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The Role of the Constitution, justice, the law, the courts and the legislature in the context of crime, terrorism, human rights and civil liberties: an Address to the Post-Graduate Student Conference by Alastair Nicholson: The University of Melbourne: 4 November 2005.
The Role of the Constitution, Justice, the Law, the Courts and the Legislature in the context of Crime, Terrorism, Human Rights and Civil Liberties
An Address to The Post-Graduate Student Conference
Transgressions - Intersections of Culture, Crime and Social Control
The Post-Graduate Criminology Society 234 Queensberry Street Carlton 4 November 2005, The University of Melbourne
The Honourable Alastair Nicholson AO RFD QC Honorary Professorial Fellow, Department of Criminology, The University of Melbourne
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Article 10 The Universal Declaration of Human Rights (1948)
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
Article 14.1 The International Covenant on Civil and Political Rights (1966)
“Putting people under house arrest for a year by a control order is tantamount to jailing people without trial. This is a shocking departure from Australia’s proud tradition of protecting individuals from an overly powerful state”
(Brad Adams, Asia Director at Human Rights Watch1)
Posted 4 November 2005 at http://www.mpso.unimelb.edu.au/mpso/media/transcripts
From the time that I chose this topic until it was introduced into the House of Representatives yesterday, the actual content of the proposed Anti-Terrorism Bill (No. 2) 2005 (Cth) has been a moveable feast.2 Also, so much has been said that there is some difficulty in avoiding the covering of ground that has been already well covered.
Therefore I thought that today, after addressing the broad subjects encompassed by the title of this address, I would devote some particular attention to several issues that do not seem to have received a great deal of attention in the course of the debate. There are many other areas of great concern, including the proposed sedition laws, the curtailment of the rights of freedom of speech and association, the increased powers of the police and the limitations upon legal representation that have all been extensively discussed in the media. If I were to attempt to cover all of them, this address would become interminable.
The particular matters that I will discuss are these.
Having sat as a Judge of the Supreme Court of Victoria for six years, followed by 16 years as the Chief Justice of the Family Court of Australia, I would first like to offer some thoughts on the role of judges and other judicial officers such as federal magistrates who are called upon to deal with this legislation. This includes one controversial aspect that is termed “judicial review” and in this context it is important to be aware of what ‘judicial review’ means. It does not mean a re-examination of the decision in question on the merits unless the legislation specifically requires that. It normally means a review to examine whether the decision-maker has acted lawfully. Therefore the judge undertaking such a review is not entitled to substitute his/her own opinion for that of the decision maker, but merely examines whether the proceedings have been conducted according to law. A good example of the restrictions of this type of judicial review can be found in the migration area, where successive governments have so limited the powers of the judiciary that the ‘review’ is often almost illusory. It is likely that the same can be expected with this legislation, subject only to concessions that the Prime Minister has been forced to make in order to satisfy State and Territory concerns and the concerns of his own back bench, the detail of which has only just come to hand.
This Bill now does contain some provisions for review on the merits which is to be welcomed but it still lacks the normal attributes of judicial proceedings, including the delivery of reasons for decision rather than a mere statement of the grounds of decision that the Bill now requires and rights of appeal. Further the secrecy that
surrounds the process is the antithesis of justice as we know it it in our community, an essential aspect being that it is public and accountable.
The second area I will examine are some human rights and civil liberties issues that have not received a great deal of attention and particularly the position of children. The context for the particular matters I raise is that the Bill makes no reference to the principle that restrictions on rights be read in accordance with Australia’s obligations under the International Covenant on Civil and Political Rights, the UN Convention on the Rights of the Child, and other human rights treaties.3
However, before I get to those specific issues, it is necessary to discuss the more general issues covered by my topic.
The Proposed Legislation
The trigger for this discussion is the Howard Government’s proposed anti terrorist legislation which is usefully summarised in an article by Wanda Fish4. In the interests of brevity I have omitted the author’s comments under each head, but commend them to those interested.
“1. Control orders: ‘People who pose a terrorist risk’ will have year-long control orders placed on them. Tracking devices, travel restrictions, and ‘association restrictions’ are included.
2. Preventative detention: ‘suspects’ can be detained for up to two weeks without charge. This step by-passes the judicial system and would have been unconstitutional if enforced by the Australian Federal Police. State police will be able to detain ‘suspects’ who might have information or might be intending to commit a terrorist act. (The new proposal varies this as discussed below)
3. Notice to produce: The AFP may request and obtain virtually any information on any citizen under the banner of ‘national security’.
4. Access to passenger information: Provide access to airline passenger information for ASIO and the AFP.
5. Extensive stop, search and question powers: Federal police will have the power to stop, search and question any citizen whom they believe ‘might have just committed, might be committing, or might be about to commit a terrorism offence’.
6. Extending search and interrogation powers to state police at transport hubs: People at bus stops, taxi ranks, railway stations, and airports can and will be subjected to random searches and the subjective judgment of police.
7. ASIO warrants regime: ASIO search warrants will be extended from 28 days to three months, while mail and delivery service warrants extend from 90 days to six months. Moreover, ASIO will be able to remove and keep anything they take from premises that have been searched ‘ for as long as needed’ for purposes of security.
8. Create new offences: The existing sedition offence will be scrapped, and replaced with the broader, new crime of ‘inciting violence against the community’.
9. Strengthen offences for financing terrorism or providing false or misleading information under an ASIO questioning warrant. The right to remain silent is removed, and anyone refusing to answer questions can be imprisoned.
10. Criteria for listing terrorist organizations will be extended. Organisations that ‘advocate terrorism’ can be banned.
11. Citizenship: The Government will extend the waiting period for citizenship from two to three years and will refuse citizenship on ‘security grounds’.
