R v AM [2010] ACTSC 149 (15 November 2010)

Last Updated: 14 December 2010

HUMAN RIGHTS ACT

R v AM

[2010] ACTSC 149 (15 November 2010)

CRIMINAL LAW AND PROCEDURE - collateral challenge - application to have domestic and protection orders declared invalid and excluded from admission in trial – relevant parties were not before the court – application not heard due to absence of parties.

HUMAN RIGHTS – freedom of conscience – whether providing lawful authority for acts otherwise criminal – section 43 Criminal Code 2002 (ACT).

HUMAN RIGHTS – application for a declaration of incompatibility under the Human Rights Act 2004 (ACT) – conscientious belief.

Australian Constitution s116

Crimes Act 1914 (Cth) s 15D

Criminal Code 2002 (ACT) s43

Domestic Violence and Protection Orders Act 2008 (ACT) ss 29, 90(2)

Human Rights Act 2004 (ACT) ss 12, 14, 14(1)(a), 14(1)(b), 15, 16, 18, 28, 30, 32(3)(a), 34

Court Procedures Rules 2006 (ACT) rr 4731, 4733

International Covenant on Civil and Political Rights (16 December 1966) arts 9, 18

European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) art 9

Constitution Act 1982 (Canada) s 2

New Zealand Bill of Rights Act 1990 (New Zealand) ss 13, 18

John Rawls in A Theory Of Justice (Oxford: Clarendon Press, 1972)

Joseph Raz, The Authority of Law: Essays In Law And Morality (Oxford: Clarendon Press, 1979)

W v The Queen [2001] FCA 1648; (2001) 115 FCR 41

R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473

Muir v Morton [1984] WAR 254

Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94

Ousley v The Queen (1997) 192 CLR 69

McArthur v Williams [1936] HCA 10; (1936) 55 CLR 324

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

R v Gilkes [1827] EngR 837; (1827) 3 Car & P 50; 172 ER 319

Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219

Re Australian Securities and Investments Commission & Ors; Ex parte Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559

Grace Bible Church v Reedman (1984) 36 SASR 376

Attorney-General (Victoria) (at the relation of Black) and Ors v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559

Grondal v Minister of State for Labour and National Service (Supreme Court of Western Australia, Dwyer CJ, 11 September 1953, unreported)

R v District Court of the Metropolitan District Holden at Sydney and Ors; Ex parte White [1966] HCA 69; (1966) 116 CLR 644

R v District Court of the Northern District of the State of Queensland; Ex parte Thompson, [1968] HCA 48; (1968) 118 CLR 488

Re Aper; Reference of Question of Law by Industrial Registrar [1978] FCA 40; (1978) 21 ALR 407

Roach v Canada (Minister for State of Multiculturalism and Citizenship) (1994) 113 DLR (4th) 67

R (Williamson and Ors) v The Secretary of State for Education and Employment [2005] UKHL 15; (2005) 2 AC 246

Campbell and Cosans v United Kingdom [1983] ECHR 3; (1982) 4 EHRR 293

In re Appeals from Registrar under Industrial Arbitration Act 1940–53 s 129B (11) [1954] IR 71

Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT

Whaley & Anor v Lord Advocate [2007] UKHL 53

Arrowsmith v United Kingdom (1978) 3 EHRR 218

R v Fernside (2009) 3 ACTLR 25

R v Big M Drug Mart Ltd [1985] 1 SCR 295

Chiiko Bwalya v Zambia, (Communication No 314/1988, UN Doc CCPR/C/48/D/314/1988 (1993)

R (on the application of B) v Director of Public Prosecutions & Anor [2009] EWHC 106 Zimmer et al v Ringrose (1981) 124 DLR (3rd) 215

Norberg v Wynrib (1992) 92 DLR (4th) 449

Janaway v Salford Area Health Authority [1989] 1 AC 537

Rook v Mayner (No 2) [1994] TASSC 104; (1994) 3 Tas R 235

Henshaw v Mark (1997) 95 A Crim R 115

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

EX TEMPORE JUDGMENT

No. SCC 182 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 15 November 2010

IN THE SUPREME COURT OF THE )

) No. SCC 182 of 2010

AUSTRALIAN CAPITAL TERRITORY )

R

v

AM

ORDER

Judge: Refshauge J

Date: 15 November 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2. AM’s trial will commence at 10am, Tuesday 16 November 2010.

