Si bhnf Cc v Ks bhnf Is [2005] ACTSC 125 (2 December 2005)

Last Updated: 7 February 2006

HUMAN RIGHTS ACT

SI bhnf CC v KS bhnf IS

[2005] ACTSC 125 (2 December 2005)

DOMESTIC VIOLENCE AND PROTECTION ORDERS - procedure for obtaining a protection order - whether order purported to be made by "unidentified magistrate" valid if order in fact made by a registrar - expiry date of interim orders

DOMESTIC VIOLENCE AND PROTECTION ORDERS - conflict between Domestic Violence and Protection Orders Act 2001 (ACT) s 49 and s 51A(2) - how to resolve that conflict using a legislative interpretation approach consistent with Human Rights

HUMAN RIGHTS - right to a fair hearing - whether Domestic Violence and Protection Orders Act 2001 (ACT) s 51A could displace that right to enable a final protection order to be made in a party's absence - whether purported decision of the ACT Magistrates Court made ex parte can be subject to judicial review by or appeal to the ACT Supreme Court

HUMAN RIGHTS - freedom of movement - how to weight the right of one individual to enjoy freedom of movement against the right of third person to do same - Domestic Violence and Protection Orders Act 2001 (ACT) s 6(2); Human Rights Act 2004 (ACT) ss 8, 18

HUMAN RIGHTS - rights of children - rights of children when respondents in relation to protection orders

Domestic Violence and Protection Orders Act 2001 (ACT), ss 6, 8, 10, 12, 15, 16, 18, 19, 23, 23A, 26, 33, 34, 36, 38, 40, 41, 42, 48, 49, 51, 51A, 52, 53, 55, 58, 60, 78, 97, 106

Human Rights Act 2004 (ACT), ss 8, 11, 13, 15, 16, 18, 21, 28, 30, 37, 38

Domestic Violence and Protection Orders Regulation 2002 (ACT), ss 46, 48, 90, 91

Court of Petty Sessions Act 1930 (ACT)

Magistrates Court Act 1930 (ACT), ss 4, 5, 6, 7, 18, 23

Legislation Act 2001 (ACT), Pt 14.2, s 142

Magistrates Court Rules (ACT), Pt 4 r 28, Pt 4 r 10

Magistrates Court (Civil Jurisdiction) Rules 2004, ss 221, 222

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s 86

Great Charter (Magna Carta), Article 20

Human Rights Bill 2003

Constitution, ss 71, 122

Domestic Violence and Protection Orders Amendment Act 2005 (ACT)

Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 24, 48

Judiciary Act 1903 (Cth), s 39

Ryan v Registrar of Motor Vehicles (1997) 129 ACTR 4

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322

Spratt v Hermes (1965) 114 CLR 226

Kelly v Apps (2000) 98 FCR 101

Harris v Caladine (1991) 172 CLR 84

Nowak "UN Covenant on Civil and Political Rights (Kehl am Rhein: NP Engel 1993) at p 216ff in relation to freedom of movement and third parties

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 33 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 2 December 2005

IN THE SUPREME COURT OF THE )

) No. SCA 33 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: SI bhnf CC

Appellant

AND: KS bhnf IS

Respondent

ORDER

Judge: Higgins CJ

Date: 2 December 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order purportedly made on 21 April 2005 be set aside.

1. This is an unusual appeal. As the Further Amended Notice of Appeal dated 7 September 2005 expresses it:

On the 21^st day of April 2005 an unidentified Magistrate of the ACT Magistrates Court made the following decision:

That a personal protection order be made against the respondent [the present appellant] in accordance with annexure `A' to this notice.

2. That order was sought by the respondent, a minor (date of birth not given but he was said to be 15 years of age at all material times) against the appellant, also a minor (dob 25 June 1989). The respondent's mother was, on 29 March 2005, appointed to be his litigation guardian for the purpose of applying for a personal protection order against the appellant.

3. On that day, Magistrate Doogan granted, ex parte, an interim personal protection order against the appellant. The form of the order was that the appellant:

1. ... be restrained from engaging in the following conduct that constitutes personal violence in relation to the aggrieved person [ie the respondent] in particular:

(a) causing personal injury to the aggrieved person;

(b) threatening to cause personal injury to the aggrieved person.

2. ... be prohibited from:

(a) being within 100 metres of the aggrieved person; EXCEPT AT COURT; EXCEPT WHEN THE AGGRIEVED PERSON AND THE RESPONDENT ARE ATTENDING CLASSES AT MELROSE HIGH SCHOOL;

(b) contacting the aggrieved person, EXCEPT AT COURT;

(c) harassing, threatening or intimidating the aggrieved person[.]

4. There was a hearing before Magistrate Doogan at which the respondent gave evidence. He alleged that the appellant had threatened him that if he did not give "them" back "he'll (the appellant) be getting his cousins and whatever else on to me". "Them", it seems, was a reference to some DVDs. Whilst he was at a friend's place shortly after, the respondent alleged that he was approached and physically threatened, grabbed through a window and punched by a group of young persons he believed to be carrying out this threat, though it is not alleged that the appellant participated in or was present at that event.

5. On 5 April 2005 the appellant was served with a copy of the Interim Personal Protection Order and the application for it dated 29 March 2005. With his mother he attended on the Legal Aid Office (ACT) on 8 April 2005, a mere three days later. They were given some advice by a solicitor but, unfortunately, the solicitor was unaware that an amendment to the Domestic Violence and Protection Orders Act 2001 (ACT) (DVPO Act), effective from 25 March 2005, or some 12 days before, had introduced s 51A into that Act effective from 25 March 2005.

6. The documents served on the appellant included a "Notice of Proceedings" advising that:

The Application has been adjourned to 21 April 2005 at 9.45AM at the Magistrates Court, Knowles Place, Canberra City for further hearing.

