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25 October 2005

Anti-Terror Bill: Judiciary Compromised

The version of the Anti-Terrorism Bill currently in the public domain contains major constitutional and procedural flaws which compromise the role of the Australian judiciary, said the Law Council today.

"In our constitutional system the separation of powers is paramount - the judiciary must remain independent of the Executive. Federal courts can only be asked to exercise judicial functions," said John North, President of the Law Council.

"Federal judges, even when not sitting in court, can't be asked to perform functions incompatible with judicial functions. These measures should not be allowed to pass into law," he said.

The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders.

The power to make detention orders is given to federal judicial officers in their personal capacity. To require them to make detention orders runs the grave risk of asking them to do tasks incompatible with their office.

Federal judicial officers are asked to make continued preventative detention orders following an initial order made by an AFP officer.

"Judicial officers will be exercising what is obviously a police function" a function of the Executive - and this will run the risk of prejudicing public confidence in the independence of the judiciary. State and Territory courts must ensure that their independence is preserved in any local legislation," Mr North concluded.
Media Contact: Elenore Eriksson,
Director Public Affairs - 02 6246 3716/0419 269 855

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