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Legislative Assembly for the ACT: 2011 Week 14 Hansard (6 December) . . Page.. 5669..


dealing with a presumption against bail in relation to serious offences including attempted murder.

On 19 November last year Her Honour Justice Penfold issued a declaration of incompatibility under the Human Rights Act in relation to those provisions. This was the first such declaration in the ACT and the second in Australia. The only other declaration of this type was made by the Victorian Court of Appeal in relation to a drug prosecution in which the accused was convicted under Victorian criminal law. The case is known as the Queen v Momcilovic (2010) 265 ALR 751. That decision was subsequently appealed to the High Court of Australia.

In response to the decision in Islam, I tabled the declaration of incompatibility in the Assembly on 15 February this year. I subsequently tabled a government response to the declaration on 28 June this year, as required under section 33 of the Human Rights Act. I also filed an appeal against the decision, pending the outcome of the challenge in Momcilovic. I undertook to make a further statement to the Assembly within six months of the conclusion of the court proceedings in Islam.

Since that time, Mr Islam has been convicted of the offence for which he sought bail. The issue of bail which was the subject of the matter is no longer a live issue.

The appeal against conviction in Momcilovic was upheld this year by the High Court. The High Court indicated, in six separate judgements, that the Victorian Charter of Rights and Responsibilities validly conferred on Victorian courts and the High Court obligations to interpret Victorian laws consistently with the protected human rights. None of the judges considered that a declaration of incompatibility involved the exercise of judicial power, while a majority held that, whatever its character, it was compatible with proper judicial functions.

In light of the fact that Mr Islam is now serving a sentence of imprisonment, together with the views of the High Court in relation to the status of a declaration of incompatibility, I have decided to no longer pursue the appeal in Islam. The Solicitor-General on my behalf withdrew the appeal on 31 October this year. Mr Islam's lawyers and the Director of Public Prosecutions have also been advised of the withdrawal of the appeal.

As I have previously advised the Assembly, I will respond to the declaration of incompatibility within six months. Issues around bail are serious and complex and not to be dealt with lightly. Rather than a quick response, I intend to provide a considered response with an opportunity for consultation with the community and key justice stakeholders. With the court proceedings now concluded in the Islam matter, this means that I will provide a response by the end of April 2012.

Work Health and Safety (Consequential Amendments) Bill 2011

Dr Bourke, by leave, presented the bill, its explanatory statement and a Human Rights Act compatibility statement.

Title read by Clerk.


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