Barbarians at the Gates (of Law)


The Howard Government is well known for ignoring human rights principles when it chooses. However, it has also ignored fundamental rights embedded in Australia’s Constitution and passed many laws of doubtful constitutional validity.

Take David Hicks. The starting point of any consideration of his legal position is that in 2001 he was a soldier fighting for the then Afghani Government.


As such, he should not be charged with any offence that arises from performance of the ordinary functions of a soldier, because of the principle of ‘combatant immunity’ for soldiers in wars, which exists for a very practical reason. If such immunity did not exist, at the end of World War II, millions of ordinary German and Japanese soldiers would have been jailed.

Hicks is about to be charged with attempted murder as a war crime. This charge must focus on activity not justified by the ordinary conduct of war and would be appropriate say, if an attempt had been made to kill children. However, the US Government has already leaked its evidence against Hicks and none of it supports such a charge.

The other proposed charge of ‘providing material support for terrorism’ is not a war crime at all and should be tried before an ordinary civilian court.

Under Australia’s Constitution, a Federal Court must be independent of the executive government and its judges must be legally qualified. Further, a serious criminal offence must be tried by a judge and jury, and any jury verdict must be unanimous. The Military Commission proposed to try David Hicks has none of these characteristics and in the absence of any one of them, the Commission would be unConstitutional if created by the Australian Parliament. The Howard Government seems to think this unimportant.

A similar attitude problem appears with regard to Australia’s post-2001 anti-terrorism laws. Criticism of these laws by practising lawyers has often been ignored or derided by the Government. However, it will be harder to ignore the recently expressed views of Michael McHugh, a retired Justice of the High Court and a genuine heavyweight, who has written a careful article in the Australian Bar Review suggesting that substantial parts of those laws may be unConstitutional.

In the article, McHugh firstly deals with ASIO’s detention and interrogation powers introduced in 2003. He notes they allow the detention of ‘a person in custody under conditions of extreme secrecy when that person is not suspected of a terrorism offence. Worse still, a person not suspected of any terrorism offence can be detained for longer than a person suspected of a terrorism offence or for that matter any Federal offence,’ before they must be charged.

He goes on to refer to the important constitutional principle that the executive government cannot detain a person without an order of a court where that detention is punitive, rather than protective. He concludes by saying that in its application to ‘non-suspect citizens’ the detention power is ‘arguably punitive in nature’ and therefore unConstitutional.

In expressing this view, McHugh may be taking a more conservative view than some of the current High Court members. Justices Gummow and Kirby in a case in 2004 (Fardon v Attorney-General of Queensland) both appear to suggest that executive detention in those circumstances does not need to be punitive to be unConstitutional.

McHugh then turns to the controversial Control Orders. Under these orders, a non-suspect can be ordered to ‘remain at specified premises’ for up to 12 months. This provision was used to place a curfew on the alleged terrorist Jack Thomas last year which is currently subject to a High Court challenge, due to finish this week.

McHugh takes the view that control orders ‘seem invalid as they attempt to vest Federal courts with a power that is non-judicial, contrary to the doctrine of the separation of powers.’

Again this may be conservative, because according to Gummow and Kirby, exceptional cases aside, even a court decision imposing detention is unConstitutional unless the detainee has been charged with a criminal offence.

McHugh is no less critical of preventative detention orders which allow persons against whom there is insufficient evidence to be charged with a crime to be detained for up to two weeks under complementary Federal and State legislation.

A detainee must not tell his family anything other than that he is ‘safe but is not able to be contacted for the time being.’ McHugh says this ‘would not be out of place in the later stages of George Orwell’s Animal Farm.’

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He notes that these powers are given not to courts but to judges acting in a private capacity and for that reason concludes they ‘must be Constitutionally suspect.’

McHugh is at his most caustic, however, when he deals with the National Security Information (Criminal and Civil Proceedings) Act 2004.

Under that Act, the Attorney-General can certify that evidence sought to be admitted in a criminal trial of an alleged terrorist can be excluded because it would ‘prejudice national security.’

The legislation says that a judge presiding over such a trial must give ‘greatest weight’ to the Attorney-General’s Certificate when considering whether or not to exclude the evidence, over and above the defendant’s constitutional right to receive a fair hearing.

McHugh asks rhetorically:

How can a court make an order in favour of a fair trial when in exercising its discretion, it must give the issue of fair trial less weight than the Attorney-General’s Certificate? Imagine the appellate fate of a [family law]custody order where the trial judge has said I give custody to the father although his claim has less weight than that of the mother.

His conclusion: that the whole Act is invalid as an attempt to ‘usurp the judicial power of the Commonwealth.’

McHugh also says that some terrorist offences may be unConstitutional because they breach the Constitutional right of Australians to communicate with each other on political and government matters. He cites as an example Section 102.1 of the Criminal Code which allows the Attorney-General to proscribe an organisation as a ‘terrorist organization.’ Under that section, an organisation may be proscribed if one of its Executive members praises a terrorist act.

As soon as an organisation is proscribed, all members are liable to an offence punishable by 10 years jail for merely being members of it. McHugh concludes that there ‘must be serious doubt’ as to whether the offence is valid. ‘If this offence had been in operation during the existence of apartheid, it probably would have been an offence to praise the actions of Nelson Mandela that led to his imprisonment,’ he writes.

To be fair to the Government, not one of the above laws was opposed in the Parliament by the Labor Opposition of the time, between 2003 and 2005. Labor was afraid of being wedged on terrorism and departed from its own policy, noting that all of the above offences conflict with Labor’s Federal platform, because each offends at least one article of the International Covenant on Civil and Political Rights, which the platform commits Labor to implement in domestic law.

There is a glimmer of hope, however. When Kevin Rudd assumed leadership of Labor, Kelvin Thomson was appointed shadow Attorney-General. Thomson combines an outstanding legal academi
c record with key characteristics which some of his predecessors lacked. He is a loud, aggressive walk-up fighter and has already strongly and effectively opposed the Howard Government’s treatment of David Hicks.

Rudd showed us last week that he is without fear at least on Iraq. It is now necessary, with the assistance of the careful analysis of people like Michael McHugh, that this courage extend to defending the fundamental Constitutional rights that Howard ignores.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.