Austin Asche Oration in Law and Governance

 

Austin Asche Oration in Law and Governance

Thursday 3 September 2015

 

---

I am honoured to have been invited to speak tonight at this, the 5^th Austin Asche Oration in Law and Governance.

As I had not met or known the Hon. Austin Asche. As any researcher would do, I ‘googled’ him to learn about his distinguished legal career. He was appointed Chief Justice of the Northern Territory in 1987 and was Chancellor of the Northern Territory University for 10 years from 1983-93. He was made the Administrator of the Territory in 1993. Google, of course, does not tell you about the ‘real’ man, so I asked my taxi driver. He gave Austin Asche the greatest of accolades... “Asche was a true territorian”. It became clear that Austin Asche is much loved in the Territory and deeply respected.

He was honoured for his services to law and governance, and it is the threat to these principles of law and governance that forms the topic fro my lecture tonight. I suggest that, over the last 15 years or so, we have witnessed an unprecedented extension of executive discretion over our traditional liberties and freedoms. Senator Cory Bernard calls this a “Power creep”... I don’t often quote the Senator, but on this occasion he is quite right.

For the AHRC, this has been a ‘year of living dangerously’ as we have drawn attention to the erosion of our human rights and to the diminution of the checks and balances that preserve our democracy...all in the year in which, ironically, we also celebrate the 800^th anniversary of the Magna Carta.

The Magna Carta was, at its heart, an attempt by the feudal barons to constrain the power of ‘Bad King John” and to ensure that the sovereign is always subject to the rule of law, in particular to the common law and to independent judicial scrutiny.

This evening I would like to discuss the overreach of executive discretion in the dozens of new federal, state and territory laws introduced by recent Governments and passed by compliant and complicit parliaments with the effect of excluding the powers of our judiciary and threatening core democratic principles of the separation of powers and independence of the courts.

Particularly troubling has been the phenomenon of the major political parties agreeing with each other to pass laws that threaten our fundamental rights and freedoms that we have inherited from our common law tradition.

Indeed, 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.

Compounding the concentration of power in the hands of the Executive is the recent phenomenon of the increasing militarization of government and the criminalization of the behavior that has not hitherto been the subject of criminal penalties.

Operation Fortitude

An egregious example of para-military involvement in civilian affairs occurred just last week when the recently merged Department of Immigration and Border Protection announced “Operation Fortitude” under which a “coalition of the willing” -including the Victoria Police, Yarra Trams, Metro Trains, the Sherriff’s Office, Taxis Services Commission and the Australian Border Force- agreed to target crimes ranging from “anti-social behavior” to outstanding warrants of arrest.

The now notorious media release states that the intention was to position ABF officers:

“at various locations around the Melbourne CBD speaking with any individual we cross paths with”.

The focus of this strategy was revealed by the warning that:

“ if you commit visa fraud, you should know it’s only a matter of time before you are caught’.

It is true that many people are in the Australian community who do not have a valid visa or who have overstayed their visa. It is also true that a nation has the sovereign right to arrest and deport those who are in Australia illegally. Indeed, the AFP, police and other law enforcement officers do so regularly, if quietly under S188 of the Migration Act that requires ‘probable cause’. But never before have we had Australian Border Force officers planning to stop people in shopping malls, demanding identification. Quite apart from the legal fact that the ABF do not have the power to do so, it is a reasonable assumption that those chosen for questioning will be those that fit a racial profile, contrary to the Racial Discrimination Act.

Melbournians reacted to the Media Release by demonstrating on the steps of Flinders St Station, blocking traffic. Within hours Operation Fortitude had been cancelled and all concerned have since run for cover, blaming low-level officials.

It is notable that the Australian Border Force Bill slipped through Federal Parliament’s House of Representatives in March this year without a single opposition party member speaking against it. Only Scott Ludlum and Sarah Hanson-Young questioned the Bill in the Senate. Gone are the cultural values of the former Department of Immigration in favor of the command and control strategies of the new DIBP.

Operation Fortitude raises many questions.

My question is -how is it that public officials within the DIBP, the AFP, the Victoria Police and all the other agencies, whether senior or not, did not ask whether such a para-military operation was consistent with Australian liberties? Are we as a nation and are out government officials so ill-informed about human rights under the Constitution, the common law and international law that no one within government thought to question so obvious a violation of our freedom to walk the streets without fear of being stopped and questioned by border protection officers?

