Freedom, Parliament and the Courts
Speech to the annual Human Rights Dinner, co-hosted by Justice Connect and the Human Rights Law Centre.
Draft: check against delivery
Thank you for your welcome tonight.
Acknowledgement of country
I am honored to be a patron of Justice Connect that has so successfully aligned probono lawyers with clients to provide legal advice and services for migrants, the homeless and older Australians.
As an international lawyer, I am impressed by the work of the Human Rights Law Center that places human rights law at the heart of their advocacy. I congratulate both organizations for their work and am proud to be part of a profession that accepts its responsibility to promote a just Australia under the rule of law.
Tonight, I would like to speak to you about the vital role our parliaments play, whether State, Territory or Federal, in protecting our ancient democratic liberties and rights.
Let me take you back to the year 1535 and the trial for sedition and treason of Sir Thomas More, for refusing to take the oath acknowledging the supremacy of King Henry VIII. The evidence adduced against Sir Thomas concerned a conversation he was alleged to have had with the Solicitor General, Richard Rich. That conversation went a little like this:
Sir Thomas asked: “Suppose that Parliament enacted a law stating “God is not God. Would this be a valid law?”
Wisely, the Solicitor General, replied: “No, it would not”.
Sir Thomas then said, “Parliament can make a king, but it cannot declare the King to be above God”, -a dangerous comment to make, knowing his monarch sought a new wife.
It took the jury 10 minutes to find Sir Thomas guilty of sedition and treason and his head was separated from his shoulders at the Tower of London shortly after.
Were a conviction for treason to have been made today, he would probably have lost his citizenship.
I believe that the question –“what are the proper limits on the power of Parliament?”- remains a live one for contemporary Australian democracy. Over the last 15 years or so, the major political parties have agreed with each other to pass laws that threaten some of the most fundamental rights and freedoms that we have inherited from our common law tradition. For, over the last decade, particularly since the attack in 2001 on the twin towers in America, Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention. These new laws undermine a healthy, robust democracy, especially if they grant discretionary powers to the executive government that are not subject to judicial scrutiny.
- What then are the safeguards of democratic liberties if parliament itself is compliant and complicit in expanding the powers of the executive to the detriment of the judiciary and ultimately of all Australian citizens?
- What are the options for democracy when both major parties, in government and opposition, agree upon laws that violate fundamental freedoms?
On the 15th June this year we celebrate the 800th anniversary of the sealing of the Magna Carta. Notably, King John was probably illiterate and did not sign the document, and the Barons forgot to bring their seals and wax to Runnymede on this historic day). Let us recall some of the fundamental provisions of Magna Carta. Buried in the middle of this Latin inscribed sheepskin parchment dealing with the rights of widows on the deaths of their husbands, or the standard measure of a glass of wine or ale, are these clauses:
No freeman shall be taken or imprisoned or stripped of his rights or possessions, or exiled, or deprived of his standing in any way, ...except by the lawful judgment of his equals or by the law of the land. (Clause 39)
To no one will we sell, to no one deny or delay, right or justice.(Clause 40)
These words are the defining statements of the rule of law and limits on arbitrary power of the state. They ring through the centuries and remain the bedrock for principles of justice we struggle to protect in the 21st century.
Magna Carta is more honored today as an historical and political symbol, than as a directly applicable source of legal rights and freedoms. Indeed, the Chief Justice of the High Court, Robert French, has recently observed:
“Magna Carta has given many a plaintiff false hope in litigation before the courts”. (2015)
It is true that little remains on our statute books today of the liberties set out in Magna Carta, liberties that reflected Anglo Saxon and Angovian laws recognized by the Royal Courts of Justice and which applied only to Barons and freemen. It is also true that Magna Carta “means more than it says”. It has become a universal acknowledgement of the principles that the sovereign is not above the law and of the sovereignty of parliament. Other legacies of Magna Carta include the right to a fair trial and access to justice; habeus corpus; the ideas that ‘punishment should fit the crime’; that courts should sit regularly in one place; that laws should be written and made public; and that widows should have their inheritance.
