2016 (Qld)(‘MHA’), as described by Boddice J in Re CMX,[37] to be compatible with the HRA, and the power to impose or remove conditions under a forensic order in particular, capable of being exercised, consistently with its purpose in the MHA, compatibly with human rights.[38]
In doing so, her Honour noted the patient’s Aboriginal and Torres Strait cultural rights and needs, and how they were protected under both Acts. Her Honour also considered human rights jurisprudence from Victoria on the test expressly embraced elsewhere in the MHA, of ‘unacceptable risk’. Her Honour approached the discretion as to conditions of a forensic order in the same way.
Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 (Martin J)
Background
Mr Owen-D’Arcy was convicted of a violent, stabbing murder. Since 2011, he has been classified a maximum security prisoner. Not long after that, he was convicted of offences in the prison environment, including attempted murder of a prison officer.
In January 2013, a Maximum Security Order (‘MSO’) was first issued, under s 60(3) of the Corrective Services Act 2006 (‘CSA’), on the basis of a reasonable belief held by the Respondent that there was a “high risk” of Mr Owen-D’Arcy killing or seriously injuring other persons. MSOs have the effect that a prisoner remains in the Maximum Security Unit, is kept in a single cell for 22 hours per day and has very limited contact with other people.
By statute, the orders may only last 6 months, but extension is permitted under s 61(1) CSA, subject to natural justice being provided. In this case, there had been continuous repeating MSOs for approximately 7 years.
Alongside the MSO, the decision-maker made a No Association Decision (‘NAD’) prohibiting contact between Mr Owen-D’Arcy and other prisoners.
The application
The application sought to have both the MSO and the NAD set aside on traditional judicial review grounds, namely, a breach of the rules of natural justice, unreasonableness, that there was an improper exercise of power (failure to take into account relevant considerations, taking into account irrelevant considerations) and a no evidence argument. None of these grounds were successful except that of failing to take into account relevant considerations — being Mr Owen-D’Arcy’s human rights.
The application also raised additional human rights arguments under s 59 HRA, that:
- the MSO breached s 58(1)(a) HRA in that it was incompatible with human rights; and
- the NAD breached s 58(1)(b) HRA in that the decision-maker did not properly consider Mr Owen-D’Arcy’s human rights.
The relevant human rights
The specific human rights raised by Mr Owen-D’Arcy were:
- s 17(b): protection from torture and cruel, inhuman or degrading treatment or punishment;
- s 29: right to liberty and security of the person; and
- s 30(1): right to humane treatment when deprived of liberty.
Failure to take into account relevant consideration
The Court held that Mr Owen-D’Arcy’s rights provided for in ss 17(b) and 30 HRA were relevant considerations, for the purposes of the Judicial Review Act 1991, with respect to the NAD. In making the NAD (but not the MSO), the decision-maker had not considered the potential impact of the NAD on these rights held by Mr Owen-D’Arcy. Reference to Mr Owen-D’Arcy’s “human rights” without further discussion of the specifically relevant human rights was insufficient.[39]
The NAD was declared unlawful and invalid on that basis (the order having lapsed by the time the decision was published).
Section 59
On the s 59 application, his Honour found that the rights under s 17(b) HRA[40] and s 29 HRA[41] were not engaged. In respect of the former this was due primarily to a lack of evidence reaching the standard contemplated by s 17, and in respect of the latter, because s 29(7) grants a power to release a person unlawfully deprived of their liberty, which could not be countenanced in respect of complaints about conditions where the imprisonment was otherwise lawful. Furthermore, any assessment of the appropriateness of conditions strayed too far from the judicial function. In the course of his reasons, his Honour noted that the HRA does not create but rather reflects the common law right to liberty. And, even if there is a residual liberty at common law, the right in s 29 is only limited if the lawful conditions for the restraint have not been met.
Therefore, the primary right engaged by the application was s 30 — the right to humane treatment when deprived of liberty.[42]
His Honour found both the MSO and the NAD unlawful due to breaches of s 58 HRA. The MSO was incompatible with human rights (that is, not justified under s 13 HRA)[43] and in respect of the NAD, the decision-maker failed to give proper consideration to relevant human rights.[44] The Court made declarations to that effect.
Nature of review under the HRA
This was an important decision in two respects. As already noted, his Honour held that the obligations in s 58 HRA are mandatory considerations for the purposes of traditional grounds of review (including, in particular, relevant and irrelevant consideration grounds).
His Honour also discussed in detail how the Court conducting judicial review should approach a s 59 ‘piggy-back’ argument, dealing with breaches of both the substantive and procedural limbs of s 58(1) of the HRA.
His Honour approached the task on review by taking the following steps, noting there was some overlap:[45]
(a) Identification of the decision and the reasons, if any, given for making it.