Operation Fortitude is but one example of the tendency to increase executive power and to criminalize behavior that, in the past, might have attracted a civil fine. Australian governments have introduced, and parliaments have passed, scores of laws that infringe our common law freedoms of speech, of association and movement, the right to a fair trial and the prohibition on arbitrary detention. These new laws undermine a healthy, robust democracy, especially when they grant discretionary powers to executive governments in the absence of meaningful judicial scrutiny.

As US President Woodrow Wilson observed: “Liberty has never come from the government. Liberty has always come from the subjects of the government... The history of liberty is the history of the limitation of government, not the increase of it.”

What explains Australia’s move to restrictive approaches to our fundamental freedoms and human rights over the last few years?

I suggest that there is a conflation in the public mind of the events of 2001-the Tampa Crisis on the 26 August, the “children overboard” “misstatements” of 6 October and a month later the 9/11 terrorist attacks on the United States. Since these events 14 years ago, governments and political leaders have played on community fears of terrorism and the unauthorized entry of refugees to concentrate power in the hands of the executive to the detriment of Australian liberty.

While I will focus tonight on the proposed Bill to strip citizenship from Australians with dual nationality and the extensive use of administrative detention, some recent examples illustrate the risks to democracy:

There are many recent examples:

• Under counter-terrorism laws, Australians may not enter “Declared areas” such as the Mosel district of Iraq and Al-Raqqa province of Syria. A criminal prosecution for violations will attract a 10year prison sentence and place the evidential burden on the accused to show a legitimate reason for being there.

• Any disclosure of information in respect of ‘special intelligence operations” will attract a mandatory 5 or 10-year penalty, but ASIO officers have total immunity from civil and criminal prosecution while engaged in these operations.

• Reversals of the evidential burden of proof in criminal trials

• Restrictions on freedom of association in laws such as the ‘bikie laws’

In considering these examples of legislation, the test of validity of any law is whether it is necessary and proportionate to the meet a legitimate aim. Individual laws may well pass this test, and perhaps should be accepted until we see how they have worked in practice. But my concern is that, as each new piece of legislation is passed, they accumulate and become more than the sum of their parts, demonstrating a systemic and disproportionate intrusion on individual liberties.

Of wider concern than individual pieces of legislation are the encroachments on fundamental principles underpinning our democracy. Most especially is the:

Independence of the judiciary and the doctrine of the separation of powers

An example of the diminution of judicial independence are the Northern Territory’s ‘paperless arrest’ laws introduced late last year under the Police Administration Act, Division 4AA. Under these new laws, a person a may be arrested without warrant and detained for 4 hours (or longer if intoxicated) if the police believe on reasonable grounds he has committed or is about to commit an ‘infringement notice offence’. Such offences include failing to keep your yard clean, singing an obscene song or playing a musical instrument as to annoy. There is no obligation to bring the person before a judge for offences that do not, in some cases, even attract the sanction of imprisonment. The detainee can be held on mere suspicion until the police decide to release them without charge, issue a fine, release them on bail or bring them before a court.

Sadly, such detention disproportionately impacts Aboriginal and Torres Strait Islanders contrary to the Race Discrimination Act. Over the first 3 months of this year, the arrest and detention powers were used to arrest 500 people, 70% of them Aboriginal.

Tragically, an Aboriginal in the NT, Kumanjayi Langdon aged 59, died in May this year after being held for 3 hours under these laws. It is worth remembering that this arose 24 years after the Royal Commission Report into Deaths in Custody of 1991 recommended that arrest should be used as a last resort to prevent such deaths. The Coroner recommended the repeal of the arrest and detention laws for their discriminatory impact.
Underpinning my concerns about executive overreach is the doctrine of separation of powers that is vital to our democratic system of governance. It is a concept that lawyers learn about at law school but which is hardly ever part of public commentary, and infrequently taught in schools. In brief, we have three arms of government; Executive power vests in the Queen and is exercised by the Governor General; Parliament has the power to pass legislation and the courts are required to interpret the laws and determining whether it has been complied with.

As the High Court has acknowledged, the Chapter III powers of the judiciary are intended to protect against an excess of Commonwealth executive power and to advance individual liberty.

The rationale for the separation of the three arms of government is that sovereigns or executive governments -from King John of Magna Carta, to Charles the 1^st of England, to the present day- will almost always seek to augment their autonomy. This is a given. It is the function of Parliament and judges to provide checks and balances against the inevitability of executive overreach. It has been the institutional failure of Parliament over the last decade or so that poses risks to our individual liberties.

