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Legislative Assembly for the ACT: 1998 Week 11 Hansard (8 December) . . Page.. 3308 ..

MR HUMPHRIES (continuing):

Mr Speaker, this Bill does not provide for arbitrary arrest or detention. It does not provide for the deprivation of liberty without reference to criteria in the law. The law is quite explicit about the way in which a person's liberty is to be deprived. The grounds for detention are established by the law. The provisions are intended to enhance the security of a person. In other words, the object of the legislation is quite clear. The detention is limited in time. It is quite clear what the purpose of the detention is for. Articles 9.4 and 9.5 talk about the right of a person to be able to seek redress from a court and to claim compensation in circumstances where they might be subject to arrest or detention which is unlawful.

First of all, Mr Speaker, this is not unlawful arrest or detention. It is clearly authorised by law and the criteria allowed in law. Secondly, there is nothing in the legislation to prevent a person making an application to a court or seeking compensation for unlawful application of those provisions - nothing whatsoever.

I am being very careful not to criticise the legal adviser to the scrutiny of Bills committee because I was chastised the other day for doing that, so I will direct my criticism very squarely at the committee itself. The committee, with great respect, I think has not addressed its mind adequately to these issues. If it is suggesting that there is some breach of that covenant concerning the right to application to a court for review of a detention or the right to compensation in the event of an unlawful application of the power to arrest and detain, then is it suggesting that a capacity ought to exist during the four hours of detention for a person to make application to a court? If it is, is it not missing the very point of what this is all about?

The only reason why that person has been detained in the first place, at least in most circumstances, is that the court is not sitting and is not available to make an application to, because an order has to have been obtained out of hours by telephone contact with a magistrate who is probably at home or off at the shops or at the golf course or something of that kind, and it has not been possible to make an application, unless the person concerned wants to instruct a solicitor to hunt down a magistrate at home or at the shopping centre or at the golf course. So it quite bewilders me that these sorts of comments should have been made by the scrutiny of Bills committee - that is, the Justice and Community Safety Committee.

Mr Speaker, you would gather, from looking at the provisions and these comments as well - that is, the comments of the Justice and Community Safety Committee, Mr Stanhope's comments and Ms Tucker's - that this is some sort of trailblazing exercise; that we are advancing into uncharted territory and we have to be careful about setting accepted principles on their heads. Mr Speaker, the fact is that what we are doing is not new. In fact, it picks up what is already the case in, as far as I can tell, most or all other jurisdictions in Australia at the present time.

In Queensland, Tasmania and the Northern Territory a prospective respondent can already be detained for up to four hours for the purpose of serving an order in similar circumstances to the case here. In New South Wales and South Australia, detention is possible for up to two hours. When we came to draft this legislation we had to decide whether it was appropriate to pick up the majority model of four hours or the model of two hours.

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