12. Terrorist financing: More invasive processes to ensure that charities are not used to fund ‘terrorist organisations’ will be extended to institutions and couriers involved in the process.”
The public has had no chance yet to consider the Bill which was introduced into the House of Representatives yesterday, with amendments arising from backbench consideration. I have only had the chance to examine the tabled version briefly, but to the extent it has been possible, my remarks address what we know at the present time.
The Absence of a Bill of Rights in Australia
In considering this proposed legislation, it is important to remember that in Australia there is no effective human rights framework surrounding the new anti-terrorism legislation. Unlike other western democracies, we have no Bill of Rights and therefore no check upon extreme legislation of this type other than what can be found in the Constitution.
Similarly, unlike European countries including the UK, we are not party to any binding international instruments such as the European Convention on Human Rights and its five protocols, which enable European citizens to appeal to the European Court of Human Rights if domestic legislation or law is thought to be in breach of that Convention.
Additionally, the UK has passed human rights legislation of its own as have Canada, in the form of a constitutional Charter and New Zealand. The US has its own 18th century Bill of Rights, which nevertheless continues to provide real protection against governmental excesses.
There are differing models to be found of this type of legislation but the better models enable the court to read down legislation so as to be compatible with human rights requirements, or if this cannot be done, strike down the legislation.
This is a vitally important distinction that must be borne in mind in considering the new legislation, particularly when its proponents seek to draw parallels with legislation elsewhere. Even when such a comparison is made, the English legislation, despite the threat of terrorism in that country, contains more human rights safeguards than ours. As David Neal writing in The Australian newspaper this week said:
“The English Prevention of Terrorism Act 2005 adopts just that model for control orders. The police apply for a control order at a preliminary hearing in the absence of the person in question. If a control order is made, there must be a full hearing within seven days.
Before the full hearing, the police must place all relevant evidence before the court and -- subject to security -- they must provide the controlled person with a copy of that evidence.
The controlled person must also provide his or her evidence and then the full hearing takes place. If the court confirms the order, there is a right of appeal on the basis of legal error.
Extraordinarily, given that the English legislation is supposed to be best practice and the model on which the Australian bill is based, the Anti-Terrorism Bill 2005 contains nothing of the sort.
Why is a full hearing possible in England -- with all the threats it faces -- but not in Australia? 5
One might surmise that in England the Legislature was forced to have regard to human rights norms in preparing this legislation.
The Australian Constitution and the Separation of Powers
In comparison, the Australian Constitution contains no significant human rights clauses and the few that are there have been so read down by the High Court as to
be almost meaningless. Overall, I consider it is a somewhat weak and doubtful reed upon which we can rely in seeking to protect our freedoms. 6
One relevant safeguard that it does contain for present purposes relates to the separation of powers as between the Legislature, Executive and the Judiciary. The purpose of this doctrine is to ensure that no one of the three institutional pillars of government has absolute power and that each branch will provide a check and balance on the other. One way of ensuring this is to provide for a non-elected judiciary, who will not be swayed by the need to pander to popular opinion as the legislative branch may well do and is doing, in relation to this legislation. It is interesting to note that the fact that the judiciary is non-elected is now used in a pejorative sense, but it is really fundamental to the working of our system and makes it much more difficult for the Executive and the Legislature to manipulate it than would otherwise be the case.
The separation of powers doctrine is not widely understood by the public or by some commentators, as is apparent from a recent article by Janet Albrechtson in The Australian newspaper.7
It is also not a concept widely understood by Australia’s political leaders from the Prime Minister down. We have recently had the spectacle of all of them, including the Labor leaders of the six States and two Territories agreeing to some of the most draconian legislation ever passed by an Australian Parliament without considering the possibility that it might be unconstitutional. This came very much as an afterthought subsequent to the making of the agreement and only because one of them, Jon Stanhope the Chief Minister of the A.C.T., had the courage and political decency to let us - the public - into the secret of the enormity of what was proposed. In the case of the Prime Minister what is even more troublesome is that he apparently did have advice to this effect from Mr Henry Burmester QC that he chose to ignore and not to disclose to the public or to the Premiers and Chief Ministers.
We have since had the spectacle of all of them seeking legal advice, apparently (except in the case of the Prime Minister) for the first time and making rapid changes in the hope of avoiding a constitutional challenge. As you would be aware, the High Court of Australia is the final arbiter of the constitutionality or otherwise of legislation. It is not empowered to give advisory opinions and thus a ruling could only come in a proper case on enacted legislation that is brought before it.
In circumstances such as this is it is worthy of note that what is proposed is a papering over to meet what are seen as technical difficulties, not an attempt to address the principles embodied in the doctrine of separation of powers. Again with the honourable exception of Jon Stanhope, they have framed their somewhat anaemic disputes with the Federal Government in terms of what are almost irrelevant concepts relating to ‘shoot to kill’ and their issues do not appear to be principled but rather pay lip service to the adopting of an independent position without really doing so.
We can therefore expect the proposed judicial review to be the minimum thought possible to satisfy constitutional requirements. Indeed Jon Stanhope, who unlike most of us had then seen the new draft legislation, said on Wednesday that he considers it still to be at risk of constitutional challenge.8 That would also appear to be the position of a former long serving Solicitor General, Dr Gavan Griffith QC, who said recently in an ABC interview:
“I regard it as very questionable for judges and courts to be involved at all in any aspect with respect to these warrants and detention orders. They're essentially just providing an administrative practice for administrative detention. And there's no obvious role for the judiciary to come to give a, as it were, a cloak of legitimacy to matter which essentially are not judicial.”9
The 30 October legal advice provided to the A.C.T Chief Minister by Lex Lasry QC and barrister Kate Eastman warned that: “Continued preventative detention orders may be made by a wider range of persons: clause 105.2. It is not apparent that a wide range of persons who may make the orders
will serve to protect human rights. Some of these persons may be not be subject to judicial review as officers of the Commonwealth for the purpose of section 39B(1) of the Judiciary Act 1903 (Cth)”.10
Having had the opportunity to very quickly read the legislation, I agree with those views. It is true that the Prime Minister has agreed to a ‘merit review’ of preventative detention orders (whatever that may mean), within the 48 hour period of their application, but that has serious deficiencies..
