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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1145 ..

the ACT Assembly with a view to the extent, or the effect, that they impact on human rights. I think this discussion, debate and the submission of the Law Society—I have to say this to you, Mr Stefaniak—is the first example of the success of the passage of the Human Rights Act; that the Law Society, in its submission to members of the Assembly, measured this particular piece of legislation against the Human Rights Act and the extent to which issues around bail should be measured and marked against the extent to which amendments or law proposed by the government or the Assembly met our human rights.

The government’s Bail Amendment Bill does not breach any rights. The bill does not breach the right to be free from arbitrary detention. It upholds the principle that detention must be lawful and reviewable. The bill does not breach the right to a fair trial, it upholds the principle that a trial is not affected by bail decisions. As I have just mentioned, the bill does not breach the presumption of presumed innocence until proven guilty, it upholds the principle that an accused person’s status of remand or bail does not prejudice their presumption of innocence. The application of human rights in the ACT should not be, and is not, a matter of counterpoising human rights to other laws. It is not a simple matter of choosing one law over another. The fact is that all the territory’s laws, including the Human Rights Act, are interrelated. As I said, the government did consider judicial reviews on these issues when drafting the act. I have just mentioned the judgments of Michael Kirby J and Gleeson J, both now of the High Court, in relation to that.

In relation to the issue of detention, section 18(5) of the Human Rights Act 2004 states that, as a general rule, anyone awaiting trial must not be detained in custody. This is a general rule, it is not an absolute rule. The use of detention for people awaiting trial is a legitimate limitation on the right to liberty. This is recognised in international human rights law. International human rights law does not equate the right not to be detained arbitrarily with a statutory presumption for bail. It never has and it never will. The issue for this Assembly is not simply a matter of counterpoising human rights against bail law but making a judgment to enact law that accounts for all policy imperatives, including human rights and human safety.

From a human rights perspective, the Bail Amendment Bill meets the three crucial tests in relation to a person’s liberty. The bill upholds the principles that no-one is arbitrarily deprived of their liberty, that anyone who is placed on remand can be remanded only according to the law, and that anyone on remand has the right to apply to the court to test the lawfulness thereof. The government’s bill is totally consistent with the Human Rights Act. The Law Society is wrong, and the Greens and the Democrats are wrong.

I find interesting the notion that there should be a scheme of some sort to compensate accused people placed on remand and later found not guilty. I have to say that I think that is really an extreme position and one that has been put by those in this debate who oppose it. The notion that there should be compensation for people on remand, who are later acquitted, suggests that there is something wrong in the judicial decision to place a person on remand. We should not be, and this government will not be, creating schemes that erode community confidence in the judiciary, the judicial system or in judicial discretion to that extent. The territory already has means for compensating people who are unlawfully detained, which is a completely different issue. If someone is detained unlawfully they can, of course, be compensated through the Australian Federal Police complaints mechanism or under the Financial Management Act. In terms of the cost of a

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