Magna Carta is recognized as the foundation of modern democracy and of the common law principle that public officials should justify their activities as necessary and proportional, where they interfere with individual freedoms.
In the 17th century, Magna Carta was employed by Sir Edward Coke, England’s first Lord Chancellor, in his bitter legal battle with King James the First. Sir Edward placed a contemporary spin on Magna Carta to reject the divine right of kings and to subject the sovereign to laws passed by Parliament. His Petition of Right in 1628 informed, in turn, the United States 5th and 6th amendments and the Universal Declaration of Human Rights in 1948. [Lord Denning described Magna Carta as the greatest constitutional document of all time and the foundation of freedom of the individual against the arbitrary authority. ]
Appeals to Magna Carta, while often legally and historically inaccurate, continue to be made today. The ‘Occupy London’ protest at St Paul’s courtyard was, for example, justified by supporters on the basis of Magna Carta. The Master of the Rolls gave the argument short shrift, noting Magna Carta was not directly relevant. Tony Benn also argued in 2008 when Parliament agreed that suspected terrorists could be held for 42 days for questioning, rather than just 28 days, was the “day Magna Carta was repealed”.
It is the symbolic power of Magna Carta that informs my concern that supremacy of the law over the sovereign (or in today’s parlance, executive government), is under threat in Australia’s contemporary democracy.
Respective governments have been remarkably successful in persuading Parliaments to pass laws that are contrary, even explicitly contrary, to common law rights and to the international human rights regime to which Australia is a party. It is axiomatic that human rights and freedoms are rarely absolute and must be balanced with other rights, including public security. The validity of laws that, on their face, breach liberties depends on whether they are necessary and proportionate to achieve a legitimate end.
This legal test is of course very difficult to apply in practice. It is notable, for example, that the High Court split 3/3 on the question whether the letters written by Mr Monis to the families of Australian soldiers killed in Afghanistan were protected by the right to political communication. While, the difference in views meant the criminal conviction for breach of Commonwealth postal laws remained intact, no one could have foreseen the tragic end to the tale in the Lindt Café siege.
A growing threat to democracy is the expansion of discretionary, often non-compellable, ministerial powers that may be exercised with limited or no judicial scrutiny.
- Parliament has given ministers the power to detain indefinitely various classes of individuals, including refugees and asylum seekers, those with infectious diseases, those subject to mandatory admission to drug and alcohol rehabilitation facilities and the mentally ill. Some state parliaments have passed laws for “preventative detention” of certain “high risk violent or sexual offenders. Few have meaningful access to judicial review.
- In a recent complaint the AHRC found that four Aboriginal men with intellectual and cognitive disabilities had been held for many years in a maximum security prison in the Northern Territory. Each complainant had been found unfit to stand trial or found not guilty by reason of insanity. In respect to two of these men, they would have received a maximum sentence of 12 months had they been duly convicted. Instead, they were imprisoned for four and a half years and six years respectively. The Commission found that the failure by the Commonwealth was a violation of the right not to be detained arbitrarily under Article 9 of the ICCPR, a provision in the spirit of the Magna Carta. Sadly, such detention disproportionately impacts indigenous Australians.
- This case is but one of scores of such instances across Australia of detention in prisons of those with intellectual disabilities for lengthy periods without releasing them into more appropriate facilities and in the absence of regular review by an independent tribunal.
- There will be instances where detention at the discretion of the executive is justified in the interests of community health and safety. A detainee might be violent and dangerous, or reasonably likely to commit sexual offences in the future. But the fact that a person has been convicted and imprisoned for a serious crime, does not necessarily justify his continued detention at the discretion of the Government once the term of imprisonment has been served. In Kable nearly 20 years ago the High Court has an attempt by the Parliament of NSW to give its courts the power to impose a six-month preventative detention order on a person who is ‘more likely than not to commit a serious crime of violence’.
