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Lateline

Tuesday 25 October 2005

Academics discuss legal issues surrounding draft anti-terrorism legislation

TONY JONES: Returning now to our top story - and the emerging conc erns that draft anti-terror legislation may be unconstitutional. Just a short time ago I spoke to Professor Don Rothwell, chair in International Law at the University of Sydney and director of the Sydney Centre for International and Global Law, and constitutional law expert Professor George Williams, who's currently in London to review the British anti-terror laws. In his most recent book 'The Case for an Australian Bill of Rights: Freedom in the War on Terror', Professor Williams argues that the threat of terrorism only increases the need for the protection of basic rights. Thanks to both of you for joining us.  

 

PROFESSOR DON ROTHWELL, CENTRE FOR INTERNATIONAL & GLOBAL LAW: You're welcome, Tony.  

 

PROFESSOR GEORGE WILLIAMS, CONSTITUTIONAL LAW EXPERT: Hello, Tony.  

 

TONY JONES: George Williams, first you. Can you explain the general proposition that's being made by the Queensland Solicitor-General that key elements of the proposed or the draft - anti-terror laws are unconstitutional?  

 

PROFESSOR GEORGE WILLIAMS: Well, the argument seems to be this: that the Australian Constitution provides for a separation of power between the different arms of government and in particular says that the judges and the judiciary must be kept separate from the other arms of government. The problem here may be that by giving special powers to judges, you're breaching that separation and calling their independence into question. It may well be that public confidence in their functions could be lessened. This is an area that the High Court has looked at extensively over the last decade. It really is a murky area of constitutional law, but it is an area that, if you don't get it right, it could be struck down by the High Court.  

 

TONY JONES: Alright. The Queensland Solicitor-General is saying, in this case, that nonjudicial powers effectively would be handed over to judges when they make control orders. Could you explain how that could be the case?  

 

PROFESSOR GEORGE WILLIAMS: Well, what judges might be asked to do is to make committee decisions about whether somebody should be subject to these extraordinary restrictions that wouldn't come about because they're guilty of an offence but because it's thought necessary, in a different sort of way, to prevent terrorism or because there might be suspicious activity. Normally judges aren't involved in those types of activities. Normally judges are involved in declaring guilt or innocence as part of a fair process or determining the law. To involve them in something that's more of an example of the state imposing new and different restrictions upon citizens could amount to something that goes outside of what they're allowed to do under the Constitution. And if it's outside, then the law would be invalid and it could well be sometime down the track - it might be a year or more that the High Court could intervene and strike it down. You wouldn't know now what the result is. You could merely predict now there could be a challenge.  

 

TONY JONES: Alright. There are counter arguments to that, aren't there? Judges, for example, are able to issue warrants which are somewhat similar to control orders, in their effect at least?  

 

PROFESSOR GEORGE WILLIAMS: That's right. I mean, certainly you can't say with any certainty what the outcome would be and there are High Court decisions that say that some functions like this can be conferred upon judges. A good example is that the High Court has held that judges can be asked to decide whether telephone tapping warrants should be given and judges are involved in that process in a way to give independence and respectability and some safeguards to the process. If the High Court thought that this was akin to telephone tapping warrants then in all likelihood it would be upheld. On the other hand, there are some cases that have gone the other way where, for example, where judges have been asked to undertake special functions or roles on behalf of the government that's been thought to prejudice their independence or call into question their impartiality. That's when the High Court has struck down those functions. If you like, then, there's a spectrum from one end to the other and it's hard to know where this will fit. All we can say at the moment is that there are real concerns.  

 

TONY JONES: Don Rothwell, what do you think about the argument that the independence of judges could somehow be tainted by exercising these kinds of powers?  

 

PROFESSOR DON ROTHWELL: Look, I think as George Williams said, the Constitution was fairly clear in that Chapter 3 of the Constitution says that the judges of the federal courts exercise the judicial power of the Commonwealth. If they're not exercising judicial power, then in what case are they exercising power in this instance? Are they exercising something akin to an executive power? And that's precisely the question that's at stake here. And as George Williams has said, while there are some grey areas and where there are some incidental aspects of judicial power which are considered to be quite legitimate, this is a completely new scenario that we haven't seen before in Australia and the fact that one Solicitor-General apparently in Queensland has raised this issue would suggest that there's sufficient constitutional doubt to cast some real concerns over the long-term legitimacy of this legislation.  

 

TONY JONES: I think the Queensland Solicitor-General is Walter Sofronoff QC. I mean, how much weight should we attach to opinions coming from State Solicitors-General?  

 

PROFESSOR DON ROTHWELL: Look, I think that what you can say is that State Solicitors-General are appointed because they're some of the most eminent barristers in the States or within the jurisdiction. State Solicitor-Generals are sometimes appointed directly to the most senior courts in our country - State Supreme Courts, State Federal Courts, even the High Court. So these are not opinions that one would trifle with. They are substantive opinions which would need to be taken quite seriously by the governments concerned.  