1. The accused, AM, has made two applications to the court for certain orders.

2. In the first application, she sought:

1. Order that the Interim Domestic Violence and Protection Orders DV 10/75 and DV 10/76 be declared invalid and excluded from admission in my trial, set for hearing on 16 November 2010.

In the second, she sought:

1. Order that I be allowed to defend myself according to Section 43 ‘Lawful Authority’ of the Criminal Code 2002 using Section 14 ‘Freedom of Conscience’ of the Human Rights Act 2004 in my trial, set for hearing on 16 November 2010

2. Alternatively, declare that Section 43 ‘Lawful Authority’ and/or Part 2.3 ‘Circumstances where there is no criminal responsibility’, Division 2.3.5 ‘External Factors of the Criminal Code 2002,’ is inconsistent with Section 14 ‘Freedom of Conscience’ of the Human Rights Act 2004; that is, make a ‘declaration of incompatibility’ according to Section 32 of the Human Rights Act 2004

3. Before hearing these applications, I arraigned AM in order to have jurisdiction to hear and determine these applications: W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 (at [67]-[69]).

4. The indictment, which had been filed on 3 August 2010, contained two counts in slightly different terms as follows:

FIRST that on the 16th day of March 2010 at Canberra in the Australian

COUNT Capital Territory AM being subject to a protection order and who had been personally served with a copy of the protection order, engaged in conduct that contravened the protection order.

SECOND and further that on the 16th day of March 2010 at Canberra COUNT aforesaid AM being a person subject to a protection order, and who had been personally served with a copy of the protection order, engaged in conduct that contravened the protection order.

AM pleaded not guilty to both counts.

Background

5. AM was charged before the ACT Magistrates Court on 16 March 2010 with an offence that, on that day, she contravened a Protection Order with which she had been served personally.

6. She appeared a number of times in that court and on 5 May 2010 was committed for trial to this court. She appeared in the usual directions list (in accordance with r 4731 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules)) when I made directions in accordance with r 4733 of the Court Procedures Rules.

7. In accordance with those directions, a draft indictment was filed on 11 June 2010 containing one count, namely:

FIRST that on the 16th day of March 2010 at Canberra in the Australian COUNT Capital Territory the Australian Capital Territory AM being subject to a protection order, and who had been personally served with a copy of the protection order, engaged in conduct that contravened the protection order.

8. Also filed on that day was a case statement, being the document referred to in r 4733. The nature, content and function of that document are set out in R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 (a [26]-[35]). As such, I can use it to understand the background to the case for the purposes of this application, though it is not, of course, the evidence that will necessarily be adduced or admissible at the trial.

Background facts

9. In summary, AM’s parents, as aggrieved persons, applied to the ACT Magistrates Court for a Domestic Violence Order under the Domestic Violence and Protection Orders Act 2008 (ACT) after they received a certain letter from AM. Her parents were each granted an Interim Domestic Violence Order prohibiting AM from, “being on the premises...where the aggrieved person lives”. The orders were granted until 4.00pm on 24 March 2010.

10. On 15 February 2010, Leading Senior Constable Raymond Moreland of the Victorian Police served both Interim Domestic Violence Orders on AM. He spent some 15 minutes explaining the orders to AM and the consequences of breaching them.

11. On 16 March 2010, AM arrived at the home of her parents and knocked on the door. She was met by Constable Francis Carbone of the Australian Federal Police who arrested her and took her to the ACT Regional Watchhouse from where she was taken to the ACT Magistrates Court and charged.

The first application

12. It was inappropriate to deal with the first application for it was seeking an order which could not really be made for two reasons. Firstly, the correct parties were not before the Court. The applicants for the orders were not parties and, insofar as an application of the kind set out in the orders sought were to be prosecuted, they would be necessary parties without whom the court would not, indeed, probably lacked jurisdiction to, make the declaration. Secondly, since the order is that of an inferior court the challenge must be to jurisdictional error and not merely that the order should not have been issued: Muir v Morton [1984] WAR 254. This view was re-inforced to a certain extent by the cases cited by the prosecution Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 and Ousley v The Queen (1997) 192 CLR 69, cases involving challenges to search warrants where the High Court held that the collateral challenge to the warrants there in contention could not include a consideration of the sufficiency of the material relied upon by the judicial officers who issued the warrants.