Similarly with control orders, it appears that the initial order will still be made without notice but will be an interim order, with a final order being made as part of some sort of judicial process. The problem still remains that no crime will have been committed and there is no indication as to how far and to what extent can the subject of such an order test it before a court or exercise rights of appeal.
A final feature of the doctrine of the separation of powers that I would highlight is that the use of a corresponding State, Territory and Commonwealth legislative framework for the anti-terrorism laws introduces a particular uncertainty. Even if the Commonwealth legislation proves to be unconstitutional, that may not apply to the State legislation. Complex issues would arise involving consideration of what courts have been asked to do, and fundamental concepts such as “integrity”.11
Justice and Law
What then of justice and its relationship to the law? It is my primary contention that in introducing this legislation the Government has abandoned justice as an object of its laws and has thus rendered them intrinsically bad.
The interrelation of justice and the law is a concept that has bedeviled philosophers and scholars since the times of Socrates and Aristotle. What I think can be said is that one of the objects of law must be the achievement of justice. It may have other objects but if justice is not one of them then it is likely to be bad law. A useful discussion of the problem for present purposes is contained in Paton on Jurisprudence as follows:
“….we must distinguish clearly between justice and law, for each is a different conception. Law is that which is actually in force, whether it be evil or good. Justice is an ideal founded in the moral nature of man. The conception of justice may develop as man’s understanding develops, but justice is not limited by what happens in the actual world of fact. It is wrong, however, to regard law and justice as entirely unrelated. Justice acts within the law as well as providing an external test by which the law may be judged, e.g. justice emphasizes good faith, and this conception has greatly influenced the development of legal systems”12
Justice is a concept that we instinctively understand but sometimes find difficult to identify in words. It is not capable of a fixed definition because what is regarded as justice will vary from time to time and from community to community. It has been defined as the quality of being just or fair13 and thus as being synonymous with fairness. However I think that this is to gravely understate the power of the concept of justice. I was interested in this regard in a view expressed not by a lawyer but by a philosopher, Professor Raymond Gaita when he wrote:
“Acknowledgment of someone as fully human is an act of justice of a different kind from those acts of justice which are rightly described as forms of fairness. Fairness is at issue only when the fully human status of those who are protesting their unfair treatment is not disputed. When they centre on the distribution of goods or access to opportunities and such things, concerns about equity presuppose a more fundamental level of equality of respect. If you are taken as fully ‘one of us’, then your protestation that equity demands that you receive higher wages or be granted better promotion
prospects, for example, is probably an appeal to justice as fairness. If, however, you are regarded as sub-human, then it would be ludicrous for you to even consider pressing such claims, unless as a device to dramatise the radically different kind of equality that is really at issue.”14
Gaita was there speaking about Indigenous people in the context of the High Court of Australia’s decision in Mabo v Queensland,15 which recognised that there was a law prior to white settlement and discarded the odious doctrine of terra nullius.
I think that similarly with these laws, they proceed upon a basis that those suspected of terrorism are regarded as sub-human and therefore having no entitlement to justice. Quite obviously, as government and media thinking goes, no-one has much sympathy for terrorists, particularly if they are probably Islamic and therefore alien to popular culture. However we tread a very dangerous path when we take this approach, as the real test of a free society is how it treats its minorities.
It is of course clear that justice and law are not synonymous. Law can be extremely unfair and unjust, either intrinsically because it is a bad law, or because it has unexpected ill effects in certain circumstances and/or in its application by the Executive and/or by the courts. What we are discussing today is a very good example of very bad law and one of the reasons why this is so is because these laws have no relationship with justice but rather with a perceived fear of the unknown that has been used to frighten the populace into thinking that they are necessary. The article by Janet Albrechtson to which I have referred, speaks of a level of hysteria amongst those, like me, who are critical of the laws. I think an examination of the same issue of the Australian would give a clearer picture of the source of any hysteria in this debate e.g. ‘ASIO fears terror cells among us’; ‘Terror threat identified, says PM’.16
In such circumstances, the fact that the laws are unnecessary, or that it has not been demonstrated that they are necessary, seems to have been completely ignored by their proponents. Hugh White in a recent article in the Melbourne newspaper The Age put this into perspective very well when he argued that no convincing material has been advanced as to the necessity for these laws.17 We are expected to trust undisclosed security briefings delivered to a select few. Trust becomes extremely difficult following the Tampa, the Siev X, the ‘children overboard’, and the ‘weapons of mass destruction’.
The achievement of justice and fairness once occupied a primary position in our society. I liked to believe that they were part of the Australian ethos and that they applied universally. Unfortunately that is no longer the case.
The Role of the Courts
I turn now to the courts. Once again it is important to emphasise the lack of a human rights context in this regard. Without laws to protect human rights the role of the courts is a very difficult one and our traditional belief in the role of the courts as guardians of our rights is greatly hampered by this fact. To this must be added what has been a fairly obvious attempt to change the balance of power in the High Court by the Howard Government, an approach which is now seen to have legitimacy in conservative circles as recent events in the United States have shown.
In a speech that I delivered in Hobart this year on this and related subjects I said:18 “Justice is indeed in a sorry state in this country when that court, albeit by a narrow majority, held in Al-Kateb’s case19 that it was constitutionally open to the legislature to authorise the executive to hold people in detention indefinitely. The approach adopted by the majority in that case was that of legal technicians, rather than independent judges.
