The ACT Human Rights Commissioner is concerned Canberrans could be detained for up to 28 days under the new COAG pre-charge detention regime if the territory's existing scheme is not abolished.
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Commissioner Dr Helen Watchirs has also raised wider concerns around the "scant detail" and lack of transparency around various counter-terrorism measures Chief Minister Andrew Barr and his counterparts have agreed to.
She said she was pleased Mr Barr "took a stand" on new proposals for state and territories to share driver licence photos with federal intelligence agencies.
But Dr Watchirs said it appeared that "the first we shall hear about the nuts and bolts of the pre-charge detention legislation is when it is introduced" in federal parliament, which was "far from satisfactory".
Among the measures all politicians agreed to during the recent COAG meeting were a new national pre-charge detention regime (PDO) which would allow suspects as young as 10 years old to be detained without charge for up to 14 days.
Dr Watchirs said if the federal legislation was brought in, the ACT needed to repeal its existing PDO regime.
She said if it was not repealed, it "opens the possibility" for a person to be transferred between both schemes, resulting in a potential pre-charge detention period up to 28 days - 14 days under each scheme.
Dr Watchirs also raised the prospect that if the federal laws were modelled on NSW laws introduced last year, it "would sidestep" human rights-based safeguards in the territory's regime.
"Absent the full suite of safeguards as guaranteed under the current PDO laws, it is unlikely that the Commonwealth legislation if enacted here would be compatible with the Human Rights Act 2004," she said.
Dr Watchirs also said she understood the ACT's PDO regime had never been used, and there had only been four PDOs issued in other states, with all people detained "released well under 14 days".
But Mr Barr's spokesman rejected the possibility of repealing the ACT's scheme, saying the ACT's it was "human rights compliant" and where both laws applied, the federal laws "would take precedence".
"The ACT legislation could not be used to double up or extend detention periods for the same incident," he said.
He also said the government was "satisfied a legal framework for dealing with imminent terror attacks" could be "crafted in a way that is human rights compliant" while giving agencies "the power they need to protect the community".
But Dr Watchirs said the actual situation was "far from clear" and the commission was still concerned by "the potential for a person to be transferred between the two schemes".
"If the intention is that PDOs should not be used where a person is subject to pre-charge detention under the proposed Commonwealth scheme, then that should be made clear in the proposed legislation," she said.
Dr Watchirs also raised wider concerns about the lack of scrutiny of, and continual incremental creep in the country's national security legislation in recent years.
"Increasing numbers of 'extraordinary' laws, which are largely inimical to long-standing criminal law standards, are continuously being added to the statute books," she said.
"Previous measures that may not be working, however, are never repealed."
Dr Watchirs said those problems were "exacerbated by the speed with which such legislation tends to be developed and passed" which was "often absent any input or consideration of expert views", let alone a "lack of transparency and accountability" around COAG processes generally.
"In the past when such significant counter-terrorism laws have been proposed, the ACT has sought and published independent expert legal opinion and ensured that ample opportunity was provided to frame and test such proposals against human rights principles," she said.
While Dr Watchirs said there were limits to the extent of one jurisdiction on others, the ACT could play an important part in encouraging other states and the Commonwealth to "properly evaluate" such changes.
"In my view, the ACT, which has the benefit of a Human Rights Act, can and should set the example by ensuring that questions of proportionality and necessity are not ignored," she said.