 

TONY JONES: Don Rothwell, we've obviously heard the Law Council making its complaints and concerns known. Do you get the sense that those concerns are spread from lawyers through to the judiciary?  

 

PROFESSOR DON ROTHWELL: Well, yes, I think that's quite clearly the case. We've had reports today of former High Court chief justices Sir Anthony Mason and Sir Gerard Brennan expressing concerns about this legislation, large numbers of academic lawyers expressing concerns about, admittedly, different aspects of this legislation. I think that there's now, really, a wide-spread concern amongst various members of the legal community about differing aspects of this legislative package.  

 

TONY JONES: George Williams I know you're out of town, in fact, looking at the way the British put together their anti-terror laws and the review process, but do you get the sense, even from a distance, that there is that concern in Australia?  

 

PROFESSOR GEORGE WILLIAMS: Well, it's very easy to track simply watching the debate in Australia and it's not surprising, because these were similar concerns to what were raised a couple of years ago when we had a very lengthy debate after September 11 on the terrorism laws at that time. The remarkable thing about that debate is it was very open, it went for a long period of time and very significant amendments were made to the legislation. The real fear I hold here is that we will rush through laws that may be even more significant in their impact but will do so without the amendments we need to make sure they are balanced and fair and it may even be that our long-term national security will be prejudiced because if the laws aren't got right, they could be struck down by the High Court and the whole system could unravel.  

 

TONY JONES: I'll come to that process in a little while in a little more detail, but the Commonwealth Solicitor-General clearly has a very different idea of what is and what isn't constitutional and, in fact, we may - and we haven't heard yet from the other States' Solicitors-General and we don't know where they stand at this point. Why do you get such major difference of opinion, though, between senior lawyers on issues like this? Does politics play into this?  

 

PROFESSOR GEORGE WILLIAMS: I think it's less politics and more that there is legitimate room for disagreement. It's also an example that this is an area of the law where people disagree. Often you can ask two lawyers in this area and often you'll get three opinions. That illustrates the central problem for the Government, that it really is breaking new ground for this type of proposal. It does go into a tricky and difficult area that raises questions of constitutionality. It needs to move slowly, I believe, and deliberately to make sure it gets the law right. If it doesn't do so, well, we simply won't know which of those opinions is right because, in the end, only one opinion matters, and that's the seven judges of the High Court. But what we can say at the moment is that a challenge could well be likely and unless due care is taken the Government may ultimately face a defeat.  

 

TONY JONES: Is there any way of judging at this point how a challenge would...how the present High Court would actually look at such a challenge?  

 

PROFESSOR GEORGE WILLIAMS: Um, yes, you can look to some recent cases on the High Court and you look to cases even over the last year, where they've dealt with matters such as the detention of asylum seekers and dealt with related issues about and just how far the executive government can go with detaining people without a fair trial. In one of if most important cases from last year, the High Court split four/three in empowering the Government to have people detained but, interestingly, Justice Michael McHugh was one of those four majority judges on finding on behalf of the Government. He's about to retire to be replaced by Justice Susan Crennan. Who knows how she will decide this case. It shows how finely balanced these are in the High Court and it also shows just these cases can turn on very small details in legislation, things that might be overlooked and things ultimately, though, that might shift one judge one way or the other and shift the whole result.  

 

TONY JONES: Don Rothwell, let's go to your main area of expertise. If the States or even some of them were to withdraw their support from these new laws, does the Government have the power to override their objections?  

 

PROFESSOR DON ROTHWELL: Look, I think they do, Tony, because there is now a raft of international conventions, UN Security Council resolutions dealing with terrorism. There's something like over 10 international conventions dealing with terrorism and Australia as a party to a good many of those. And as a result of the Commonwealth Government's external affairs power under Section 51.29 of the Constitution and a long history of fairly expanded interpretation give to that power by the High Court, most prominently in the Tasmanian dam case back in 1983, I think if the Commonwealth did have to go it alone here, did have to try to enact this legislation without the cooperation of the States, they could well and truly turn to look at those international conventions, those Security Council resolutions, to try to draft legislation which would effectively achieve much the same outcome with one possible exception, and that's the issue of judicial power that we've already canvassed earlier this evening.  

 

TONY JONES: On past history, how likely is it, do you think, that they would be prepared to make use of the external powers here?  

 

PROFESSOR DON ROTHWELL: Well, look, traditionally, conservative governments in Australia have been very cautious about making extensive of international law as a means of enacting legislation on our constitutional power dealing with external affairs, and conservative governments in the past have strongly criticised Labor Governments for their reliance upon that power. But, interestingly, this current government enacted very widespread environmental laws in Australia based on four international conventions when Senator Hill was the Minister for the Environment, and I think that that was quite an innovative use of the external affairs power and shows that when push comes to shove this government will clearly rely upon those conventions and those international law powers if it thinks it is politically necessary and expedient.  

 

TONY JONES: It's a bit of a double-edged sword for them, isn't it? I mean after all, Jon Stanhope, the ACT's Chief Minister has been arguing that in fact aspects of the draft laws would put Australia in breach of some of its international human rights obligations. So if you took the view you were to put everything into the international basket, you might be in trouble?  

 

PROFESSOR DON ROTHWELL: Well that's true, however I believe if the High Court was confronted with a constitutional challenge raised on exactly that point, the Court would say, "Well, is their power founded in an international treaty or a Security Council resolution?" And if they were content to find such a power, they wouldn't necessarily be concerned that there might be a conflicting international obligation found in a human rights treaty.  

 

TONY JONES: Alright. George Williams, do you think it's likely the Government would turn to the external affairs powers?  

 

PROFESSOR GEORGE WILLIAMS: Well, if the states decided they weren't going to support this initiative, they'd have to, they'd have to turn there or perhaps the defence power. But the problem with both of those powers, even given the width that Don talks about, is that ultimately they're subject to exactly the same limitations that we're talking about. And that is, you've got to comply with the separation of judicial power, you've also got to comply with issues like freedom of speech, to the extent it's protected from the Constitution. And indeed if the Commonwealth did decide it had to go it alone, what I think you'd find is they'd have to wind back some of their proposals, they couldn't have as lengthy a detention period and ultimately they'd still probably have to win in the High Court. Indeed, I think however they do it, it strikes me that if they're introducing this law on Melbourne Cup Day, that they'd really be taking a punt on what the High Court would do. And the thing that worries me is that the preparation and analysis that you'd normally have in a public debate on these laws hasn't been undertaken.  

 

TONY JONES: Alright, now you've been looking at the way that the British anti-terror laws operate and the process they have there of judicial review and the safe guards. How different is the process when you actually look at it happening?  

 

PROFESSOR GEORGE WILLIAMS: Well, in terms of the laws, if we start with that they're very similar. Indeed John Howard said that he wanted to follow the UK laws to bring about best practice in Australia of terrorism laws. But if you look at the UK debate, it is really starkly different. In here, we have a Human Rights Act that does provide basic protections for human rights, that gives you a backstop, if you like, against these type of laws. That makes it a fundamentally different legal debate here than in Australia. But just on the process itself, there are big differences as well. Tony Blair did push through a terrorism law earlier this year in the UK, but I think the experience they had with that was that it is necessary to have a longer debate. It's necessary to have a full and there's now...the law here is being looked at by quite a robust parliamentary committee. I attended that meeting a day or so ago here, and that committee asked all of the sorts of hard questions you'd expect to be asked of this law and you'd expect out of that, that the Blair Government will need to make changes to their terrorism law. What you find in Australia is the farcical situation where we have a committee with not enough time to do its job. And indeed, you may find that we started off by copying the UK law, but the UK law gets changed and we pass our law so quickly, we don't pick up the necessary changes they've recognised here.  

 

TONY JONES: What sort of judicial safeguards do you think should, in away match the British with their Human Rights Act, which we don't have here in Australia, what judicial safeguards could be put in place to sort of match that in Australia?  

 

PROFESSOR GEORGE WILLIAMS: Well if you want to have the protection they now have in the United Kingdom and indeed in any other democratic nation in the world, you firstly need some decent form of human rights protection. You actually need to set down in your law the basic liberties you are seeking to protect from terrorism. The danger is, if you only have laws that attacks terrorism, you don't end up actually protecting also the things you are trying to safeguard as part of the process. So you do need a human rights act, a bill of rights or whatever it might be called. That doesn't stop tough terrorism laws, but it does make sure they're properly balanced against our democratic liberties. The other more specific protections you want to look at in Australia are not just involving judges making decisions about control orders and other things, but ensuring that there's proper judicial review of the process, so that if a judge makes a mistake you can appeal or go to some other court to make sure that proper considerations are taken into account, that the process is fair, so that all adequate information is considered. Essentially, that with these quite dramatic restrictions upon liberty that can occur, there's a fair and open process that you'd expect to find when any type of liberty deprivation occurs like this in other contexts.  

 

TONY JONES: Don Rothwell, what do you think, what safeguards would you see would have to be set in place to set the minds of judiciary and Australian lawyers at ease?  

 

PROFESSOR DON ROTHWELL: Well I think the point that George Williams has just been making is a very good one, in the sense if there was, built into the current existing legislation - and that's setting aside the whole question of the need for a bill of rights - but if we were to work with the current existing Bill, there could well be mechanisms built in for judicial review, but judicial review in which there would be an attempt to balance the national interest, the community interest, in terms of national security, but also the individual interest - in terms of freedom, liberty, the exercise of civil and political rights. And that could be very much built within an existing human rights framework and I think that that would go quite some way to addressing a number of the concerns that have been raised by the legal community in Australia.  

 

TONY JONES: Alright. We are out of time. The debate is obviously going to continue for a short while at least, (laughs) before the laws are enacted. Anyway, hopefully we'll hear some more of that debate over the next week or so. Thank you very much to both of you, Don Rothwell, George Williams in London.  

 

PROFESSOR DON ROTHWELL: You're welcome, Tony.  

 

PROFESSOR GEORGE WILLIAMS: Thanks, Tony.