The judgment of the Chief Justice, Murray Gleeson bears reading in that case. Hardly a social radical, it proved too much for him to stomach that an Act of Federal Parliament should be read so as to authorise the indefinite detention of anyone unless it was expressed in the clearest terms. He said:
Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".20
Unfortunately, four of his colleagues took a different view.”
I was there referring to a 2004 decision of the High Court of Australia where a majority of the court held to be constitutional certain provisions of the Migration Act that permitted the indefinite detention of asylum seekers. I concluded from this that in the absence of a Bill of Rights there was no reason to suppose that the High Court would necessarily strike down equally abhorrent legislative provisions directed at Australian citizens.
That view has since been strengthened by Justice Michael McHugh, a judge who formed one of the majority in that case and who has said in a speech at Sydney University: “There is one area of law that provides fertile ground for the legal agitator to sow the
seeds of legal discontent. It is the continuing failure of this country to have a Bill of Rights. Without a Bill of Rights or a constitutional Convention on Human Rights, the High Court of Australia is not empowered to be as active as the Supreme Court of the United States or the House of Lords in the defence of the fundamental process of human rights. That a judge may be called upon to reach legal conclusions that are applied with ‘tragic’ consequences was brought home by the High Court’s decision of Al-Kateb v Goodwin. There a majority of Justices - who included myself - held that the investing of judicial power in courts exercising federal jurisdiction did not prohibit the Parliament from legislating to require that “unlawful non-citizens” be detained until they can be deported. Al-Khateb highlights that, without a Bill of Rights, the need for the informed and impassioned to agitate the Parliament for legislative reform is heightened.” 21
The Role of the Executive
The record of the Executive in administering similar legislation to the anti-terrorism legislation is not a good one. The problem about this sort of legislation is that it is likely to lead to a situation where Government and its agencies will use it for other and improper purposes, including its own political ends. Alternatively, those responsible for its administration will bungle its use in such a way that it will have the effect of blighting people’s lives in the same way as the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has done in respect of many of the asylum seekers under its charge.
If an example of the first type of improper usage is needed, it can be found in the Government’s usage of the existing ASIO legislation to suppress dissent. There are signs that this may already have happened in one case.
On 23 June 2005, SBS television screened the program Truth Lies and Intelligence produced by Carmel Travers. The subject matter of the program largely related to
the truth of statements made by President Bush and Prime Ministers Blair and Howard in 2003 justifying the attack upon Iraq upon the basis that Iraq possessed weapons of mass destruction. The program featured interviews with Andrew Wilkie, a former senior intelligence officer with the Office of National Assessments in Canberra.
A chilling fact that emerged was not so much the contents of the program itself, but rather that in the course of making it the producer received a visit from persons purporting to be from the Attorney-General’s Department. These persons demanded access to her computer and apparently destroyed its hard drive. When she attempted to film them doing so, they threatened to charge her with an offence carrying a penalty of 7 years’ imprisonment. Apparently they were seeking information about her communications with Mr Wilkie.
Apart from a brief article in the Sydney Morning Herald on 18 September 200422 and SBS, which also featured the matter on Dateline on 22 June 2005, the only other mainstream media mention of this affair that I have been able to discover appeared in The Age Green Guide, of all places. It emerged from The Sydney Morning Herald article and the Dateline programme that similar actions had taken place in respect of others with whom Mr Wilkie had been in contact, including the well-known commentator, Professor Robert Manne23.
One would have thought that such behaviour would have been the subject of media headlines in normal circumstances. This suggests that the media at least, has become inured to governmental attacks upon our liberties, or to take a more sinister view, that it or parts of it are engaging in self censorship. Another possibility is that it was cowed into silence by the relevant provisions of the legislation to which I have referred. It is apparent from the transcript of the Dateline programme that participants were careful to take legal advice as to what they could or could not say.
For an example of the second type of problem, namely the maladministration of legislative power, we need look no further than DIMIA and the findings that have been made about it in two separate independent reports, albeit with very limited terms of reference. This is an example of what can occur when powers are exercised largely in secret and directed against minorities. The failure of the two relevant ministers, Ruddock and Vanstone, to accept any responsibility whatever for what went wrong is a breathtaking departure from long-held understanding of ministerial accountability in a Westminster style parliamentary democracy.
The powers under ASIO and related legislation are all exercised in secret and the responsible minister is none other than Mr Ruddock. In the unlikely event that any evidence of maladministration emerges, given the secrecy provisions of the
legislation, Mr Ruddock and the Prime Minister will no doubt wash their collective hands of the matter and blame some junior ASIO operative, or the culture of the Department.
The Role of the Legislature
What then of the Legislature? The seeds of the present problem lie in the Government’s newly won control of the two houses of Parliament. Much of the responsibility for this lies with the disastrously ineffective Opposition that we have experienced in this country since 2001. Following 9/11, large sections of the Opposition seems to have lost their collective heads and allowed this country to be manipulated by the Howard led Government, ably assisted by the Murdoch controlled media into a state of fear.
In a speech that I gave recently24 I said: “We have since experienced a complete failure of political leadership on both sides of politics that has led to a lemming-like rush by the two major political parties to outdo each other in proposing more and more extreme legislation directed at combating a threat of terrorism in this country.
We have also experienced a further tragic bombing incident in Indonesia which has cost Australian lives and which has already been relied upon as providing further evidence of the need for the sort of draconian legislation that is contemplated.
