(Abolishing) Law and Liberty

On Cooper’s Hill, Surrey, England, is a memorial to the more than 20,000 members of the airforces of Commonwealth countries who died in World War II and for whom there are no known graves.

Cooper’s Hill overlooks a meadow on the south bank of the Thames as it meanders through the Surrey countryside. The memorial is where it is because of the meadow. It was there on 15 June 1215 that an English monarch placed his seal on a document. The place is Runnymede, the monarch, King John and the document was Magna Carta (Great Charter).

Magna Carta was a sort of Bill of Rights, the very first document to set out in detail the obligations of the monarch and the liberties of ‘all free men of the Kingdom’. In 1297, a version of the Charter became one of the early English Statutes. It remained in force at the time of European settlement of Australia and therefore became part of our law.

The Charter’s current significance is twofold. First, it is the prime historical precedent for the governing legal concept of our society “ the Rule of Law “ the idea that everyone lives subject to the law and that no one is above it. Its second significance arises from a passage within it. Translated from the Latin it reads:

No free man shall be seized or imprisoned or outlawed or exiled except by the lawful judgment of his peers or by the law of the land.

Thanks to Bill Leak

This passage, apart from being the oldest statutory law now applying in Australia, is the ultimate source of the rights to liberty and fair trial embodied in Article 5 of the American Constitution and in Articles 9 and 18 of the International Covenant on Civil and Political Rights. (See also sections 15 and 18 of New Matilda‘s Human Rights Bill.)

It is also partly reflected in Chapter III of the Australian Constitution, particularly in Section 80 which requires trial by jury for Federal indictable offences.

Chapter III of our Constitution deals with the ‘judicial power of the Commonwealth’ as against the legislative power in Chapter I and the executive power in Chapter II.

The drafters of our Constitution intended a separation of those powers “ in other words, a separation of the functions of the Parliament, the Executive (the Government) and the Judiciary. The aim was to ensure that no one arm had absolute power “ it was to be split between the three so that ‘checks and balances’ applied to each.

Chapter III provides for an independent Federal Judiciary with judges appointed to serve up to the age of 70 and removable only by a vote of both Houses of Parliament for proved misbehaviour.

This is all a preamble to a large and topical question. Can the Federal Parliament pass laws providing for preventative detention or control orders in the terms proposed in the draft Anti-Terrorism Bill 2005, as made available by Jon Stanhope on his web site last week?

First a quick review of those proposals. The draft Bill proposes that the police (ie part of the Executive) be able to detain people not charged with an offence but whom the police merely suspect of involvement in terrorist activities. After 24 hours detention, a judicial officer (acting in a private capacity) may continue the detention order for a further 24 hours.

As to control orders, these are Court orders applying to persons not charged with an offence but against whom a control order may ‘substantially assist’ in preventing a terrorist act. Control orders include confinement to specified premises for 12 months in some circumstances, indistinguishable from imprisonment.

In 1992 in the case of Lim v the Minister for Immigration, three Judges of the High Court (Justices Brennan, Deane and Dawson) in a joint decision said:

…the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

They also said the Constitution does

…not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth.

In other words, only a Court may detain anyone and only then persons charged with a crime. The police function is limited to arresting such people for the purpose of, and the time involved in, bringing them before the Court.

In the same case in a separate Judgment Justice McHugh quoted a USA Supreme Court decision as authority for the proposition that:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man shall be imprisoned save by the judgment of his peers…

So, why is the Government proposing these laws if they may be struck down by the High Court?

The above-mentioned judges have retired from the Court and the Howard Government has been attempting to stack it with malleable replacements. It may not have worked for several reasons. First, once you appoint High Court Judges, they are difficult to influence because they effectively cannot be removed. As the former Fraser Government Minister Reg Withers once complained, ‘Once you appoint them they think they got there on merit!’

Next there is the character and decisions of the seven Judges to consider. Two of them, Justices Bill Gummow (aka ‘the Penguin’ because of a resemblance when walking) and Michael Kirby have in October 2004 in the case of Fardon v A-G of Qld, emphatically supported the Lim case reasoning and may have gone one step further. Gummow (with whom Kirby agreed on this point) said that not only must the detention be by a Court and involve a criminal adjudication but it must also be an adjudication of past conduct. Howard’s proposals do not necessarily involve that past element. So far, two votes against.

In the Fardon case, Justice Ken Hayne agreed with Gummow’s general reasoning but reserved his opinion on the precise issue. However, he appeared to support the past conduct requirement. So, a likely three votes against.

Next, Chief Justice Murray Gleeson. ‘The Smiler’ (because he rarely does) is conservative but perhaps not with a capital C. He has not expressed a view on the point and could go either way.

What about Ian ‘Tubs’ Callinan? Tubs is a man of the world “ at home on the racecourse or in the Non-members Bar of the Queensland Parliament, a confidant of conservative politicians. He is seen as a right-winger and is a likely vote for the legislation.

Dyson Heydon is assumed like Tubs to be a capital ‘C’ conservative however, he is a complex character “ he was a brilliant student and a full Professor of Law at Sydney University at the age of 30. A shy man, he would regard politics as an activity for second-class minds but he may also go for validation.

Alright, let’s assume the Smiler, Tubs and ‘the Professor’ go the Government’s way. That leaves three-all, with one to go “ the newly appointed Susan Crennan. She was briefly a Federal Court Judge and a teacher, before taking up law. She was also a Federal Human Rights Commissioner and may just side with Gummow and company with that sort of background.

So 4-3 at least against preventative detention and control orders may be the result.

Unfortunately that is not the end of the matter. Howard has talked the Premiers into passing similar State legislation concerning at least the preventative detention orders under which State Courts will be asked to make detention orders for 2 weeks not 2 days.

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, who was 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 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.

The question is “ would the Court invalidate a State Act which allowed for preventative detention for 2 weeks or 12 months under a control order, of persons who have not been previously convicted and who are not currently charged?

There is no precedent for such extreme legislation relating to citizens. As for non-citizens, the Court last year in the Al-Kateb case allowed asylum-seekers to be detained indefinitely, but may apply a different approach to citizens. However, it would be pure guesswork to predict the result. Justice Kirby will denounce the proposals but as for the rest, who knows? In due course we will find out. That is, if our MPs let us down and pass this rubbish.

My thoughts go to the Australians among the 20,000 honoured on Cooper’s Hill. Most died young and horribly, far from home, fighting for the right to liberty secured at Runnymede, more than 700 years before. I doubt they would be pleased by the squalid spectacle of the surrender by Australian Parliaments, foolishly and shamefully, of that to which they gave the last full measure of their devotion.

Let us, you and I, try hard to put a stop to it.