Wood v The King[2022] QSC 216

SUPREME COURT OF QUEENSLAND

1. [1]
   Ian Andrew Wood, in criminal proceedings brought against him in the District Court at Brisbane, sought a declaration from the District Court as to the lawfulness (or otherwise) of his detention.
2. [2]
   Mr Wood’s application was purportedly made under s 29(7) of the Human Rights Act 2019 (the Act).  On 16 June 2022, a judge of the District Court referred a question (or questions)^[1] of law to this Court pursuant to s 49(2) of the Act.
3. [3]
   This is the determination of that referral.

Factual background

4. [4]
   Mr Wood is the subject of an indictment presented against him in the District Court on 9 February 2022.  The indictment charges one count, namely choking in a domestic relationship^[2] and it is averred that the offence is a domestic violence offence.^[3]
5. [5]
   On that charge, Mr Wood had bail.  He failed to appear before the District Court in observance of his bail undertaking and a warrant was issued for his arrest.
6. [6]
   Mr Wood was arrested pursuant to the warrant and appeared before Dick SC DCJ on 18 May 2022.  He was remanded in custody, thus revoking his bail, and an order was made that he be psychiatrically examined.  The proceedings on the indictment were adjourned for mention on 15 June 2022.  It was anticipated that by that time, Mr Wood would have been psychiatrically assessed.
7. [7]
   The mention came before Rafter SC DCJ and Mr Wood made an oral application to his Honour in these terms:

“The first thing I require, your Honour, is a declaration order under the Human Rights Act of 2019. This will be made under section 29, the right to liberty and security of a person, specifically under subsection (7) which states that a person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration order regarding the lawfulness of the person’s detention. The court must (a) make the decision without delay, and (b) order the release of the person if it finds the detention is unlawful.”^[4]

8. [8]
   Mr Wood did not apply for bail.  The only relief he sought was declaratory and the only jurisdictional basis identified for the application was s 29(7) of the Act. 
9. [9]
   Mr Wood’s application was adjourned to the next day.
10. [10]
    On 16 June 2022, the matter came before Burnett DCJ.  Mr Wood:

1. did not make application for bail;
2. informed the court that a question of law had arisen under the Act;
3. sought referral of that question of law to this Court pursuant to s 49 of the Act.

11. [11]
    Mr Wood identified the question of law to be referred as follows:

“The question is whether or not section 29, subsection (7) of the Human Rights Act has been appropriately brought about, whether or not it was lawful for his Honour [Judge Rafter] yesterday [15 June 2022] to fail to make the decision without delay and whether or not is was appropriate for him to ask the prosecutor to make an argument with regard to the matter when it should have simply been a case of the facts put to his Honour as to why the bail was revoked and he should have been making a decision on that day - yesterday - as to whether or not it was lawful.”^[5]

12. [12]
    There is not one, but three questions raised by Mr Wood’s statement which I later identify.^[6]
13. [13]
    Judge Burnett thought that the question, which he took to be whether s 29(7) of the Act provided a remedy, had already been authoritatively decided against the position adopted by Mr Wood, by Crow J in Pauga v Chief Executive, Queensland Corrective Services & Anor.^[7]  His Honour proposed that he ought decide the question which was posed by Mr Wood by following Pauga, thus giving Mr Wood an opportunity to challenge the correctness of that decision on appeal.  In those circumstances, it would be unnecessary to refer the question.  No consideration need be given to the appropriateness or otherwise of that proposed approach.  Mr Wood pressed for the referral and ultimately his Honour made it.
14. [14]
    After argument, where Mr Wood raised various issues concerning his prosecution which are not relevant to the present controversy, his Honour concluded:

“HIS HONOUR: Yes. Righto. Now, the matter has come before me after having been mentioned before Judge Rafter yesterday by reason of an application that was made instanter yesterday for a declaration pursuant to section 29(7) of the Human Rights Act. The Crown has filed submissions which suggest to me that there is no basis for the application. The matter has previously been resolved by Justice Crow in a decision of Pauga v Chief Executive of Queensland Corrective Services.

Nonetheless, the applicant doesn’t accept that authority. He demands the matter be referred to the Supreme Court pursuant to section 49 on a question of law. In the circumstances, I will direct the matter be referred to the Supreme Court for ultimate resolution in this applicant’s case.”^[8]

15. [15]
    Section 49 of the Act^[9] enables the referral of “a question of law”.^[10]  The Attorney-General, who intervenes in the case, points out that his Honour referred “the matter” rather than a properly articulated question of law.  The formal order endorsed on the indictment is:

“The matter is to be referred to the Supreme Court pursuant to s 49(2) of the Human Rights Act 2019 (Qld).”

