Wood v The King & Anor

This case was the first referral to the Supreme Court in relation to a “question of law” under s 49(1) Human Rights Act 2019. Justice Davis discussed the principles relevant to both whether a “question of law” should be referred by a court or tribunal and whether a referral should be entertained by the Supreme Court. Justice Davis only considered it appropriate to answer the first question of law which was in effect whether the District Court could make a declaration that the detention of a person was unlawful and order their release under s 29(7) Human Rights Act 2019. Justice Davis answered this question in the negative. The Human Rights Act 2019 does not create independent or “stand-alone” remedies, rather s 29(7) applies where a “court” has an existing function to determine the lawfulness of detention and grant relevant relief. The only court which has such a function is the Supreme Court when hearing and determining an originating process seeking a writ of habeas corpus.

Davis J

13 October 2022

Background

The applicant had failed to appear in a criminal proceeding before the District Court. [4]–[5]. As a result, his bail undertaking was forfeited and a warrant was issued for his arrest. [5]. When the applicant was apprehended and brought before the District Court, his bail was revoked and he was remanded in custody. [6]. The applicant, appearing on his own behalf, made an oral application in the District Court without notice to the Director of Public Prosecutions (“DPP”) for a declaration that his detention was unlawful. [7], [50]–[51]. The application was purportedly made under s 29(7) Human Rights Act 2019. [7]. The District Court declined to hear the application and adjourned his application to the following day. [9]. Section 29(7) relevantly provides:

“29  Right of liberty and security of the person

(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—

(a) make a decision without delay; and

(b) order the release of the person if it finds the detention is unlawful.” [68].

When the applicant came before the District Court the following day, he clarified that he sought that a “question of law” be referred to the Supreme Court: see Human Rights Act 2019 s 49(1). [11]. The District Court referred the “question of law” to the Supreme Court. [14]. After service of the prescribed notices, the Attorney-General intervened but the Queensland Human Rights Commission (“QHRC”) did not: see Human Rights Act 2019 s 52. [17]–[20]. There was a controversy about precisely what “question of law” had been referred by the District Court: see [7], [11], [18]–[19], [23]–[37]. Justice Davis determined that the “question of law” was, in effect, three separate questions of law which related to the application of the Human Rights Act 2019:

• Whether or not an application purportedly made pursuant to s 29(7) Human Rights Act 2019 had been appropriately brought in the District Court (“Question 1”). [33].
• Whether the District Court was obliged to hear the application purportedly brought under s 29(7) Human Rights Act 2019 on the day it first came before the court (“Question 2”). [35].
• Whether the District Court ought to have given the DPP an opportunity to be heard on an application purportedly brought under s 29(7) Human Rights Act 2019 (“Question 3”). [36].

Whether the questions of law were appropriate for determination by the Supreme Court

Justice Davis observed that a court or tribunal has a discretion to refer a question of law to the Supreme Court. [38]–[39]. No reasons were given for referring the questions of law. [40]. The primary judge was not taken to any of the cases decided in Victoria which explain the discretionary factors relevant to a referral under the equivalent section in the Charter of Human Rights and Responsibilities 2006 (Vic). [41]–[43]. In any event, a referral from an inferior court such as the District Court is not binding on the Supreme Court, which retains a discretion whether to entertain a question of law having regard to its responsibility to ensure the “orderly development of the jurisprudence of the [Human Rights Act 2019]”. [46]–[48]. Justice Davis held that only Question 1 was appropriate for determination. [49], [50]–[53].

Whether the application under s 29(7) was appropriately brought in the District Court

Whilst the text of s 29(7) Human Rights Act 2019 may, at least on its face, authorise an application for a declaration to a “court” which is relevantly defined to include the District Court, s 29(7) must be interpreted having regard to its context and purpose. [54]–[69]. Justice Davis considered that the weight of the authority on the Human Rights Act 2019 and its equivalents in other jurisdictions suggest that s 29(7) was not intended to create a remedy, rather it only applies to the extent a “court” has an existing “function” relevant to s 29(7). [70]–[76]. The only “court” which has an existing “function” or jurisdiction relevant to s 29(7) is the Supreme Court which may issue a writ of habeas corpus. [76], [82]–[89]. It followed that the application was “not appropriately brought” in the District Court. [93].

Disposition

In the result, the answer to Question 1 was that the application purportedly brought under s 29(7) Human Rights Act 2019 was “not appropriately brought” in the District Court. [95].

D Kerr