Debate resumed from 27 October.

The Hon. J. W. SHAW [3.03]: The Opposition opposes this bill and will vote against it being given a second reading. If, contrary to its views, the bill is given a second reading, the Opposition will move various amendments to it, which I will foreshadow during my contribution to the second reading debate. The bill is a radical departure from the traditions and standards of our criminal justice system. In particular, it provides for preventive detention orders for as long as two years being made against a person who could not otherwise be held in lawful custody. The bill provides that a person against whom there is no evidence of criminal conduct, who has not been charged with a crime, and who has not been convicted of a crime can be placed in gaol for two years by order of a single Supreme Court judge. In fact, the bill provides for a minimum period of detention of six months and does not allow the judge to incarcerate a defendant for any lesser period.

This will be done in a civil proceeding - that is, the matter will be dealt with on the balance of probabilities rather than in accordance with the criminal standard of proof, that is, beyond reasonable doubt. The defendant will be incarcerated by the judge without any facts being demonstrated as to criminal conduct and on the say-so of a psychiatrist, psychologist or social worker. The tradition of our law is that people are punished for crimes they have committed. In addition, if they have a mental illness or a mental disorder, under the Mental Health Act they can be placed in custody in the mental health system. In special circumstances a case may exist for indeterminate sentences, or even protective detention, but only when charges have been laid.

The bill goes much too far. Government advisers have admitted that no clear precedent has been set in any other democratic country or jurisdiction for a measure that imprisons people without any criminal charges being laid. It seems the Government's motivation stems from one particular case of a person currently in gaol for manslaughter, and who is due to be released. If that prisoner has been making threats against members of the community or his family, he should be charged under the Crimes Act with making threats of violence and should be detained on the basis of those charges. He could apply for bail, but if there is evidence of threats of violence, bail undoubtedly would be denied by the court.

The process adopted in the formulation and presentation of the bill is objectionable. On the basis of one case the Government has hurriedly compiled a bill with general application to all citizens in the community and with long-term implications for the legal system. It has done so without any real or adequate consideration or consultation. As the Bar Association said in its commentary, hard cases make bad law. It seems both inappropriate and disproportionate to construct a general regime of incarceration based upon civil proceedings because of concern about one particular prisoner. This Parliament should enact laws because of a general social or legal problem, and not as a knee-jerk reaction to a perceived individual problem. In other words, the legislative remedy is wholly disproportionate to the problem, or alleged problem, that has been identified by the Government.

Earlier I said that I understand there is no clear precedent in other democratic regimes for a measure of this kind - that is, detention for two years without any criminal charge being laid, without any criminal trial being conducted, and without a jury having found the person guilty beyond reasonable doubt. It is true that under certain authoritarian regimes of the right and of the left, there have been examples of internment of this kind. It is true that in wartime, nations whose very survival is under threat have resorted to extreme measures of this character. It is true that other countries facing threats of terrorism or insurgency have resorted to measures of this kind. But I assert confidently that in peacetime no democratic country not facing extreme threats of this character has set the precedent of resorting to legislation of this kind.

It is, to say the least, surprising that the Government, in its final months of office, has introduced a measure that has been so condemned by all bodies in our society concerned with civil rights and with the due process of law. One of the great constitutional theorists of the nineteenth century, who wrote about the rule of law, was Albert Venn Dicey. Some people, even those on my side of politics, might regard his comments as a Tory slogan, but the rule of law is a positive force for freedom and justice in our society. It is as relevant to 1994 as it was to the nineteenth century. Dicey wrote a definition of the rule of law, and part of that definition is very apposite to this measure. We should overlook the outdated and sexist language in Dicey's writing. He wrote:

Englishmen are ruled by the law and by the law alone. A man may be punished for breaches of law, but he can be punished for nothing else.

In another passage Dicey wrote:

We mean in the first place that no man is punishable, or can be made to suffer in body or good, except for a clear breach of law established in the ordinary legal manner, established before the ordinary courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint.