16. [16]
    His Honour has, in my view, made clear, in the passage set out at paragraph [14] of these reasons, that “the matter” is the application made the previous day.  That application identified the questions of law sought to be referred.  They are the questions of law articulated by Mr Wood and set out at paragraph [11] of these reasons.  Those are the questions which his Honour intended to refer.
17. [17]
    Section 52 of the Act provides that where there is a referral under s 49 in a case to which the Attorney-General is not a party, the parties to the proceedings must give notice to the Attorney-General.  A notice must also be given to the Human Rights Commission (the Commission).  Notices pursuant to s 52 were given by both Mr Wood and the Director of Public Prosecutions (the DPP).^[11]
18. [18]
    The DPP’s s 52 notice follows the articulation of the question by Mr Wood and identifies the question of law as:

“2. The question referred is said to be ‘whether or not section 29(7) of the Human Rights Act has been appropriately brought about, whether or not it was lawful for [a Court] to fail to make the decision without delay and whether or not it was appropriate for [the Court] to ask the prosecutor to make an argument with regard to the matter when it should have simply been a case of the facts put to [the Court] as to why bail was revoked and [the Court] should have been making a decision on that day ... as to whether or not it was lawful.’”

19. [19]
    Mr Wood’s s 52 notice identifies questions of law as:

“2. The questions of law that relate to the application of the Human Rights Act 2019 to be determined are:

a) Whether or not an application under section 29(7) of the Human Rights Act can ever be made as a stand-alone action?

b) Can a detainee make an application under section 29(7) of the Human Rights Act without specific reference to the law under which they have been retained?

c) Whether the onus is on the Respondent in an application under section 29(7) of the Human Rights Act to prove that the detention is unlawful?

d) What is the meaning of a competent Court?

The questions in relation to the interpretation of a statutory provision in accordance with the Human Rights Act 2019 are:

e) What is the standard of proof required in an application under section 29(7) of the Human Rights Act (beyond a reasonable doubt or on the balance of probabilities)?

f) What the phrase ‘make a decision without delay’ means in relation to an application under section 29(7)(a) of the Human Rights Act?

g) Whether upon an order of the Court that the detention of a person is unlawful and that the person is to be released (section 29(7)(b) of the Human Rights Act), the release of the detainee is to take effect immediately?

h) Whether or not it is lawful for a competent Court to delay the hearing of an application under section 29(7) of the Human Rights Act if that application is made whilst all parties involved in the detention are before a competent court hearing the matter in which the person was detained.

These 8 questions have all been referred to the Supreme Court under section 49 of the Human Rights Act 2019.”

20. [20]
    The Attorney-General intervened in the proceedings in this Court.  The Human Rights Commission did not.

The issues

21. [21]
    Three issues raised by the various arguments made to me are:

1. What has been referred to this Court by the District Court?
2. What questions should be the subject of determination by this Court?
3. What are the answers to the questions, if any, which should be answered?

22. [22]
    I was informed by counsel for the Attorney-General that Mr Wood’s application is the first that has been made for referral to this Court of questions of law under s 49 of the Act.  However, the Charter of Human Rights and Responsibilities Act 2006 (Vic) is in similar terms to the Act and jurisprudence from Victoria is of assistance.

What has been referred by the District Court?

23. [23]
    Section 49 is contained within Part 3 Division 3 of the Act entitled, “Interpretation of laws”.  Section 48, entitled, “Interpretation”, prescribes various principles of statutory construction where human rights issues emerge.  In Momcilovic v The Queen,^[12] the High Court considered the impact of the Victorian Act upon the construction exercise, but it is unnecessary to analyse those principles at this point.
24. [24]
    Section 49 of the Act then provides:

“49 Referral to Supreme Court

3. (1)
   This section applies if, in a proceeding before a court or tribunal—

1. (a)
   a question of law arises that relates to the application of this Act; or

2. (b)
   a question arises in relation to the interpretation of a statutory provision in accordance with this Act.

3. (2)
   The question may be referred to the Supreme Court if—

1. (a)
   a party to the proceeding has made an application for referral; and

2. (b)
   the court or tribunal considers the question is appropriate to be decided by the Supreme Court.

3. (3)
   If a question is referred under subsection (2), the court or tribunal referring the question must not—

1. (a)
   make a decision about the matter to which the question is relevant while the referral is pending; or

2. (b)
   proceed in a way or make a decision that is inconsistent with the Supreme Court’s decision on the question.

3. (4)
   If a question is referred under subsection (2) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

3. (5)
   Despite any other Act, if a question arises of a kind mentioned in subsection (1), the question may only be referred to the Supreme Court under this section.”