Please see the attached document entitled "Endorsement Instructions" for the process to be followed in relation to this Application and Interim Order. (original emphasis)

The Interim Order was expressed to expire at 4:00 pm on 21 April 2005. The "attached document" was in the following form:

Endorsement of the Interim Order

(please note it is important that you read these Endorsement Instructions)

Endorsement Instructions:

An Interim Order has been made with you named as the Respondent. These instructions outline the options available to you in respect of the Interim Order.

1) If you are not Objecting to the Interim Order becoming a Final Order

If you wish to not object to a final order being made in the same terms as the interim order, you can fill in the Endorsement headed Consent to Interim Order being made a Final Order on the attached Endorsement copy of the Interim Order and return it to the Magistrates Court. Please note that the Endorsement copy of the Interim Order must be returned to the Magistrates Court at least 7 days before the date of the Return Conference or the Interim Order will become a Final Order.

2) If you are Objecting to the Interim Order becoming a Final Order

If you wish to object to a final order being made in the same terms as the interim order you can fill in the Endorsement headed Objection to Interim Order being made a Final Order on the attached Endorsement copy of the Interim Order and return it to the Magistrates Court. Please note that the Endorsement copy of the Interim Order must be returned to the Magistrates Court at least 7 days before the date of the Return Conference or the Interim Order will become a Final Order.

3) If you choose to do nothing, the Interim Order will become a Final Order.

Should you require information regarding these proceedings, or the procedures to be followed, you are invited to contact the Court office on telephone [phone] during business hours. (original emphasis)

7. That Notice advised that, if no objection was returned to the Magistrates Court "at least 7 days before the date of the Return Conference", the "Interim Order" would become a "Final Order". What that meant was not further explained.

8. The "Notice of Proceedings" made no express reference to a "Return Conference". It did refer to the Application as annexed having being adjourned for further hearing. A "NOTE" at the foot of the page stated:

1. Prior to the application going before the Court on the date specified above, the matter will be put before a Registrar where each party will be conferenced separately.

2. If you are under 18 years of age, you should be accompanied to Court by an adult.

9. There appeared on the Magistrates Court file in this matter a document headed "Affidavit seeking appointment of Guardian ad litem". It was made on 21 April 2005 by an officer of the ACT Magistrates Court (Peter Trahair) seeking the appointment of "the mother" as the "guardian ad litem" of the appellant. Her consent was endorsed upon it. She is the appellant's mother.

10. The Application signed by the respondent's mother, as his "next friend", referred to the alleged conduct of the appellant (named therein as "the respondent") in the following terms:

I believe the Respondent has: (state briefly and concisely the facts relied upon)

R Caused personal injury and/or damaged property in that:

Assaulted 29/3/05

R Threatened to cause personal injury and/or damage property in that:

Made further threats 29/3/05

R Engaged in behaviour of such an offensive or harassing nature in that:

Threats 29/3/05

And unless the respondent is restrained, I believe that such behaviour is likely to happen again.

11. The next friend also completed an affidavit on 29 March 2005 stating:

1. I am the applicant herein;

2. The statements contained in the application dated 29/3/05 and filed herein are true and correct to the best of my knowledge and belief.

The respondent completed and filed a similar verifying affidavit.

12. The documents served upon the appellant at Melrose High School on 5 April 2005 (at 10.05 am) were said to be the Notice of Proceedings (A), two Interim Personal Protection Orders (B and C) (that is, two copies of the Order, not two Orders) and the Application (D). There is no assertion that either of the verifying affidavits was served. Nor was any record of the respondent's evidence before Magistrate Doogan served upon the appellant.

13. Ms Linda Crebbin, solicitor for the appellant and Assistant Executive Officer of the Legal Aid Office (ACT), deposed that the solicitor in that office who advised the appellant and his mother on 8 April 2005 had not then been aware of the new provisions embodied in s 51A of the DVPO Act. Specifically, she confirmed that the appellant was not advised that he (or his guardian ad litem if so appointed) should complete and return one of the "Endorsement of the Interim Order" forms attached to each copy of the Interim Order served upon him not less than seven days before the return date specified in the "Notice of Proceedings".

14. On 21 April 2005, the appellant and his mother attended at the Magistrates Court upon Mr Trahair, a Senior Deputy Registrar, before whom the application had been listed. They expected to be heard before a Final Order was made. Mr Trahair told the appellant and his mother that, notwithstanding that the appellant desired to contest the making of a Final Order and that apparently, it was listed before him for that purpose, they could not be heard as the interim order had automatically become a final order at "one minute past midnight" that same day. He did witness the appellant's mother's signature on the appellant's affidavit by which she sought appointment as the appellant's "Guardian ad Litem".

15. The form of order issued as a final order differed from the interim order in that the duration of it was expressed to be, "... for a period of 12 months from 21 April 2005".

16. The directions expressed in the interim order were repeated in the final order as to require notification thereof to the Community Advocate and Melrose High School (relevant staff).

17. The final order differed from the interim order in that it omitted any direction as to service of it by police. The interim order had contained a note:

If a final Order is made, pursuant to Section 55(2) of the Domestic Violence and Protection Orders Act 2001 [DVPO Act], this interim order is taken to continue in force until that final order is served on the respondent.

(emphasis removed)

18. However, the note to the final order served on the appellant stated:

AND IT IS NOTED THAT - as the respondent was present when the Protection Order was made, pursuant to Section 33(2)(a) of the Domestic Violence and Protection Orders Act 2001 [DVPO Act] personal service is not necessary.

The final order was signed by a "Deputy Registrar".

19. Notice of Appeal against the making of the final order was filed on 11 May 2005, that is, within 21 days from the (deemed) making of the final order. The order appealed from was described in the Notice of Appeal as an order of an "unidentified Magistrate". In truth, it had not been made by any Magistrate.

