Senator ELLISON (Minister for Justice and Customs) (9:42 AM) —This is an issue for the courts, but I can advise the chamber of the judicial interpretation of the term `reasonable' in this context. The High Court of Australia considered this feature in relation to a Victorian provision in the case of Pollard v. The Queen, 1992-93, 176CLR, page 177. There was a joint judgment, and Justices Brennan, Dawson and Gaudron stated that the Victorian Crimes Act 1958 envisaged a limited period of time, a reasonable time, during which a person may be held for questioning or while an investigation was being carried out. The High Court clearly states that a reasonable time, which is the standard used in this bill, is a limited time. It does not equate with indefinite detention, as I said yesterday, and the judges further commented on how the discretion to exclude evidence interfaces with the concept of reasonable time. At page 190 there is a useful extract from the case of Pollard. It says:

That states that if you go beyond what is reasonable then you face a sanction in the form of the evidence obtained not being admissible. Any law enforcement officer who is going about an investigation is doing that with a view to having evidence admitted. Rendering evidence obtained inadmissible is a substantial sanction to fall on an investigation, and that is a result which would be borne in mind. If it were unlawful detention, as I said yesterday, there would be common law remedies available. The High Court has mentioned in this particular case that the common law would still apply. So when the court considered this in Victoria it did have relevance to the provisions we are talking about—they are provisions in similar terms—and they provide judicial guidance as to what is reasonable.

You cannot talk in a hypothetical situation of what might be reasonable in a certain circumstance—it depends on the circumstances of the case—but there is very clear judicial warning from the High Court that if that provision in relation to reasonable time is abused then there will be sanctions that follow. If it were unlawful detention, the person could take action. But, most importantly, the evidence is rendered inadmissible. It makes the efforts of the investigating officer futile.