25. [25]
    Section 50 of the Act gives the Attorney-General a right to intervene in proceedings where a question of law arises as to the interpretation or application of the Act.  Section 51 gives a similar right to the Commission.  As already observed, the Attorney-General has intervened in the current referral.  I have already referred to s 52, which requires parties to give notice to the Attorney-General where a question of law arises as to the application or interpretation of the Act.
26. [26]
    The object and purpose of Division 3 is clear, namely, to enable jurisprudence concerning the Act to develop in this Court in a consistent way and involving the Attorney-General and the Commission making submissions in the public interest rather than on behalf of a party. 
27. [27]
    By s 49, this Court may be called upon to consider and determine questions of law.  The referring court or tribunal retains jurisdiction to otherwise determine the controversy in the proceedings before it.^[13]
28. [28]
    Central to the operation of s 49 is the identification of the “question of law”.  The “question of law” must arise in the case^[14] and then that “question of law” may be the subject of application for referral^[15] and an order of referral.^[16]  Referral may only be made once the court or tribunal receives an application for referral^[17] and considers that the “question of law” is one that is “appropriate to be decided by the Supreme Court”.^[18]  The jurisdiction of this Court to determine the “question of law” is dependent upon a referral being made and the power to refer is a discretionary one.^[19]
29. [29]
    Notices given pursuant to s 52 of the Act play no part in effecting the referral.  Any referral is by the judicial act of the referring court or tribunal.
30. [30]
    Here, the “question of law” which has been referred is that which was identified by Mr Wood and was the subject of his application as explained in paragraph [11] of these reasons.  That is the question that was identified in the order referring the question.^[20] That is the “question of law” which appears in the s 52 notice of the DPP and which is set out at paragraph [18] of these reasons. Any issues raised in Mr Wood’s s 52 notice, which are beyond the scope of the “question of law” as I have identified it, have not been referred to this Court and therefore do not fall for determination.
31. [31]
    Breaking down the content of Mr Wood’s application for referral, it can be seen that these questions are posed:

“a) ‘whether or not an application purportedly made pursuant to section 29, subsection (7) of the Human Rights Act has been appropriately brought about’; (‘question one’)

b) ‘whether or not it was lawful for his Honour [Judge Rafter] yesterday [15 June 2022] to fail to make the decision without delay’; (‘question two’)

c) ‘whether or not is was appropriate for him to ask the prosecutor to make an argument with regard to the matter when it should have simply been a case of the facts put to his Honour as to why the bail was revoked and he should have been making a decision on that day - yesterday - as to whether or not it was lawful’. (‘question three’)”

32. [32]
    These are the three questions which have been referred.  Whether all three of them are questions of law is debateable, but for reasons which follow, it is unnecessary to decide. 
33. [33]
    Question 1 is not expressed well.  The Attorney-General submits that the intended meaning of question one is “whether or not [an application purportedly made pursuant to] section 29, subsection (7) of the Human Rights Act has been appropriately brought”. 
34. [34]
    I am prepared to proceed on the basis that question one has been referred to this Court in those terms.  That properly raises a real issue which is whether an application for a declaration under s 29(7) of the Act may be brought as a stand-alone application.  That carries with it the question as to whether s 29(7) creates a remedy.
35. [35]
    Question 2, properly understood, is “whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court”.
36. [36]
    Question 3, properly understood, is “whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019”.
37. [37]
    I am prepared to proceed on the basis that questions in the terms I have explained have been referred to this Court.

What questions should be the subject of determination by this Court?

38. [38]
    As previously observed, s 49 bestows a discretion upon a court or tribunal to refer a question to this Court.
39. [39]
    Mr Wood accepted that a discretion existed.  In the course of argument before his Honour Burnett DCJ, Mr Wood said:

“APPLICANT: Your Honour can decide that it is not a question that should go before the Supreme Court.”^[21]

40. [40]
    No reasons were given by Burnett DCJ for referring the question(s).
41. [41]
    His Honour did not specifically refer to the discretionary nature of the power and seemingly proceeded on the basis that if Mr Wood pressed his application, then the question(s) of law ought to be referred.  During argument, his Honour said:

“HIS HONOUR: Mr Wood, you can make all the noise in the world that you want: it doesn’t worry me. But I can tell you this. There’s an easy way and there’s a hard way to do what you want to do. The easy way is for me to go ahead and make a decision today which is - which - well, you can then appeal to the Court of Appeal. Or I can send it off to the Supreme Court: they will make a decision which you will appeal to the Court of Appeal. I mean, how long do you want to stay in custody for?”^[22]

And later:

“HIS HONOUR: Righto. Well, if you want to take your time, that’s fine by me. It’s no skin off my nose. Let’s refer it off to the Supreme Court. No doubt they will hear you when they get time.”^[23]