(b) Identification of any human rights which are relevant to the decision.
(c) Determining whether the applicant has shown that the decision limits those human rights. If that is done, then —
(i) Has the respondent shown that the limits are reasonable: s 13?
(d) Has the respondent made a decision in a way that is not compatible with human rights: s 58(1)(a)?
(e) In making the decision has the respondent failed to give proper consideration to relevant human rights: s 58(1)(b)?
(i) Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
(ii) Has the respondent considered whether the decision would be compatible with human rights: s 58(5)(b)?
Whilst affirming that the jurisdiction of the Supreme Court on review is supervisory (not substitutionary) and unaffected by the merits of the case, his Honour accepted that the Court’s role under s 59 HRA, like that provided for in its Charter counterpart, is a more intensive or higher standard of review than traditional grounds provide. Quoting from Bell J’s decision in Patrick’s Case:[46]
[316] The difference between judicial reviewing for unlawfulness against applicable human rights standards and doing so for unlawfulness against the Wednesbury unreasonableness standard was explained by Lord Steyn in his “justly-celebrated and much-quoted” judgment in R (Daly) v Secretary of State for the Home Department. In his Lordship’s view, the proportionality criteria “are more precise and more sophisticated than the traditional grounds of review”. Lord Steyn went on to identify certain differences between the two standards of review, of which these are relevant to us:
First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relevant weight accorded to interests and considerations.
[317] It can be seen that, by its very nature as a standard of review, proportionality draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review. This gives rise to the issue of how the court is to provide effective judicial protection for human rights while at the same time respecting the administrative function of the public authority under its legislation and not drifting into merits review. One important way of addressing that issue is by affording weight and latitude to the acts and decisions of primary decision- makers. (citations omitted)
Compatibility with human rights — s 58(1)(a) substantive limb
His Honour noted that s 8 sets a two-stage enquiry for compatibility[47] and applied the most recently articulated approach taken in Victoria:[48]
- first, identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority;
- second, determine whether the decision or action has limited that right; and
- thirdly, consider whether the limit is under law, reasonable and demonstrably justified having regard to the matters set out in s 13(2).
An applicant bears the onus of establishing the imposition of a limit on human rights and if established, the respondent bears the onus of justifying the limit.[49]
His Honour adopted Ryan J’s approach in Innes v ECQ, that an act or decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person”. His Honour also adopted Victorian authority that the scope of the right should be “construed in the broadest possible way” by reference to the right’s “purpose and underlying values.” [50] This was consistent with a beneficial approach to construction of the HRA.[51]
As to whether or not a decision is justified under s 13 HRA, his Honour accepted that like its cognate provision in the Charter (s 7(2)) it embodied a proportionality test. In doing so, his Honour adopted the approach taken by Warren CJ in Re Application under the Major Crimes (Investigative Powers) Act 2004 (Vic),[52] which in turn adopted that of Dickson CJ in the Canadian Supreme Court decision of R v Oakes.[53] Under this approach, the Court will be guided by the values and principles essential to such a free and democratic society based on human dignity, equality and freedom.
Further, and consistent with Victorian decisions, the standard of proof placed upon a respondent to justify a limitation is “high”, requiring a “degree of probability which is commensurate with the occasion” with evidence that is “cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit”.[54]
Proper consideration — s 58(1)(b) procedural limb
Justice Martin read the procedural limb as having some teeth to it. His Honour indicated that “proper consideration” included, but was not limited to, what was set out in s 58(5), namely, identifying the relevant human rights, and considering whether the decision would be compatible with human rights. Additionally, because of s 58(5), a decision-maker must correctly identify the human rights that may be affected by the decision.[55]
His Honour referred to, and later applied, the test paraphrased by Tate JA in Bare v IBAC:[56]
“… for a decision-maker to give ‘proper’ consideration to a relevant human right, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.”
Whilst his Honour noted that prior decisions could not be reviewed, background matters, including a failure or omission, for example, to obtain a particular report or engage in a defined regime of treatment is part of the background that can be taken into account in considering a breach of s 58(1) HRA.
Here, the evidence was that Mr Owen-D’Arcy’s treating psychiatrist had for many years made recommendations for progressive reduction of the restrictions, to provide a path for rehabilitation and progression out of isolation, which had not been taken up. Also, the six-month duration of the decision did not negate the importance of regard to the total length of time Mr Owen-D’Arcy had been in prison. By not taking these matters properly into account, the importance of the purpose of the limitation and the importance of preserving the human right were not balanced.[57]
It can be observed that in finding incompatibility his Honour drew some assistance from authorities dealing with prolonged isolation from the European Court of Human Rights and the Supreme Court of the United Kingdom, but with due regard to the institutional setting in which those decisions were made.[58]
[1] Hilary Charlesworth, ‘The Australian Reluctance about Rights’, (1993) 31 Osgoode Hall Law Journal 195.