It should be remembered that we already have security legislation which many people, me included, regard as objectionable. However the attacks in London or Bali will be more than sufficient to justify the desire of governments to introduce additional powers in the name of security. And again in the name of security, in circumstances which are reminiscent of the works of Joseph Heller and George Orwell, the public is prevented from knowing the evidentiary basis which justifies such powers. This is the case with new legislation and also, as U.S. activist Scott Parkin discovered, where the powers are applied to an individual”.25
I later continued: “It would appear that our “leaders” have thus managed to undo liberties that have stood the test of time in our community for hundreds of years, all in the name of combating this threat of terrorism. Of course, entwined with concern for the public interest was political self-interest in avoiding the accusation that any of them are seen as “soft on terror”, particularly if there is a future tragedy within our borders which
enables conservatives to begin a blame-game directed at leaders who wouldn’t adopt the full precautionary package due to qualms about civil liberties.26
The secret status of the intelligence material that secured unanimity with the Federal Government has conveniently ensured that leaders of State and Territory Governments and the Leader of the Opposition can acquiesce with impunity since there can be no informed public debate and thus criticism of them concerning the proportionality or rationality of the security response as measured against threat evidence that is kept under wraps.
It’s a win-win situation all round politically. If Australia escapes a domestic attack, it can be said that ipso facto the civil liberties sacrifices were warranted. If an attack does occur, and no doubt it was this possibility that was of greatest political concern, the stage has been set for there being no weak link in the leadership chain to attract recriminations.
We can expect to see more of this tidy secrecy-based formula in the future and further instances of leaders failing or refusing to heed the warning which issued from within the Federal Government’s ranks by Petro Georgiou; that:
“in the course of defending the democratic values which terrorism attacks, we do not inadvertently betray them”. 27
I thought at the time that this said it all, but current developments are even worse, as those following the media in recent days would have observed. The Government has stepped up its fear campaign and the Opposition and Premiers have spinelessly not only caved in, but have engaged in the exercise of cheering from the sidelines. How convenient it is that on Wednesday, the Prime Minister announced he had “received specific intelligence and police information this week which gives cause for serious concern about a potential terrorist threat”,28 making the introduction of a single word amendment to existing legislation so urgent on the day it was introducing its radical new legal framework for workplace relations.
Some, such as Independent House of Representatives Member Mr. Peter Andren, expressed suspicions about the Commonwealth Government’s timing, suggesting political tactics intended to fracture attention to politically volatile bills, and ramping up public anxiety. 29
Media reporting of this breaking news lived-up to such suspicions by incorrectly injecting terms such as “real” and “immediate” to describe the Government’s new security intelligence, 30 SBS TV Chief Political Correspondent Karen Middleton,31 was the first commentator as far as I know, to direct scrutiny to the choice and sequence of the actual words used by the Prime Minister on 2 November (with
footage showing his visible careful reference to a text); namely, that the threat while based on specific intelligence and information remains “potential”.32
I regard the role of the Opposition as even more worrying than the role of the Government. It would appear that a more critical role is being played by the Government’s own backbench and the Fairfax press than by the Opposition. Even worse is the behaviour of the States and Territories who have delivered a trump card to the Government that may even be sufficient to overcome the fragile protection that the Constitution offers. In an earlier speech I quoted from the remarks of Denise Allen, a former ALP State member for Benalla in which she said:
“The Labor Party I know would have fought tooth and nail against Australians' involvement in Iraq without UN sanctions. They would have protected Australia from terrorism by simply not being party to an illegal war. Their voices would have been loud and would have clearly defined what they stood for. The Labor Party I know would have countered Howard's fear agenda with one of peace.
This climate of fear is Howard's creation and instead of counteracting it with an alternative, forceful, intelligent debate, the Labor Party blindly accepts it and helps promote it”. 33
Alas, that sort of Labor Party seems to be a distant memory.
I am not reassured, nor am I relaxed and comfortable with the assessment of his Government’s approach that the Prime Minister offered at the press conference that followed the 28 September Council of Australian Governments’ meeting. He there said:
“can I say in defence of the Commonwealth, we were never trying to pull swifties on judicial safeguards. I mean, we do believe very devoutly in the rule of law...” 34
It is against this sort of populism demonstrated by the Government and supported by the Opposition and the Premiers that the other checks and balances were designed to operate. I think that I have demonstrated that they have failed and that we are definitely entering what senior journalist Geoffrey Barker has described as “the twilight of democracy in Australia”35
The Role of the Judiciary
I now want to turn to the role of the judges and federal magistrates who are expected to participate in this legislation. They are put in an invidious position.
In my view such participation would be the antithesis of a proper judicial role. The apparent intention is to provide some check upon the Executive, but I regard it as an illusory check. The judges of the Federal and Family Courts largely formed the view that they would have no further part in the issue of warrants under listening device legislation for the same reason, that the role was not a judicial one. What occurred was that representatives of the police and usually a policeman would attend upon the judge in private and place an affidavit before him/her setting out why such an order should be made. The judge would peruse the affidavit, but would have no way of testing the accuracy of its content and would usually proceed to make an order.
A judicial proceeding involves a fair trial before an impartial and skilled judge at which both parties have an opportunity to be represented by competent counsel and be heard. In a criminal case the issues before the court are formulated by the laying of specific charges against the defendant by the prosecution, access by both parties to all relevant material and the opportunity to test evidence by cross examination and to give evidence in rebuttal. The charges against the accused person must be proved by the prosecution beyond reasonable doubt. There is an automatic right of appeal to a higher court and further rights of appeal.
None of these rights would appear to be contemplated by this legislation and of course there is no offence alleged. The standard of proof is not the criminal standard but only upon the balance of probabilities and access to a lawyer is limited and the communications between lawyer and client are likely to be monitored. Yet at the same time, the consequences to the person concerned may be equivalent to or worse than to a criminal defendant.