42. [42]
    In the passage which appears at paragraph [14] of these reasons, his Honour speaks of Mr Wood not accepting the authority of Pauga^[24] and that Mr Wood had made “demand” for referral of the questions to this Court.
43. [43]
    His Honour was not referred to cases which have been decided in Victoria and which have considered the discretionary factors relevant to a referral under the equivalent section in the Victorian Act to s 49 of the Act.^[25]
44. [44]
    Section 49 of the Act empowers “a court or tribunal” to refer a question of law to this Court.  The Act defines “court” as:

“court means the Supreme Court, the District Court, the Magistrates Court, the Childrens Court or the Coroners Court.”^[26]

45. [45]
    There is no definition of “tribunal” provided in the Act.  A tribunal is a body of limited jurisdiction exercising either judicial or administrative power.
46. [46]
    Apart from the circumstances recognised in s 49(4) where it is the Trial Division of this Court making a referral to the Court of Appeal, referrals will be made to this Court by an inferior court or by a tribunal of limited jurisdiction.  It would be surprising if a referral was binding on this Court in the sense that the decision of an inferior court or a tribunal could compel this Court to entertain the question of law which has been referred.
47. [47]
    Cases decided in Victoria have assumed that the Supreme Court of Victoria has a discretion to decline to answer a question referred where the court considers it inappropriate to do so.^[27]
48. [48]
    In my view, this Court has a discretion not to hear a referred question.  This Court, as previously explained,^[28] fulfils a function in the orderly development of the jurisprudence of the Act.  It would be inconsistent with this Court’s role for it not to have a discretion to refuse to entertain referred questions.
49. [49]
    Question one raises serious issues as to the interpretation and operation of the Act.  It is a proper question for referral and ought to be answered.
50. [50]
    Question two is based on s 29(7)(a) of the Act.  Mr Wood argues that once he made his application, Rafter SC DCJ was obliged to hear it “without delay” which meant that his Honour ought to have heard the application the day that it was made.
51. [51]
    Rafter SC DCJ did not refuse to hear the application.  His Honour made enquiries as to the Crown’s ability to respond to the application which Mr Wood had made orally that day.  These exchanges occurred:

“DEFENDANT: Applications can be made orally in court. I have done that. Your Honour is required to hear the application immediately and make an order for my release if you find that detention is unlawful under section (7)(b). You have no option. Now, I’ve asked for the evidence. If your Honour is refusing to have the evidence brought before him, you are free to make that order, and I will continue with the application.”^[29]

And:

“HIS HONOUR: All right. Thanks for that, Mr Wood. I’ll just see what Ms Adams has to say. Ms Adams, have you - has the Crown had notice of the application?

MS ADAMS: No, your Honour.”^[30]

And:

“HIS HONOUR: Look, I understand Mr Wood’s point that he wants his application heard and determined promptly. It can be done. Today is a mentions day with sentences already listed. There are people waiting here for short matters who have other commitments. So it can’t be done right here and now. I don’t even have the legislation. There’s been no notice of it.”^[31]

And:

“HIS HONOUR: Is the Crown in a position to respond to the application?”^[32]

And:

“MS ADAMS: Your Honour, I could make myself available either Thursday or Monday.

HIS HONOUR: What about Friday?

MS ADAMS: I’m unavailable on Friday, unfortunately.”^[33]

And:

“HIS HONOUR: Did you say you were available tomorrow?

MS ADAMS: Yes, your Honour.

HIS HONOUR: All right. Well, we’ll do it then.”^[34]

52. [52]
    There is nothing in the Act suggesting that an application in reliance upon s 29(7) must be heard on the day that it is made.  Mr Wood’s complaint raises factual issues and discretionary ones.  Further, if question 1 is not answered in Mr Wood’s favour, question 2 becomes irrelevant.  Question 2 is not an appropriate matter for referral^[35] and I refuse to entertain it.
53. [53]
    Question 3 supposes the Crown, who clearly has an interest in the outcome of Mr Wood’s application, has no right to answer it.  No serious issue is raised by question 3 and I will not entertain it.

Question 1:  whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act has been appropriately brought

54. [54]
    Section 3 of the Act states its objects as follows:

“3 Main objects of Act

The main objects of this Act are—

1. (a)
   to protect and promote human rights; and

2. (b)
   to help build a culture in the Queensland public sector that respects and promotes human rights; and

3. (c)
   to help promote a dialogue about the nature, meaning and scope of human rights.”