13. I consider, however, that these cases are supportive but are of limited assistance. This is because the judicial officers there involved were judges of Supreme Courts and there are some relevant differences between Supreme Courts and inferior courts in this area.

14. It is true that both cases relied on the decision of McArthur v Williams [1936] HCA 10; (1936) 55 CLR 324 where (at 365-6) the High Court held that the validity of a warrant does not depend upon the nature or sufficiency of the materials upon which it is granted. This must, however, be seen in the context that the issue of a warrant is an administrative function and there is a rather wider concept of jurisdictional error when an administrative tribunal is concerned. I have not had the time, nor in the circumstances is there need, to research this matter any further.

15. The nature of jurisdictional error is identified in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (at 176-180). This, in particular, sets out clearly the difference between jurisdictional error in relation to administrative tribunals and courts, especially where the court’s function is expressed that it be satisfied of certain matters as opposed to the actual existence of such matters (at 177).

16. Having regard to s 29 of the Domestic Violence and Protection Orders Act 2008 (ACT), the grounds on which AM sought to challenge the order could not reasonably be described as jurisdictional error as that term is defined in relation to the Magistrates Court in Craig v State of South Australia.

17. It is true that if, as AM claims, the only evidence before the learned Magistrate was her letter of 8 January 2010, then there may be a real argument about the sufficiency of the evidence, but I have no transcript of the proceedings, nor do I know in full what evidence was actually produced before the learned Magistrate.

18. It is a further problem that even were a declaration made that the order should not have been made, it appears that such an order would only speak from the date of its making and not affect actions done in reliance on it between that date and the date it is set aside: R v Gilkes [1827] EngR 837; (1827) 3 Car & P 50; 172 ER 319.

19. In any event, I declined to enter into the hearing of the application because of the absence of the other parties. There were other challenges that could have been made, perhaps under the Human Rights Act 2004 (ACT) (Human Rights Act), but AM declined to agitate them.

The second application - Preliminaries

20. The second application raised a question that involved the application of the Human Rights Act and an application for a declaration of an incompatibility under that Act.

21. By s 34 of that Act, the Court is prohibited from allowing the proceedings to continue unless notice of the proceedings has been given to the Attorney-General and the Human Rights Commission. AM gave evidence on affirmation that she had done this but only by pre-paid post. Neither of those parties initially appeared.

22. As a result, I stood the matter down to see if it could be ascertained that they had received the documents. On resumption, I was informed that the Human Rights Commission had received what appeared to be the documents and that the Commissioner did not intend to intervene.

23. Mr N Hancock of the ACT Government Solicitor attended to advise that the Attorney had not received any documents. Very helpfully, however, he was able to obtain instructions over a somewhat extended luncheon adjournment and advised that the Attorney did not wish to intervene.

24. I am not certain, in fact, that s 34 of the Human Rights Act applied. It only applies where the Territory is not a party to the relevant proceedings. Here, the Queen is the prosecuting party and it is difficult to see how that does not amount to the Territory. In addition, the Director of Public Prosecutions, as it is put in the indictment, “prosecutes in this behalf for Her Majesty the Queen”. It would seem the Director is relevantly the Territory see Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219 (at 232-3); Re Australian Securities and Investments Commission & Ors; Ex parte Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 (at 580-2, 608-9). I did not, however, hear argument on these issues and as I was satisfied that notice had been adequately given and the court was not prohibited from proceeding, I continued with hearing the application.

The second application - Substance

25. AM asserted that s 14 of the Human Rights Act permitted her to defend the charges she was facing on the grounds that her actions were taken in accordance with her conscience.

(a) The relevant provision

Section 14 provides:

14 Freedom of thought, conscience, religion and belief

(1) Everyone has the right to freedom of thought, conscience and religion. This right includes –

• (a) the freedom to have or to adopt a religion or belief of his or her choice; and
• (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private

(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching

26. This is similar, but not identical, to art 18 of the International Covenant on Civil and Political Rights, (16 December 1966) (International Covenant on Civil and Political Rights) and art 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (4 November 1950) (now the European Convention on Human Rights). The Canadian Charter of Rights and Freedoms (found in the Canadian Constitution Act 1982) simply says in s 2:

2. Fundamental Freedoms

Everyone has the following fundamental freedoms:

(a) Freedom of conscience and religion

(b) Freedom of thought, belief, opinion and expression

27. Two sections of the New Zealand Bill of Rights Act 1990 (New Zealand) are relevant; ss 13 and 15:

13. Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

18. Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

28. These are significantly new rights. As White J observed in Grace Bible Church v Reedman (1984) 36 SASR 376 (at [388]):

As I said, the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression. Rather, the common law has supported the supremacy of the Parliament. More particularly, it has not given to the Supreme Court any power to declare invalid an Act of Parliament simply because it infringes or impinges upon religious freedom.

