Page 391 - Week 02 - Tuesday, 16 February 2016
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The majority of the Committee concludes, based on these powerful considerations, that the preventative detention scheme is, as presently structured, neither effective nor necessary.
This is just one report, albeit from a panel of relevant experts. But it is not just the review committee that has come to the conclusion the laws are ineffective, should be repealed or are not sufficiently justified.
The Independent National Security Legislation Monitor is a statutory body whose role is to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis. It conducted a major review of Australia’s counter-terrorism legislation. It also recommended the repeal of the preventative detention laws. It pointed out that it was provided with no material or argument demonstrating that the traditional criminal justice response to the prevention and prosecution of serious crime through arrest, charge and remand is ill-suited or ill-equipped to deal with terrorism.
That report also noted, rather frighteningly, that a power to detain preventatively is virtually unknown in other democracies, even looking at their past experiences. It said the closest historical analogies were the internment of Japanese Americans by the United States government during World War II and the detention of suspected IRA members by the UK government in the 1970s. That is the type of scheme that we are seeking to extend here in the Assembly today.
I think we need to look at these proposals very carefully and ask ourselves what type of justice system we expect to have in Australia and in the ACT. We are proposing to continue laws that are highly unusual in liberal democracies and that have very few parallels except for events such as the internment of Japanese Americans in the Second World War. They are laws that run counter to the protections and freedoms we expect in our society, protections and freedoms that are even articulated in our Human Rights Act, such as the freedom from arbitrary detention and the right to a fair trial.
We also need to look at where we are headed with these laws and ask ourselves if we are letting our valued legal and democratic principles be gradually broken down. I can see exactly why people make arguments like, “If you allow this law, who knows what you will allow next and before we know it we will have a big brother state.” These preventative detention laws were supposed to be extraordinary and temporary, and now we are looking at having them in place until at least 2021.
Bret Walker SC, who was the former chair of the Independent National Security Legislation Monitor, makes an interesting point:
Accidental and other criminal modes of people being killed far outnumber what has happened by terrorism … Should we, as a society, give consideration to preventative detention orders against violent husbands, drunken or adolescent drivers, or careless foremen? Surely not. Have we properly articulated the reasons why counter-terrorism should produce an opposite response?
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