20. There was also filed an affidavit of Ms Linda Crebbin, the appellant's solicitor. Ms Crebbin deposed that, had he been permitted to do so, the appellant would have given evidence of facts that, if established, might have persuaded a tribunal of fact that no final order should have been made. Indeed, if open for it to do so, that tribunal might well have vacated the interim order as having been procured upon misleading information. That, at least, was the appellant's contention.

21. That latter consideration also affects the relief to be granted if this appeal succeeds. I expressly refrain from entering into any enquiry as to the facts upon which the interim order was sought or a final order might be justified.

22. The grounds relied on by the appellant seeking the setting aside of the final order, as now articulated in the "Further Amended Notice of Appeal" (7 September 2005), are stated to be:

(a) The ACT Magistrates Court erred in law by making the order without giving the respondent [the appellant] an opportunity to be heard in relation to the application for the final order or in relation to the terms and conditions of the order contrary to the principles of natural justice.

(b) Sections 51A(3) and (4) of the [DVPO] Act are inconsistent with the separation of powers between the legislature and the judiciary found in Part VA of the Australian Capital Territory (Self Government) Act 1988 in that the making of an order without a hearing and without a power of review of such an order purports a conferral of judicial power to be exercised in a way which is inconsistent with the proper exercise of judicial power.

(c) In the alternative, there is an implied power in the ACT Magistrates Court (or, in the alternative, in the Supreme Court) to review the making of an order under sections 51A(3) and (4) of the Act on grounds similar to the setting aside of a default judgment.

(d) The ACT Magistrates Court erred in law by making an order against the respondent [the appellant] who is a person under a legal disability in the absence of the appointment of a litigation guardian.

(e) Section 48(3) of the Domestic Violence and Protection Order Regulations 2002 is beyond the power conferred on the Executive under section 106 of the Act, in that -

I) it is not consistent with the limitation on the capacity of persons under the age of 18 contained in section 5 of the Age of Majority Act 1974; and

II) the power contained in section 106 is to be interpreted, consistently with section 30 of the Human Rights Act [HR Act], in a way that is consistent with human rights, and section 48(3) of the Regulation is not consistent with the right to a fair hearing contained in section 21 of the Human Rights Act].

(f) Insofar as section 51A(3) and (4) is not consistent with sections 26, 40 and 41 of the Act, it is not capable of effective operation.

(g) The ACT Magistrates Court erred in law by failing to record its reasons for making the order contrary to section 26 of the Act.

(h) The ACT Magistrates Court erred in law by making the order without being satisfied that the respondent [the appellant] had engaged in personal violence towards the applicant and may have engaged in personal violence towards the applicant during the time the order should be in place contrary to sub-section 40(1) of the Act. ["applicant" = the respondent]

(i) The ACT Magistrates Court erred in law by making an order without considering the respondent's [the appellant's] objection to either the interim or final order contrary to sub-section 40(2) of the Act.

THE DVPO ACT

23. The underlying principle of this Act, consistently with ss 8 and s 18 of the Human Rights Act 2004 (ACT) (HR Act), is expressed in s 6(2) of the DVPO Act in the following terms:

If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1) [that is, protection from personal violence].

24. A protection order also potentially impacts on rights declared under s 13 (freedom of movement), s 15 (peaceful assembly and freedom of association) and s 16 (freedom of expression) of the HR Act.

25. Section 8(4) (DVPO Act) provides:

A personal protection order may be made as a final or interim order.

26. "Personal violence" is defined by s 10:

(1) For this Act (other than for division 5.3 (Workplace orders)) a person's conduct is personal violence if the person--

(a) causes personal injury to someone (the aggrieved person) or damage to the aggrieved person's property; or

(b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person's property; or

(c) is harassing or offensive to the aggrieved person.

(original emphasis)

27. In this case, the "aggrieved person" namely, the respondent, was a minor, that is, under a legal disability. Hence, it was necessary for a parent or guardian to make the application for a protection order on his behalf (see s 12(2) DVPO Act) unless leave was given by the Magistrates Court to the minor enabling the minor to apply personally. No such leave was required in this case. The respondent had his mother as next friend.

28. Section 15 (DVPO Act) requires the Registrar, on receiving an application, to set a return date for the further hearing of it:

(2) ...[On a day that is] -

(a) not later than 2 days after the application is made, or

(b) not later than 10 days after the application is made if -

(i) the applicant is not seeking an interim order on the application; and

(ii) the registrar is satisfied that the longer time is necessary to allow the respondent to be served with the application and the return date notice.

29. It may be noted that the Magistrates Court was constituted by the Court of Petty Sessions Act 1930, now the Magistrates Court Act 1930 (MC Act). By s 4 of that latter Act the Court is "continued". Its various jurisdictions are exercisable by a magistrate or one or more special magistrates s 4(2) (MC Act). Registrars and Deputy Registrars have no such powers.

30. The "Notice of Proceedings" accompanying the respondent's application advised a "further date" of 21 April 2005 at 9.45 am.

31. That followed the terms of s 16(3) (DVPO Act):

If the return date set under section 15 is the day the application is received, the registrar must act under subsection (1) [to serve relevant persons] after the application has gone before the Magistrates Court and the court has set a further date for the application's return before the court.

32. In this case, the application was initially returned the same day it was filed for the purposes of enabling the making of an interim order. This action enlivened a duty in the registrar to hold a preliminary conference (per Pt 3 of the DVPO Regulations). However, a failure to hold a preliminary conference does not affect the validity of a protection order (s 18(4) of the DVPO Act). Of course, no preliminary conference was held in this instance since the interim order was made on the same day as the corresponding application. Rather, the date for further hearing of the application was adjourned so that the conference could take place on a "further date" (cf DVPO Act s 16(3)).