29. While s 116 of the Australian Constitution provides for certain guarantees in relation to religion, it is, as Barwick CJ observed (at 580) in Attorney-General (Victoria) (at the relation of Black) and Ors v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559, only addressed to the Commonwealth laws which are limited by it.

30. It is relevant that the section makes a distinction between thought and conscience on the one hand and religion or belief on the other. In particular, s 14(1)(b), which includes a right to demonstrate in observance and practice refers only to religion and belief. Of course, there are elsewhere some rights in the Human Rights Act to demonstrate or manifest a thought or one’s conscience. The obvious one is s 16 of the Human Rights Act which protects freedom of expression. There may be others.

(b) What is conscience?

31. Conscience has not received much consideration in law outside the context of human rights litigation. It was, however, an issue addressed by legislatures, albeit in a somewhat limited way and outside general human rights instruments, in the context of compulsory military service (or conscription) and also union membership. That has led to some consideration of its meaning.

32. In a case dealing with conscientious objection to conscription, Dwyer CJ defined conscientious belief in the following ways in Grondal v Minister of State for Labour and National Service (Supreme Court of Western Australia, Dwyer CJ, 11 September 1953, unreported):

I would say that a conscientious belief is an individual’s inward conviction of what is morally right or morally wrong, and it is a conviction that is genuinely reached and held after some process of thinking about the subject. It represents a conclusion that is uninfluenced by any consideration of personal advantage or disadvantage either to oneself or others, and perhaps when put to the test should be ordinarily combined with a willingness to act according to the particular conviction reached although this may involve personal discomfort or suffering or material loss.

33. This description was adopted by Windeyer J in R v District Court of the Metropolitan District Holden at Sydney and Ors; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 (at 661). Later, in R v District Court of the Northern District of the State of Queensland; Ex parte Thompson [1968] HCA 48; (1968) 118 CLR 488, Barwick CJ described some characteristics of conscientious belief in the following terms (at 492):

A conscientious belief because it is a matter of conscience with its compulsive quality is durable though not unchangeable. The use of the expression “does not allow” in the section reflects the depth and nature of the required conviction. The inclusion of non-combatant service in the exemption indicates the wide sweep which the conscientious objection must have. Such a belief must be carefully distinguished from mere intellectual persuasion which by its very nature maybe transient.

34. This approach was imported into the industrial sphere in respect to conscientious objection to union membership by the Full Court of the Federal Court of Australia in Re Aper; Reference of Question of Law by Industrial Registrar [1978] FCA 40; (1978) 21 ALR 407 (at 422-3).

35. In the context of human rights litigation, freedom of conscience has largely been overshadowed by freedom of religion to which it is related, but with which, of course, it is not co-extensive. As Linden JA (with which whom MacGuigan and McDonald JJA agreed on this point) said in Roach v Canada (Minister for State of Multiculturalism and Citizenship) (1994) 113 DLR (4th) 67 (at [25]):

There is little authoritative jurisprudence on freedom of conscience under paragraph 2(a) of the Charter. However, the concurring reasons of Madam Justice Wilson in R v Morgentaler [1988] 1 SCR 30, at page 179, are instructive in their approach to freedom of conscience. She stated:

It seems to me, therefore, that in a free and democratic society “freedom of conscience and religion” should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in secular morality. Indeed, as a matter of statutory interpretation, “conscience” and “religion” should not be treated as tautologous if capable of independent, although related, meaning.

Linden JA continued:

It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organised religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under paragraph 2(a) of the Charter. For example, a secular conscientious objection to service in the military might well fall within the ambit of freedom of conscience, though not religion. However, as Madam Justice Wilson indicated, “conscience” and “religion” have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by paragraph 2(b).