It is relevant to ask why the Government seeks to adopt this very extreme measure to meet the circumstances of only one case. What clear measures could the Government adopt in relation to this prisoner, about whose release it apparently has apprehensions? I understand that this prisoner was sentenced in the Supreme Court to four years gaol for manslaughter. One possibility is that the Crown could
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appeal to the Court of Criminal Appeal against the leniency of that sentence. Perhaps the appeal should have been made when the sentence was first imposed; in fact, the appeal could still be made. Time has not run out. The original sentence could be reviewed by the Court of Criminal Appeal.

The relevant prosecuting authority could charge the prisoner with threats of violence under section 31 of the Crimes Act, which relates to maliciously sending, delivering or uttering letters or writing threatening to any person. This provides a sentence of 10 years imprisonment. Also, section 33B of the Crimes Act could apply, for it relates to a person threatening injury to a person or property. That crime allows for a period of penal servitude of 12 years. It has never been satisfactorily explained why the prisoner in question has not been charged with these offences. If evidence of such conduct is available, whether by overt acts or implied threats, it would fall within the scope of the provisions to which I have referred and charges should be laid.

I understand that the prisoner in question has been charged with a breach of certain postal laws or regulations, and that he will be before the court in December of this year. The offence in question, under Federal law, can result in 12 months imprisonment. I ask the Attorney General to explain in his reply to the second reading debate why charges have not been laid under the Crimes Act; one would assume that such action would have been taken, given that evidence of threatening conduct of the requisite character was available. And there has been no explanation why the Crown has not appealed against the leniency of the original sentence for manslaughter.

The Opposition clearly opposes this bill, and will vote against the second reading. However, if the bill is given a second reading, we propose to move various amendments. These will be circulated in a written form as soon as is practicable. I now foreshadow the thrust of those proposed amendments, assuming the bill will have its second reading. Firstly, the Opposition will amend the legislation so that the Bail Act will apply to defendants and proceedings under the bill. This bill denies the application of the Bail Act and would not allow a defendant to seek the provision of bail.

Secondly, the Opposition will seek to substitute the Director of Public Prosecutions as the applicant for such proceedings instead of the Attorney General - in other words, to distance the process from politics and vest in the DPP the rights and powers to apply under the legislation. Thirdly, the Opposition will seek to amend the bill to ensure that proceedings should be regarded as criminal in nature, and that the case should be proved beyond reasonable doubt, not merely on the civil onus of proof, namely, on the balance of probabilities.

Fourthly, the DPP should demonstrate in any such case that it is more appropriate to bring such an action under this legislation, rather than to take steps to detain the defendant under the Mental Health Act. Fifthly, the maximum period of detention should be for six months, and the Court should have the discretion to detain a person for periods less than that. Sixthly, the application should be heard by the Court of Appeal, not a single judge. Seventhly, the Opposition will seek to amend the bill to make it apply specifically, and only, to the prisoner whose conduct has apparently given rise to concern and is the genesis of this legislation. Finally, the amendments will provide a sunset clause to terminate the legislation's operation nine months after the date of assent. By foreshadowing those amendments, I do not resile in any way from the strong opposition we have for the bill. This opposition will be manifest in our vote on the second reading.

The Hon. S. B. MUTCH [3.17]: In speaking in debate upon the Community Protection Bill, I shall refer to the words of the Hon. J. W. Shaw. Unlike previous Labor Governments, such as the Wran Government, which did not listen to the words of wisdom from the Opposition, Independents and others, this Government is always prepared to listen. The honourable member made some erudite comments, which the Government will consider. This is an important bill. We have reached the state in our community where people fear for their safety, often with good reason. This bill is a genuine attempt by the Government to address that problem. The name of the bill recognises the attempt to come to grips with a very difficult legal and sociological problem in our community today.

The bill will enable the Supreme Court to make a preventive detention order against persons who threaten the safety of others, and to make provision for detention of persons in respect of whom such orders are made. The bill proposes that an order can be made only on the application of the Attorney General to a Supreme Court justice. The outcome would depend upon the opinion of the Supreme Court as to whether the person involved is a danger to the community and is more likely than not to commit serious acts of violence. The need to protect the community from such persons is given paramount importance in the legislation. We would all agree that protection of members of the community from people who cannot control their animal and base instincts is most important.

