Freedom, Parliament and the Courts. Speech to the Human Rights Dinner

 

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Distinguished guests, friends and colleagues- thank you for your welcome tonight.

I acknowledge the traditional owners of the land, the Gadigal people of the Eora nation, and pay respect to their elders past and present.

I am honoured 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 especially impressed by the work of the Human Rights Law Center that places human rights law at the heart of their advocacy.

One of our purposes tonight is to raise money to support both Justice Connect and the Human Rights Law Center as they provide meaningful access to justice and legal advice for disadvantaged Australians, a fundamental aspect of democracy. The Productivity Commission last year recommended that an additional $200 million is needed to provide sustainable national legal services to the community. While we may not quite get to $200 m. tonight, may I urge you to be as generous as you are able, to support their vital work.

I would like to speak to you this evening about the vital role our parliaments play, whether State, Territory or Federal, in protecting our ancient democratic liberties and rights. As you may know I have already given this speech for Justice Connect and the HRLC in Melbourne last Friday, so I do hope you have not read the press reports that make it sound rather more exciting that it is. I hope that here in my hometown Sydney you get the better version!

Over the last 3 years as President of the AHRC, I have become increasingly concerned about the decline in the effectiveness of Parliament and the judiciary and the corresponding increase in executive discretion, all too often exercised without independent scrutiny.

Let me begin by taking 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 14 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.

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.

Particularly since the 9/11 attacks in 2001 on the United States, Australian parliaments have passed scores of laws that infringe our common law 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 when they grant discretionary powers to executive governments in the absence of meaningful scrutiny by our courts.

 

• 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?

On the 15^th June this year we celebrate the 800^th 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 or sealing 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 of the limits on the arbitrary power of the state. They ring through the centuries and remain the bedrock for principles of justice we struggle to protect in the 21^st century.

In the 17^th century, Magna Carta was employed to good effect by Sir Edward Coke, England’s first Lord Chancellor, in his bitter legal battle with King James the First. Sir Edward placed his own contemporary spin on Magna Carta to reject the idea of 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 5^th and 6^th amendments and the United Nation’s Universal Declaration of Human Rights in 1948, an inspirational document to which Australia’s Dr. HV Evatt made such a substantial contribution.

Magna Carta is nonetheless more honoured 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)

Yes, it is true that little remains on our statute books today of the liberties set out in Magna Carta, liberties that reflected long-established Anglo Saxon and Angovian laws recognized by the Royal Courts of Justice and which applied only to Barons and freemen. Magna Carta is dismissed by some as an overrated political myth.

But it remains true that Magna Carta “means more than it says”. The myth has potency as a universal acknowledgement of the principles that the sovereign is not above the law and that sovereignty lies in the people and is exercised by their elected representatives through parliament.

Other legacies of Magna Carta that contribute to our liberties 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 and not be forced to remarry.

Today, Magna Carta is recognized as the foundation of modern democracy and, in short, provides protection for the individual against arbitrary power.

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 in court on the basis of Magna Carta. But, it should be noted, the Master of the Rolls gave the argument short shrift.

It is not the technical provisions of Magna Carta that are most important today. Rather it is its normative and iconic power that informs my concern that the supremacy of the law over the executive is under threat in Australia’s contemporary democracy.

Before looking at some examples of the many laws that now diminish our freedoms, it should be acknowledged as axiomatic that human rights and freedoms are rarely absolute and must be balanced with other rights, including public and national 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 has been adopted by the High Court of Australia and reflects international jurisprudence.

This legal test is of course easy to state, but difficult to apply.

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. These letters it was said were intended to protest against our participation in the war. The High Court judges were unable to agree on whether these letters should be protected by the implied right to political communication. The proper limits on the right to freedom of speech remain unsettled.

The first example of executive overreach I would like to mention concerns:

Arbitrary and indefinite detention

May I repeat the enduring words of Magna Carta: “ 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 subject to mandatory admission to drug and alcohol rehabilitation facilities. Few of those detained under such laws have meaningful access to legal advice or regular independent judicial or administrative review.

Australian jurisprudence on the validity of executive detention was developed by the High Court in Lim’s case in 1992. 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.

• 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.

