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Vic and the ACT: preventative detention powers 2005 Print E-mail
Monday, 06 February 2006

 

The Federal preventative detention powers were introduced as part of the anti-terrorism measures in 2005, however, it was aware that the Commonwealth Constitution would not allow for the preventative detention of a person for 14 days. The Federal Government required State cooperation to achieve this purpose.

 

On 1 December 2005 the NSW Government introduced its complementary legislation introducing state preventative detention powers for 14 days. However, the Victorian and the ACT Governments allowed for more time for public debate, and referred their draft Bills to committees.

 

AMCRAN made submissions to both the ACT and the Victoria Inquiries. 

The ACT

In January 2006 AMCRAN made a submission to the Standing Committee on Legal Affairs in the ACT Legislative Assembly in relation to the Terrorism (Extraordinary Temporary Powers) Bill 2005 (ACT)

 

In its submnission, AMCRAN was concerned that the maximum period of detention allowed under the Bill was too long, and the limit to be placed upon the detainee's privacy in his or her communications with a lawyer. AMCRAN concludes by making the following recommendations:

 

Recommendation 1: It is recommended that the maximum duration for which a person can be detained under a preventative detention order under the ACT legislation be reduced to 5 days.

 

Recommendation 2(a): We recommend that clause 53(2) be excised from the bill.


Recommendation 2(b): If recommendation 2(a) is not accepted, the Public Interest Monitor should have a greater power to prevent the application of clause 53(2) than merely recommending so to the Senior Police Officer. For example, the PIM could appeal to a court to make a ruling on an urgent basis. It may be convenient to do so to the same judicial officer who made the order for the preventative detention.

 

Recommendation 3: To stop preventative detention orders being used in a manner similar to the “material witness” provisions in the United States, the criteria for the issuing of a preventative detention order should be made as stringent as possible.

 

AMCRAN's submission is available here.

Victoria 

In February 2006 AMCRAN made a submission to the Scrutiny of Acts and Regulations Committee (Vic) in relation to the Terrorism (Community Protection) (Amendment) Bill 2005 (Vic).

The legislation was intended to support and supplement the Federal anti-terror legislation, and significantly bypass Constitutional limitations at the Federal level on executive authorisation of prolonged detention. Controversial new insertions in the legislation included an executive authorised ‘preventative detention' regime that authorised detention for up to 14 days. AMCRAN made the following recommendations, in relation to the legislation:

Recommendation 1(a): In view of changes that are both serious and have been introduced urgently, a 3-year sunset clause should be applicable to all provisions of the Bill.

Recommendation 1(b): The review of the provisions of the Bill should be conducted after three years of operation. This review provision must also be clearly separated from the review of the provisions of the Principal Act.

Recommendation 2: Safeguards should be introduced into the preventative detention regime to ensure that innocent people are not held for inordinately long periods of time. These safeguards may include a requirement that the issuing authority be satisfied that all other means of protecting evidence have been explored and are not achievable

Recommendation 3: Given the nature of the sanctions that may follow from an application for a preventative detention order, there ought to be more safeguards built into the application process. These could include a requirement that questions of fact be decided on the criminal standard of proof rather than on the ‘balance of probabilities'.

Recommendation 4: The following safeguards should be introduced into the legislation:

(i) a requirement that the application for preventative detention order be staid until the subject of the order can appear before court to make submissions, or at least hear the particulars of the evidence against them so that an effective appeal may be launched in the future.

(ii) in deciding whether to grant a prohibited contact order, the Court must consider whether it will impede a person ability to get access to appropriate advice and/or other support services;

(iii) a detained person be able to speak to their lawyer without monitoring

(iv) the lawyer be provided with full particulars of the basis upon which the application was made.

Recommendation 5(a): In view of the above reasons, Part 3A of the Bill-prescribing severe penalties for failure to comply with police requests- should be rejected.

Recommendation 5(b): If recommendation 5(a) cannot be accepted, the penalties for non compliance with this section should be significantly decreased.

Recommendation 6: In view of the above reasons, clause 8 of the Bill-which widens the circumstances in which a cover search warrant can be ordered- should be rejected.

This submission was prepared by Agnes Chong and Sanmati Verma in February 2006.

AMCRAN was invited to appear before the committee to make oral submissions but unfortunately we were unable to appear due to the lack of resources and the tight timeframes for the inquiry.

The Bill was enacted without significant modification. AMCRAN continues to monitor the effect of the prolonged 14-day detention periods in State legislation.





 
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