Page 828 - Week 03 - Thursday, 30 March 2006
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In addition to these improvements on the commonwealth legislation, the bill contains a number of safeguards drawn from the schemes of other jurisdictions. There are additional safeguards for children and persons with impaired decision-making ability who are in the care of the person subject to a detention application. There are provisions to ensure that people subject to preventative detention orders will be detained at a facility that is appropriate to their needs and the risks they pose.
The commonwealth and New South Wales bills provide that proceedings under the legislation must be heard in the absence of the public and that the court may make orders in relation to the suppression of publication of the proceedings. This bill is silent on that matter. The government considers that decisions relating to the conduct of proceedings should rest with the courts and that existing powers of the Supreme Court are adequate to determine appropriate publication of its proceedings.
In line with the Queensland bill, the bill requires that a senior police officer applying for a preventative detention order must fully disclose all matters, both favourable and adverse to the making of the order, in the application. The government has also included the functions of the public interest monitor, based on the Queensland model, to represent the public interest at a hearing for a preventative detention order or prohibited contact order. This will protect a person’s right to a fair trial to the greatest extent possible.
The bill also sets out the special police powers agreed to by COAG. During a conventional criminal investigation police already have available to them considerable and effective powers of investigation. However, the police may only exercise these powers—for example, powers of search or inquiry—when they have information that is substantial and credible enough to give rise to a “reasonable cause to suspect”.
The legal requirement that the exercise of police powers are ordinarily based on a suspicion or belief on reasonable grounds usually limits the scope and application of the powers to an individual person, vehicle or premises to which the suspicion is attached. Although this is appropriate for conventional criminal investigations it is not adequate for responding to terrorist activity, with its covert, complicated and sophisticated nature. For example, intelligence may indicate a significant threat to a landmark—say, a particular public place—without identifying specific individuals who pose the threat. Police need to be able to respond and take effective protective measures affecting all persons in a particular area, regardless of whether any particular individual has given “reasonable cause to suspect”.
The enhanced police powers have been modelled on the parts of the states’ bills that are considered the best in terms of human rights compatibility and adherence to established principles of justice. Additional safeguards have been incorporated, including the judicial review and oversight of all authorisations under the legislation.
The bill provides for the declaration of special powers authorisations and special investigative powers authorisations by the Magistrates Court and the Supreme Court. Under the provisions a special powers authorisation may be issued if the court is satisfied on reasonable grounds that a terrorist act is imminent and that the exercise of the powers under the provisions will substantially assist in the prevention of the terrorist act. An investigative special powers authorisation may be issued if the court is satisfied on
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