Page 1336 - Week 05 - Thursday, 31 May 2007
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Whether we have a Human Rights Act or not, surely it must be a reasonable principle that we do not imprison people when we cannot prove fault. We use strict liability offences for all sorts of good reasons. We use it for traffic offences and it is quite reasonable in those circumstances because drivers know that they need to take care not to go over the speed limit, to take care not to be over the blood alcohol level limit and all those things. With speeding offences strict liability works pretty well because drivers have that responsibility to take extra care and ensure that they do not breach the law.
We do not see that with other offences and where we see imprisonment that is a real concern and it calls into question what effect the Human Rights Act has and how much it is changing behaviour in the government when they draft their legislation? Some time ago the government presented us with a bill—or it might have even been a regulation—that would have allowed a tribunal member to detain someone without charge for failing to attend a tribunal meeting. That had been drafted and with it we had a little statement that said, “This legislation is Human Rights Act compatible.”
The government were embarrassed into withdrawing it eventually when it was drawn to their attention by the committee, but it must be said that when we see these statements that say that an act complies with the Human Rights Act we have got to question what it means when we had a provision that allowed a tribunal member to lock someone up indefinitely without any sort of proper process. We saw the Chief Minister rail against the terrorism legislation, which had all sorts of safeguards in it, and yet his government presented this legislation, which had no safeguards—none whatsoever—and presented it as Human Rights Act compliant. It really does make a mockery of the Human Rights Act when time after time we see legislation come in here that is clearly not compliant with general human rights principles yet it says that it complies with the Human Rights Act. Either the statements are wrong or the Human Rights Act is not worth the paper it is written on. Those are the only two conclusions we can draw.
The explanatory statement justifies the provision of strict liability in this case by asserting that “Providing for mental elements of the offence would diminish the regulating purpose of the offence.” That is a very bland sort of statement. I do not quite know how that justifies having strict liability in this case. It is a pretty brief justification that does not seem to go as far as it should.
The explanatory statement acknowledges the critical significance of setting clear boundaries to the exercise of administrative power. It states:
The Bill is drafted with the intent of clearly setting the boundaries of any power allocated to the Territory’s corrections authority. This aims to assist any court reviewing a decision to ascertain the extent of the powers the Assembly intended to give the Minister, the chief executive or corrections officers.
That goes back to my initial statement about this bill setting the framework. We do need to set a framework. We need to set clear boundaries for the exercise of administrative power in these cases.
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