33. Section 19 (DVPO Act) provides that satisfaction as to any factual matter in an application for a final or interim order must be " ... on the balance of probabilities".

34. In the case of a personal protection order, any such order may restrain the respondent referred to in it from engaging in "personal violence". It may also include a s 42 prohibition. Generally, that refers to any condition or prohibition considered "necessary or desirable" (s 42(1), DVPO Act).

35. Interim orders are dealt with in Pt 6 of the DVPO Act. For present purposes, the main focus is on the amendments introduced by the Domestic Violence and Protection Orders Amendment Act 2005 (ACT) which commenced on 25 March 2005.

36. Section 48(4) (DVPO Act) provides:

If an interim order is made and the return date for the application for the final order is less than 21 days after the day the interim order is made, the Magistrates Court must change the return date for the application to a day that is at least 21 days after the day the interim order is made.

37. That provision was complied with. The Notice of Proceedings dated 30 March 2005 adjourned the return date for the application to 9.45 am on 21 April 2005, that is, prior to the expiry of the interim order at 4.00 pm that day.

38. Section 49 (DVPO Act) authorises the making of an interim order by the Court if satisfied that it is necessary to make the interim order to ensure the safety of the aggrieved person. The possibility of the respondent to such an order being a child is addressed in s 51(2) (DVPO Act):

... the interim order may prohibit a respondent who is a child from being on premises where the child normally receives care (including education) or protection only if the Magistrates Court is satisfied that adequate arrangements have been made for the child's care (including education) and safety.

39. The interim order made on 29 March 2005 did not offend this provision, although, as I have noted some challenge is made as to whether the evidence presented on 29 March 2005 warranted the making of an interim order against this appellant in any event.

SECTION 51A

40. There then follows the provision primarily in contention in these proceedings:

51A What if respondent objects to interim order made when not present?

(1) This section applies if the Magistrates Court makes an interim order in the absence of a respondent and any representative of the respondent.

(2) The respondent may--

(a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

(b) return it to the Magistrates Court at least 7 days before the return date for the application for the final order to which the interim order relates.

(3) The interim order becomes a final order against the respondent--

(a) if--

(i) the Magistrates Court receives the endorsement copy from the respondent at least 7 days before the return date for the application for the final order; and

(ii) the respondent indicated on the endorsement copy that the respondent does not object to the interim order becoming a final order; or

(b) if the respondent does not return the endorsement copy to the Magistrates Court at least 7 days before the return date for the application for the final order.

(4) A final order under subsection (3) comes into force--

(a) if the respondent returned the endorsement copy to the Magistrates Court and does not object to the interim order becoming final--on the day the Magistrates Court receives the endorsement copy; or

(b) on the return date for the application for the final order.

(5) The Magistrates Court may decide the application for the final order if--

(a) the respondent returns the endorsement copy to the Magistrates Court at least 7 days before the return date for the application for the final order; and

(b) the endorsement copy indicates that the respondent objects to the interim order becoming a final order.

(6) In this section:

endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under section 33 (1).

respondent includes a representative of the respondent.

(original emphasis)

41. Section 52 (DVPO Act) permits interim orders (other than those made by consent) to be extended for no more than eight weeks. That did not occur in this case. There was no purported extension of the interim order of 29 March 2005. In this case, the interim order was expressed to expire at 4.00 pm on 21 April 2005.

42. Section 53 (DVPO Act) provides for the expiration of interim orders:

An interim order ends before the end of the period stated in the order if any of the following happens:

(a) the interim order is revoked;

(b) the application on which the interim order was made is dismissed;

(c) if a final order is made on the application and the respondent is present when the final order is made--the final order is made;

(d) if a final order is made on the application but the respondent is not present when the final order is made--the final order is served on the respondent.

43. When the appellant and his next friend attended at the Magistrates Court prior to the time expressed in it for the expiry of the interim order and at the time notified for the return of the application for a final order, they were informed by a Deputy Registrar that the interim order had already become final after the stroke of midnight earlier that day. The appellant was not present at that time (see (c) above), nor was the "final order" allegedly then made served on the appellant (see (d) above). Therefore, no conditions for the expiry of an interim order under s 53 had been met.

44. A notation on the purported final order in this case certifies that the respondent was served with the order "by sending a copy of the document/s to the respondent's address for service". Was this mode of service at all effective?

45. Section 33(1)(b) (DVPO Act) requires that an order "that is not an interim order" must be served by the Registrar on the respondent to the application for it.

46. It is not expressly provided in s 33 (DVPO Act) that such service be personal. Further, Pt 19.5 of the Legislation Act 2001 (service of documents) is expressly excluded (see s 97(3) DVPO Act). Hence, s 97 (DVPO Act) applies so as to prescribe the manner in which service may be effected. Section 97(2) (DVPO Act) provides:

(2) The document may be served--

(a) by delivering it to the person personally; or

(b) by leaving it--

(i) at the home or work address of the person last-known to the person serving the document; and

(ii) with a person apparently living or employed at the place who appears to be more than 16 years old; or

(c) if the person has an address for service--by leaving it at, or sending it by prepaid post to, the address for service.

None of those options were adopted in this case.

47. The regulation making power (s 106(2)(e) DVPO Act) includes "service" as a subject matter for regulations. Although, the DVPO Regulations do not address the issue of an "Address for Service", r 28(1) of the Magistrates Court Rules provides that:

A party to proceedings shall, in the first document filed by him or her, specify an address for service.

48. The only document filed by or on behalf of the respondent as at 22 April 2005 was the affidavit of Mr Peter Trahair proposing the appellant's mother as the appellant's guardian ad litem and recording her consent so to act. She gave her address in that document but it is not stated to be an address for service of the appellant.

