Page 4585 - Week 11 - Tuesday, 18 October 2011
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power provides a more comprehensive protection against terrorist attack because, under this head of power, questioning of the suspect is allowed. You will recall my earlier remarks that if you are in preventative detention, you cannot be questioned. So it is a strong contrast where a suspect is strictly prohibited from being questioned under the preventative detention regime.
Clearly, it will be in the public interest to be able to question suspects and gain further information from them, as I suggested before. So I do not accept the notion that somehow the traditional criminal law only allows for a person to be held for around 20 to 24 hours when there are clear indications in the commonwealth Crimes Act that that can be extended in the case of terrorist offences or suspected terrorist offences.
Another of the government’s arguments is that a preventative detention order allows for suspects to be stopped from contacting family and friends, but our analysis suggests that the conventional criminal law also allows for this. So once you start to unpick some of these arguments—and certainly we have tested these ideas with legal academics and experts in the field; and there are people looking extensively at these laws—you start to really question why we want to retain preventative detention.
When it comes to the Human Rights Act, we do need to consider whether it is a proportionate and appropriate response. Again, the attorney has touched on these points. But we are also obliged under the Human Rights Act to consider whether there are less restrictive means, and that is where the points that I have just made and the alternative proposals we have put forward underline that. I think they are less restrictive in the sense that we remove that very disturbing element of preventative detention orders and we rely much more on the traditional forms of criminal law in Australia, which are well understood. They are understood by lawyers, by the public and certainly by the police force, and they are well tested. The glitches have been ironed out of them and they provide a solid foundation to the current justice system.
So I think there is an alternative and I think we do need to be vigilant. We need to be vigilant on two fronts. I accept the analysis that the attorney has given us, and I have had the conversation with the Chief Police Officer. There is a threat, unfortunately, to Australia that we are potentially the subject of terrorist attack and we need to be vigilant in protecting our community from those threats. But we also need to be vigilant in ensuring that, in seeking that protection, we do not overreach, that we do not step so far away from the values that we are seeking to protect that we actually, as the previous Chief Minister suggested, help the terrorists to achieve some of their objectives.
Preventative detention is an unnecessary intrusion into civil liberties. We should instead be using traditional and proven criminal law concepts to protect us against terrorist threats. With respect to that vigilance that I was talking about, when these laws first came in they were referred to as “temporary powers”. That is in fact the name of the bill. We are now rolling them over after five years. We need to be vigilant and not just say, “After the Asian Cup it will be the next event that we’re going to use to justify it.”
I would suggest to members that we can do better than this. I suspect I am not going to succeed today, but we have another five years, and we need to use that period to
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