Legislative Assembly for the ACT: 2015 Week 13 Hansard (Thursday, 19 November 2015) . . Page.. 4214 ..
Our freedoms should not be held to ransom by those who express their extremist views through violence or through incitement to violence. But legislation alone is not the answer. A holistic approach, with strong community involvement, is necessary to identify and address issues that lead to the radicalisation of young people. Care and protection mechanisms to monitor, supervise and support children and young people who show a propensity towards radicalisation or engaging in violent activities by professing extremist and radicalised views are useful and appropriate measures that rely on the government working in partnership with family and community. The ACT is investing in community-based approaches and programs to counter violent extremist and other early intervention strategies. It is critical that we tackle radicalisation at its roots before it takes hold and leads to attacks against innocent civilians.
This bill engages a number of human rights. The limitations to those rights are proportionate and justified in the circumstances requiring their use and are the least restrictive means available to protect community safety. Preventative detention orders are a last resort. Our human rights law provides that everyone has the right to move freely within the ACT, to enter and leave it and the freedom to choose his or her residence. The right to freedom of movement is linked to the right to liberty: a person’s movement across borders should not be unreasonably limited by the state. It also encompasses freedom from procedural impediments, such as unreasonable restrictions on accessing public places.
Preventative detention orders limit the right to freedom of movement. However it is recognised by the International Covenant on Civil and Political Rights that this right is not absolute and that:
… the rights to liberty and freedom of movement shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights or freedoms of others.
The Human Rights Act also provides that everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained except on the grounds and in accordance with the procedures established by law. This prohibition against arbitrary detention requires that the state should not deprive a person of their liberty except in accordance with law and that the law and the enforcement of it must not be arbitrary under human rights law.
In addition to being lawful, any detention must also be reasonable, necessary and proportionate in all the circumstances. This is addressed in this act through the prescribed application process, procedural and representational rights for people subject to an application and the requirement that authorisations for preventative detention orders must be made by either the Magistrates Court or the Supreme Court. The act also requires that a person who is taken into custody, or detained, is treated with humanity and respect for human dignity and is not subjected to cruel, inhuman or degrading treatment.