That is why this bill has been introduced. It has been introduced in this form only after other avenues have been explored to try to find ways of protecting the community from people who are evincing an intention to cause harm. One avenue was explored through the Department of Health. That department resisted any amendment to the mental health legislation that would allow the detention of persons diagnosed with nothing more than a personality disorder. Given recent attempts to destigmatise all aspects of mental illness, it is undesirable and contrary to present Government policy to broaden the definition of mental illness in this way.

The proposed legislation - and I describe it only as a proposal - attempts to provide a legal mechanism by which the protection of the community will be
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balanced against the right of affected persons to be fairly treated. The proposed legislation attempts to achieve these aims by the following provisions: that the Attorney General may apply to the Supreme Court in its civil jurisdiction for an order that an affected person be placed in preventive detention; the Supreme Court may issue a warrant for the person's arrest if satisfied that there are reasonable grounds on which an order may be made, but in any case a person shall be brought before the court within 72 hours; such application is to be commenced by summons to be served on the affected person and may be heard in the absence of the affected person by a single judge of the Supreme Court; and where the court considers it necessary it may make an interim order that an affected person be placed in preventive detention pending determination of the application for a period of up to three months, with provision for extension on the application of the Attorney General or of the court's own motion.

It is obvious that the bill has attracted a fair degree of community interest and some comment. Though the legislation may well be improved, it is a genuine attempt by the Government to come to grips with a very serious community problem. Frankly, the Government would welcome input from every member of this House. Legislation is needed to protect innocent members of our community from people who have evinced - and that is the key word - some degree of criminal intent towards other people in the community. That is the basis upon which this bill should be viewed. The bill seeks to ensure that respect is maintained for the rights of members of the community, balanced against genuine evidence of an intention to commit a crime against members of the community.

The Hon. ANN SYMONDS [3.23]: I speak briefly to this bill to guarantee that my total rejection is recorded in Hansard. I am appalled that the Government has brought forward this legislation. I am eager to make it clear to honourable members and the community generally that I cannot support this bill in any way. When I first heard of the material contained in the legislation I thought it related to people who were already in prison and that consideration was being given to whether those prisoners should be released because of some apprehension that they may be of danger to the community. Following the introduction of the bill I have since learned that the legislation is intended to apply to anyone, whether or not already a prisoner. This is a remarkably outrageous departure from legal practice. I do not understand why the Attorney General has taken this line. This bill has been rejected totally by the legal community. No-one in the legal profession supports the Government, the Attorney General, or any aspect of the legislation, simply because it departs from legal principles. This bill is unprecedented in Australia and poses a major threat to civil liberties.

This extraordinary measure involves political interference by the Attorney General in the criminal justice system. I imagine that the community and all politicians will be eager to ensure that that obvious political interference in the justice system will not occur. Without question, there should be no political taint in any decisions concerning matters of justice, but this bill will provide just that. Surely, the reason for the establishment of the position of the Director of Public Prosecutions was to distance any political activity and bias from the operation of justice.

This bill is not necessarily about protecting the community. It can be only the result of some very sloppy advice to the Attorney General. I must come to that conclusion because I do not believe that the Attorney General would have sponsored such a proposal himself and that under the onerous burden of his executive responsibilities this measure somehow has slipped by him without his proper scrutiny. I do not believe the Attorney General would support this legislation.

This proposal also breaches human rights obligations under treaties to which Australia is a signatory, particularly treaties relating to children. The Attorney General has not given full credit to the community for its perception of this legislation. The community understands that people can be detained and imprisoned if they are charged and found guilty of having committed a crime. But there is no justification - and I believe no community support - for a person being detained on the suspicion that he or she may be dangerous to the community. One can imagine a whole range of scenarios where people who may be considered to be a danger to the community could be caught by the provisions of the bill. I believe there are some people in this House who could quite competently be caught by the frame of this bill and be accused of being potentially dangerous to the community. I am not referring to anyone in particular, but the possibility must be taken into account.

