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Legislative Assembly for the ACT: 2012 Week 6 Hansard (8 May) . . Page.. 2125..

Human Rights Act—declaration of incompatibility

Paper and statement by minister

MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services and Minister for the Environment and Sustainable Development): For the information of members I present the following paper:

Human Rights Act, pursuant to subsection 33(3)—Declaration of incompatibility—Bail Act 1992, section 9C—Final Government response—Dated May 2012.

I ask leave to make a statement in relation to the paper.

Leave granted.

MR CORBELL: Today I present the final government response to the declaration by the ACT Supreme Court that section 9C of the Bail Act 1992 is incompatible with section 18(5) of the Human Rights Act 2004. On 19 November 2010 Justice Penfold of the Supreme Court issued a declaration of incompatibility in the matter of an application for bail by Isa Islam. The declaration stated that section 9C of the Bail Act, which deals with bail for murder and serious drug offences, is incompatible with section 18(5) of the Human Rights Act, being that anyone who is awaiting trial must not be detained in custody as a general rule.

On 28 June 2011 I tabled an interim response to this declaration. The government considered it premature to take action in relation to section 9C at that time as the government had filed an appeal against the decision in Islam in the ACT's Court of Appeal. The appeal of Islam was awaiting the judgement of the High Court in the case of Momcilovic, as it dealt with similar interpretation issues under the Victorian Charter of Human Rights and Responsibilities Act 2006.

The High Court delivered its decision in the case of Momcilovic in September 2011. The court upheld the constitutional validity of the Victorian Charter of Human Rights and Responsibilities Act. This decision means that if a law cannot be interpreted in a way that is consistent with human rights, the Victorian Charter and the Human Rights Act validly confer powers on supreme courts to make a declaration of incompatibility.

The decision confirmed the validity of the declaration made by Justice Penfold in the matter of Islam. Following the decision in Momcilovic the appeal in Islam was withdrawn. The appeal was withdrawn for two main reasons. Firstly, since the appeal in Islam was lodged, Mr Islam was convicted of the offence for which he sought bail. The issue of bail which was the subject of the matter was no longer a live issue. Furthermore, the High Court confirmed the validity of courts to issue declarations of incompatibility. In light of both of these factors, it was decided that the appeal in Islam should no longer be pursued.

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