49. The appellant had been served with the original application at "Principal's office, Melrose High School, Pearce, ACT". That could hardly be regarded as an "address for service" of the appellant.

50. The address given for the appellant on the respondent's application for a protection order was no more informative. It was "Melrose HS Pearce".

51. The final order, purportedly made on 21 April 2005, contained the following statement:

AND IT IS NOTED THAT - as the respondent was present when the Protection Order was made, pursuant to Section 33(2)(a) of the [DVO Act] personal service is not necessary.

(emphasis removed)

52. How that statement could be made totally mystifies me. The order made on 29 March 2005 was deemed to become final if the appellant failed to return the endorsement copy by 14 April 2005, "on the return date". That is defined in the Dictionary to the DVPO Act as "the day fixed by the Magistrates Court for return of the application before the court".

53. There is a question as to whether the "return date" includes the time of the day specified. There is no case I know of where a return date is specified without a time, even allowing for the addition of such words as "or as soon thereafter as the matter can be heard".

54. Indeed the Domestic Violence and Protection Orders Regulation 2002, s 46, states:

If the hearing is adjourned--

(a) the return date notice under the Act, section 15 ... must be amended to state the new time and the place for the hearing ... (emphasis added)

55. Notice of a return date without a time and place specified in it would clearly be incapable of compliance by a party to whom that notification was directed.

56. Hence, I conclude that the interim order was declared liable to become "final" on 21 April 2005 at 9.45 am but not before. The Deputy Registrar was therefore in error in assuming it had become so after the stroke of the preceding midnight.

57. The operation of s 55 (DVPO Act), continuing the interim order until the final order was served on the respondent, is not expressed to be excluded. By s 53(d) (DVPO Act) upon service of the final order an interim order ends. However, it will end also if a final order is not made, unless the interim order is extended pursuant to s 58 (DVPO Act) (for eight weeks maximum) or s 60 (DVPO Act) (a further eight weeks maximum). There was no such extension requested or made in this case.

58. There is no provision which gives any coercive effect to a protection order which has not been served. Section 34 (DVPO Act) makes non-compliance with a protection order an offence only if the respondent to the application for it was present when it was made or has been personally served with it.

59. When read literally, the provisions of s 51A (DVPO Act) do not sit comfortably with s 41 (DVPO Act). The latter provides:

(1) In deciding an application for a final order, the Magistrates Court must consider the following:

(a) the objects of this Act (in section 5) and the principles for making orders (in section 6);

(b) the welfare of each child (if any) affected, or likely to be affected, by the respondent's conduct;

(c) the accommodation needs of the aggrieved person, each child (if any) of the aggrieved person, and each child (if any) of the respondent;

(d) any hardship that may be caused to the respondent or anyone else by the making of a protection order;

(e) if the court proposes to include in the protection order a prohibition or requirement of a kind mentioned in section 42 (3)--the income, assets and liabilities of the respondent and the aggrieved person (other than an aggrieved person who is a child);

Note A prohibition under s 42 (3) (a) prohibits the respondent from taking possession of personal property needed by the aggrieved person or a child of the aggrieved person. A requirement under s 42 (3) (b) requires the respondent to give the aggrieved person personal property needed by the aggrieved person or a child of the aggrieved person.

(f) whether contact between the aggrieved person or the respondent, and any child of either of them, is relevant to the making of the protection order, and to any relevant family contact order of which the court is aware;

(g) if the respondent has previously engaged in conduct that is domestic violence, personal violence or personal violence in relation to a workplace--that conduct;

Note This may include conduct that was an offence under the Motor Traffic Act 1936 (see s 113).

(h) if a protection order has previously been made in relation to the respondent--the protection order;

(i) if the respondent has previously contravened a protection order--the contravention;

(j) the need to ensure that property is protected from damage.

Note This section does not apply to consent orders (see s 29(2)(b)).

(2) The Magistrates Court may also consider anything else that is relevant.

...

60. In this case there was no consideration of the application for the final order by any magistrate. It follows that the Magistrates Court gave no consideration to any of the matters referred to in s 41 (supra).

61. Certain provisions of the Regulations appear relevant. The first is Pt 7 "People with legal disability". Section 48 of the Regulations provides:

(1) This section applies to a person with a legal disability who is the respondent in a proceeding on an application.

(2) The person may defend the proceeding only by a litigation guardian.

(3) If an order is made against the person to whom this section applies when the person has no litigation guardian, the validity of the order is not affected.

62. That regulation is attacked as being either beyond the power conferred by s 106 (DVPO Act) if the latter is to be interpreted so as to conform to the HR Act. Section  106(3)(b) (DVPO Act) provides for the appointment of "next friends and litigation guardians" and "how respondents may defend actions".

63. Section 106(2)(l) (DVPO Act) empowers the making of regulations dealing with "the powers of the Magistrates Court to set aside orders".

64. Section 90 (DVPO Regs) purports to deal with that subject matter:

(1) The Magistrates Court may, on sufficient cause being shown, order that an order be set aside if the court is satisfied that the order was made irregularly, illegally or against good faith.

(2) The Magistrates Court may, by order, on the terms it considers just, set aside an order made in a proceeding if the parties to the proceeding consent.

65. Section 91 (DVPO Regs) states:

(1) This section applies if, in beginning a proceeding or at any stage during the proceeding there is a failure to comply with a requirement of the Act, or a direction given by the Magistrates Court, because of an act or omission in or in connection with the proceeding, whether in relation to time, place, manner, form, content or in any other respect.

(2) The failure is an irregularity (the irregularity) and does not nullify the proceeding, a step taken or document filed in the proceeding or an order made in the proceeding.

(3) The Magistrates Court may, on the terms it considers just, set aside, completely or partly, the proceeding, a step taken or document filed in the proceeding or an order made in the proceeding, and exercise its powers under this regulation to allow amendments and to make orders relating to the conduct of the proceeding generally.

