Page 2651 - Week 08 - Friday, 1 July 2005

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reply, but it is important for all members of this Assembly to have as much information before them today as possible when making decisions.

In addressing the retrospective standing orders to be made under proposed section 418 (2), the committee provided two case scenarios. Case one is whether, in effect, the existing standing orders are going to be remade and case two is whether, in effect, new orders will be made. The proposed regularising of the standing orders will be a combination of these scenarios.

In this bill the government is not dealing with new rules or new standing orders but, rather, taking the opportunity to regularise what has been occurring, by bringing the law into line and having a preliminary human rights review before the orders are made. Where possible, the existing standing orders will be regularised. However, there may be a problem with the existing orders, not only in form, that is, the statutory authority behind the orders, but also in substance, that is, the range of actions permitted under the orders.

That is why the government in this bill does three basic things: it provides a legislative base for the making of standing orders under the act; it provides an ability to make new interim orders within 28 days; and it ensures that the new interim orders will be subject to the Human Rights Act. In this 28-day window we will review and improve the standing orders to ensure that they are within the framework of the law and the Human Rights Act.

The standing orders will be within the matters set out in proposed section 403, including such things as safety, management, good order, powers of search, use of force, and medical care and examination. These will be interim orders and the sunset clause will cause the section to expire in 12 months. This ties in with the review of the whole of the act and allows the inclusion of these matters to be part of that process.

As to the matters raised by the committee in relation to proposed section 418 (4) and the question of the retrospective operation of laws and standing orders, it is the government’s intention that this be subject to the whole of the Human Rights Act. The intention is for the standing orders to be within the authority of section 403 and to address any possible previous inconsistency that may have existed.

Any alterations to the standing orders are not intended to expose detainees to new criminal penalties; nor are they intended to expose staff to any new criminal penalties. Any exposure to civil action would be subject to the immunity in existing section 407 (2) (a). It would be extremely unlikely that a court would interpret such provisions as retrospectively criminalising the actions of young people or staff, in the absence of clear and express language. This is a fundamental presumption of the common law that is reinforced through the operation of the Human Rights Act. It is therefore important to clarify how the Human Rights Act will operate.

We have made it clear that, although the standing orders will operate as if they have been enacted by an act, they must be subject to the Human Rights Act. In our view, this means that the standing orders must be consistent with the Human Rights Act and protected by that act, and may only be subject to limitations that are demonstrably justifiable in a free and democratic society. In this respect we affirm the conclusion drawn by the committee.

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