36. In this sense, in particular, it is necessary to make the distinction made by eminent philosopher John Rawls in A Theory Of Justice (Oxford: Clarendon Press, 1972) (at p 368) between conscientious objection and civil disobedience (see also Joseph Raz, The Authority of Law: Essays In Law And Morality) (Oxford: Clarendon Press, 1979) (at p 268).

37. This is relevant, for AM relied on examples of civil disobedience to support her application. Such actions, however, may be motivated by political or other concerns and are not necessarily limited to conscience.

38. In the United Kingdom there has been some helpful discussion of these issues, though in the context of freedom of religion, where it is necessary to be aware that there is a right to its manifestation which is not clearly available in all circumstances in relation to freedom of conscience, and in the context of freedom of belief, a word used a little differently in some relevant UK contexts and, perhaps, somewhat akin to the s 14 freedom of conscience.

39. In the leading case of R (Williamson and Ors) v The Secretary of State for Education and Employment (Williamson) [2005] UKHL 15; (2005) 2 AC 246, Lord Nicholls of Birkenhead (with whom Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood agreed) said (at [24]):

Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism Arrowsmith v United Kingdom (1978) 3 EHRR 218. The position is much the same with regard to the respect guaranteed to a parent’s “religious and philosophical convictions” under article 2 of the First Protocol: see Campbell and Cosans v United Kingdom [1983] ECHR 3; (1982) 4 EHRR 293.

40. Reference to Campbell and Cosans v United Kingdom [1983] ECHR 3; (1982) 4 EHRR 293 (Campbell) is to a discussion of the European Court of Human Rights where the Court described (at [36]) what was protected by the guarantee of freedom of thought, conscience and religion as denoting “views that attain a certain level of cogency, seriousness, cohesion and importance”. In addition, in Campbell, the court noted that the beliefs related “to a weighty and substantial aspect of human life and behaviour”.

41. Later in Williamson, Lord Walker of Gestingthorpe (at 267 [57]) importantly expressed agreement with what fell from Arden LJ in the Court of Appeal in the appeal from which the proceedings in the House of Lords was brought, where her Ladyship said (at [258]):

To be protected by article 9, a religious belief, like a philosophical belief, must be consistent with the ideals of a democratic society, and that it must be compatible with human dignity, serious, important, and (to the extent that a religious belief can reasonably be required so to be) cogent and coherent.

42. Nevertheless, Lord Nicholls of Birkenhead remarked (at [22]):

The court is concerned to ensure an assertion of religious belief is made in good faith: “neither fictitious, nor capricious, and that it is not an artifice”, to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52.

But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iacobucci J also noted at p 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising.

The European Court of Human Rights has rightly noted that:

...in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which they are expressed Metropolitan Church of Bessarabia v Moldova (2001) 35 EHRR 306, 335, para 17.

The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

43. This is consistent with the Australian approach where in In re Appeals from Registrar under Industrial Arbitration Act 1940–53 s 129B (11) [1954] IR 71 (at 80-1) it was said:

It is not, therefore, for the Registrar to say whether the conscientious belief is orthodox or unorthodox, logically or morally tenable or not, or capable of being supported at all. Men may conscientiously believe what they cannot prove. They may not be put to proof of their conscientious beliefs.

44. In Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT (Grainger) Burton J of the UK Employment Appeals Tribunal, after reviewing the authorities, including Williamson and Campbell, summarised what was required of a belief as follows (at [24]):

(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others.

45. I have read carefully also Whaley & Anor v Lord Advocate [2007] UKHL 53 to which I was referred by the prosecution, but could not find there, especially at [18], the statement attributed, by the prosecution, to Lord Hope of Craighead, though the decision was entirely consistent with Williamson. As his Lordship said (at [24]), the belief “must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs.”

46. There is a strong sense that freedom of conscience, unlike freedom of religion, is limited to the beliefs and mental processes of an individual and that it does not necessarily protect any action motivated by the conscience of the person.

47. That is, to some extent, reinforced by s 16 of the Human Rights Act which makes a clear distinction between the holding of opinions and the freedom to express those opinions. This raises, however, the question of the nexus between “conscience” on the one hand, set out in the first sentence of s 14(1), and “belief” referred to in paragraphs 1(a) and (b) of that subsection. For this decision, however, I do not have to explore that further.

