Page 328 - Week 02 - Tuesday, 7 March 2006
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
While existing laws may be useful in countering suspected offenders, the committee accepted—well, at least the majority of the committee accepted it; I am sure Dr Foskey will elaborate on her opinion on the need for it—that extraordinary measures are warranted in extreme circumstances where the available evidence is insufficient to detain a suspected terrorist. The ACT Chief Minister, Jon Stanhope, agreed to introduce these new counterterrorism laws on the basis of assurances and clear, though confidential, evidence that they were needed. I do not doubt the Chief Minister’s assertion that these measures are needed and that the desired effect of this legislation cannot be achieved in less intrusive ways. However, I agree with recommendation 2: the need for preventative detention needs to be explained more clearly in the preamble to the bill.
Second, the ACT bill will be effective in the unfortunate event that it is needed. Clause 8 allows a person who is not a child to be taken into custody and detained for a maximum of 14 days. This is a proposed measure of last resort to prevent a terrorist act within that period of time or to preserve evidence of, or relating to, a terrorist act that happened within the previous 28 days. Additionally, clause 21 of the exposure draft bill enables an interim preventative detention order to be applied by the ACT Supreme Court to a person for up to 24 hours, with the possibility of a further 24-hour extension. I should note that, if this interim preventative detention order is applied, that will be included as part of the maximum of 14 days; it cannot be added to the first 14 days. So it cannot be 14 days plus one, plus one.
Part 3 of the bill also provides police with authorised special powers to require personal details, search people, search vehicles, move vehicles, enter and search premises, cordon target areas, seize things and use force. Broadly, the substantive effect of the ACT bill is the same as in other Australian jurisdictions. All provide measures for preventative detention orders and most equip police with authorised special powers. All have tailored legislation to ensure that, in the event of a terrorist activity, there are clear and effective measures to limit or eliminate danger. The ACT bill diverges in the extent to which it complies with basic democratic and human rights.
That brings me to my final and most significant point. Unlike any other jurisdiction in Australia, this bill actively takes into account the human rights standards in the International Covenant on Civil and Political Rights, or the ICCPR, as incorporated in the ACT Human Rights Act 2004. This bill places human rights compliance at the forefront of its draft. It is an approach that recognises that choices must be made between rights to security and basic democratic principles such as the rule of law and right to freedom, but it is an approach which ensures that limitations and restrictions on human rights are only permissible if held to be reasonable and necessary. This is an important distinction and one that I want to stress. Submissions made by the AFP and the Australian government Attorney-General’s Department noted that the commonwealth preventative detention regime more properly balances individual rights and national security. The so-called balanced approach was adopted by the Australian Senate committee on constitutional and legal affairs in the inquiry into the Security Legislation Amendment Bill 2002. This approach advocates a balance between national security laws and human rights.
Inevitably, the problem with the balancing approach is that the scales necessarily tip in favour of national security at the expense of human rights. This approach fails to realise
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .