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Legislative Assembly for the ACT: 2000 Week 5 Hansard (9 May) . . Page.. 1250 ..

MR STANHOPE (continuing):

However, as the Attorney has just indicated, he proposes to amend the bill-and we have started that process-to correct the findings of the courts in relation to procedural matters affecting the DPP's powers and the power to take evidence by audiovisual links. As the Attorney explained, the proposal in relation to the DPP's powers flows from a recent case in the High Court which found that there were limitations on the power of the Commonwealth DPP to launch prosecutions and appeals on matters arising under state law. The amendments are designed to overcome those limitations and to ensure that the territory's DPP has the power to launch prosecutions and appeals under Commonwealth law. Mr Speaker, the Labor Party has no objection to those amendments.

In relation to the proposals concerning the giving of evidence by audiovisual link, members will recall that in 1999 the Assembly passed the Courts and Tribunals (Audio Visual and Audio Linking) Bill 1999, which gave courts and tribunals a discretion to take evidence by audio or audiovisual means.

In a recent case-once again I acknowledge that the Attorney has just explained this-the Master of the Supreme Court found those provisions to be inoperative due to the effect of the Commonwealth Evidence Act 1995. That act stipulates which parts of the territory's Evidence Act are operative. The provisions passed by the Assembly last year are not stipulated by the Commonwealth act to be operative. The Attorney proposes to cure this defect by re-enacting those provisions in another act that is not subject to the Commonwealth Evidence Act 1995. It appears unfortunate that the Attorney and his department made an error on introducing the amendments last year and as a consequence the amendments are not effective.

Members will also recall that the provisions as they related to persons making bail applications or persons detained under the mental health legislation were vigorously opposed by the ALP on the basis that they were a derogation of individuals' right to a fair and open hearing. It was and remains our contention that no reasonable person could say that it is fair for a person who has been involuntarily detained because of an alleged mental condition to give evidence on their own behalf in front of a TV camera. The allegedly disturbed person has done nothing wrong. They are entitled to face those who assert that they should be denied their liberty, as well as those who will judge them in an open hearing.

I am told by a number of sources that the magistrate sitting as the Mental Health Tribunal never required a person detained under the mental health legislation to give evidence by audiovisual link in any event. I am advised that the Chief Magistrate at least goes to wherever the detained person is for the purpose of taking evidence. If that is the case, Mr Speaker, then you have to ask the question: why does the court need a discretion at all? If the practice is that the court never imposes this obligation on a person detained under the mental health legislation, then why does the court need the discretion? Why not simply say that hearings shall take place in the presence of the detained person? It is my view and the view of the Labor Party that, out of fairness and justice and in order to maintain the fundamental principle of the right of all people to their liberty, otherwise than for lawful purposes, the right to appear in person in these circumstances must be retained and respected.

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