(4) However, the Magistrates Court must not set aside a proceeding, step taken or document filed in a proceeding or an order made in the proceeding on the ground of the irregularity on the application of a party unless the application is made within a reasonable time and before the applicant has taken any fresh step in the proceeding after becoming aware of the irregularity.

(original emphasis)

66. The regime established by s 51A (DVPO Act) is analogous to that established for default judgment for failure to appear or defend in civil proceedings or, indeed, in some specified minor criminal matters where the court is empowered to proceed ex parte.

67. In the case of ex parte convictions or orders, s 23 of the MC Act (now relocated to Magistrates Court Rules 1932 Pt 4 r 10) permits the court to set aside an ex parte order on terms that appear just, notwithstanding a failure to appear or, under MC Act Pt 3.7, a failure to return a notice of intention to defend in respect of prescribed traffic offences.

68. In the case of civil proceedings, to which these proceedings are more analogous at the stage of seeking and making protection orders, a person under disability may not defend proceedings not be made the subject of a judgment or order unless and until a guardian ad litem is appointed (s 86 Magistrates Court (Civil Jurisdiction) Act 1982 (MC (CJ) Act) now Magistrates Court (Civil Jurisdiction) Rules 2004 (MC (CJ) Rules). That is specifically qualified by s 48 of the DVPO Regulations (supra par 61).

69. Section 221 of the MC (CJ) Rules permits the Court to set aside any judgment or order "on sufficient cause being shown" and "on the terms it thinks just". Section 222 of the MC (CJ) Rules refers to the setting aside of any judgment "given or entered irregularly, illegally or against good faith". That is in similar terms to s 90(1) DVPO Regs.

70. There is no equivalent to s 221 (MC (CJ) Rules) in the DVPO Act. However, the implication that such a power exists in relation to matters arising under that Act would do much to remove the injustice of which the appellant complains.

71. It is clear that if the DVPO Act permitted orders to be made with no recourse to set aside such an order, even if made ex parte, it would offend human rights standards.

72. Even absent s 21 of the HR Act, as I found in Ryan v Registrar of Motor Vehicles (1997) 129 ACTR 4, Article 20 of the Great Charter (Magna Carta) 1215 would have supported a conclusion that due process, including a right to a fair hearing, was not to be denied. The 1297 version of the Great Charter continued that provision as Article 29 and is continued by the Legislation Act 2001 (ACT) (L Act) Sch 1. Thus there is, and has been since 1215, a strong presumption that no legislative enactment is intended to infringe the civil rights apparently challenged by this enactment (ie s 51A, DVPO Act). Further, if s 48 (DVPO Regs) was to be interpreted as requiring an order to be made against a minor, unrepresented by a litigation guardian, then the provisions of the HR Act protective of the rights of children (see particularly ss 11 and 21(1)) thereof.

The Legislative History

73. The Legislation Act 2001 (ACT) (L Act), Pt 14.2 sets out the principles generally to be applied in working out the meaning of an enactment. One principle is that the provisions of the HR Act are relevant to the process (L Act s 139 and HR Act s 30(1)).

74. Non-legislative material is declared to be available for consideration in working out the meaning of an enactment by virtue of s 142 of the L Act. That extraneous material includes relevant reports of Legislative Assembly committees, explanatory statements for the relevant bill, the presentation speech as well as any official report of the proceedings of the ACT Legislative Assembly (the Assembly) in relation to the passage of the bill into law. That provision effectively modifies s 24(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (that is, the privilege of the Assembly with respect to judicial scrutiny of its proceedings). Also relevant, particularly under the HR Act, is any relevant treaty or international agreement to which Australia is a party is to be considered. That provision accords with Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

75. On 18 November 2003, the Chief Minister, Mr Jon Stanhope, presented the Human Rights Bill 2003 and its explanatory statement in the Legislative Assembly. The bill was designed to follow and implement, for the Australian Capital Territory, the International Covenant on Civil and Political Rights (ICCPR) which was ratified for Australia in 1980 by the Australian Government then led by Mr Malcolm Fraser. The Chief Minister said:

(4247 Hansard)... the bill requires that all ACT statutes and statutory instruments must be interpreted and applied so far as possible in a way that is consistent with the human rights protected in the act.

76. Also, relevantly, as now reflected in s 37 of the HR Act, the Chief Minister referred to his duty, in his role as Attorney-General, as proposed in the bill:

(4248 Hansard) The bill does not take away the power of the Assembly to pass laws that are inconsistent with human rights set out in the Human Rights Act. However, as Attorney-General, I would be required to scrutinise all government bills to ensure they are consistent with fundamental human rights.

77. Section 37 (HR Act) accordingly provides:

(1) This section applies to each bill presented to the Legislative Assembly by a Minister.

(2) The Attorney-General must prepare a written statement (the compatibility statement) about the bill for presentation to the Legislative Assembly.

(3) The compatibility statement must state--

(a) whether, in the Attorney-General's opinion, the bill is consistent with human rights; and

(b) if it is not consistent, how it is not consistent with human rights.

(original emphasis)

78. Further, s 38 (HR Act) requires the "relevant standing committee" of the Assembly to report on any human rights issues raised by any bill before the Assembly.

79. On 17 February 2005, a bill containing the proposed s 51A (DVPO Act) was introduced by the Chief Minister. The HR Act was referred to by the Chief Minister:

(543 Hansard) The bill recognises that the right to protection from cruel, inhuman or degrading treatment in section 10 of the Human Rights Act 2004 requires effective legislative measures against domestic and personal violence.

80. The protection against family violence was also referred to as meeting the objectives of HR Act s 11. A Human Rights Act compatibility statement was tabled along with the explanatory memorandum in respect of that bill.

