Dissenting Judgement

Last Thursday, the High Court of Australia handed down its decision on the challenge by Joseph (‘Jihad Jack’) Thomas to the Howard Government’s control orders. The Court dismissed the challenge by a majority of 5-2. Justice Michael Kirby, in eloquent dissent, attacked the majority, four of whom are Howard appointees, for misapplying Constitutional principle and made a strong case that the decision should have gone the other way.

Control orders can be made against a person regardless of whether they are accused of an offence. For example, an order can be made, if on the balance of probabilities, it may ‘substantially assist in preventing a terrorist act’.

Joseph ‘Jihad Jack’ Thomas

The initial order can be made at a secret hearing of which the controllee has no knowledge, as happened in the Thomas case. In the above example, the Court is required to predict future conduct relating to possible terrorist activity, involving an assessment of whether control orders may inhibit the controlled person or even just a third party.

A variety of control orders can be made including prohibitions on: being at specified areas or places; communicating with any number of specific individuals; using telephones or computers; and engaging in any specified activity including work. In addition and most seriously, a person can be ordered to ‘remain at specified premises’ for up to a year. All of these orders are renewable.

There are no limits to the persons who can be banned from communication with the controllee, including all known friends and relatives and even specified lawyers. It is therefore quite possible that a person could be confined for 12 months to his or her residence, assuming that ‘specified premises’ will be read down to exclude a jail or detention centre.

At first blush, the High Court’s 207-page decision is a win for the Government. However, close consideration of the individual judgments reveals a more complicated reality.

The judges were required to consider a number of questions. The first was whether the legislation could be justified under the Australian Constitution’s list of legislative powers given to the Federal Parliament.

In the Thomas case, the Federal Government’s main argument was that the legislation fell within the Defence power which allows legislation to be passed concerning, ‘The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.’

It was thought that laws dealing with terrorism did not fall within this power but six of the seven justices found that they did, significantly extending Commonwealth power, consistent with the High Court’s recent WorkChoices decision which did the same.

The dissenter, Kirby, found that to come within this power, laws must relate to defence against threats to the Commonwealth or one or more of the States, as a whole. He said that terrorist threats do not amount to such a threat and that these laws are more properly the province of the States’ policing powers.

The second question was whether, having found that the laws fell within the Federal Parliament’s power, some other provision of the Constitution nevertheless makes them invalid.

The main argument here was whether control orders infringe the strict Constitutional separation of powers between the judiciary and the executive government.

There were two main arguments advanced by the lawyers for Thomas in that respect. The first was that control orders involve the court in non-judicial functions and in particular that the test of determining whether an order will ‘substantially assist in preventing a terrorist act’ is so vague and contrary to the sort of objective criteria that courts are usually supposed to deal with, that the powers are inappropriate to judicial work. Five of the seven judges rejected this argument.

The second argument was that orders involving deprivation of liberty must arise out of criminal charges dealing with past conduct. The rationale is that the executive government should not be able to detain people in custody and this task should be left to independent courts which are much less subject to political and other pressures.

This argument was based on the Court’s 2004 decision in Fardon v Attorney General of Queensland in which Justice Gummow and Kirby, but not the other judges, agreed that:

[Exceptional cases aside] the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

It was thought that if a majority of the Court here agreed with this, it would rule that control orders were unconstitutional because they allow a court to order Thomas to ‘remain at specified premises’ for up to a year.

However, extraordinarily, the majority purported to agree with the principle but then went on to say that the control order powers fall short of detention in custody! Justice Gummow and Justice Susan Crennan, who wrote a joint judgment in the case said that ‘Detention in the custody of the State differs significantly in degree and quality from what may be entailed by observance of an interim control order.’

There is a subtle difference in these two statements. The first in Fardon talks about ‘detention of a citizen in custody by the State’ whereas the second refers to ‘detention in the custody of the State’. This seems a very fine distinction, suggesting that somehow detention in the custody of the State is worse than, and should be distinguished from, detention in non-State custody.