If judges are to be involved in the administration of this legislation, it faces real constitutional difficulties and if they are not, it will be revealed for what it is, namely the greatest attack upon individual liberties and freedom ever perpetrated by an Australian Government.
As Justice Michael Kirby has graphically pointed out: “The real test comes when judges are led by their understanding of the law, the findings on the facts and the pull of conscience to a decision which is contrary to what the other branches of government or other powerful interests in society want. Something different from what “the home crowd” wants. That is when judicial independence is put to the test”.36
The Bill appears to me to raise a real prospect that a judge or other judicial officer will refuse to sit to hear applications under it. The drafters must have had something like this in mind in relation to the original draft when they provided that applications for a control order could be made to a judge in his/her personal capacity.
The problem about this is that if a judge is not sitting in a judicial capacity then he/she is not sitting as a judge at all and the proposal for so-called judicial review is illusory. Also, it may well be that the performance of such a role is incompatible with his/her role as a judge.37 Further, there is the risk that the judges who would volunteer to carry out this work will not be or will not be perceived by the community to be representative of the judiciary as a whole. This invites concerns about bias and the erosion of public confidence.
Another concept that has been introduced is the use of retired judges. Again this is an illusion of judicial involvement. Retired judges are just that and since they would have to be volunteers, it is likely that they would be unrepresentative of even the retired judiciary and attract the same concerns I have raised in respect of serving judges. I for one would not have any part of such a process and I have no doubt that many others would feel the same way.
In relation to detention orders the Bill now provides for a list of people including Federal judges, State and Territory judges and retired judges and others whom the Attorney General may appoint with their consent. In my view this does nothing to cure the problem and may if anything exacerbate it.
On the other hand in relation to control orders jurisdiction is given to a court, including the Federal and Family Courts and the Federal Magistrates Court. It is thus not a matter of judges acting as volunteers and cases are presumably simply assigned to judges or judicial officers in the usual fashion. What would then be the situation if a judge or magistrate refused to hear such a matter on the basis that the legislation under which the application was made was unlawful? Presumably the Attorney General would seek a prerogative writ such as mandamus requiring the judge to hear the application. That then would eventually go to the High Court but in the meantime, what would be the position of this so called urgent legislation? What also would be the implications for the independence of the judiciary?
I very much doubt that the proponents of the legislation have properly thought this through and the haste that has accompanied it makes this very likely.
I also want to draw attention to an aspect of the legislation that has attracted very little comment, although I notice that it was touched upon in advice to the A.C.T. Government. That is the effect of the new measures upon children.
It impacts upon children in two ways; first directly if they are between 16 and 18 years of age and therefore liable to have some of the laws applied to them; and secondly indirectly if their parent or parents are placed under a control order or detained. In this regard it would appear that Australia is once again acting in breach of the 1989 UN Convention on the Rights of the Child, as it has done consistently with the children of asylum seekers. However this time it extends to our own citizens.38
I will first consider the direct effects upon children between 16 and 18. It should be remembered that they are children within the meaning of the Convention.
There is some very limited protection afforded in that control orders are limited to a period of a maximum of 3 rather than 12 months (however there is nothing to prevent successive orders). In the case of detention orders they are entitled to monitored contact with a parent or other suitable person for a maximum of 2 hours per day. Fingerprints can be taken but other identification samples can only be taken if ordered by a Federal Magistrate, or with parental consent and the consent of the child.39 There are no provisions as to where children will be held or whether they will be held with adult offenders, which itself would breach human rights provisions. Remarkably, it was only as a result of late changes to the draft that it provided for both parents of a detained child may visit the child and that it will not be an offence for one parent to disclose to another parent that the child is being detained.40
However, none of this goes even close to compliance with the UN Convention on the Rights of the Child.
The relevant portion of Article 37 provides: “b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be
separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”
The anti-terrorism legislation by its very nature provides for the arbitrary arrest and detention of the child and severely restricts his/her access to legal assistance and representation as well as severely restricting the right to challenge the legality of the deprivation of liberty. The principle of confinement as a last resort for the minimum necessary period contained in paragraph 37(b) is a critical distinguishing feature of children’s liberty rights. Consistent with the Commonwealth Government’s history of indifference to domestic mandatory sentencing laws which also breach the principle, there is no recognition or reflection of the principle within the Bill.41
Looking to the relevant parts of Article 40 of the UN Convention on the Rights of the Child provides finds as follows: “1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with
the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in
particular, taking into account his or her age or situation, his or her parents or legal guardians;”
It is interesting that this Article relates to infringement of the penal laws but it clearly does so upon the basis that no civilised State would consider detaining a child upon the basis of legislation of this sort, which apart from other infringements, abandons the principle that persons must be regarded as innocent unless proved guilty.
In my view it will be a matter of enduring shame that Australia has so ignored the rights of children along with so many other rights ignored by this appalling piece of legislation.
I now turn to the position of children in respect of whom their parents or siblings are affected by control and detention orders. These are children whose parents have committed no crime, but who, in the view of a secret policeman, may be intending to do so. At one stroke they can be deprived of the company and nurture of their parents and not only that but their father or mother or both may be prevented from earning a livelihood and supporting them. They in turn may be prevented from contact with their parents, brothers or sisters and they have no right to make any complaint public.
The relevant portions of Article 9 of the UN Convention on the Rights of the Child provide that: “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”
Article 12 provides: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
The legislation is in blatant breach of these articles, both in respect of children directly affected by the legislation and others.
I have pondered in my mind why our leaders have embarked upon this dangerous and destructive course. In the case of the Prime Minister he has obviously been influenced by the disastrous policies of his apparent mentor, George W. Bush. At the very time when these policies are starting to unravel, he remains a steadfast supporter.
