Page 1336 - Week 05 - Tuesday, 9 May 2006
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probably less of a problem in that it can be reviewed and, if need be, extended. But why do you need to be different from the rest of Australia in something as important as this?
Appendix 3 of the legal affairs committee report sets out exactly how the ACT bill compares with both the commonwealth and New South Wales legislation, which has been described by no less than the AFP commissioner as template legislation. Indeed, we had evidence to that effect before the committee when it looked at these issues. I will touch briefly on the New South Wales legislation, which has simpler tests and, it seems, does not have the same constitutional problems as may arise in this legislation. There has been a legal debate about that, as to whether we are confusing the separation of powers here in respect of the simpler and more traditional role the New South Wales Supreme Court will play as opposed to that of the ACT Supreme Court. I suppose only time will tell.
Legislation which was used as a template by a number of other jurisdictions and even in human rights terms was described by Dr Helen Watchirs. She likes the ACT one, naturally enough, but New South Wales comes second. Mr Stanhope does not want to settle for second-best but, again, he has got it absolutely upside down and around the wrong way. I was going to say something reasonably rude there, but I will not. The issue is not about bending over backwards to protect the rights of would-be terrorists; it is to strike a proper balance in a democratic and free society, which every other state and territory but us in the commonwealth seems to have done; it is about that other fundamental right of ordinary people—to live and to be protected by their governments from criminals, as far as any legislation can do that. You fellows got the balancing act wrong.
The New South Wales legislation, which is very similar to the commonwealth legislation, ensures that the Supreme Court may make a detention order on the grounds that it is reasonably necessary and would substantially assist in preventing a terrorist act or is necessary to preserve evidence. If you have a look at appendix 3, that is exactly the same test as an issuing authority has, to be satisfied at the commonwealth level. If you look at the scrutiny report, especially pages 61, 62 and 63, you will see where, in pretty simple and effective terms, our learned adviser Peter Bayne goes through the fundamental differences in relation to the tests. He does that quite effectively on page 62, where he lists the two different tests in respective sections of both bills.
I certainly commend that to members. It is a very well-written dissertation. He states that there is a lower threshold in my bill—and there is. That is what the commonwealth has done and that is what New South Wales has done. In respect of what we are looking at here, I would submit to you that that is essential in ensuring that would-be terrorists are able to be detained. I have no dramas with that whatsoever; it is a low threshold. Looking through the rest of his dissertation, he also talks in relation to other differences.
There are differences in relation to contact between the detainee and others and in relation to contact with lawyers. In a couple of fairly minor areas the Stanhope bill is probably not quite as detainee-friendly as the commonwealth and New South Wales bills. But in the substantial areas, the Stanhope bill clearly falls down and fails that most important test of enabling police to do their job properly—to apprehend would-be terrorists and place them before the court with reasonable anticipation that they will be detained.
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