The onerous consequence of this bill entails a six-month minimum mandatory sentence or a possible two-year sentence. This sledgehammer response is totally unnecessary. It is difficult to determine what the Attorney General has in mind, unless it is a purely cynical exercise on his part. Though I am extraordinarily loath to suggest such a thing, for I do not believe that is the nature of the Attorney General, such a suspicion arises when an election is imminent and public debate is being had about which party can be seen to be the toughest in the community. It is well known that this legislation is a response to a problem caused by concern about one individual within the prison system, or perhaps two. Two names come to mind but I shall not divulge them. However, advice I have received from countless lawyers' groups suggests that there is sufficient existing legislation to deal with the probability of a person being a danger to the community. For example, I refer to section 31 of the Crimes Act, to the recently upgraded stalking legislation and to the Commonwealth legislation which deals with threatening letters. There is sufficient existing legislation under which a person suspected of being a danger to the community can be charged, go through the due process of the law and suffer the consequences.

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A person should not be reported and dealt with in a summary fashion by a single judge presiding over whether that person is likely to be a danger to the community. It is impossible to determine whether the person is more likely than not to commit a serious act of violence. I think it was the President of the Court of Appeal who said in a speech to an intellectual disability and community protection meeting that when judges are appointed they are given a desk, a set of books and various other appurtenances of office, but they are not given a crystal ball - they are not entitled to predict whether a person is likely to commit an offence. There is sufficient legislation to protect the community, such as the bail law and the mental health legislation. Let us not have the false claim that there is a need for a legislative arrangement such as this to give the community a better feeling of protection. We need due process of the law. The most alarming thing about this legislation is that it is a complete departure from the longstanding principle of the common law. Mr Justice Kirby said:

That is that our criminal justice system does not punish people for what they might do in the future but for what they have been proved beyond reasonable doubt already to have done.

That statement was supported in a High Court ruling in the case of Veen in 1979. Any attempt to intrude into the accepted practice of the operation of the criminal justice system is to be condemned. I reject this bill because it is a departure from legal principles; it is unnecessary. If there is sufficient concern about one person, we should look to the Victorian Government's response when it was concerned about one person and created a piece of legislation to deal with one person. The person for whom that legislation was devised has died; his name was Gary David. The legislation was devised to satisfy the fears of the community and to increase the notion of community protection. It was withdrawn when Gary David died. If this Government wanted to deal with one person in that fashion - because of concern about one person - surely it should not encompass the entire community in such a proposal.

I am also opposed to this bill because it is likely to lead to unintended consequences. Apart from my general abhorrence that people will be caught in the system by vindictive people who may use this legislation to detain those who oppose or annoy them in any way, two groups stand out: the young and the mentally ill. This legislation operates effectively in dealing with young people who are 16 to 17 years of age, yet there is no provision for them to be detained in circumstances separate from the adult community. That is to be condemned. It is not a practice that we wish to pursue in this State. It is something we have ceased to allow, yet this legislation overturns that practice.

The mentally ill are likely to suffer from this legislation. We should not dismiss that concern lightly. The mentally ill, and those who care about them, should have a great deal of fear about this legislation. We know that governments of all political persuasions have insisted on community placement for the mentally ill rather than institutional care. Therefore, some people might behave in a way which gives rise to concern for other members of the community. It is an indictment of our community that so many mentally ill people are insufficiently supervised that there could be a situation such as occurred in Victoria in the last 12 months or so. In Victoria six people have been shot and killed by the police because they have been perceived to be likely to be a danger to the community. This legislation will scoop up, in an indiscriminate way, large numbers of people who are perceived to be a danger to the community. I abhor that.

The Attorney General has referred to the fact that people in this category will be detained within the prison hospital system. What hospital system? There are something like 120 beds in the Long Bay hospital system, and all but six of them are usually occupied. There is no accommodation within the prison hospital system for this category of people. In Mulawa there is no such thing as a hospital. To pretend to have some protective measures beyond detention within the gaol system is unacceptable. It does not exist, and the Attorney General knows it does not exist.

I shall conclude my remarks because I know that many other members wish to state their rejection of this legislation. I am utterly disgusted by this departure from legal principles and by my suspicion that it is done in a hypocritical and cynical sense, with no regard to the consequences for the community and to the loss of respect for the law that it entails.