In this regard he brings to mind another disastrous Liberal leader, William McMahon and his predecessors, who involved this country in an equally disastrous war in Vietnam for largely similar reasons. A particular and dangerous aspect of his personality is his very ordinariness. I have no doubt that he is a perfectly decent individual and he comes across that way. It is hard to believe that when he says something he does not have the best interests of citizens at the forefront of his thinking. Unfortunately his record belies this and his judgment is and has been proved to be faulty. At the same time the Opposition leadership is so spooked and lacking in courage that it is not prepared to challenge him.
The big difference now is the stand of the Opposition, which in relation to the Vietnam War maintained a firm opposition to the war in the face of bad opinion polls and some unsuccessful election results, but was eventually vindicated with the election of the Whitlam Government. This time it has chosen to roll over.
It is apparent that neither side has learned the lessons of history. That is not just a shame, but a terrifying prospect for the future.
What does not seem to have occurred to the proponents of this type of legislation is that the very climate of fear and concern that produces it and which they have assiduously promoted is just what the terrorists want. The enactment of legislation which strikes at our liberties like this confirms to them that for all our talk of freedom and democracy we are no better than them and that the methods that they use thereby gain a measure of legitimacy that it would not otherwise have had.
I think that it should be remembered that this is not a war that confronts us, despite the misnomer of the ‘War on Terror’, but rather the activities of dangerous criminal gangs. These people should be characterised as criminals rather than terrorists, which title gives them a certain cachet and dignity that they do not
I believe that to characterise them as criminals draws a much sharper distinction between them and members of the community or religious persuasion from which they largely come. It also puts into perspective my concern that the activities of a
group of such criminals has panicked us into the taking of extreme measures that are more dangerous to our liberties than the threat posed by the criminals themselves.
1 Human Rights News (Human Rights Watch) New York, 13 October 2005. 2 The Bill and the associated Explanatory Memorandum can be accessed at http://parlinfoweb.aph.gov.au/piweb/browse.aspx?NodeID=24. 3
Paragraph 27 of the 27 October 2005 advice of Lex Lasry QC and Barrister Kate Eastman to the A.C.T. Chief Minister, accessed at http://www.chiefminister.act.gov.au/docs/lasry-eastman_advice.pdf reminds that “all measures directed at protecting citizens against terrorism and counter-terrorist measures ‘must be in conformity with international human rights, humanitarian and refugee law.’” 4
Wanda Fish When Terrorism Outlaws Democracy October 2005 accessed at http://www.eftel.com/~cleverfish/ 5 David Neal, ‘Anti Terrorism Bill ignore the basics of due process’, The Australian 28 October 2005 accessed at http://www.theaustralian.news.com.au/common/story_page/0,5744,17059824%255E601,00.html . See also Justice Kevin Bell, ‘Comments on the address “Contemplating Justice: The Law as a Tool of Justice and Human Rights”’ accessed at http://www.reprieve.org.au/Justice_Bell_Comments_on_Nicholson_2005_AGM_Speech.pdf 6
Alastair Nicholson Reflections on Social Justice - Australian Democracy, Law and Justice. What has happened to the checks and balances? (Anglicare Tasmania Inc 2005) accessed at www.anglicare-tas.org.au. See particularly Hilary Charlesworth ‘The High Court and Human Rights’, The Centenary Conference of the High Court of Australia Canberra 2003 (to be published) 7
Janet Albrechtson, This level of hysteria suggests anti-terrorism laws are sound, The Australian 2 November 2005, accessed at http://www.theaustralian.news.com.au/common/story_page/0,5744,17109852%255E32522,00.html 8
Media Release ‘Latest draft deeply, perhaps fatally flawed’, I November 2005, accessed at http://www.chiefminister.act.gov.au/media.asp?media=774&id=774§ion=24&title=Jon%20Stanhope,%20MLA 9 31 October 2005, accessed at http://www.abc.net.au/pm/content/2005/s1494744.htm 10
Updated advice of Lex Lasry QC and Barrister Kate Eastman 30 October 2005, accessed at http://www.chiefminister.act.gov.au/media.asp?media=770&id=770§ion=24&title=Jon%20Stanhope,%20MLA 11 Kirk McKenzie (Abolishing)Law and Liberty (New Matilda .com) 26 October 2005.