The NAAJA is challenging the new police powers in the High Court and is arguing that the arrest and detention powers are inconsistent with the judicial power of the courts to impose punitive or penal sanctions. In short, their submission is that the NT cannot exercise executive powers... only the NT courts can do so.

The Solicitor General has argued to the contrary that the “doctrine of separation of powers has no application in the territories”

To maximize flexibility, the parliament must be free to make whatever arrangements it wishes in respect of a territory judiciary, including both legislating for and maintaining control and administration of the judiciary and completely transferring control and administration of the judiciary to a separate territory politic under its own legislation”.

He has also argued that the arrest and detention powers are not punitive.

The AHRC has been granted the right by the High Court to make submissions and we will put the international human rights case that the NT arrest and detention laws are punitive and that detention without judicial oversight is arbitrary, contrary to the ICCPRs Art 9(1). Human rights law places a high premium on the judicial role in protecting the right to liberty. We know that the jurisprudence developed under international laws can inform the common law and in turn, can inform the concept of judicial power and the integrity of the courts. The High Court has long recognized that the right to liberty is one of the basic rights of the Constitution that is protected by an independent judiciary. Just recently, in M76 /2013, the High Court confirmed that the common law:

‘does not recognize any executive warrant authorizing arbitrary detention’.

It will be for the Court to decide if the doctrine of judicial separation of powers applies in the NT and whether the principle of liberty from arbitrary detention is upheld.

Mandatory sentencing

Yet another threat to judicial power lies in the growing use of mandatory sentencing laws under which the discretion of the courts to consider individual circumstances is reduced or eliminated.

Mandatory sentencing laws at the Federal level, once rare have now been adopted in respect of people smuggling. Such laws are much more common under state and territory law, especially WA. Attempts to bring in mandatory sentencing laws have a long history in the NT, and today the Sentencing Act (NT), Part 3, Division 6A creates a regime under which the length of a sentence depends on the level of the offence charged by the prosecutor, any prior convictions and on interpretation of the “exceptional circumstances” clause

Another significant threat to our liberty lies in restrictions on:

Freedom of speech

You will recall that on coming to Government the Coalition proposed abolishing or amending 18C of the RDA on the ground that it restricts freedom of speech. This provision makes it an offence to “offend, Insult, humiliate and intimidate” a person in pubic because of their race. Despite the proposed basis for abolishing this provision -that it was an unacceptable burden on the right to speak freely. You will also recall that this proposal was comprehensively rejected by the community. The Government then decided withdrew its reform proposal.

It was thus surprising that the Government subsequently made a 180degree turn by enacting new laws that disproportionately reduce freedom of speech.

• The Australian Border Force Act 2015 (Cth) provides that medical officers, teachers and other professionals employed by the Dept. of Immigration and Border Protection are subject to 2 year prison sentences for speaking out about conditions in immigration detention, if to do so will affect the operations of the Department. While the Act is thought not to prevent reporting of acts that threaten the life or health of a detainee, it is likely to have a serious chilling effect on the willingness to speak out to the detriment of the public’s right to know what is happening in these camps, especially in Manus and Nauru. (nb Public Interest Disclosure Act... whistleblower laws).

• New crimes of “advocating terrorism” have been introduced imposing criminal penalties for offences that are vague and ill-defined.

• The Data Retention laws 2015, potentially applicable to 24million Australians, are so extreme as to be “sledge hammer to crack a nut”.

• Government may apply for 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, for example, do not have the special privileges that are extended to journalists. [Compare the new US Patriot Act that restricts, for the first time, the powers of its intelligence and security agencies.]

Good governance principles of transparency and process

• Senior appointments or ‘captain’s picks’ made by Cabinet, without the usual public advertisement and competitive selection

• Secrecy and lack of transparency re on water operational matters to stop asylum seekers

• Non-compellable ministerial discretions of Ministers, particularly under the Migration Act

The legislation I have briefly described has been assented to by parliaments; an obvious but vital point, for the question:

“what are the proper limits on the power of Parliament?”

-remains a live one for contemporary Australian democracy.

• What then are the safeguards of democratic liberties if Parliament itself is compliant and complicit in expanding executive power 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 explicitly violate fundamental freedoms under the common law and breach Australia’s obligations under international treaties?

Australian Exceptionalism

I suggest that Australia has become isolationist and exceptional in its approach to the protection of human rights.