- Since Kable, the States and territories have enacted similar laws that have yet to be successfully challenged and preventative detention remains a tool of the criminal justice system.
- Detention powers of the Executive have also been expanded to detain asylum seekers and refugees indefinitely, powers that were found to be valid by the High Court in Al Kateb in 2007. Most egregiously, those with ASIO adverse security assessments are detained indefinitely, many, including children, for some years without meaningful access to legal advice or judicial review. 127 children remain in closed detention in Australia and about 100 on Nauru, most for over a year and half in substandard conditions.
COUNTER TERRORISM LAWS
- Counter-terrorism laws have been significantly extended over recent years on the grounds of community safety. The strength of the rule of law is, I suggest, more truly tested when security is threatened than in times of peace. To the extent that Australia is threatened by terrorism, the need to protect our traditional liberties and freedoms assumes an even greater urgency. Many laws introduced with unseemly hast before Christmas in the name of national security go well beyond what might be deemed to necessary, creating a chilling effect on freedom of speech and the press and breaching the right to privacy
- The Data Retention laws passed this year, require telecommunication companies to retain metadata for two years to enable access by the police, ASIO and other law enforcement agencies. It is curious that while metadata is significantly more intrusive into the lives of citizens than access to mere content, a warrant is required for content but not metadata. As the metadata will be collected in respect of most of the 23 million Australians, and those involved in terrorism or paedophilia are very few, it might be said that the Act employs a sledgehammer to crack a nut.
- It is also curious that Executive Government may apply for a warrant (a “journalist information warrant”) to compel the surrender of a journalist’s metadata to identify their sources, but such a warrant is not necessary in respect of anyone else. Lawyers it seems do not have the special privileges that are extended to journalists. It is notable that the US Congress has just passed a new law replacing the Patriot Act with the Freedoms Act that restricts, for the first time, the powers of its intelligence and security agencies.
- Also of concern is the Foreign Fighters Act 2014 that creates a new offence of “advocating terrorism”(s. 80.2C, Criminal Code), an imprecise crime whose scope may cover, for example, opposing the Assad regime in Syria or supporting Palestinian efforts to gain statehood.
- Freedom of movement is also threatened by the Foreign Fighters Act under which the Mosul district in Iraq and Al-Raqqa province in Syria are ‘declared areas’. Anyone entering them is subject to a 10 year prison sentence unless they have a valid excuse, the evidentiary burden for which lies on the accused.
- Of course many politicians support the rule of law and freedom of speech but are breathtakingly inconsistent in doing so. Whatever views you might have on the need to repeal or amend s18C of the Race Discrimination Act to protect free speech, the enactment of new counter-terrorism crimes of advocacy and disclosure of protected information needs further justification.
- National Security Legislation also passed just before Christmas last year, grants ASIO officers total immunity from civil and criminal prosecution while engaged in ‘special intelligence operations”. The disclosure of information in respect of such an operation will, attract a mandatory 5 or 10 year penalty. This is so even if the accused does not know that the information concerns an operation. It is probable that these new laws will have a chilling effect on legitimate public debate about security operations.
- Extensive new laws prohibiting consorting or associating with a member of criminal groups, such as Queensland’s ‘anti-bikie’ laws, reduce our freedom of association; criminal trial procedures such as the principle against self-incrimination, have been eroded, and denied; the judicial power to assess individual circumstances is threatened by a spate of mandatory sentencing laws.
- An especially troubling reversal of rights arose in recent amendments to the Migration Act, that delete references to the Refugees Convention, (to which the Act was intended to give effect). In their place are inserted the Minister’s understanding of the meaning of “Refugee’ and the rights this legal status imports. The Migration and Maritime Powers Act explicitly authorizes the acts of government officers where such acts violate international law or fail to meet due process laws. I know of no other instance in national legislation where legislation states that it is to apply regardless of that nation’s international legal obligations or its domestic administrative law principles of natural justice.
These are just a few examples of executive overreach, accepted by Parliaments. And there are several more in the pipeline that have attracted very little public attention.
- In the recently introduced Bill entitled Maintaining the Good Order of Immigration Detention Facilities provides guards at immigration detention centers with powers of enforcement against detainees that are greater than those available to the Australian Federal Police. Moreover, any use of excessive force by a guard under these proposed powers will be immune, for all practical purposes, from prosecution in the courts.
- Social Services Legislation Amendment Bill 2015 removes financial support for forensic patients with a mental illness or disability, if they have been charged with a ‘serious criminal’ offence attracting a sentence of more than 7 years. Quite apart from the impact of the withdrawal of financial support from such patients, the Bill imposes a penalty or punishment without charge or trial, contrary to the doctrine of separation of powers.
- The overreach of executive power is clear in the yet to be defined proposal that those accused of being Jihadists fighting against Australian interests, will be stripped of their citizenship if they are potentially dual nationals. This proposal strikes at the heart of Australia as a largely migrant nation. Not only may this idea violate Australia’s international obligation not to render a person stateless, but also the decision may be at the discretion of a Minister, without recourse to judicial processes. This proposal is not new. It follows a Bill introduced last year to give the Minister discretion to revoke citizenship for fraud or misrepresentation, or where the minister is ‘satisfied’ that a person is not of good character, all without trial or conviction. The debate, it seems, is between the subjective suspicions of a minister, versus an evidence-based determination by a judge according to established rule of law.
- Magna Carta has something to say about this: it provided that no man is to be ‘outlawed or exiled’ except by the law of the land.
- One of the fundamental aspects of democracy is access to justice and to legal advice for disadvantaged Australians. It is a matter of concern that Commonwealth funding for community legal services will decline from 2017 on the basis that the new National Partnership with states and territories will receive the funding. It remains to be seen how this new Partnership will evolve in practice, but it is at least clear from the recommendations of the Productivity Commission last year that an additional $200 million is needed to provide sustainable national legal services to the community.
These examples of the willingness of parliament to consider and pass laws that breach democratic freedoms, taken individually, might be justified on the grounds of necessity and proportionality. Viewed together they are more than the sum of their parts. They suggest an overreach of power by the executive, (or as Senator Cory Bernardi calls it, “power creep”); a declining willingness of parliaments to defend core freedoms; and the exclusion of judges from interpreting laws according to common law principles of legality or and the presumption that parliament intends to comply with international law.
The proliferation of new laws that diminish our liberties and expand executive powers suggests that respective Parliaments have failed to exercise their traditional self-restraint in protecting democratic rights. Rather, the volume of laws that currently infringe freedoms –Professor George Williams estimates over 350 such laws are on the books at present- suggests prioritizing governmental power has become a “routine part of the legislative process”. As he observes, the enactment of anti-democratic laws has become so accepted that they elicit little community or media responses.
There are fortunately some exceptions, notably the attempt to repeal s18C of the RDA, where community support of the RDA proved to be overwhelming.
Parliamentary restraint is especially important in Australia where we have an ‘exceptionalist’ approach to the protection of human rights. Australia has been a good international citizen for the most part, playing an active role in negotiating the human rights treaties that form the international monitoring regime. However, these treaties have typically not been introduced into Australian law by Parliament, so that key instruments such as ICCPR and CROC are not directly applicable by our courts.
Our Constitution protects the freedom of religion, the right to compensation for the acquisition of property and the right to vote, and implies a right of political communication...but very little more. As is well known, unlike every other common law country in the world, Australia has no Bill of Rights. Compounding our isolation from international jurisprudence, the Asia Pacific has no regional human rights treaty and no regional court to develop human rights law or to build a regional consensus.
But, it might be thought, as a last resort we can rely on the courts to protect our common law rights. Laws passed by Parliament are not to be construed as abrogating fundamental common law rights, privileges and immunities in the absence of clear words.
Our courts have, where possible, employed the principle of ‘legality’ to adopt a restrictive interpretation of legislation to protect common law freedoms. But in practice this has not proved to be as effective a protection as one might have hoped as many laws today are drafted with such precision or are constantly amended, so that ambiguities are increasingly hard to find.
