Page 1349 - Week 05 - Tuesday, 9 May 2006
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jurisdictions to prevent an imminent terrorist attack from “reasonable and necessary” to “reasonably necessary” in sub-clause 19 (4) (b). These higher thresholds mean that preventative detention is less likely to breach section 18 of the Human Rights Act 2004 as “arbitrary”. Having legislation not fully consistent with other laws in other jurisdictions is inevitable because this legislation has been drafted in the ACT with explicit reference to a human rights framework.
I go to an advice on the matter by Ms Kate Eastman, which was tabled in this place. She is a learned human rights lawyer who has provided some advice to us here. It is necessary for us to study it in some detail. On pages 5 and 6 of the advice “reasonable and necessary” is mentioned and, in particular, clause 22 states:
The incommunicado nature of the detention is further reinforced by section 32 (7) of the Bill which allows the Supreme Court to make a “prohibited contact order” where such an order is reasonable and necessary—
I emphasise “reasonable and necessary”—
for one or more of the purposes identified in sections 32 ...
I understand that Ms Eastman has been asked to confirm and has confirmed her advice on the amendments which have been agreed to by the government and which reflect the recommendations of the committee that looked into the draft legislation and the changes that they recommended.
However, there is some commentary that needs to be looked at, and it can be found at pages 12 and 14 of the Standing Committee on Legal Affairs scrutiny report which was issued just yesterday. At this point we have to take into account, too, that the advice by Ms Eastman was not available to be considered by the committee, according to the report which was issued yesterday. I quote:
These interferences are likely to be reasonable limits that can be demonstrably justified in a free and democratic society for the purposes of section 28 of the Human Rights Act on the basis that the obligation to respond to the threat of terrorism, including through legislative means, is an important and significant objective. The restrictions on rights are reasonable and necessary, taking into account the importance of achieving consistency with a national regime, and the bill incorporates extensive safeguards which in the context of a national regime represent the least restrictive options available.
It goes on to say later:
The assumption of the fact that a Territory law will operate as part of a national scheme of legal regulations as a matter relevant to an assessment of the justifiability under the Human Rights Act section 28 is perhaps questionable, but the committee leaves it to each member of the Assembly to determine whether they accept this reasoning.
I take you, then, members, to page 14, towards the bottom of the page, where there is some commentary about “reasonable and necessary”. It refers to some learned comment by AS Butler, and I quote from the penultimate paragraph:
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