The Chief Justice, Murray Gleeson, similarly said ‘it may be accepted that control orders may involve substantial deprivation of liberty but we are not here concerned with detention in custody’.

Justices Ian Callinan and Dyson Heydon also agreed with the Gummow/Crennan view.

The majority judges must have been aware that detention at ‘specified premises’ coupled with bans on communication with specified persons could amount virtually to solitary confinement.

There seems no logical distinction between public and private detention. For example, say a person was ordered to remain at his residence, a farmhouse located 1 kilometre from the farm’s boundary. If the person normally lived there alone and his 50 closest friends and relatives were banned from contacting him (noting that in the Thomas case 50 people were banned from contacting him) and he was also prohibited from using a telephone or email, such detention for a year would be a very serious deprivation of liberty.

So what did the two minority judges say about all this. Justice Ken Hayne found that the laws fall within the Defence power, but were nevertheless unconstitutional because the test which courts must apply is non-judicial.

Justice Kirby agreed with Hayne on that point, and added that his and Gummow’s view in Fardon was correct. He concluded that control orders amount to such a deprivation of liberty that the laws are invalid, as contrary to the separation of powers doctrine.

Kirby’s dissenting judgment of 57 pages is a magnificent read and in his long judicial career he could not have been more persuasive and passionate. His enunciation of the fundamental Constitutional principles relating to what is probably the second most fundamental right we have in this community the right to personal liberty, at times borders on excoriation of his majority colleagues’ view. A sample of his acid views follows:

To do this is to deny persons their basic legal rights. Not for what they have been proved to have done (as established in a criminal
trial) but for what an official suggests that they might do or that someone else might do. To allow judges to be involved in making such orders, and particularly in the one-sided procedure contemplated by [these laws], involves a serious and wholly exceptional departure from basic Constitutional doctrine unchallenged during the entire history of the Commonwealth. It goes far beyond the burdens on the civil liberties of alleged communists enacted, but struck down by this Court in the Communist Party Case. Unless this Court calls a halt, as it did in that case, the damage to our Constitutional arrangements could be profound.

And later he says:

It risks squandering for all cases the precious reputational capital of Federal courts which the separation of powers doctrine serves to defend. Legislatures and executive governments may not always be as conscious as courts are of the difficulty, once lost, of regaining such reputations. If the courts are seen as effectively no more than compliant agents of the other branches of Government they will have surrendered their most precious Constitutional characteristic. This Court should not allow that to happen.

Almost as an aside, Kirby goes on to record that human rights principles which Australia is supposed to implement in our domestic law, including those relating to personal liberty, privacy, respect for family life, freedom of expression and association, freedom of movement and the right to a fair hearing, will, if control orders are imposed ‘potentially infringe any, or all, of these rights’.

The decision may have some unexpected consequences however. The Court’s acceptance of a modified Fardon principle could mean trouble for some of the Howard Government’s anti-terror laws. The following laws allow detention in State custody without charge and may therefore be unconstitutional:

• ASIO’s powers to detain people, even non-suspects, for a week of interrogation.

• The Federal preventative detention laws, allowing 48 hours detention.

• The Federal Crimes Act provisions allowing indefinite extension of the period between arrest and charge. (Before 2004 when the provisions allowed a very short period of detention, they were seen as a permitted exception. Now that indefinite detention is involved, it is hard to see how they are valid. Dr Haneef will be pleased.)

In addition, Gummow and Crennan specifically raise the possible unconstitutionality of the Attorney-General’s new power to conclusively certify evidence in a terror trial as prejudicial to ‘national security’ and thereby seek its exclusion. This seems a heavy hint to the Government that this provision is beyond power and could make the forthcoming trials of more than 20 alleged terrorists in Melbourne and Sydney, difficult, if not impossible.

Overall, it is arguable that even if the Court got in wrong on control orders, in accepting Fardon, it may just have taken a step towards righting the wrongs of the Howard Government’s indiscriminate trampling on fundamental rights with its anti-terror laws.

I only wish a great Australian, Michael Kirby, appeared to share that confidence.

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