Page 1127 - Week 04 - Wednesday, 3 May 2006
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On 15 December last year, an exposure draft of the bill was tabled in the Assembly and referred to the Standing Committee on Legal Affairs. The exposure draft was assessed by independent counsel Ms Kate Eastman as being compatible with the Human Rights Act 2004. Ms Eastman was asked to reconfirm her advice following amendments to the bill in response to the standing committee’s report, which was tabled in the Assembly on 6 March this year.
The government did intend originally that Ms Eastman’s advice would be tabled along with the compatibility statement under section 37 of the act when the final bill was introduced into the Assembly. However, this final advice was delayed and that is the reason for its presentation today.
In summary, Ms Eastman has concluded that the bill is compatible with the Human Rights Act. Ms Eastman’s advice proves that the ACT government has honoured its commitment to provide laws that protect national security and human rights and comply with our international obligations under the International Covenant on Civil and Political Rights, which is, of course, enshrined in the law of the ACT in the Human Rights Act 2004.
In particular, the bill achieves consistency in relation to the following rights: protection from torture, cruel, inhumane or degrading treatment; protection of the family and children; freedom of movement; freedom of thought, conscience, religion and belief; freedom of assembly and association; humane treatment when deprived of liberty; fair trial; rights in criminal proceedings; and rights of minorities.
Ms Eastman did note that there were significant limitations on the right not to be arbitrarily detained and the right to privacy. However, she concluded that these limitations were likely to satisfy the proportionality test under section 28 of the Human Rights Act, as the obligation to respond to the threat of terrorism, including through legislative means, is an important and significant objective, that the restrictions on rights are reasonable and necessary taking into account the importance of achieving consistency within a national regime and that the bill incorporates extensive safeguards, which, in the context of a national regime, represent the least restrictive options available.
I would now like to turn to the right to free legal representation. In response to the standing committee’s report, the bill was amended to ensure that the provision of legal aid representation for a person who is the subject of a preventative detention order application is subject to the means test provisions of the Legal Aid Act. Ms Eastman noted that as a result of the amendment the bill no longer provides an absolute guarantee for the right to be legally represented at a hearing before a person is detained. However, she acknowledged that the right to free legal representation is not an absolute right and that it may be legitimately subject to a means test.
In addition, in practice, if a person is unable to form a prior arrangement with a lawyer, they will be entitled to the services of a duty lawyer in accordance with the Legal Aid Act and guidelines. Further, the Supreme Court, in accordance with ordinary court rules and processes, retains the power to adjourn proceedings where representation is unsatisfactory.
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