Page 4587 - Week 11 - Tuesday, 18 October 2011
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indicates a possible confusion as to how the provisions are intended to operate. If a person were detained for seven days for the purposes of preventing a terrorist act or to preserve evidence following an attack, that detention would be unlawful.
The power that Mr Rattenbury is referring to is located at section 23DB of the commonwealth act. This section refers to the concept of time that may be disregarded during the 24-hour investigation period. The section lists specific circumstances in which time will not be accrued in the 24-hour investigation period. These are specific circumstances that are generally for the health and welfare of the arrested person. These circumstances include where the arrested person requires medical attention, to allow that person to rest or to allow for a forensic procedure to be performed. To detain a person for any other reason, including the continued investigation of a terrorist plot, would be unlawful.
Finally, I note Mr Rattenbury’s position that because the existing criminal investigation powers allow suspects to be questioned, these powers result in the ACT being well equipped to respond to a planned terrorist attack. We need to be clear about the underlying purpose of preventative detention powers. The powers are to be exercised rarely and only in exceptional circumstances. They are not intended for use in a general criminal investigation and provide police with an additional resource to protect our community. So they are additional and extraordinary powers that are only to be used in exceptional circumstances.
Preventative detention will only be ordered in circumstances where the available evidence demonstrates that it is necessary to prevent a person from committing a terrorist act in the next 14 days. Of course, this has to be proven to the satisfaction of a Supreme Court judge. The detention of the person will result in the person being denied the opportunity to execute the act and will isolate them from their terrorist colleagues and networks in order to disrupt the act or to preserve evidence following an attack. Preventative detention powers are therefore distinct from general criminal investigative powers and are necessary to ensure public safety.
The adoption of the Greens’ amendments will leave the ACT vulnerable in the event that a terrorist act occurs in the territory. Given the potential catastrophic consequences of a terrorist act on our community and the safeguards that are in place before a preventative detention order can be made—that is, a court order—a continuation of preventative detention is reasonable and necessary to ensure that we are adequately prepared to deal with a terrorist act or a potential terrorist act, should it arise.
Lastly, it is important to note the cross-jurisdictional challenges presented by terrorism and that a national approach has been adopted to combat terrorist acts. Given the evidence that terrorist activity can occur across state and territory boundaries, Australia’s domestic response relies on the complementary roles of the commonwealth, state and territory legislation and this should be borne in mind when it comes to the consideration of preventative detention legislation.
MRS DUNNE (Ginninderra) (5.40): I want to note in passing that I felt the comments that the attorney concluded with about the importance of national uniformity in
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