81. The debate in the Assembly resumed on 17 March 2005. The relevant committee report was referred to. That report acknowledged the restriction which personal protection orders would impose on the human rights of respondents to such orders. It considered, generally, that these restrictions were consistent with s 28 HR Act (reasonable restrictions on rights permitted).

82. The explanatory memorandum, consistently with the apparent purpose of such documents of explaining as little as possible, merely stated in respect of the proposed s 51A (at page 6):

Clause 29 inserts a new section detailing the steps required of the Magistrates Court when making an interim order in the absence of a respondent, and any representative of the respondent, and outlines when an interim order becomes a final order against the respondent.

83. That does little justice to the ambiguities and apparent draconic effect of the then proposed s 51A DVPO Act, at least insofar as that provision is read literally.

84. The Chief Minister, however, in his contribution to the debate, noted:

(1158-9 Hansard) ... in including a series of proposals designed to ensure the safety and protection of people from violence, harassment and intimidation, the legislation contains safeguards to ensure that it does not unduly interfere with the rights and liberties of an individual.

85. Further, he noted:

(1160 Hansard) ... there is a requirement that orders must be sought in a court of law, that the issue be tested and that the potential for a response be provided.

It seems to me that, with the arrangement that is involved, the need for the order to be supported and granted by a magistrate essentially involves a check and a balance or a regime that ensures that we meet our fundamental responsibility to protect people within this community from violence whilst at the same time ensuring procedural fairness for those that might be the subject of such an order or at least an application.

86. It is clear, therefore, that neither the Attorney-General nor any other member of the Legislative Assembly regarded the proposed provisions of s 51A of the DVPO Act as derogating from the right of the appellant to question his liability to be subjected to a personal protection order and having that liability and the extent of it determined by a magistrate.

87. That such a right exists is emphasised by the concomitant duty imposed upon a magistrate making a protection order, otherwise than by consent, to record the reasons for making it (see DVPO Act s 26). Certainly, s 40(1)(b) (DVPO Act) requires, at the stage of the making of a final order, a factual determination that the respondent to the application for it has:

engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

88. Certainly, if no objection is tendered by a respondent at or before the return date, it may be assumed that there was no objection to the making of a final order at least no more onerous than the interim order. That does not preclude the need for judicial scrutiny nor oust the court's jurisdiction to set aside an ex parte order for good and sufficient cause.

89. A further indication that such further scrutiny is mandatory arises from s 36 (DVPO Act). It provides:

A final order that is a personal protection order remains in force for--

(a) 1 year; or

(b) if a shorter period is stated in the protection order--the period stated.

90. It may be noted that a "final order", even if of only momentary duration, enlivens DVPO Act s 38 (cancellation of any firearms licence).

91. This "final order" purported to be of 12 months duration. The duration of the order, which must be stated in it, presupposes that some authorised person has determined that duration. The authority to determine such a matter can only be the "Magistrates Court". That court, as continued by s 4 (MC Act), can exercise its powers and functions only in accordance with that provision, that is:

The jurisdiction of the court may be exercised by a magistrate (other than a special magistrate) or by 1 or more special magistrates.

92. The term "magistrate" is defined by s 5(3) (MC Act) to mean a magistrate rather than a registrar or other functionary. Section 6 (MC Act) defines "magistrate" to include any person appointed under s 7 as a magistrate.

93. Thus the power to make a "final order" under the DVPO Act is not exercisable by a Registrar or deputy Registrar but only by "a magistrate". It further allows that only a magistrate can determine the duration of it.

94. The expression in s 51A(3) (DVPO Act), "The interim order becomes a final order against the respondent" should not, in my opinion, be construed as a consequence which follows without the act of a magistrate (including a special magistrate) making it so.

95. There may be many reasons why, as at the return date and notwithstanding silence from the respondent, the court might decline to make a final order or, at least, a final order in the same terms as the interim order. A magistrate might consider that less onerous terms were required as at the return date than had been specified in the interim order.

96. To make a final order in the same terms as the interim order does not address the issue of its duration beyond the expiry date (and time) of the then existing interim order, including any pre-existing lawful extension of it notified to the respondent to it. A person served with an interim order, including the s 51A notice, would be entitled to assume that the only consequence of default in returning the endorsement copy of the interim order would be the re-characterisation of the interim order as a final order. It would not be obvious to a recipient of the interim order that a default final order might be made lasting a further 12 months without judicial scrutiny to ensure that such a consequence was justified.

97. It is impossible to assume that s 51A (DVPO Act) was intended to remove judicial scrutiny or exclude a respondent's right to a full hearing even if an ex parte order had been made, even though, save as to the duration of it, it was issued in no more onerous form than the interim order.

98. It follows that s 51A, properly interpreted:

(1) empowers but does not mandate the making of a final order in the absence of a conforming objection;

(2) does not oust the other provisions of the DVPO Act relevant to the making of a final order including that it may be made only by a magistrate who is obliged, of course, to act judicially;

(3) does not preclude a magistrate from declining to make a final order against a minor who has no litigation guardian. Indeed, such a result would be likely to follow if no litigation guardian had been appointed at least until that deficiency was remedied.

(4) does not preclude a respondent to an order made ex parte from applying to set it aside, as of right if irregularly made and as a matter of discretion if sufficient cause be shown.

The Human Rights Implications

99. The DVPO Act, particularly s 51A, raises serious concerns as to the proper separation of judicial and executive functions. The formal order, in this case a "final" protection order lasting for 12 months, was made by an officer of the ACT Executive (ie., a deputy Registrar) and not by a magistrate.