The Hon. ELISABETH KIRKBY [3.38]: I oppose the Community Protection Bill. I am very surprised by the remarks of the Hon. S. B. Mutch. Had he, with his legal training, read the bill carefully, he would have known that what he has placed on the record is not in fact true. If passed, this bill will allow the civil courts to gaol individuals for at least six months and for up to two years. I am advised by the New South Wales Bar Association that the period of incarceration could potentially extend to the term of a person's natural life, even if that person had not been found guilty of any offence. The bill also permits arbitrary detention for three days even before the person is taken to court. This is not permitted under our law for a person arrested for a serious crime. Trial by jury and the requirement of the Crown to prove guilt beyond reasonable doubt are both bypassed by this bill.

The list of apprehended serious acts of violence for which the uncharged, unconvicted citizen may be locked up is amazing. A 16 year old whom a judge finds on balance might have had consensual homosexual intercourse with a person under 18 may be imprisoned if this bill is passed. As the Bar Council has asked in its submission to the Attorney General, does the Government now regard consensual homosexual intercourse as a serious act of violence? I quite understand that Reverend the Hon. F. J. Nile and many people who follow him, and also people of other religious beliefs, believe that a homosexual act is against the law of God and is morally wrong. They
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have every right to that belief and I do not deny that, but there is all the difference in the world between carrying out an act that may in your belief be against the Bible and the will of God, and a serious act of violence, because a serious act of violence has a connotation in law.

Also the bill effectively abolishes the writ of habeas corpus. It also abolishes the right of the detained to seek bail. These are rights which have existed since Magna Carta in 1215. Does this Government want to be remembered as the Government which saw fit to revoke hallowed common law rights which have now existed for more than 800 years? The bill also provides for detention of those who, on the balance of probabilities - not on any criminal proof but only on the balance of probabilities - are considered likely to commit an act of violence. The bill is to focus on future behaviour based on the opinion of experts. The effect will be to punish people who have not been charged with any offence. Even 16- and 17-year-old children will be put in maximum security in adult prisons because they might commit a serious act of violence.

The bill ensures that there will be no leave of absence; all detainees will be held in maximum security for at least six months. What would happen? They would then be with the State's most dangerous and violent criminals, and at least criminals who have been found guilty of committing an offence. It is my belief that if those detained under this bill were not violent and not a threat to society before being imprisoned, under these provisions they would certainly and surely be violent after release. What makes the individual dangerous under the bill is not defined by a statute; nor does the bill itself offer any definition - because it cannot. There is no generally accepted definition. I suggest that dangerousness will become a circular concept. A person will be dangerous simply because his imprisonment is considered desirable by the Attorney General.

To describe a person as dangerous is to imply that his or her behaviour is predictable. Despite the vast literature on this subject by experts, there is no reliable actuarial or statistical data to predict with any degree of certainty the likelihood of dangerous behaviour. The Lawyers Reform Association has advised that one study concluded that predictions of dangerousness by psychiatrists were wrong at least 70 per cent of the time. I think it is obvious that I have very grave concerns about this legislation. As I have just said, it marks a total departure from common law principles of justice upheld for 800 years. I am dismayed by the rationale put forward by the Attorney General for its adoption. I believe - I regret to have to say this - that his views are faulty and misdirected. I am grateful that there has been sufficient time to respond to the Attorney General's second reading speech on the bill. As the two weeks since its presentation elapsed my concerns only increased.

I have had the most constructive feedback on and analysis of issues in this bill from many professional people. From this process of consultation alone it has become clear to me that the Government did not canvass the issues with those with experience. It was not canvassed with lawyers, doctors, behavioural experts or criminologists. I am not suggesting that only such experts should be consulted. This bill contains such basic infringements of civil liberties that any government should at least have consulted the people of New South Wales about their potential loss of liberty before taking such drastic measures. This has not been done. Thankfully, with the two week delay there has been media debate on the bill which has given the public the chance to know what the Government hoped to do. I say hoped to do advisedly because I am certain that the bill will never pass through the Parliament to become law.

I do not want to be absolutely negative. I realise that the Attorney General has a serious dilemma before him, namely, what to do with a certain prisoner whose name I will not mention in this Chamber when his prison sentence expires. I acknowledge that that is a real and serious problem but it does not warrant the introduction and adoption of such a draconian bill. There are several other options available to the Government to deal with the immediate problems with the prisoner. There are alternatives available to the Government, in spite of what the Premier has said, to cope with the ever-present concern about individuals who threaten to kill or to hurt others. I will discuss these options later. Peter Hennessy, Director of the New South Wales Law Reform Commission, was not consulted on this bill in spite of the fact that the commission only recently - in October 1994 - released a discussion paper on courts and sentencing issues entitled "People with an Intellectual Disability and the Criminal Justice System".