The conscience of AM

48. Turning then to AM’s case, I read carefully the material she supplied in support of her application. I could not see in it where she articulated clearly the aspect of her conscience which she said was relevant.

49. She clearly has a conscientious belief in non-violence. Pacifism has always been a recognised matter of conscience: Arrowsmith v United Kingdom (1978) 3 EHRR 218. It certainly meets the test set out in Grainger.

50. It is, however, entirely unclear how non-violence, as a belief of conscience, justifies a breach of a Domestic Violence Order.

51. Doing the best I can, it seems AM conscientiously believes that she has a conscientious obligation to confront persons whom she believes have inflicted harm on her and to do so in a non-violent way. If this is what her claim amounts to, I accept, from reading carefully her submissions and considering them, that this is something she genuinely holds and is not a transient belief based on the present state of information available to her.

52. Even if it were characterised in this case as being part of an inter-familial dispute, between AM and her parents, that may amount to a weighty and substantial aspect of human life and behaviour, though had I more information, it might turn out to be a matter of less significance being matters of dispute within a family that does not justify recognition as a matter of conscience.

53. I find it difficult to see it, however, as having the seriousness, cohesion and importance that is necessary, for it does seem entirely directed to the relationship she has had with her parents.

54. I also find myself unconvinced that it meets the final test articulated in Grainger, for it does seem that such a confrontation would conflict with several of the fundamental rights of her parents which are protected by the Human Rights Act, such as the right to privacy (s12), the right to security of person (s 18) and probably the right to freedom of association (s 15).

Conscience and the criminal law

55. Even if I am wrong about this, it seems to me that the right to freedom of conscience is not a defence under the criminal law. The Human Rights Act does not invalidate any legislation. Thus, legislation remains valid even if it is inconsistent with any of the human rights that it recognises. So much is clear from s 32(3)(a) of the Human Rights Act.

56. Thus, where it is alleged that a law which criminalises action is in breach of a human right protected by the Human Rights Act, it may be challenged to see whether:

(a) it can be interpreted under s 30 of the Human Rights Act in a way that is consistent with the right protected by the Act; or

(b) it is appropriate for a declaration of incompatibility to be made.

57. In the first case, the Court is asked to undertake the ordinary task of statutory interpretation, but with the added injunction that s 30 provides, namely, so far as is possible, consistently with the purpose of the enactment, to interpret the legislation in a way that is compatible with human rights. The approach in this jurisdiction to that task has been set out by the Court of Appeal in R v Fernside (2009) 3 ACTLR 25. Under this approach, it is necessary to find that the legislation may infringe upon a human right. If so, it is necessary then to see whether any limitation is justifiable in a free and democratic society: s 28 Human Rights Act.

58. If there is no such limitation, or even accepting such limitations that the legislation is incompatible with human rights, then the Supreme Court can take the other step of declaring that it is incompatible with the Human Rights Act. This declaration of incompatibility, however, does not render the legislation invalid nor invalidate anything done under it.

59. Thus, a person could still be convicted of an offence, even though a declaration of incompatibility has been made to the effect that the legislation under which the conviction has been entered is incompatible with human rights.

60. Were AM to be challenging s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT), consideration would clearly have to be given as to whether the section does breach the right asserted by AM and, if it does, whether it is nevertheless justified.

61. The question of a breach depends to some extent on the discussion referred to (above [35]) as to whether freedom of conscience includes action or conformity with that conscience.

62. If it does not include such action, then there can be no infringement of the right for the section only criminalises action; it does not criminalise belief or thought in any way.

63. If, however, it includes action, then in the event that I am wrong and AM’s views are seen as conscientious beliefs that are protected, it seems to me that the infringement is well justified.

64. I pointed out above (at [54]) that there are fundamental freedoms which AM’s alleged actions, if proved, would breach. She has in that event, breached her parents rights to privacy in their home.

65. In any event, it is a fundamental of a free and democratic society that people be protected from harm in a way that a Protection Order provides.

66. As Dickson CJ said in R v Big M Drug Mart Ltd [1985] 1 SCR 295 (at [951]):

Freedom can primarily be characterised by the absence of coercion or constraint if a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health or morals or the fundamental rights or freedoms of others, no one is to be forced to act in a way contrary to his beliefs or conscience.

