Page 826 - Week 03 - Thursday, 30 March 2006
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recommendations in relation to the commonwealth regime, most of which were simply brushed aside and ignored by the federal government. A number of safeguards, including many incorporated into the legislation of other states that were considered the best in terms of human rights compatibility, constitutionality and adherence to established principles of justice, have been picked up in this bill. The government sought independent advice from Ms Kate Eastman, an expert human rights lawyer, on whether the bill is consistent with the Human Rights Act. In summary, Ms Eastman concluded that the bill is compatible with the Human Rights Act. This advice has been used as the basis of the human rights compatibility statement for the bill.
I would like to highlight just a few of the exemplary features of the bill in relation to preventative detention. The bill provides for full judicial review and oversight. The power to make interim and final preventative detention orders and prohibited contact orders is conferred on the Supreme Court. This is in contrast to the commonwealth legislation and some state legislation, which confers the power to make interim orders on police. The ACT approach will ensure judicial review and oversight throughout the entire process and help minimise the risk of the legislation being declared unconstitutional. It also ensures that matters are decided at a hearing at which the subject and his or her lawyer are entitled to call witnesses, produce materials and make submissions.
The bill involves a higher test for making a preventative detention order than those in the bills of the commonwealth and New South Wales. The test adopted is that recommended by the solicitors-general. Significantly, the draft makes clear that the police may only apply for, or make a preventative detention order, on the basis that it is the least restrictive means, in some circumstances—and the only effective means, in other circumstances—to achieve the purpose of the order. The bill states categorically that evidence obtained through torture is inadmissible.
The bill has been drafted to empower the Supreme Court to make an interim preventative detention order for up to 24 hours only, as opposed to 48 hours in all other jurisdictions. This provides adequate time to make arrangements for the making of final orders in a jurisdiction the size of the ACT. It strikes a proportionate balance between the need to urgently detain a person and that person’s right to be heard in relation to the detention. The ICCPR protects a person’s right to be brought before a court as soon as possible to challenge the lawfulness of his or her detention. The period of the interim order can only be justified on the basis that it will take time to make the necessary arrangements for the conduct of the full hearing. Any period greater than 24 hours would not be a justifiable limitation on the right to a fair trial and the right to be free from arbitrary detention.
Unlike other jurisdictions, the bill does not allow for rolling warrants. Preventative detention orders cannot be reapplied for on the basis of the same information, except in limited circumstances where there is a clear risk to public safety. In addition, the proposed ACT scheme does not allow for the questioning of detainees. A preventative detention order will lapse once a person is released from any form of questioning.
The bill provides for 14 days preventative detention. The Supreme Court will be empowered to order detention for an initial maximum period of seven days. Following this period the court is able to order detention for a further seven days, following a full reconsideration of the matter. In addition, the detained person is able to seek a review of
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