Professor Gillian Triggs
Australian Human Rights Commission
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Thank you Dr Andrew Leigh for your invitation and introduction. It is an honor to be here in your electorate of Fraser in north Canberra.
I would like to acknowledge that we meet on the land of the Ngunnawal people, and pay my respects to their elders, past and present.
As we emerge from the G20 meetings, I had the opportunity this morning to listen to Chancellor Angela Merkel giving the annual Lowy Lecture. She anchored her speech in the importance of the international rule of law, democracy and human rights. In stark contrast, last week, when giving evidence to the Joint Parliamentary Committee on Legal and Constitutional affairs, the Chairman said that “Australians do not care about treaties and international law” and that the aim of proposed amendments to the Migration and Maritime Powers Act is to stop the High Court interfering with government policy.
It has become a matter of profound concern that bills recently introduced to parliament propose an unprecedented increase in executive discretion by the Federal Government at the expense of the judiciary, of the international rule of law and of human rights.
Tonight, I would like to discuss the constitutional doctrine of the separation of powers and the Chapter 111 guarantee that only judicial bodies have the right to detain a person. Before you all leave the lecture theatre in droves, can I assure you that I hope to explore these rather lofty ideas in the context of two of the most important political issues in Australia today; first, our asylum seeker policies and, secondly, the proposed anti-terrorism laws.
Let me begin with one of the foundational ideas of the common law. As you will know, next year we celebrate the 800th anniversary of the reluctant signing of the Magna Carta by King John on the fields on Runnimede in 1215. Buried in the middle of a complex document that set the volume of a glass of ale, or the property rights of a widow on the death of her husband is the following clause;
No freeman is to be taken or imprisoned or disseissed ...of his liberties...or in anyway ruined...save by the lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.
These words ring through the centuries and the right not to be detained arbitrarily is reflected in every common law and civil law system in the world.
The idea that the Executive Government of a state may not detain a person without judicial process is not the recent invention of a radical fringe of nations at the United Nations. Rather, it is a guarantee of ancient lineage that virtually every democratic legal regime in the world, recognises as the sine qua non of a civilized nation.
Yet today in Australia we detain about 5,500 asylum seekers on the mainland, Christmas Island, Manus Island and Nauru, including about 750 children. We are the only nation in the world that mandates the detention of children and their families on their arrival and we do so indefinitely and on average for over a year and three months; in many cases for several years.
Since 2010 we have detained literally thousands of children in substandard prisons in remote and inaccessible places with little or no education, without access to legal advice, without criminal charge and without a trial before a court or tribunal. Asylum seekers have been held in legal black holes with no idea when they might be released into the community. Even when they are released on bridging visas, they have no work rights, and are denied the right to make an application for a protection visa.
The opinion polls indicate that most Australians approve the policies of respective government in relation to asylum seekers.
How has it come to this in Australia’s relatively mature and successful democracy? Why is it not possible to gain a writ of habeas corpus to examine the legality of their detention? Why does the Magna Carta not apply?
There are at least two explanations.
- One is that Australia is unique, or exceptional, in its approach to international law and human rights.
- The other is that the Constitution and the High Court have long recognised the right of the Federal Government to exercise its discretion to detain people for administrative purposes, for example, those with mental illness or to deal with aliens. The threat posed by executive discretion was recognized by Chief Justice Dixon who observed that democracy was at risk of being taken over by the executive, following the Communist Party case in 1951.
Firstly, what do I mean by Australian exceptionalism and human rights?
Australia’s exceptional approach:
Human rights treaties (such as the ICCPR ICCESCR, CRC, CAT) are not legislated as part of Australian law, they form the benchmark for the human rights functions of the Australian Human Rights Commission, but are not directly applicable law. There is little human rights legislation other than discrimination, for example, in relation to sex, disability, age and race.
There are no constitutional protections other than the right to vote, the right to freedom of religion and the implied right to political communication.
Unlike every common law country in the world, Australia has no bill of rights and unlike NZ, UK, Europe, Canada and the United States, we do not view any legal situation through the prism of human rights.
- Unlike other regions, there is no overarching regional human rights framework in the Asia Pacific - there is no treaty, no body or monitoring mechanism and no regional court.
In Australia, we have a very limited and fragile culture of human rights. We rely on the important principle of a ‘fair go’, on common law rules of statutory interpretation and more recently, on the Commonwealth Joint Parliamentary Committee on Human Rights, the so-called Scrutiny Committee- one of the most important advances in human rights in Australia for many years. We also rely on the work of the Australian Human Rights Commission through its advocacy, monitoring and complaints processes.
But the fatal flaw in Australia’s mixed regime is that the common law principle of legality will be trumped by the clear words of the statute. This reflects, of course, the principle of parliamentary sovereignty. The Courts are bound to apply the unambiguous words of legislation that has been agreed to by the elected parliament. On the face of it, this makes sense. Parliamentarians are elected, judges are appointed. But does it really make sense? I will return to this point in a moment.
The consequence of the ad hoc and mixed means of achieving human rights outcomes in Australia is illustrated by recent events.
In the months leading up to the election we were told by the now Prime Minister and Attorney-General that the important principle of freedom of speech was at risk because journalists like Andrew Bolt could be prosecuted under the civil law prohibition in 18C of the Racial Discrimination Act, that no one may ‘offend, insult, humiliate or intimidate’ a person in public because of his race or national origin.
On gaining Government, an Exposure Bill was introduced that in effect would eliminate s18C. Unexpectedly, a few months ago the Government announced that the reform proposals for s18C would not go ahead and that, instead, new laws would be introduced to make it criminal to advocate terrorism without the current requirement for evidence that advocacy has had an effect in practice and also to impose an up to 10 year prison sentence to anyone disclosing information about an ASIO special operation, if this will prejudice that operation.
It seems that the right to freedom of speech is now to be balanced negatively against the need to protect national security.
It is not my purpose tonight to comment on the substantive merits of either of these legislative policies. Rather it is to make the point that we have few benchmarks of legal jurisprudence for fundamental freedoms by which to judge whether the government has got the balance right. How can a 180 degree swing in the importance of the right to freedom of speech be justified?
I suggest that Australia has become like a compass that has lost its due north. In that we do not know what core freedoms we should be standing up for. We do not understand the balancing process between competing rights, nor the commitments Australia has made to international law.
Recently, the Monash Mapping Social Cohesion Report shows that political parties and parliament are ranked at the bottom of scores for institutional trust. The Biennial Constitutional Values Survey found more than 25% of Australians are convinced that democracy does not work effectively. They want to see governments abide by core principles of consistency, transparency and accountability. I suggest that the failure to abide by the rule of law, the lack of respect for, and understanding of the role of, our judges and the failure to implement human rights in our domestic laws, compound the decline in faith in our democratic institutions.
Executive discretion to detain
The second suggested explanation for our current policies in respect of asylum seekers is that the High Court has recognised the aliens power under s 51(19) of the Constitution, giving the Executive the power to detain an asylum seeker for certain purposes without judicial scrutiny.
The decision of the High Court in Lim’s case in 1992 sets out the law. This case concerned several Cambodians fleeing the civil war in their country during which 25% of the population was killed. They had arrived in Australia by boat without a visa. The Court confirmed that the Executive may detain an alien in order to remove him from Australia or to determine his eligibility for a protection visa and that this executive discretion does not usurp the Chapter 111 exclusivity of the judicial powers of the courts.
Justice McHugh in the majority referred to legal history. In the 16th and 17th centuries and especially during the American Revolution in the 18th century, it was common, he points out, for the English Parliament to pass what are called Bills of Attainder and Bills of Pains and Penalties. These Bills gave the Executive power to inflict punishment, execution and imprisonment, without a judicial trial. By the 19th century, it was accepted that such Bills are not valid because the doctrine of separation of powers among the executive, legislative and judicial arms of government, means that punishment may be imposed only after a trial with the usual procedural protections in a judicial proceeding. If detention is for a legitimate non-punitive essentially administrative purpose, it will be valid. So detention of those unfit to plead because of mental illness, of accused persons before their trial, or aliens prior to deportation or the grant of a visa can be valid so long as the aim is not penal or punitive.
The validity of detention under executive discretion has been adopted in Australia, with distressing results. The most notorious example, and a low point for human rights law, is the Al Katab decision by four judges of the High Court in 2014. The majority held that, under the unambiguous terms of the Migration Act, the Minister could hold Al Katab indefinitely. That is, for over four and half years with no end in sight. As Al Katab was stateless, no country would take him and the Minister had refused to release him or grant him a visa.
The dissenting judges took different points. Justice Kirby considered the law a violation of liberty and the CJ Gleeson and J Gummow preferred to read down the Migration Act in the interests of practicality. The Al Kateb decision has remained the law over the following 10 years - that is until about a month ago.
In Plaintiff S4 (2014) the High Court made a unanimous decision that the executive discretion to detain was limited to two purposes- deportation or a decision whether to allow the Plaintiff to apply for a visa. For the first time the Court articulated a condition on the power. The Court said that the Migration Act does not authorise the detention of an asylum seeker ‘at the unconstrained discretion’ of the Minister. An alien is not an ‘outlaw’ and can be detained only strictly in accordance with the law. The Court further said that the Minister must make a decision one way or the other ‘as soon as is practicable’. The Court also observed sternly, that if the Minister does not make a decision reasonably promptly, it will use the constitutional writ of mandamus to make him comply with the Act.
In this case, the Plaintiff was also stateless; he met the definition of a ‘refugee’ and had been held in closed indefinite detention for about two and a half years.
It remains to be seen how future courts will define the acceptable time for detention. It seems that the years of detention in which no decision is made at all, will be invalid in the future. Indeed, the deliberate failure to make a decision, and to detain children as leverage to gain temporary protection visas from the Senate is an egregious abuse of power and, being essentially punitive, usurps the judicial power of the courts.
In my view, detention of the current 5,500 asylum seekers without a decision within a reasonable time as to whether they can apply for a visa, has become penal and is not protected by the executive power of administrative detention.
Also of concern to the Human Rights Commission are the recently introduced amendments to the Migration and Maritime Powers Act. The Commission is concerned that the amendments will:
Significantly reduce the rights of asylum seekers travelling to or arriving in Australia
Increase the risk that they will be wrongly found not to be refugees
Increase the risk that they will be returned to a place where they have a well-founded fear of persecution, because of a lack of judicial oversight of relevant decisions
- Increase the risk that babies born in Australia, including those eligible for Australian citizenship, will be removed to Nauru.
Especially worrying are the following provisions:
International law and natural justice are not to be reasons for invalidity of authorised acts under the Maritime Powers Act which is intended to ensure that government officials can act on the high seas in ways that breach international law
Mandating that Australia’s obligation not to return a refugee to the country of persecution is “irrelevant” to the power to remove compulsorily a person who does not have a visa
Minister has power to overturn the Administrative Appeals Tribunal
Fast track processes that will clog up the courts with legal mistakes
More limited merits review
Narrow definition of a ‘refugee’ so that the international definition no longer applies in favor of the government’s interpretation
No legal advice is for practical purposes available, hence cases are not accurately presented
TPVs to be introduced
Children born in Australia are to be treated like their parents, so that they can be transferred for off shore processing and are barred from applying for a protection visa
- Caps placed on protection visas.
In addition to the amendment to the Migration and Maritime Powers Act are significant threats to human rights in the new Anti-terrorism laws.
The Commission is concerned by the fact that these Bills are being rushed through Parliament at the end of the year with very little public or even Parliamentary scrutiny. The Commission has other concerns about the issue of warrants, new offences and also access rights to metadata.
In addition to concerns about these new Bills, are wider practices by Governments that compound the risks to human rights and democracy. We are seeing greater levels of secrecy justified as being in the national interest. You will know that the 5,500 public submissions to Government in the S 18C reforms were not made public as is usual. There is a lack of information in relation to Operation Sovereign Borders and the policy of turning back asylum seeker boats. Appointments to Tribunals and commissions are made without open processes or are not made at all. Bills are now introduced into Parliament with unseemly haste, giving parliamentary committees such as the Intelligence Committee and the Legal and Constitutional Committee minimal time to understand or comment on the Bills.
Members of the public are largely oblivious to the magnitude of these practices or of the consequences for their private lives.
For the most part, Australia gets it right. We have a high standard of human rights in this multicultural and cohesive country. But we have some blind spots; Indigenous policy, asylum seekers and national security.
What is to be done about the failure to recognise international human rights or our ancient and fundamental common law freedoms?
A powerful tool lies in strong leadership. If our senior politicians insisted in fundamental freedoms for all, and a human approach to asylum seekers as required by the international treaties we have signed, then we would have a different landscape. But to the extent that we do not have that leadership on human rights, I believe we have to start at the beginning with including education at schools and universities; even of our parliamentarians, so they can better protect our freedoms and ensure the community understands that the independence of our judges is an integral part of democracy. To dismiss our judges as unelected misses the point. They are one of the vital institutions of democracy and are there to ensure that the executive and parliament act within the Constitution and the rule of law.
We also need to reopen the public debate about a legislated form of human rights Charter to ensure that neglected freedoms are better protected and that where the freedom is limited, we are in agreement upon principles by which to determine if the limit is fair, proportionate and reasonable.
If the G20 has shown that Australia is out of step with the world on climate change, so too, Australia is out of step on human rights protection.