In that document an entire chapter is devoted to release from custody issues: dangerousness, parole and post-release services, and provisional proposal for reform in an intelligent and sensible way. I assure all honourable members that nowhere in the Law Reform Commission's paper was the Government's present proposal for detention of dangerous persons on the grounds of suspicion of dangerous behaviour supported by the commission as a viable option. I feel certain that the Law Reform Commission would be happy to supply honourable members with a copy of the document. I have one that any honourable member may borrow. No doubt all members of the Chamber have already received - and I hope read - the submissions from the New South Wales Bar Association, the Law Society, the Redfern Legal Centre, the Hon. Mr Justice Michael Kirby, the Office of the Public Defender, the New South Wales Society of Labor Lawyers and the Lawyers Reform Association. I have received documentation from all those sources.

All the submissions cover a range of matters, including the alarming departure from legal principle this bill would encompass. They suggest workable alternatives that will not infringe the civil liberties of the people of New South Wales to deal with the general issue of what to do with persons who make
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threats. In addition to the material I have just mentioned I have also had excellent documentation from the Human Rights and Equal Opportunity Commission on the ramifications of the recent successful complaint by Mr Nicholas Toonen of Tasmania to the United Nations Human Rights Committee. This material is relevant as it highlights the ramifications of enacting Australian State laws that are in contradiction of international treaties and covenants to which Australia is a signatory.

We are all looking forward to the 2000 Olympics. All of us remember the jubilation that erupted in Sydney when the announcement was made by the Olympic committee that we had been the successful bidder. I remind the Government that one of the main reasons that Sydney rather than Beijing was chosen to stage the Olympics was our excellent track record of civil liberties. We had not paid mere lip-service to our international obligations concerning civil and political rights of our citizens. Professor Pat Lane, recently retired professor of constitutional law at the University of Sydney and author of the classic textbook on the subject, has advised that, should the Federal Government have enacted the International Covenant on Civil and Political Rights as municipal law, this bill - should it ever be enacted - would offend the Federal statute, thereby ensuring a section 109 constitutional conflict. In such an event the Federal statute would prevail, as there would be a conflict between the two laws. I am not just being academic here. It so happens that Australia is a signatory to the covenant, and so it is correct that, should New South Wales enact this law, the State would then be in breach of international obligations.

The covenant I have referred to is presently incorporated into the Federal Human Rights and Equal Opportunity Act, as is the Convention on the Rights of the Child. Whilst those conventions are technically not part of municipal law, they are in the Federal Act as an aid to interpretation and as a statement of principle of the law in Australia. The Human Rights Commission may activate complaints under the Act, based on matters listed in the covenant. The commission has indicated that, should the bill become law, it anticipates an increase in the number of complaints made to it, particularly from people with intellectual disabilities. The commission has also flagged a potential section 109 constitutional conflict with the Federal disabilities legislation.

Another aspect of Australia being a signatory to the Covenant on Civil and Political Rights and a party to the First Optional Protocol to the covenant since 25 September 1991, is that it enables individuals in Australia to complain to the United Nations Human Rights Committee concerning violations of the rights recognised by the covenant. Of the 148 countries which are parties to the covenant, 78 are parties to the first optional protocol. Those nations which are signatories to the protocol no doubt regard themselves as civilised, democratic and upholders of civil liberties - and certainly I believe that the public in Australia, and particularly in New South Wales, believe that Australia is.

I would like to refer again to the recent challenge to certain parts of the Tasmanian criminal code by Mr Toonen to the United Nations Human Rights Committee. The facts of that case are that the United Nations Human Rights Committee, after considering Mr Toonen's complaint, found Australia in breach of certain articles of the covenant, and determined that an effective remedy would be the repeal of the offending sections of the Tasmanian criminal code. The committee therefore asked the Federal Government to submit, within 90 days of the date of transmission of its decision to Canberra, details of the measures taken to give effect to the committee's views. The Federal Government cannot not reply; it cannot renege on that obligation. It is imposed on it because Australia is a signatory to the covenant and to the protocol.

