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Legislative Assembly for the ACT: 1998 Week 4 Hansard (25 June) . . Page.. 1175 ..

The reference to Commonwealth authority in Chu must apply to the authority of the Australian Capital Territory a fortiori. In Chu the court held that such restriction did not apply in the exercise of the Aliens power. Similarly, it does not apply in the exercise of the customs power. The Legislative Assembly may make laws relating to the taking into custody of persons who are to be charged with offences and the dealing with such persons thereafter. It may not make laws which allow for the detention of persons for the purposes of investigation. Such laws which purport tomake unlawful imprisonments lawful are beyond the legislative competence of the Legislative Assembly, and indeed the Parliament of the Commonwealth.

The proposed provisions allowing for searching of suspects, therefore, appear to be in conflict with the Constitution. As such they would be invalid. These proposed sections can be distinguished from random breath tests and other traffic provisions. It is a condition of holding a licence that a person submit to such tests. A person not driving a motor vehicle and merely being in a public place has not agreed to any such restriction on liberty.

If the proposed provisions are passed and acted upon by members of the AFP it could result in the Territory, and individual Police officers, being liable for civil and criminal prosecution.

In Chambers

GARY CORR

Empire Chambers

21 June 1998

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