Page 4581 - Week 11 - Tuesday, 18 October 2011
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the continuation of the act is a proportionate and appropriate response to the ongoing threat of terrorism.
The answer to that question is yes, and the reasons for this are as follows: the preamble to the act notes that few rights are absolute. It states that human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. I draw to the Assembly’s attention the fact that recent judicial interpretation on the interaction of counter-terrorism measures with human rights legislation has not significantly changed in the period following the introduction of the act.
International jurisdictions, including Europe, the United Kingdom and Canada, have continued with their counter-terrorism schemes. However, some aspects of these schemes have been amended to ensure that they are compatible with human rights obligations. This is evident in the UK, where the UK government’s recent review of their counter-terrorism laws determined that some aspects of this scheme were neither proportionate nor necessary. Importantly, the UK powers referred to as neither proportionate nor necessary are powers that either do not exist in the ACT statute or are structured differently in the ACT to ensure they provide appropriate safeguards.
For example, the UK review recommends that the length of time for the detention without charge powers, which are similar to the ACT’s preventative detention powers, be reduced from 28 to 14 days. From the inception of the ACT’s terrorism act, the government provided that a person could only be detained for up to 14 days. The amendments proposed by this bill, in particular clauses 4, 7 and 8, support compatibility with the Human Rights Act. These clauses provide for greater clarity and certainty and will recognise the rights of families and children.
I would like to now turn to the most relevant section—that is, 28—in this bill. This is a question of whether there are any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. This consideration is also relevant to the scrutiny of bills committee question regarding the necessity for the act, suggesting that the existing general criminal law and its processes for enforcement are adequate to deal with terrorist activity in the territory.
As the title of the terrorism act indicates, these are extraordinary powers. The purpose of the act states that the powers are only to be exercised in extraordinary circumstances, to allow law enforcement agencies to respond to prevent, investigate or reduce the impact of a terrorist act. The government has determined that the continuation of the powers is necessary and there are not any less restrictive powers that would enable our law enforcement officers to appropriately respond to terrorist acts.
I draw the Assembly’s attention to the fact that preventative detention powers are to be used as a measure of last resort. This is enshrined in section 8 of the act. The terrorism act’s preventative detention scheme allows the ACT Supreme Court to make a preventative detention order if it is satisfied on reasonable grounds that it is reasonably necessary to detain a person to prevent a terrorist act or where it is reasonably necessary to preserve evidence following a terrorist act.
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