“The problem is that the Constitution's Chapter III may only prevent the Federal Parliament, not the State Parliaments from passing such legislation. The State Parliaments' only relevant limit has been expressed as follows: If a State legislates to give a State Court powers not allowed to Federal Courts and the State Court is, under Federal legislation, vested with jurisdiction in some Federal matters (for example State Courts are commonly given power to try Federal crimes) the State Parliament could not confer those powers if they would have the effect of compromising the integrity of the Court and thereby infecting the Federal judicial system with the same disease. In other words, as McHugh said in Kable v DPP in 1996, the powers conferred cannot be of a nature that might lead an ordinary, reasonable member of the public to conclude that the State Court was not independent of the executive government of the State. An example is the Kable decision itself. In that case the NSW Parliament passed an Act applying to just one person, Mr Kable said to be a very dangerous prisoner likely to kill if released at the end of his sentence. The Act's provisions were directed towards detaining him in custody at the end of that sentence. The High Court said that because it applied to one person only and its provisions required the NSW Supreme Court to rubber stamp his continued preventative detention, the Court was being used as a tool to achieve a political objective. It declared the legislation invalid. This principle was narrowed in Fardon's case [(2004) 210 ALR 50] where the facts were similar to Kable except the Act there was of general application to convicted offenders and the Supreme Court was given a wide discretion to make an order or not. The High Court (only Kirby dissenting) said the Act was valid.” 12
George W. Paton A Textbook of Jurisprudence, Oxford University Press (2nd ed. 1951) at 70 13 die.net http://dict.die.net/justice, 14
Raymond Gaita. A Common Humanity, Thinking about Love and Truth and Justice Text Publishing, Melbourne (1999) 15
Mabo v Queensland No 2  HCA 23;(1992) 175 CLR 1 16 The Australian newspaper, 2 November 2005, accessed at http://theaustralian.news.com.au/ 17
Hugh White, ‘Without answers, terror laws should be rejected’, The Age 31 October 2005, accessed at http://www.theage.com.au/news/hugh-white/without-answers-terror-laws-should-be-rejected/2005/10/30/1130607148563.html 18
Alastair Nicholson Reflections on Social Justice - Australian Democracy, Law and Justice. What has happened to the checks and balances? (Anglicare Tasmania Inc 2005) accessed at www.anglicare-tas.org.au 19 Ibid Al-Kateb v Godwin [ HCA 37; (2004) 208 ALR 124] 20
Ibid Al-Kateb v Godwin at Para 19 per Gleeson CJ 21 Justice Michael McHugh The Need for Agitators - the Risk of Stagnation; Sydney University Law Society Public Forum, Sydney 12 October 2005, accessed at http://www.hcourt.gov.au/speeches/mchughj/mchughj_12oct05.pdf 22
accessed at http://www.smh.com.au/news/Anti-Terror-Watch/Big-Brother-sends-in-hit-squads-to-clean-up-security-threat/2004/09/17/1095394005626.html 23
accessed at http://news.sbs.com.au/dateline/index.php?page=transcript&dte=2005-06-22&headlineid=981 24 Alastair Nicholson Contemplating Justice -The Law as a Tool of Justice and Human Rights, accessed at http://www.reprieve.org.au/Prof_Alastair_Nicholson_2005_AGM_Speech-Contemplating_Justice.pdf 25
“The authorities may indeed have sound reasons for deeming Mr Parkin a security risk, but we can't know for sure because they won't tell us. Mr Parkin is appealing to the Migration Review Tribunal over his proposed deportation - but Mr Ruddock could apply for a certificate to prevent the hearing. There is a distinctly Orwellian logic at work here: the Government justifies a decision to curtail an individual's liberty by invoking national security and then refuses to provide evidence because national security allegedly is at stake. There's nothing new about governments hiding behind the cloak of national security, but this Government is now proposing that it be allowed to do so more often.”: ‘Arrest sets off alarm bells on security powers’ The Age, editorial, 14 September 2005.” 26
“No government wants to appear soft on terrorism and any such perception would be punished severely by voters if there were a terrorist attack in Australia. This also explains why Labor - a party traditionally defensive of such civil liberties - has been reluctant to challenge the Government's proposed anti-terror laws. So the political path is set and it is highly unlikely that state and territory leaders will derail the Prime Minister's plans when they meet to discuss them in Canberra on September 27.” Cameron Stewart ‘Terror fact and fiction’ The Australian, 17 September 2005.
27 Quoted in The Age editorial of 24 September 2005 ‘Finding a balance between security and freedom’, accessed at 28 http://www.theage.com.au/news/national/pm-fasttracks-terror-laws/2005/11/02/1130823251260.html ; (emphasis added) ‘Howard warns of terror threat’ http://www9.sbs.com.au/theworldnews/region.php?id=124386®ion=7. Speaking on ABC TV Lateline 2 November 2005, the Attorney-General explained the amendment as associated with advice that under the current language, the terrorist act that you are looking at had to be specific as to where and when it might occur, rather than generic in being an act”, accessed at http://www.abc.net.au/lateline/content/2005/s1496513.htm 29
Such allegations were denied by the Prime Minister; ABC TV Lateline, 2 November 2005, accessed at http://www.abc.net.au/lateline/content/2005/s1496511.htm 30 See for example ABC News, Jim Middleton, 2 November2005, 7:00pm. 31
World New Australia, 2 November 2005, 6.30pm edition, live comment. 32 See also the speculation of security analysts Aldo Borgu, Clive Williams, and Allan Behm, including their opinions on why the “threat barometer” did not rise; ABC TV Lateline, 2 November 2005, accessed at http://www.abc.net.au/lateline/content/2005/s1496512.htm 33
Denise Allen, accessed at http://www.theage.com.au/news/opinion/why-i-just-had-to-resign-from-the-labor-party/2005/10/03/1128191653445.html 34
Transcript Of The Prime Minister The Hon John Howard MP COAG Joint Press Conference, Parliament House, Canberra, 28 September 2005, accessed at www.scoop.co.nz/stories/WO0509/S00544.htm 35 The Media Report 6 October 2005 ABC radio, accessed at http://www.abc.net.au/rn/talks/8.30/mediarpt/stories/s1475927.htm 36
The Hon Justice Michael Kirby, Independence of the Judiciary - Basic Principles, New Challenges; International Bar Association, Human Rights Institute, Hong Kong, 12 - 14 June 1998, accessed at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_abahk.htm 37
Grollo v Palmer (1995) 184 CLR 348. 38 As to the UN’s evaluation of Australia’s implementation of compliance with the Convention, see the materials, including the 2005 “Alternative” non-government report to the Committee on the Rights of the Child prepared by the National Children’s and Youth Law Centre and The Australian Section of Defence for Children International, accessed at http://www.dci-au.org/html/news.html 39
Clause 105.40 Anti-terrorism Bill draft accessed at http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf 40 Updated advice of Lex Lasry QC and Barrister Kate Eastman 30 October 2005, accessed at http://www.chiefminister.act.gov.au/media.asp?media=770&id=770§ion=24&title=Jon%20Stanhope,%20MLA 41
Lou Schetzer and Danny Sandor Submission to the Senate Legal and Constitutional References Committee Inquiry into MandatorySentencing (October 1999) accessed at http://www.dci-au.org/html/full_submission.html.