Page 390 - Week 02 - Tuesday, 16 February 2016
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was only permitted to say that they are safe and unable to be contacted for the time being. Imagine how frightening it would be to receive such a call from one of your family members: “I am safe but I can’t be contacted for now. Goodbye.”
Given the serious departure from legal and human rights norms, it is necessary to ask: why do we need preventative detention orders? The evidence from experts actually suggests that we do not. We can start by looking at the recent report on the laws compiled by a review committee of independent and experienced experts. The review committee was made up of six members who were jointly chosen by the Prime Minister, state premiers and territory chief ministers and it was chaired by the Hon Anthony Whealy QC, a retired judge from the New South Wales Court of Appeal. It included an ombudsman, an assistant commissioner of police, a deputy director of public prosecutions, a law reform commissioner and a manager of domestic counter-terrorism from the AFP.
I quote from the conclusion of the report that related to the preventative detention laws that we are considering extending here in the Assembly today:
The Committee recommends, by majority, that the Commonwealth, State and Territory “preventative detention” legislation be repealed.
It went on to say:
If any form of preventive detention were to be retained, it would require a complete restructuring of the legislation at Commonwealth and State/Territory level, a process which, in the view of the majority of the Committee, would be likely to further reduce its operational effectiveness.
The basis for the committee’s recommendation is, essentially, that the laws are operationally unsatisfactory and ineffective. They point out that while a person is detained under the preventative laws the police are not permitted to interrogate the detained person. They cannot interrogate them. This makes police unlikely to use them. It means the laws are not really useful for investigating potential terrorism threats because the person cannot be interrogated.
In submissions to the review committee, police also complained that there are complexities in preparing a detention application which are onerous and cumbersome. They complained that the thresholds are impractical. Finally, enforcement agencies expressed the view that at a practical level if there were sufficient material to found a detention order there would be, more likely than not, sufficient material to warrant conventional arrest and charge. As the committee reported:
State enforcement agencies … were clearly more comfortable with this traditional procedure and much less comfortable with the complexities of the detention procedure.
The people who work in the field are saying that other police and traditional investigative and arrest methods are more useful and relevant than these extreme preventative detention laws. We have a criminal justice system already, of course, with tools such as arrest, charge and remand. The committee went on to say:
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