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Thursday, 17 December 1992
Page: 5446

Senator TATE (Minister for Justice) (11.34 p.m.) —Senator Harradine has raised various matters. I will return to the question of proposed new section 54RA(1) and the question of the retrospective effect of unlawful imprisonment, as it was put, that would take away the right to sue for damages in relation to unlawful detention. I re-emphasise what I said before: the question of the unlawful detention, the false imprisonment, is still proper for a court to determine. Nothing in this Bill affects that. I simply want to emphasise that what is negated is the usual method of receiving an award of damages from the court should the detention be found to be unlawful. Senator Harradine then moved to proposed new section 54RA(3) to talk about the provision for compensation. He reiterated what is patently untrue. Perhaps I cannot put it that way; I beg his pardon.

Senator Harradine —I don't mind.

Senator TATE —It is patently not the case that the Government controls the Senate. Government senators are a minority in this chamber. The Senate will determine this matter, not the Government. The Government is not imposing this matter. This will be a matter for the vote of the Senate as a chamber of the Commonwealth Parliament.

  As to the question of whether I know of any statutory provision which is analogous to or a precedent for this, I do not know of any such provision. This is a case where—to once again return to the second reading debate but not to linger on it—the unlawfulness of the detention or custody depends on a set of circumstances which, I submit, are quite different to the sort of unlawful detention that might occur if a Federal police officer, without any cause whatsoever, simply took somebody off the street and held that person against his or her will.

  An example put by some—no doubt it would be tested in a court—is that of a Royal Australian Navy vessel rescuing a foundering boat, taking the bedraggled and forlorn survivors off the sinking vessel from almost certain death into a port and then sailing away on other duties and that the fact of sailing away makes the detention of the boat people unlawful. That is a very different circumstance to the one that Senator Harradine pointed to as an analogy. I believe it is in that peculiarity that the right of the Parliament to substitute its view as to appropriate compensation for that which would otherwise be awarded by a court is proper to the Parliament of the Commonwealth of Australia. That is why I believe the provision can be supported.