Legislative Assembly for the ACT: 1998 Week 4 Hansard (25 June) . . Page.. 1172 ..
APPENDIX 2: Incorporated in Hansard on 24 June 1998 at page 998
I am asked to advise on the validity of certain provisions in the Crimes (Amendment) Bill (No 3) 1998. This Bill inserts a number of provisions in the Crimes Act 1900 dealing with the possession of knives. The provisions which make unlawful the possession of a knife in certain circumstances and the sale of knives to persons under the age of 16 years are unexceptional.
The proposed section 349DB allows a Police officer to conduct a "frisk search" or an "ordinary search" of a person whom the Police Officer suspects on reasonable grounds has a knife in their possession and who is in a public place or a school. In order to conduct this search the Police Officer must of necessity detain the person.
The Australian Capital Territory is a territory of the Commonwealth of Australia. The power of the Legislative Assembly to legislate is derived from the Australian Capital Territory (Self-Government) Act 1989. This Act was passed by the Parliament of the Commonwealth whose power to do so is derived from section 122 of the Constitution of the Commonwealth of Australia. The Parliament of the Commonwealth was unable to pass to the Legislative Assembly any more powers than it possessed itself. Consequently, the Legislative Assembly is restricted in its legislative ability by any express or implied restrictions in the Constitution or the Self-Government Act.
In Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1, 110 ALR 97 Brennan, Deane and Dawson JJ at 28 held:
It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in