In the Malaysian case, for example, the High Court found that under the Migration Act the Minister could not send asylum seekers to Malaysia as that nation had not ratified the Refugees Convention. The Government returned to Parliament to delete the offending clause.
If the language of a statute is unambiguous, the courts cannot apply common law presumptions about fundamental freedoms nor the presumption that Parliament intends to comply with Australia’s international obligations. It is thus more important than ever in Australia’s democratic system that Parliaments meet their obligations as a check on executive government.
Over the last 800 years, judges have continued to assert the rule of law against the executive. A contemporary version of Sir Edward Coke’s struggle to protect the supremacy of parliament continues to play out today between the High Court of Australia and the Government, especially in the context of refugee law.
Time and again the High Court has constrained the use of executive discretion by the Government by reference to statutory principles of interpretation that respect the principle of legality. Time and again the Government has been successful in asking Parliament to tighten up legislation to permit what was hitherto illegal.
Australian jurisprudence on the validity of executive detention was developed by the High Court in Lim’s case in 1992. Justice McHugh found that if detention is for a legitimate non-punitive and 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 of aliens prior to deportation or the grant of a visa can be valid so long as the aim is not penal or punitive.
In short, punitive detention is for the courts alone. But what of the thousands of asylum seekers, about 85% of them being likely to meet the legal definition of a refugee, who have been held indefinitely, in some cases, for years? I suggest that their prolonged and indefinite detention has become essentially punitive and is beyond power.
There have been two recent, particularly encouraging decisions of the High Court indicating it will use common law principles of statutory interpretation to protect fundamental freedoms where ever it properly can.
In 2014 in Plaintiff S4, the High Court decided unanimously 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. The Court qualified the power to detain, finding that the Migration Act does not authorize the detention of an asylum seeker ‘at the unconstrained discretion’ of the Minister. It found that an alien is not an ‘outlaw’ and that the Minister must make a decision, one way or the other, “as soon as is practicable”.
This decision was shortly followed by a High Court Writ of Mandamus against the Minister for Immigration-a rare phenomenon under our law. In Plaintiff S 297, last year, the Court unanimously confirmed the Writ of Mandamus and ordered the Minister to comply with his statutory obligations by deciding either to grant a visa to a refugee held in closed detention for three years or to deport him.
What then is to be done to protect democratic rights and freedoms in Australia?
Celebrations of Magna Carta this year could reignite calls for some form of legislated Bill of Rights. Had we such an articulation of rights it would give greater scope for the courts to assess the validity of legislation against human rights benchmarks. It would be possible to challenge the indefinite detention of asylum seekers and the mentally ill, to challenge the overreach of counter-terrorism laws and to challenge disproportionate restrictions on speech and association. But a Bill of Rights remains highly improbable in the current political environment.
Other options are to strengthen scrutiny by the Joint Parliamentary Committee on human rights. This Committee, established 5 years ago, has the potential to ensure that parliamentarians are alert to threats to democratic rights. So far the Committee, while usually achieving consensus reports, has not had any significant effect on the willingness of Parliament to enact Bills both along party lines and with the agreement of both major parties.
I suggest that the most effective, if long term, solution is to improve our education of young Australians so they better understand and value the Constitutional protections for democracy and the rule of law. It has become vital that we develop a normative culture that supports liberties, and challenges executive overreach even though these liberties may not have the full force of legislation.
In conclusion, may I observe that present company excepted, human rights lawyers and activists are not necessarily deserving of sainthood. On delving into Sir Edward Coke’s life I found that he kidnapped his 14 year old daughter from the protection of his wife and married her off to a rich and influential gentleman. Coke eventually fell foul of King Henry and served time in the Tower of London, but he survived to live in peace, until dying in his own bed aged 82.
I also hope that, despite challenging the power of the executive, I too as a an English migrant, escape statelessness and live to retire and smell the roses.
Thank you all.