 

• Sadly, such detention disproportionately impacts Aboriginal and Torres Strait Islanders; a problem exacerbated by the Northern Territory’s ‘paperless arrest’ powers introduced late last year permitting detention for 4 hours without being brought to a court for offences that do not in some cases, attract the sanction of imprisonment. Such detentions have increased the rate of detention of Aboriginal Australians and deaths in custody continue, as recently as last week, 25 years after the Royal Commission Report into Deaths in Custody

 

• There will of course be instances where detention at the discretion of the executive is justified in the interests of community safety. A detainee might be violent and dangerous, or reasonably likely to commit sexual offences in the future. But conviction and imprisoned for a serious crime, does not necessarily justify continued detention at the discretion of the Government once the sentence has been served. While the High Court in Kable nearly 20 years ago rejected an attempt by NSW to give its courts the power to impose preventative detention orders on a person who is ‘more likely than not to commit a serious crime of violence’, the States and territories have since enacted laws for “preventative detention” of certain “high risk violent or sexual offenders”. These laws have yet to be successfully challenged and preventative detention remains a powerful 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 independent review. About 2000, people, including 127 children, remain in closed detention in Australia and about 1,ooo males remain on Manus and 700 people on Nauru, including 95 children. Most have been held for well over a year in conditions that have been criticized by the UN as breaching the Torture Convention.

 

• As punitive detention is for the courts alone, I believe that their prolonged and indefinite detention has become punitive and is beyond power.

The second major example of executive overreach are the:

COUNTER TERRORISM LAWS

 

• Counter-terrorism laws that have been significantly extended over recent years. The strength of the rule of law is, I suggest, 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 laws introduced with unseemly haste before Christmas, and in the name of national security, 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 Data Retention laws passed this year are curious. 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 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 “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 ironic 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.

 

• Of course many politicians support the rule of law and freedom of speech but are breathtakingly inconsistent in doing so. While the government argued for the repeal or amendment of s18C of the Race Discrimination Act in order to protect free speech, it made a 180 degree turn with new counter-terrorism crimes of advocacy and penalties for the disclosure of protected information. A new offence has been created of “advocating terrorism”(s. 80.2C, Criminal Code), an imprecise crime whose scope may cover, for example, opposing the Assad regime in Syria.

 

• Today, the Attorney announced further legislation to create a social media monitoring capability, to detect terrorist propaganda justified ‘as one of the biggest challenges’ for Australia. If proportionality is the test, I wonder what new laws and funding will be forthcoming to stop domestic violence; almost 2 women a week being killed by their partners or former partners, with an estimated 43 women killed this year already.

 

• Freedom of movement is also threatened by new laws (Foreign Fighters Act ) under which the Mosul district in Iraq and Al-Raqqa province in Syria are ‘declared areas’. Any Australian entering these areas is subject to a 10 year prison sentence, (unless they have a valid excuse, the evidentiary burden for which lies on the accused)

 

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

 

• ‘Anti-bikie’ laws threaten our right to freedom of association, the principle against self-incrimination has been eroded; the judicial power to assess individual circumstances is threatened by a spate of mandatory sentencing laws.

 

• References to the Refugees Convention in the Migration Act are now replaced by the Minister’s understanding of the meaning of “Refugee’ and the rights that 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 of any other nation’s law that states it is to apply regardless of international law 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.

• A bill to Maintaining the Good Order of Immigration Detention Facilities gives guards enforcement powers that are greater than those available to the Australian Federal Police; the guards 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, imposing punishment without charge or trial, contrary to the doctrine of separation of powers.

• And, finally, we come to 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. 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.

 

• This proposal strikes at the heart of Australia as a largely migrant nation. Not only does this idea risk violating Australia’s obligation not to render a person stateless, but also the decision may be at the discretion of a Minister, without recourse to judicial review on the merits.

 

• 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 satisfaction of a minister, versus an evidence-based determination by a judge according to established rules of evidence and law.

Each of these examples of the willingness of parliament to 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.

Respective Parliaments have, I suggest, failed to exercise their traditional self-restraint in protecting democratic rights. 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.

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 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.

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.

Conclusions

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.

The AHRC as an independent statutory body - one of 110 such NHRIs throughout the world-also plays a vital role monitoring Australia’s compliance with our international human rights obligations.

One of the most important and effective safeguards of our human rights is the expectation of Australians that our freedoms will be protected. While many, if not most, Australians are unlikely to be able to describe the doctrine of the separation of powers among the executive, Parliament and judiciary, they are very quick to assert their freedoms 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 amply illustrated by the overwhelming community response to preserve s18C of the RDA.

Promoting a community culture that respects human right depends also on the education of young Australians so they better understand and value the Constitutional protections for democracy and the rule of law.

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, can keep my passport close and escape statelessness to retire and smell the roses.

Thank you all.