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Legislative Assembly for the ACT: 1998 Week 11 Hansard (8 December) . . Page.. 3302 ..

MR STANHOPE (continuing):

There is always, in relation to these sorts of international conventions, a whole range of interpretations that one can make. The scrutiny of Bills committee went on:

There may, however, be a question here as to whether the "security of person" to which Article 9 refers is tied to the rights of a person subject to pre-trial criminal processes. A clearer basis for an argument that the "security of person" is a right independent of these processes is Article 3 of the Universal Declaration of Rights, which provides simply that "Everyone has the right to life, liberty and security of person".

That becomes complicated because the scrutiny of Bills committee goes on and says this:

There are, then, several lines of justification for a domestic violence law. This is not in question. But when attention is paid to the precise detail of a domestic violence law, and in particular to the ways in which such a law bears upon the respondent to an order made under such a law, other rights come into focus. And, so far as concerns the particular provisions of the Domestic Violence (Amendment) Bill (No. 2) 1998, there are some provisions which, it may be argued, are in conflict with Article 9.1 of the ICCPR. The most troubling provision is clause 19J(1) of the Bill.

That is the provision which allows for the detention of a person for up to four hours. The point is that the procedure for making an emergency protection order can be commenced even though there are no grounds to arrest the proposed respondent. The question which is asked, and which we must all ask ourselves, is this:

Is a power to detain a person in police custody which is divorced from pre-trial criminal processes justified at all under the ICCPR?

The scrutiny of Bills committee concludes:

On the face of it, Clause 19J(1) is not justified by Article 9.1.

There is then further detailed consideration of why the scrutiny of Bills committee concluded that clause 19J(1) is in breach of article 9.1. I know that the Attorney does not accept that argument. I am interested in the Attorney's reasons for rejecting that analysis. I think it is important in this debate that the Attorney indicate, for the record, why he believes that the passage of this Bill will not offend against international obligations which Australia takes very seriously and which this legislature should take very seriously. I will listen with interest to the Attorney's arguments.

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