The Human Rights Commissioner has decided to undertake an independent examination of the Tasmanian criminal code, and to exercise his powers under the Act to formally report to the Federal Attorney-General. These are matters that the Federal Attorney-General has already had to address and that he cannot ignore. Do I need to remind honourable members of the significance of the Tasmanian dams case? The High Court has upheld the Federal Government's use of the external affairs power in the Constitution to override State law if there is a conflict of law between the Commonwealth and a State. In recent times New South Wales has never had such a head-on conflict with the Federal Government. Do honourable members really want to be responsible for enacting a piece of legislation that would breach our international obligations and potentially bring on a situation where the Federal Government may intervene and review New South Wales State law, knowing that in the ultimate the Commonwealth has the constitutional power to override such a draconian law?

Let us talk about this in an electoral context. We are facing a State election in March 1995. In this State we have a coalition Government which may or may not win the State election. With that power in the hands of a Federal Labor Government, can honourable members not believe that it would make use of it against a coalition government in New South Wales to make it a point of contention at the time of the State election? I know jolly well that the Labor Government in Canberra would have absolutely no compunction in using it as an election tool against the coalition. Therefore, perhaps honourable members ought to look at this in a more pragmatic manner, even if we are going to ignore it on the basis of proper legal principle.

Should a bill of rights be enacted - and there is to be a meeting involving the Human Rights and Equal Opportunity Commission, in February 1995, only a month before the State election, specifically to discuss the preparation of a bill of rights - then with all certainty there will be a constitutional challenge from the Federal Government against any legislation similar to that before the House. Please, let us be sensible. Let us look at the alternatives available to the Government now to deal with its specific problem relating to one particular prisoner. Despite the
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statements made in the media by the Government, the Premier, and the Attorney General, there are alternatives.

The Premier was reported in the Sydney Morning Herald as saying, "It is not a principle that personally I like, but at the same time I am concerned about the in-laws, the children of this particular person". He was further quoted as saying, "Legislating for [X] alone has been considered, but that would require a separate Act of Parliament every time a similar situation arose". I would like to canvass some options. They are not exhaustive, but there are more than two options, whatever the Premier may wish the public to think. First, the Attorney General could be given the power directly to detain the individual he is concerned about and to keep him in detention by executive decree. I am not suggesting that this would be a desirable course of action, but surely it would be more honest for the Attorney General to take the responsibility for incarcerating that particular person, rather than passing the responsibility to the court - or is the Attorney General worried that he may be condemned by certain sections of the community for acting as judge?

The second option would be to enable those deemed dangerous as a result of suffering some personality disorder, which the present bill acknowledges will include such persons, to be detained under the Mental Health Act, by broadening the concept of mental illness expressed in that statute. The Hon. S. B. Mutch has said that the Department of Health did not wish to broaden the Mental Health Act. Could the Government not discuss this matter with the Royal Australian and New Zealand College of Psychiatrists to see what practising psychiatrists in this field believe would be proper, because there are many concerns about people who have severe personality disorders but may not be suffering from a diagnosable mental illness. Surely, what a bureaucrat in the Department of Heath believes is proper might not be the view of psychiatrists who have knowledge in the field.

This option was supported by the Victorian Law Reform Commission in a report to the Victorian State Parliament in 1990. As I have pointed out, there are problems with the option because modern psychiatry does not define personality disorders as mental illnesses. The appropriateness of incarcerating such individuals in a mental hospital rather than placing them in maximum security in a criminal gaol is another problem. A further option would be the introduction of legislation designed to protect the community by the imposition of special sentences on individuals who have established a track record of serious violent crime in the criminal justice system. That option would ensure that the individual was charged and tried by a jury before the imposition of any gaol sentence. The preventive detention option was adopted by the Victorian Government in 1993. It gives the courts the power on their own initiative, or on the application of the Director of Public Prosecutions, to sentence a person.

The PRESIDENT: Order! Pursuant to sessional orders, business is interrupted for the taking of questions.