Our Constitution protects the freedom of religion, the right to compensation for the acquisition of property and the right to vote, and the High Court implies a right of political communication...but very little more. It was drafted as a practical solution to the need to establish a federal structure that respected the rights of the state. It was not inspirational in the way that for example the United States Constitution was intended to be.

As is well known, unlike every other common law country and most civil law countries in the world, Australia has no Charter or Bill of Rights. This means that we do not have the core benchmarks against which to measure or challenge laws that breach fundamental freedoms. It is notable, for example, that the US Supreme Court can appeal to the 14^th Amendment on equality before the law to decide that marriage is available to all including those of the same sex.

Despite what I have said about the lack of domestic constitutional or legislative protections for human rights, it remains true that, in the past, Australia has been a good international citizen, playing an active role in negotiating the human rights treaties that form the international monitoring regime. However, it is vital for Australians to understand that these treaties have typically not been introduced into Australian law by Parliament. The lamentable consequence is that key instruments such as the ICCPR and CROC are not directly applicable by our courts. Indeed, over recent months we have taken a major step backwards in stripping international laws from our existing laws

• The 2014 Maritime Powers Act removed references to the Refugee Convention from s 36 of the Migration Act, which sets out the criteria for grant of a protection visa. “Refugee” is now defined in s 5H (and relevant connected concepts such as ‘well-founded fear of persecution’ are defined in ss 5J to 5M). S197C of the Migration Act re Australia’s nonrefoulement obligations are now irrelevant to removal of unlawful noncitizens under section 198.

• An officer’s duty to remove as soon as reasonably practicable an unlawful noncitizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s nonrefoulement obligations in respect of the noncitizen.

Compounding our isolation from international human rights 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.

It might be thought that we can rely on our courts to protect common law liberties. 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 employed the principle of ‘legality’ to adopt a restrictive interpretation of legislation to protect common law freedoms. That is, it is presumed that Parliament intends to act in conformity with international law and the treaties to which it is party. But, in practice, this has not proved to be as effective a protection as one might have hoped. The presumption of legality applies only if there is an ambiguity in the words of the legislation. The rationale being, of course, that parliament is the law-maker and the task of the courts is to interpret and to implement such laws. But, as our laws today are drafted with such precision, or are so constantly amended, ambiguities are increasingly hard for the courts to find.

In the Malaysian case, for example, the High Court found that, under the s 98 A of the Migration Act, the Minister could not send asylum seekers to Malaysia as that nation had not ratified the Refugee Convention and they would be at risk of return to the country of persecution and discrimination. The Government immediately returned to Parliament to delete the offending clause, leaving open the possibility of further offshore processing arrangements with the Asian region where so many states are not party to the relevant human rights treaties.

Time and again the High Court has limited executive discretion by reference to statutory principles of interpretation and 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.

The Malaysia Solution Case illustrates how, respective Parliaments over the last few years have failed to exercise their traditional self-restraint in protecting democratic rights. Historically, Parliament has been the bulwark against sovereign or executive power. Professor George Williams estimates that there are currently over 350 Australian laws that infringe fundamental freedoms. He suggests that prioritizing governmental power has become a “routine part of the legislative process”, stimulating little community or media responses.

With these general comments about Australian exceptionalism, I would now like to look at the:

Counter Terrorism and loss of citizenship laws

Counter-terrorism laws have been significantly extended over recent years to modernize our outdated laws and to recognize that terrorism is highly individual and not state-based.

The strength of the rule of law is, however, more truly tested when security is threatened than in times of peace. When Australia is threatened by terrorism, the need to protect our traditional liberties assumes an even greater urgency. Many counter-terrorism laws, introduced with unseemly haste before Christmas, go well beyond what might be deemed to proportionate, creating a chilling effect on freedom of speech and the press and breaching the right to privacy.

The Australian Citizenship (Allegiance to Australia) Bill 2015 has just been introduced to ensure that Australian citizens accused of fighting for or in the service of a declared terrorist organization, or acting inconsistently with their allegiance to Australia, will be stripped of their citizenship automatically, including that of their children, if they are dual nationals. The wording of the Bill is ill-defined, but does include the ground of damaging Commonwealth property. The loss of citizenship for dual nationals, including those who have spend most if not all their lives in Australia strikes at the heart of Australia’s successful migrant and multi-cultural nation and threatens social cohesion.

Under current law, the power of the Minister to revoke citizenship arises if a conviction for specified offences had been made and if the offence was in connection with making an application for citizenship of Australia.