67. I note that the constitutions of India and Ireland express such limitations of safety, health and morals on the freedom of religion protected in those constitutions.

68. It is clear to me that public safety and order are clearly purposes of Domestic Violence Orders and, as such, they are justified as restraints on the actions of others. Indeed, there may be some obligation for the Territory to make such protections.

69. The prosecution submitted that there was in international jurisprudence such an obligation. Reference was made to Chiiko Bwalya v Zambia, (Communication No 314/1988 (1993) a decision of the United Nations Human Rights Committee, which considered whether Zambia had breached art 9 of the International Covenant on Civil and Political Rights, identical to s 14 of the Human Rights Act. Zambia was alleged to have failed to act on credible information that one of its citizens was subject to a continued campaign of intimidation and harassment.

70. It expressed the opinion (at [6.4]):

An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render ineffective the guarantees of the Covenant. [Views on communication No 195/1985, (Delgado P a ez v Colombia), adopted on 12 July 1990, paragraphs 5.5 and 5.6]

71. The committee found that Zambia was in breach of art 9 by its inaction.

72. The prosecution went further and noted that the Territory might have been liable to AM’s parents had they not taken steps to protect them by making the Protection Orders and prosecuting the breach. Reliance was placed on R (on the application of B) v Director of Public Prosecutions & Anor [2009] EWHC 106 where the High Court of England and Wales held that the termination of a prosecution for an assault based on irrational reasoning was unlawful. Monetary compensation was paid to the victim.

73. Whether the reasoning in these decisions applies here, and I express some doubt given that judicial review of prosecutorial decisions is different in Australia than in England, the fact is that in a free and democratic society, the government has some obligation to protect its subjects and those in its jurisdiction.

74. Even more serious issues of conscience, such as abortion, to which many in our community have a strong conscientious objection, has been constrained. Thus, medical practitioners whose conscience forbids them from carrying out such procedures can be required to refer patients to those who do: Zimmer et al v Ringrose (1981) 124 DLR (3rd) 215 and Norberg v Wynrib (1992) 92 DLR (4th) 449. A medical secretary cannot refuse to type a letter referring a patient for such a procedure in certain circumstances: Janaway v Salford Area Health Authority [1989] 1 AC 537.

Section 43 of the Criminal Code

75. AM also relied on s 43 of the Criminal Code 2002 (ACT) (the Criminal Code) which provides:

43 Lawful authority

A person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under a law

76. The provision is clearly based on s 15D of the Crimes Act 1914 (Cth), but there are some differences such that decisions on the latter provision may not necessarily be relevant in construing this one.

77. It is to be noted that the dictionary of the Criminal Code defined law to mean an act or subordinate law including a provision of either.

78. It is true that the Human Rights Act is a law for these purposes. It means that decisions such as Rook v Mayner (No 2) [1994] TASSC 104; (1994) 3 Tas R 235 may not apply. I note also that even under this provision, the defence of reasonable excuse is not imported. In this regard, the analysis of that phrase in Henshaw v Mark (1997) 95 A Crim R 115 (at 120-3) is helpful. See also Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454.

79. In the event that a human right of AM which was protected by the Human Rights Act had been breached, there may be an argument that this would provide a justification under s 43 of the Criminal Code. I did not hear any particular argument about it.

80. The prosecutor submitted in writing that whether the accused is justified or excused by s 14 of the Human Rights Act is a matter of law and, as such, it was submitted that it is for a judge and not the jury to decide that, see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (at 287); Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 (at 7).

81. Of course, it is for the jury to decide whether the facts that are necessary to sustain any justification or excuse are proved, but here, there is no such occasion for that to arise and no direction need be given to the jury about this issue.

82. Finally, however, AM would be able to rely on her views, were they otherwise relevant, for example, as going to any fault elements or mens rea of the offence. This, however, seems unlikely in this case, but cannot be determined until the trial is underway.

83. Accordingly, the applications are dismissed and I hold that AM is not able to raise a defence of lawful authority under s 43 of the Criminal Code in her trial based on her conscience. The trial is listed to commence at 10 o’clock tomorrow.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 29 November 2010

Counsel for the applicant: AM

Solicitor for the applicant: Self represented litigant

Counsel for the respondent: Ms L Taylor

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 30 September 2010

Date of judgment: 15 November 2010