55. [55]
    Section 4 prescribes how the objects are to be achieved.  It provides:

“4 How main objects are primarily achieved

The main objects are to be achieved primarily by—

1. (a)
   stating the human rights Parliament specifically seeks to protect and promote; and

2. (b)
   requiring public entities to act and make decisions in a way compatible with human rights; and

3. (c)
   requiring statements of compatibility with human rights to be tabled in the Legislative Assembly for all Bills introduced in the Assembly; and

4. (d)
   providing for a portfolio committee responsible for examining a Bill introduced in the Legislative Assembly to consider whether the Bill is compatible with human rights; and

5. (e)
   providing for Parliament, in exceptional circumstances, to override the application of this Act to a statutory provision; and

6. (f)
   requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights; and

7. (g)
   conferring jurisdiction on the Supreme Court to declare that a statutory provision can not be interpreted in a way compatible with human rights; and

8. (h)
   providing for a Minister and a portfolio committee to report to the Legislative Assembly about declarations of incompatibility; and

1. (i)
   providing for how to resolve human rights complaints; and

10. (j)
    providing for the Queensland Human Rights Commission to carry out particular functions under this Act, including, for example, to promote an understanding and acceptance of human rights and this Act in Queensland.” (emphasis added)

56. [56]
    The term, “public entity” does not include courts except where the court is exercising administrative power.^[36] 
57. [57]
    Section 4 shows that the objects of the Act are achieved by casting obligations upon all three branches of government.  Sections 4(f) and 4(g) concern the judicial arm of government.
58. [58]
    Section 4(f) concerns interpretation of the Act by courts and tribunals.  That is a reference to ss 48 and 49.  Section 49 involves this Court in determining a question which is referred to it.
59. [59]
    Section 4(g) concerns s 53.  Section 53 provides:

“53 Declaration of incompatibility

3. (1)
   This section applies if—

1. (a)
   in a proceeding in the Supreme Court a question of law arises that relates to the application of this Act or a question arises in relation to the interpretation of a statutory provision in accordance with this Act; or

2. (b)
   a question is referred to the Supreme Court under section 49; or

3. (c)
   an appeal before the Court of Appeal relates to a question mentioned in paragraph (a).

3. (2)
   The Supreme Court may, in a proceeding, make a declaration (a declaration of incompatibility) to the effect that the court is of the opinion that a statutory provision can not be interpreted in a way compatible with human rights.

3. (3)
   However, the Supreme Court can not make a declaration of incompatibility about a statutory provision if an override declaration is in force in relation to the provision.

3. (4)
   If the Supreme Court is considering making a declaration of incompatibility, the court must give notice of that fact in the approved form to the Attorney-General and the commission.

3. (5)
   The Supreme Court must not make a declaration of incompatibility unless the court is satisfied—

1. (a)
   a notice has been given to the Attorney-General and the commission under subsection (4); and

2. (b)
   a reasonable opportunity has been given to the Attorney-General and the commission to intervene in the proceeding or to make submissions about the proposed declaration.

3. (6)
   For the Supreme Court of Queensland Act 1991, section 62, a declaration of incompatibility is taken to be an order of the court in the Trial Division.”

60. [60]
    Like s 49, s 53 clearly bestows jurisdiction upon this Court. 
61. [61]
    Section 5 is in these terms:

“5 Act binds all persons

3. (1)
   This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

3. (2)
   This Act applies to—

1. (a)
   a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and

2. (b)
   the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and

3. (c)
   a public entity, to the extent the public entity has functions under part 3, division 4.

3. (3)
   Subsection (2) does not limit or otherwise affect—

1. (a)
   another function conferred by this Act on an entity mentioned in the subsection; or

2. (b)
   a function conferred by this Act on any other entity.

3. (4)
   Nothing in this Act makes the State liable to be prosecuted for an offence.” (emphasis added)

62. [62]
    This section, consistently with s 4, confirms that functions are bestowed upon all three branches of government.  Section 5(2)(a) concerns the judicial arm of government and prescribes how the Act applies to the courts.
63. [63]
    Section 9 of the Act provides:

“9 Meaning of public entity

3. (1)
   Each of the following entities is a public entity—

1. (a)
   a government entity within the meaning of the Public Service Act 2008, section 24;

2. (b)
   a public service employee;

3. (c)
   the Queensland Police Service;

4. (d)
   a local government, a councillor of a local government or a local government employee;

5. (e)
   a Minister;

6. (f)
   an entity established under an Act when the entity is performing functions of a public nature;

7. (g)
   a member of a portfolio committee when the committee is acting in an administrative capacity;

8. (h)
   an entity whose functions are, or include, functions of a public nature when it is performing the functions for the State or a public entity (whether under contract or otherwise);

Example of an entity not performing functions of a public nature for the State—

A non-State school is not a public entity merely because it performs functions of a public nature in educating students because it is not doing so for the State.

1. (i)
   a person, not otherwise mentioned in paragraphs (a) to (h), who is a staff member or executive officer (however called) of a public entity;

10. (j)
    an entity prescribed by regulation to be a public entity.