[2] A term adopted by the Hon. Michael Kirby AC CMG in speeches and informal discussions, to demonstrate the utility of bills of rights.
[3] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 (Martin J).
[4] AIP v ECQ [2020] QSC 54at [72]-[74].
[5] Ibid, at [82], [93], [104]-[106], [110]-[111].
[6] Section 11 HRA.
[7] AIP v ECQ at [76].
[8] Ibid, at [114]-[117].
[9] [119]-[120].
[10] [121]-[138].
[11] Tate JA, “Statutory Interpretive Techniques under the Charter: Three stages of the Charter – Has the original conception and early technique survived the twists of the High Court’s reasoning in Momcilovic?” (Judicial College of Victoria (2014) 2: 43, 53.) Referring to her Honour’s submission as Solicitor General in RJE v Secretary to the Department of Justice [2008] VSCA 265. This was the approach ultimately taken by Nettle JA in that case. After Momcilovic, however, Victorian caselaw on the interpretative method has since largely followed the approach of the Court of Appeal in Momcilovic v R (2010) 25 VR 435, and by French CJ and Crennan and Kiefel JJ in the High Court in Momcilovic v R (2011) 245 CLR 1, without resolving whether the justification analysis contained in s 13 HRA / s 7(2) of the Charter is relevant to the interpretative process.
[12] Section 6 BORA: “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.”
[13] R v Hansen [2007] 3 NZLR 1 at [57]-[62] (Blanchard J), [88]-[92] (Tipping J), [191]-[192], [252] (McGrath J).
[14] Momcilovic v R (High Court) at [168]-[171] (Gummow J, with whom Hayne J agreed, at [280]); [678], [681]-[684] (Bell J).
[15] Hansen at [252].
[16] AG v Sri [2020] QSC 246 at [39].
[17] Ibid, at [3], [20]-[21]
[18] Commissioner of Police v Bassi [2020] NSWSC 710 at [17], Commissioner of Police NSW v Gibson [2020] NSWSC 953 at [23]-[24].
[19] AG v Sri at [27]-[29].
[20] Ibid, at [5], [36].
[21] Innes v ECQ [2020] QSC 293 at [202].
[22] Ibid, at [197].
[23] State of Queensland (Department of Housing and Public Works) v Tenant [2020] QCAT 144 at [176]-[187].
[24] Innes v ECQ at [248]-[249].
[25] PJB v Melbourne Health (Patrick’s case) (2011) VR 373.
[26] Bare v ICAC (2009) 24 VR 415 at 260 [235].
[27] Castles v Sec. Dept. Justice (2010) 28 VR 141 at [185]-[186], [221].
[28] Certain Children v Minister for Families & Children [2016] VSC 796 at [190]-[194].
[29] Certain Children v Minister for Families & Children (No. 2) (2017) 52 CR 441 at [174].
[30] Owen-D’Arcy v Chief Executive, Queensland Corrective Services Commission [2021] QSC 273.
[31] Innes v ECQ at [287], [289], [291]-[292].
[32] Ibid, at [203], [301].
[33] At [214]-[230].
[34] At [234]-[241].
[35] At [242].
[36] Given the operation of s 790 of the Mental Health Act 2016.
[37] Re CMX [2014] QMHC 4 at [23].
[38] At [8], [39], [42]-[51].
[39] Owen-D’Arcy at [79].
[40] Owen-D’Arcy at [176]-[192].
[41] At [225]-[234].
[42] Discussed at [235]-[242].
[43] Discussion at [243]-[260].
[44] Owen-D’Arcy at [261]-[266]
[45] At [95].
[46] PJB v Melbourne Health (Patrick’s case) (2011) 39 VR 373, 444-445 [314]-[317].
[47] Owen-D’Arcy at [126].
[48] Minogue [2021] VSC 56 (Richards J), Owen-D’Arcy at [132].
[49] Ibid, [128]-[129].
[50] At [130].
[51] Owen D’Arcy at [118]-[120].
[52] Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 447-449 [144]-[147].
[53] R v Oakes [1986] 1 SCR 103.
[54] Owen-D’Arcy at [104]-[110], [131]-[133].
[55] At [134], [136].
[56] Owen-D’Arcy at [135]-[138]; Bare v IBAC (2015) 48 VR 129, 223 [288] and Castles (2010) 28 VR 141, 184 [185]-[186].
[57] At [101], [252]-[260].
[58] Owen-D’Arcy at [112]-[117], consistent with Momcilovic v R per French CJ.