It is now proposed that the revocation should arise by operation of law rather than the initially proposed subjective Ministerial discretion. In short, no decision is required by the Minister, though it is implicit that an official somewhere will make the decision. But it is also proposed that the Minister be granted a non-compellable discretion to exempt the citizen from the automaticity of the loss of citizenship ‘if the Minister considers it appropriate to do so’. The Minister cannot be required to think about whether he will exercise this discretion and if he makes any mistakes is not bound by the rules of natural justice.

• Magna Carta has something to say about this.

It provides that no man is to be ‘outlawed or exiled’ except by the law of the land. This ancient principle raises the question whether it is consistent with the rule of law for Parliament to pass legislation to withdraw citizenship automatically, subject to the discretion of the Minister. I suggest it is contrary to the spirit of the rule of law, contrary to the ICCPR Art 12 (4) protecting the right to enter and remain in ones own country and to the principle of the separation of powers for Parliament to revoke citizenship automatically under the legislation and then to grant discretion to the Executive to provide an exemption from the Act. The effect of the Bill is to allow the Executive not only to pass laws through Parliament but also to determine when those laws will apply.

• The Government argues that the right to a fair trial is not threatened by the Bill because there is judicial review of any decision made by the Minister not to exempt a person from the automatic loss of citizenship. This is true. A court could review whether the power under the Citizenship Act has been exercised according to the law. But all the law requires is that the Minister can exercise his discretion as he considers appropriate. In short, the courts have nothing to review thus the exercise will be futile. In this way the courts are excluded from the process, other than the theoretical power to review the unreviewable.

• The Bill, I suggest, diminishes the judicial power to make determinations, and will be, if passed, an arbitrary overreach of executive discretion facilitated by a compliant Parliament.

• The debate over citizenship has become one between the subjective satisfaction of a minister, versus an evidence-based determination by a judge according to established rules of evidence and law.

A second example of the overreach of executive discretion and power lies in:

Arbitrary and indefinite detention

• The enduring words of Magna Carta are:

• “ no freeman is to be imprisoned except by the lawful judgment of his equals or by the law of the land”.

• Over recent years, respective Parliaments have granted governments the power to detain indefinitely various classes of persons, including most notably refugees and asylum seekers, along with those less well known who have infectious diseases, or who are mentally ill and unfit to plead to criminal charges, or who are subject to mandatory admission to drug and alcohol rehabilitation facilities or indefinite detention of serious sex offenders. Few of those detained under such laws have meaningful access to legal advice or regular independent judicial or administrative review.

• The AHRC is particularly concerned by the growing instances of detention in prisons of those with cognitive disabilities for lengthy periods without releasing them into more appropriate facilities and in the absence of regular review by an independent tribunal.

• 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.

• 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 independent review. About 2026, people, including 118 children, remain in closed detention in Australia and 943 males remain on Manus and 448 refugees on Nauru, including 89 children. Most have been held for well over a year in conditions that have been criticized by the UN as breaching the Torture Convention.

• Some recent cases shine rays of legal light on the unconstrained right of Parliaments to give the Executive the power to detain. The High Court has for example said that Parliament cannot confer delegated legislative power on the Minister to exercise an open-ended discretion with respect to aliens. The High Court has also unanimously confirmed a writ of mandamus against the Minister for Immigration to require him to make a decision to grant a visa or deport, one or the other, within a reasonable period of time.

• As punitive detention is for the courts alone, I suggest that their prolonged and indefinite detention by the Executive risks becoming punitive. If so, it violates the principle of separation of powers.

Conclusions

One of many lessons I have learned over my three years as President of the AHRC is that one of the most effective safeguards of human rights is the cultural expectation of Australians that our freedoms will be protected. While most Australians are unlikely to be able to describe the doctrine of the separation of powers, they are quick to assert their liberties under the rubric of a ‘fair go’- a phrase that is as close to a bill of rights in this country as we are likely to get. This cultural expectation is what keeps our freedoms alive today, as was illustrated by the overwhelming community response to Operation Fortitude and to preserve s.18C of the RDA.

The scores of laws passed recently that infringe our rights has confirmed in my view that Australia needs a legislated Charter of Rights. If the law fails and needs to be repealed or amended that is easy to achieve.

A national priority is to promote the education of young Australians, so they better understand and value the Constitutional protections for democracy and the rule of law.

In conclusion, I hope that, despite challenging the power of the executive, I, as an English migrant and a dual citizen, I can keep my Australian passport and escape statelessness, and eventually retire to smell the roses in peace.

Thank you