Page 393 - Week 02 - Tuesday, 16 February 2016
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and all states and territories expressed their readiness to enact legislation to complement new commonwealth measures. As a result, the ACT enacted the Terrorism (Extraordinary Temporary Powers) Act in 2006. The act authorises preventative detention orders that allow a person to be taken into custody if the court is satisfied that a terrorist act is happening or will happen in the following 14 days and the authorisation will assist in preventing or reducing the impact of the terrorist act.
Whilst it is the case that the review cited by Mr Rattenbury, including that by Mr Bret Walker, casts doubt on the efficacy of extraordinary temporary powers laws like the one we are debating today, it is also the case that that review concluded that should there be a need for such laws, the ACT model was preferred by the reviewers as the most human rights consistent and the most proportionate response to the threat posed by terrorism. Those comments of the review should be kept in mind by those listening to Mr Rattenbury’s comments this morning.
The act that was adopted by the Assembly in 2006 authorises preventative detention orders that allow a person to be taken into custody if a court is satisfied that a terrorist act is happening or will happen. Our laws, unlike those of other jurisdictions, maintain strong, independent judicial oversight in determining whether or not the powers provided for in the legislation should be exercised.
The purpose of this bill is to extend the operation of the act for a further five years, which is a necessary and regrettably proportionate response to the current national security threat advisory level of “probable”. This threat level means that credible intelligence assessed by our security agencies indicates that individuals or groups have developed both the intent and capability to conduct a terrorist act in Australia. While there is currently no specific threat to the ACT, it is prudent and responsible to maintain a legislative framework and powers to help prevent and respond to such a threat.
The commonwealth preventative detention order regime was also due to expire in December last year. The scheme was extended in 2014 for nearly three years on the basis that preventative detention orders would play an important role in mitigating and responding to the escalating threat posed by the Islamic State organisation operating in Syria and Iraq, and particularly the risk that Australian citizens fighting in those conflicts would return to Australia and engage in terrorism. Tools such as preventative detention orders are a vital element of the suite of mechanisms needed for law enforcement to help combat this threat and to protect our community from terrorist acts.
Preventative detention orders have not yet been used in the ACT, and this is a strong reflection of a policy constructed to expressly ensure that they are extraordinary measures to be used only in exceptional circumstances. Preventative detention does engage a number of human rights, including freedom from arbitrary detention and the right to a fair trial. The ACT scheme contains significant safeguards that distinguish it from schemes in other jurisdictions. In the ACT an applicant for a preventative detention order must demonstrate that it is the least restrictive way of preventing the terrorist act or the only effective way of preserving the evidence of such an act.
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