Page 329 - Week 02 - Tuesday, 7 March 2006
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
that an increase in the measures to protect national security or the security of the ACT need not necessarily be dependent on an inverse erosion of human rights. In fact, it is difficult to see how any balance can be achieved in terror laws without the approach the ACT government has taken in drafting this bill. If a balancing metaphor is to be used, it should be used where national security measures are met with a greater assurance of human rights. With this exposure draft bill the ACT government has attempted to provide an adequate preventative detention structure which is also compatible with the ACT Human Rights Act.
The compatibility between the ACT Human Rights Act and the bill is stark, especially when compared to equivalent provisions in New South Wales and the commonwealth, and is achieved in a number of ways. First, section 28 of the ACT Human Rights Act requires that all ACT laws that place restrictions on protected rights be demonstrated and proportionate to the pursuance of legitimate aims. Ultimately, this requires that restrictions must not impair the essence of a protected right. The bill also complies with the standards set by the UN Human Rights Committee in general comment No 8 of the ICCPR, which states that preventative detention must not be arbitrary, must be based on grounds and procedures under the law, that reasons for the detention must be given, that a court must control the detention and that adequate compensation be provided for a breach of the provisions.
Second, the role of the Supreme Court in issuing and monitoring preventative detention orders is crucial. Several submissions made to the committee welcomed the requirement that the ACT Supreme Court consider applications for preventative detention orders. For these stakeholders the possibility for judicial review and oversight throughout the entire process was seen as an important human rights safeguard. Third, detainees affected by a preventative detention order are assured notice, access to legal representation, access to relevant information, a statement of reasons, a restriction on rolling preventative detention orders, privacy of contact with a lawyer, a public interest monitor and compensation for wrongful detention. Once in detention, detainees are separated from people who are on remand; may only be questioned for a very limited range of purposes; are supported if in special need; are accommodated for any cultural, religious or gender considerations; and are able to inform family of fact and place of detention.
As mentioned earlier, distinct from the New South Wales and commonwealth provisions, the ACT bill is not about balancing or trading off human rights for more general rights to national security; the ACT approach is about creating a preventative detention scheme that restricts some of the most basic of human rights. The bill allows for the detaining of suspected persons without trial for up to 14 days by capping the erosion of civil rights by ensuring strict compliance with all other rights and standards throughout the process. This approach has been criticised for failing to conform to legislative results achieved in other Australian jurisdictions. However, many submissions to the committee agreed that human rights compliance justifies jurisdictional difference and that it is better to have human rights compliant legislation than uniform legislation. Further to this, there is no compelling evidence to suggest that a bill such as that of the ACT’s, with high standards of accountability, impedes effective law enforcement. In addition to effectively countering terrorism and upholding human rights, it guards against sloppy reasoning and policy development. The very fact that we are debating and have reviewed this legislation is testament to a more rounded policy process and, ultimately, a more
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .