Page 827 - Week 03 - Thursday, 30 March 2006
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the preventative detention order at any time. The grounds for seeking a review will not be limited, as is the case in other jurisdictions.
Courts will be able to award compensation to a detainee in circumstances of wrongful detention, in compliance with the ICCPR. The requirement has been expressly reiterated in relation to preventative detention. The bills of the commonwealth and the states provide that contact and communication between a detainee and his or her lawyer must take place only if it is conducted in such a way that the contact and the content and meaning of the communication that takes place during the contact can be effectively monitored by a police officer. The ACT government is deeply concerned about the impact this would have on the right to a fair trial in the event that charges were ever laid.
The notion of monitored communication is in direct conflict with well-established jurisprudence and legal practice in this country. Human rights standards require that a detainee is allowed to consult a lawyer as soon as reasonably practicable, privately and at any time. There are severely limited circumstances under which communication can be monitored. These are based on provisions in comparable United Kingdom legislation where the presumption, as in the ACT, is of confidential legal communications. I understand the United Kingdom experience has been that these provisions have afforded adequate protection of national security.
The bill includes improved provisions in relation to police assistance in helping a person to find a lawyer. Of extreme importance, the bill does not permit the detention of people who are under the age of 18. The government considers that the detention of minors under such a scheme cannot be justified on any grounds. The Convention on the Rights of the Child makes clear that children should be detained only as a last resort. This is a fundamental human rights obligation that is antithetical to the detention without charge of a child under the proposed regime. A limitation on rights of this kind could only be justified on the basis of clear and compelling evidence of a substantial threat from persons under the age of 18 that cannot be appropriately dealt with by means other than preventative detention. Such material has not been provided by the commonwealth to date.
The bill includes important safeguards for detainees. It specifies that they must be separated from people who are on remand or have been convicted; that there be appropriate support for detainees with special needs, including psychiatric disabilities; and that detention arrangements accommodate cultural or religious needs. In line with the Senate committee’s recommendation, the bill includes a requirement for the development of protocols on the humane treatment of detainees.
The bill does not make disclosure of a preventative detention order—including by the detainee themselves, lawyers, parents guardians or interpreters—an offence. This is in line with the comparable United Kingdom legislation. The bill provides for annual reports on the use and effectiveness of the legislation. Finally, the bill contains a number of requirements in relation to strip searches. It stipulates that a strip search should only be conducted if there is reasonable suspicion that an item can only be recovered as a result of a strip search. It must only be carried out if it is necessary to find and seize something. It must not involve the person being more than half undressed at any time, and the person must be allowed to dress in private.
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