3. (2)
   A public entity includes—

1. (a)
   a registered provider when the provider is performing functions of a public nature in the State; and

2. (b)
   a non-State police officer, under the Police Service Administration Act 1990, section 5.17, while the officer—

1. (i)
   is appointed as a special constable under section 5.16(1) of that Act; or

2. (ii)
   is authorised under section 5.17(2) of that Act to exercise the powers of a police officer; or

3. (iii)
   is exercising a power under another law of the State.

3. (3)
   Also, a public entity includes an entity for which a declaration is in force under section 60.

3. (4)
   However, a public entity does not include—

1. (a)
   the Legislative Assembly or a person performing functions in connection with proceedings in the Assembly, except when acting in an administrative capacity; or

2. (b)
   a court or tribunal, except when acting in an administrative capacity; or

3. (c)
   an entity prescribed by regulation not to be a public entity.

3. (5)
   In this section—

entity means an entity in and for Queensland.

registered provider means a registered provider of supports or a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth).” (emphasis added)

64. [64]
    Section 58 of the Act provides:

“58 Conduct of public entities

3. (1)
   It is unlawful for a public entity—

1. (a)
   to act or make a decision in a way that is not compatible with human rights; or

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

3. (2)
   Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

Example—

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

3. (3)
   Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.

3. (4)
   This section does not apply to an act or decision of a private nature.

3. (5)
   For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

1. (a)
   identifying the human rights that may be affected by the decision; and

2. (b)
   considering whether the decision would be compatible with human rights.

3. (6)
   To remove any doubt, it is declared that—

1. (a)
   an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

2. (b)
   a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).”

65. [65]
    A court or tribunal is only subject to s 58 if it is exercising administrative power.  That is the effect of s 9(4)(b).  In relation to the exercise of judicial power, the critical section is s 5(2)(a).
66. [66]
    Section 5(2)(a)^[37] of the Act applies Part 2 to “court[s] or tribunal[s]”.  Part 2 identifies various rights.  Section 29 is contained within Part 2. 
67. [67]
    Section 5(2)(a) applies Part 3 Division 3 to “court[s] or tribunal[s]”.  That division contains ss 48 and 49.  Part 3 is entitled, “Application of human rights in Queensland”.  This part places obligations upon the Parliament,^[38] the judiciary^[39] and the executive.^[40]
68. [68]
    Section 29 of the Act provides as follows:

“29 Right to liberty and security of person

3. (1)
   Every person has the right to liberty and security.

3. (2)
   A person must not be subjected to arbitrary arrest or detention.

3. (3)
   A person must not be deprived of the person’s liberty except on grounds, and in accordance with procedures, established by law.

3. (4)
   A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against the person.

3. (5)
   A person who is arrested or detained on a criminal charge—

1. (a)
   must be promptly brought before a court; and

2. (b)
   has the right to be brought to trial without unreasonable delay; and

3. (c)
   must be released if paragraph (a) or (b) is not complied with.

3. (6)
   A person awaiting trial must not be automatically detained in custody, but the person’s release may be subject to guarantees to appear—

1. (a)
   for trial; and

2. (b)
   at any other stage of the judicial proceeding; and

3. (c)
   if appropriate, for execution of judgment.

3. (7)
   A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the person’s detention, and the court must—

1. (a)
   make a decision without delay; and

2. (b)
   order the release of the person if it finds the detention is unlawful.

3. (8)
   A person must not be imprisoned only because of the person’s inability to perform a contractual obligation.” (emphasis added)

69. [69]
    Section 29(7), at least on its face, may authorise an application to a “court” for declaratory relief in the terms there mentioned.  The meaning of the text of s 29(7) must be determined having regard to the relevant context which includes the statute as a whole,^[41] relevant statutory history, the mischief sought to be addressed^[42] and the statutory purpose.^[43] 
70. [70]
    The real question is whether, on a proper interpretation of s 29(7), the subsection bestows a right to declaratory relief or just provides that one should exist. 
71. [71]
    In various decisions, it has been held that the Act, and the Victorian Act, do not provide independent remedies.^[44]  The weight of authority concerning the Human Rights Act 2004 (ACT) (the ACT Act) is to the same effect.^[45]  In the second reading speech to the Human Rights Bill 2018, the Attorney-General stated that “there will be no stand-alone legal remedy for a contravention of this bill”.^[46]
72. [72]
    The ACT Act predates the Act by 15 years.  However, its basic structure is similar.  Sections 31, 18(6), 40, 40B are in similar terms to ss 48, 29(7), 9, 58 of the Act respectively.  There is no direct equivalent to s 5 of the Act.  The ACT cases have concerned whether s 18(7) of the ACT Act, which provides that “Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention”, gives a right to compensation.  The most recent cases have held that no enforceable right to compensation arises by force of that section.^[47]
73. [73]
    Difficulties have been encountered with reconciling the equivalent in the Victorian Act to s 5(2)(a)^[48] of the Act with the equivalent in the Victorian Act of ss 9 and 58.^[49]  The conflict is that s 5(2)(a) applies the Act to courts and tribunals exercising functions under Part 2 and Division 3 of Part 3, whereas ss 9 and 58 only seemingly apply human rights to judicial consideration where the court or tribunal is exercising administrative power.
74. [74]
    In Kracke v Mental Health Review Board,^[50] the construction issue was resolved by adoption of what was described as “the intermediate interpretation” as follows:

“250 The intermediate interpretation is that the functions referred to in s 6(2)(b) are the functions of applying or enforcing those human rights that relate to court and tribunal proceedings. I think this is the correct interpretation because it respects the structure of the Charter, is most consistent with its purposes in the context of that structure and gives the opening words of s 6(2), and the words ‘functions under Part 2’ in s 6(2)(b), an appropriately general meaning. …

254 In conclusion, under s 6(2)(b), the Charter applies to courts and tribunals ‘to the extent that they have functions under Part 2 and Division 3 of Part 3’. The functions under Pt 2 that potentially apply are the functions of applying or enforcing the human rights specified in Pt 2 that relate to court or tribunal proceedings being those specified in ss 10(b) (in its reference to punishment), 21(5)(c), (6), (7), (8) [instances of the right to liberty and security of person which speak of the court’s role], 23(2), (3) [children in the criminal process], 24(1), (2), (3) [fair hearing], 25 [rights in criminal proceedings], 26 [right not to be tried or punished more than once] and 27 [retrospective criminal laws] of the Charter. The actual engagement and application of these human rights for courts and tribunals depends upon the scope of the right concerned and the facts and circumstances of the individual proceeding.”

75. [75]
    That statement of principle made in Kracke was followed by Ryan J in Innes v Electoral Commission of Queensland (No 2).^[51]  In the absence of a decision of the High Court or an intermediate court of appeal to the contrary, I should and will follow her Honour.^[52] 
76. [76]
    That courts must apply human rights when exercising functions under Part 2 and Division 3 of Part 3 does not lead to a conclusion that s 29(7) provides a remedy by declaration.  As already observed, the authorities from Victoria and the Australian Capital Territory say that no remedies are created by the Act, save those expressly provided.^[53]  It follows that where there are proceedings on foot seeking a remedy such as an application for habeas corpus, human rights must be applied.  Those rights would include, for example, those in s 29(5).^[54]
77. [77]
    There have been at least two decisions in Queensland which have mentioned s 29(7) of the Act:  Baggaley v Director of Public Prosecutions (Cth)^[55] and Pauga v Chief Executive, Queensland Corrective Services.^[56]
78. [78]
    Baggaley was an appeal from the dismissal of an application for bail under the Bail Act 1980.  It was therefore an appeal against an exercise of discretion.^[57]  One of Mr Baggaley’s arguments in favour of a grant of bail was that the COVID-19 pandemic prevented jury trials.  As Mr Baggaley was charged with attempting to import a border controlled drug, which is an offence against a law of the Commonwealth, he could not be tried by judge alone.^[58]  He argued that he had been held without trial and that offended against his human rights.  As to that argument, Fraser JA (with whom both McMurdo and Mullins JJ agreed) held:

“[29] In support of this contention the appellant submits that the State is not providing the mechanism for him to answer the charge and be acquitted and that the current period of detention should be deemed as a ‘temporary stay of prosecution until the State provides jury trials.’ (The first of those two submissions refers to the temporary suspension of jury trials as a result of the impact of the COVID-19 pandemic. I note that jury trials in the Supreme Court are now being set down for hearing.) The appellant did not make those submissions in the Trial Division and he did not bring an application under s 29(7) of the Human Rights Act for a declaration or order regarding the lawfulness of his detention. As the respondent submits, an appeal against the refusal of bail is not the mechanism for advancing claims of that kind. For these reasons it is not necessary to describe the appellant’s arguments in more detail or to adjudicate upon them.” (emphasis added)

79. [79]
    Those comments were obiter dicta.  The appeal was decided on the basis that no error in exercise of discretion had been shown.  It is, in my view, too much to read into the judgment that the Court of Appeal held that s 29(7) grants some independent right to a declaratory remedy.
80. [80]
    Mr Pauga was remanded in custody pursuant to an extradition warrant issued under the Extradition Act 1988 (Cth).  He brought an application seeking habeas corpus which failed.  One of the arguments raised was that Mr Pauga’s detention was unlawful because human rights identified under s 29 of the Act had been breached.  Justice Crow observed:

“It is plain and I think accepted that s 29 is not a stand-alone cause of action.”

81. [81]
    Section 29 does not, in my view, vest jurisdiction upon any court to give a remedy.  Section 29(7) must be read in the context of ss 4 and 5 which prescribe how human rights are protected and promoted.  They are applied and referred where relevant to proceedings in courts and tribunals.
82. [82]
    Section 29 is a section which identifies human rights.  By s 29(7), the right that is recognised is one to apply to “a court” for a declaration as to the lawfulness of detention.  As previously observed,^[59] the term, “court” includes not only this Court, but inferior courts such as the District Court, the Magistrates Court, the Childrens Court and the Coroners Court.  The Magistrates Court, the Coroners Court and the Childrens Court have no general jurisdiction to grant declaratory relief.  The jurisdiction of the District Court to grant declaratory relief is only incidental to its expressly granted, and limited, jurisdiction.^[60]
83. [83]
    If s 29(7) is a grant of jurisdiction, then it is a grant upon various inferior courts to give declaratory relief as to the lawfulness of a person’s detention.  The policy behind a grant of jurisdiction to the Coroners Court, for instance, to grant such relief is difficult to discern. 
84. [84]
    The Attorney-General submitted that s 29(7), like other sections in Part 2, recognises a right and the right so recognised is availed to Mr Wood, the Attorney-General submits, through the writ of habeas corpus and through the Bail Act 1980.
85. [85]
    In the late 1970s, the Commonwealth Parliament, through the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) revolutionised the way in which Commonwealth administrative decisions could be challenged.  The States, including Queensland, followed the Commonwealth lead which resulted in the Judicial Review Act 1991 (the JR Act).
86. [86]
    Part 3 of the JR Act provides for statutory orders of review which are a modern mechanism of challenge to administrative decisions independently of the prerogative writs. 
87. [87]
    Part 5 of the JR Act is entitled, “Prerogative orders and injunctions”.  Section 41 prohibits the issue of the writs of mandamus, prohibition and certiorari and empowers this Court to grant relief to the same effect.  Informations in the nature of quo warranto are abolished.^[61]  The availability of the writ of habeas corpus remains untouched. 
88. [88]
    In Kirk v Industrial Court (New South Wales),^[62] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ thought that the role of Supreme Courts of the States in exercising a supervisory jurisdiction through the prerogative writs (including habeas corpus), is “a defining characteristic of those courts”.^[63]  It follows that any legislative attempt to remove the right of a citizen to apply for habeas corpus would be constitutionally invalid.
89. [89]
    Although the JR Act is silent on habeas corpus, the Uniform Civil Procedure Rules 1999 (UCPR) modernise the procedure to secure issue of the writ.^[64]  The jurisdiction to issue habeas corpus is confined to this Court.^[65]
90. [90]
    Mr Wood may therefore apply for habeas corpus.  His prospects may be limited given that the District Court found a breach of bail and withdrew his bail thus rendering him in custody.^[66]  The strength or otherwise of any claim is beside the point.  His human right, as identified by s 29(7) of the Act, is accommodated by the avenue available to him to apply for habeas corpus.
91. [91]
    The Bail Act 1980, in my view, is not relevant to s 29(7) of the Act.  The Bail Act is not concerned with the lawfulness of detention.  The Bail Act empowers the release on bail of a person who may otherwise lawfully be held in custody.  The considerations relevant to the Bail Act are considerations of risk.  They are the risks identified in s 16 in these terms:

“16 Refusal of bail generally

(1AA) …

3. (1)
   Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to the defendant if the court or police officer is satisfied—

1. (a)
   that there is an unacceptable risk that the defendant if released on bail—

1. (i)
   would fail to appear and surrender into custody; or

2. (ii)
   would while released on bail—

1. (A)
   commit an offence; or

2. (B)
   endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or

3. (C)
   interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or

2. (b)
   that the defendant should remain in custody for the defendant’s own protection. …”

92. [92]
    In my respectful view, the comments of Fraser JA in Baggely v Director of Public Prosecutions (Cth),^[67] which are set out at paragraph [78] of these reasons, are consistent with an understanding that bail applications concern risk, not the lawfulness or otherwise of detention.  This explains his Honour’s comment that “an appeal against the refusal of bail is not the mechanism for advancing claims [of unlawful imprisonment]”.

Conclusions and orders

93. [93]
    Section 29(7) of the Act does not vest jurisdiction in the District Court to grant a declaration that a prisoner was being held in custody unlawfully.  To make such a challenge, a prisoner ought to seek habeas corpus in this Court. 
94. [94]
    Such an application may have difficulties.  Mr Wood’s real remedy is to apply for bail.  In any event, that is a matter for Mr Wood.
95. [95]
    It is ordered:

1. As to the question, “Whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court”, the answer is, “It was not appropriately brought”.
2. The court refuses to answer the questions:

3. (1)
   “Whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court”; and

3. (2)
   “Whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019”.