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Legislative Assembly for the ACT: 1998 Week 11 Hansard (8 December) . . Page.. 3301 ..

MR STANHOPE (continuing):

by the scrutiny of Bills committee. They do cause me some real concern. I think they are issues which the Assembly should take note of in terms of our commitment to this process so that if we are to support this Bill we do so with open eyes.

It is significant to me that the scrutiny of Bills committee has not resiled in its second report from its real concerns about the extent to which this piece of legislation does trammel personal rights and liberties and the extent to which it conflicts with our international human rights obligations. If we are to pass this Bill I think it is important that we do it with our eyes open. If we as legislators are prepared to say, "Yes, I will vote for that law", we will do so knowing that the scrutiny of Bills committee, a committee which I respect greatly, has said in its report - a legal adviser drafted the report but it is a report of the scrutiny of Bills committee of this Assembly - that this Bill is in breach of the ICCPR. The scrutiny of Bills committee, I think because of the force of the response from the Attorney, stated its reasons and said:

The Committee reiterates that it sees its function as one of drawing to the attention of the Assembly aspects of Bills which may be seen as raising the issue of whether there has been an "undue trespass on personal rights and liberties". It is for the Assembly to take a view on whether there has been any such "trespass".

Looking at laws from a rights perspective is not a straightforward task.

1. There is first the issue of just what rights are to be taken into account. To put this another way, what are the sources of these rights? There is a strong tradition of rights protection in Australian law, and the rights which our courts have protected are a source. (The obligation of decision-makers to give natural justice to persons affected by the exercise of administrative or judicial power is one such common law right.)

In recent years, the High Court of Australia has said that it will look to international law as a source of the rights of persons in Australia. In particular, it will look at those international conventions and treaties to which Australia is a party. The International Covenant on Civil and Political Rights (ICCPR) is regarded as of particular significance, for Australia is a party to the Optional Protocol of the ICCPR, which has the effect of enabling Australians to make a complaint to the Human Rights committee of the UN in respect of some law of an Australian legislature.

The scrutiny of Bills committee then gave quite rigorous consideration to a range of provisions of the ICCPR. It went on and paid particular regard to article 9.1 of the ICCPR. Article 9.1 says:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

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