100. Even absent the HR Act, such a result, if it was authorised by the DVPO Act, and I consider that it was not, should be regarded as ultravires by reference to the principles adopted by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

101. In this regard, it should be noted that the ACT Supreme Court is itself a creature of federal law, albeit that the Supreme Court is not a federal court (see Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322). Nevertheless, it is invested with at least the same federal jurisdiction as are all other Supreme Courts. The Assembly is constrained by both the Constitution (ss 71, 122) and by the Judiciary Act 1903 (Cth) s 39 as well as the Australian Capital Territory (Self-Government) Act 1988, s 48A as to the powers and functions that may legitimately be conferred upon the Supreme Court or the judges thereof.

102. Further, it is arguable that, to a greater extent than pertains in New South Wales, there is entrenched in the ACT a separation of powers between the legislature, the executive and the judiciary.

103. It is an essential constitutional requirement that the Supreme Court and, in my view, the Magistrates Court as a subordinate repository of the judicial power of the Territory and, in the case of each Court as repositories of federal judicial power (see, for example, Spratt v Hermes (1965) 114 CLR 226) may not be required by legislation of the Territory (nor of the Commonwealth) to act incompatibly with the integrity, independence and impartiality required of a judicial officer appointed under Chapter III of the Constitution. To make an order of the kind referred to as a personal protection order without the subject of it having a right to be fairly heard would, so far as Territory legislation is concerned, be incompatible with the right of persons in the ACT pursuant to s 21(1) (HR Act) to access to a "competent, independent and impartial" Tribunal for a "fair and public hearing" before such an order was made.

104. To require a court to make such an order without giving the respondent to it a fair opportunity to be heard before such an order is made is equally incompatible with s 21(1) (HR Act). That provision of the HR Act does no more than declare what is, and has since 1215, been recognised as a fundamental principle of the rule of law. A subsidiary element is the right of a child to be properly and adequately represented by an adult guardian. It would be an egregious perversion of the rule of law if either of those principles was to be violated.

105. Further, assuming the Final Order is regarded as made in default of any conforming objection, to hold that it is immune from reconsideration as is any other ex parte order would, again, deny the right of a person such as the appellant to a judicial determination according to the rules of natural justice as to whether his rights should be diminished or restricted as the final order purports to do.

106. I was referred to Kelly v Apps (2000) 98 FCR 101. A question was raised as to whether, even if there was no power under the DVPO Act to challenge the Final Order or the continuation of the Interim Order, an appeal would be available to the Supreme Court to correct, by way of re-hearing, any order that was so made. I accept that this Court must have jurisdiction to entertain an appeal from any order of the Magistrates Court (see MC Act Pt 4.5 and DVPO Act s 78). No party contended otherwise. That does not deny to the Magistrates Court the power to set aside such an order if made ex parte.

107. A further point arises from the case of Harris v Caladine (1991) 172 CLR 84. Insofar as the process of making a default final order might be regarded as an administrative act by a Registrar not subject to review by a magistrate, it would, in my view, fall foul of the principles accepted by the High Court in that case. It is not simply a case of there being an inappropriate admixture of judicial and administrative functions. After all, magistrates carry out both such functions. The objection is that there is no judicial input at all into the making of such an order. If there was a judicial review, such as exists in the case of all other ex parte orders, that principle need not be violated. The final decision would have been open to full merits review by a competent and impartial judicial officer.

108. In general terms though, any protection order will, to a greater or lesser degree, interfere with the right of the respondent to it to freedom of movement and association. Such a restriction will be human rights compliant if reasonably proportionate to the protection to be afforded the right of an applicant to freedom from harassment, intimidation, personal violence, security of residence and of movement. This is recognised by Article 12(3) of the ICCPR. The restrictions need to be:

* Provided by law;

* Consistent with other recognised rights;

* Serve one of the relevant listed purposes; and be

* Necessary to achieve such a purpose.

(See Nowak "UN Covenant on Civil and Political Rights (Kehl am Rhein: NP Engel 1993) at p 216ff in relation to freedom of movement and third parties).

109. Article 14 ICCPR provides procedural guarantees in respect of both criminal and civil trials. It is, in truth, but a re-statement of the right to due process enshrined in Magna Carta. It is inconsistent with those guarantees for a person to be deprived of his or her liberty, wholly or partially, or be exposed to criminal sanctions without "a fair and public hearing by a competent, independent and impartial tribunal established by law".

110. It would, in my view, be incompatible with that standard to permit orders, such as personal protection orders, to be made in the absence of one party, without review by a judicial officer giving all other parties, particularly those restricted by such orders, a proper and fair opportunity to be heard, including the application of the presumption of innocence until the contrary be proved. The international standard does not mandate proof beyond reasonable doubt but the process must be proportionate to the legitimate objectives to be served.

111. Article 14(4) ICCPR also draws attention to the special need for juveniles to be treated appropriately and in the interest of their rehabilitation.

112. The rights of children are more particularly dealt with in Article 24 ICCPR. This adds little, however, to the rights recognised by the HR Act. It would be incompatible with those rights if the DVPO Act and regulations (particularly s 48) were to be interpreted as permitting a final order, of whatever duration or, even, an interim order, save as mandated by an urgent need for personal protection of the applicant, without the child respondent to the application for it being represented by a litigation guardian and given a proper opportunity to be heard.

113. It is, therefore, apparent that the DVPO Act and Regulations, to be Human Rights Act compliant, as the Attorney-General has certified them to be, can only have been intended to be interpreted as I have determined above.

114. Any contrary view would involve a court, be it constituted by a judge or a magistrate, making covert orders against a person with no adequate human rights compliant avenue of review. That is, in my view such a derogation from judicial independence as to be inconsistent with Kable's case (supra).

115. In the result, therefore, the order appealed from is set aside.

116. I will hear the parties as to costs.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 2 December 2005

Counsel for the appellant: Mr C Erskine

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr R Thomas

Solicitor for the respondent: S & T Lawyers

Date of hearing: 31 August 2005

Date of judgment: 2 December 2005