PICKING APART the draft anti-terrorism legislation has become a rushed and focused pastime of legal professionals and professional bodies seeking to find problems in the legislation before it is too late.
The Law Society of New South Wales has now raised the problem of the issue of detention orders, for up to 14 days with no trial, which it said gives the power to issue orders to Federal and Family Court judges and federal magistrates.
In an opinion published in Lawyers Weekly this week, Law Society president John McIntyre noted the Bill states that the Attorney-General must appoint a judge or magistrate as an issuing authority and the judge or magistrate must agree, in writing, to be appointed.
This, said McIntyre, gives the judiciary the right to opt out. “Does the Government intend to forum shop and hand-pick judges and magistrates who they believe will be the most likely to issue detention orders?,” he writes on page 15 this week.
Arguing that this provision is not commonly found in other legislation, McIntyre said that an Act of Parliament normally confers jurisdiction on a court and all the judges of that court. He said there could only be three possible explanations for this “curious” provision.
Either the Government had no faith in our judges, which he noted was unlikely, or the Government intended to allow judges a conscious vote on the rule of law implications of the legislation. Otherwise, he said, a most “sinister explanation” was that the Government may seek to “hand pick” judges and magistrates who it thought would be the most willing to respond to their demands.
McIntyre called on federal Attorney-General Philip Ruddock to disclose whether consultation had taken place between the executive and the judiciary in relation to its role in the anti-terrorism laws.
As well, he asked the judiciary whether it intended to accept the responsibility for locking people up for 14 days without charge and without trial.