Wood v The King & Anor [2022] QSC 216

Date: 13 October 2022
Court/Tribunal: Supreme Court of Queensland
Judicial Officer/Tribunal Member: Davis J
Human Rights Act 2019 (Qld) Sections: 3, 5, 9, 29, 48, 49, 50, 51, 52, 53, 54, 58
Rights Considered: Right to liberty and security of person
Other Legislation: Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Bail Act 1980; Charter of Human Rights and Responsibilities Act 2006 (Vic); Constitution of Australia; Criminal Code; Extradition Act 1988 (Cth); Human Rights Act 2004 (ACT); Judicial Review Act 1991; Penalties and Sentences Act 1992; Uniform Civil Procedure Rules 1999
Keywords: Criminal Law and Corrective Services: Police, Prosecution, Bail

The applicant sought a declaration from the District Court, under section 29(7) of the Human Rights Act 2019 (Qld), that his detention for offences for which he failed to appear was unlawful. Upon referral to the Supreme Court, it was held that section 29(7) recognises a human right to apply for a declaration as to the lawfulness of detention, but does not vest jurisdiction for declaratory relief in lower courts. The human right contained in section 29(7) would be accommodated in this, and other cases, by applying for habeas corpus in the Supreme Court.

The applicant sought a declaration from the District Court as to the lawfulness of his detention for domestic violence offences for which he failed to appear in relation to a bail undertaking, leading to his arrest and remand. The District Court referred that question of law to the Supreme Court pursuant to section 49(2) of the Human Rights Act 2019 (Qld).

The relevant question raised by the applicant was whether section 29(7) of the Human Rights Act 2019 (Qld) provided a right to declaratory relief or just provides that one should exist: at [70]. The Court reasoned that section 29(7) did not vest jurisdiction in any court, but instead recognised a human right to apply to a court for a declaration as to the lawfulness of detention: at [81]. Given that ‘court’ includes inferior courts such as the District Court, the Magistrates Court, the Childrens Court and the Coroners Court which have no jurisdiction to grant declaratory relief (at [82]-[83]), the Court concluded that the appropriate forum for an application under 29(7) was to apply for habeas corpus in the Supreme Court: at [90]. The human right identified in section 29(7) would be accommodated by such an application: at [90].

With reference to the applicant’s specific circumstance, the Court ultimately concluded that section 29(7) of the Human Rights Act 2019 (Qld) did not vest jurisdiction in the District Court to grant a declaration that the prisoner was being held in custody unlawfully. To make such a challenge, the applicant, or any other prisoner ought to seek habeas corpus in the Supreme Court: at [93]. In any event, the misguided applicant’s real remedy was to simply apply for bail: at [94].

Visit the judgment: Wood v The King & Anor [2022] QSC 216