What are the proper limits on the power of Parliament?

Distinguished guests, friends and colleagues - thank you for your welcome to this Law Institute of Victoria seminar.

I acknowledge the traditional owners of the land and pay my respects to their elders past and present.

I will always have a soft spot for the Law Institute of Victoria. I was admitted to practice in 1969 after completing my articles with Williams Winter and Higgs, and practiced for just a few months. I went to the United States to undertake a masters degree in International Law and then a Ph.D. I remained an academic lawyer at the University of Melbourne until 1984, when I decided to return to commercial law. Not having held a practice certificate for about 15 years and after three children, I vividly remember calling the Law Institute with extreme trepidation, thinking that records of my admission would have disappeared in to the mists of time and that, I might have to repeat the LLB or more, my articles! I was relieved when a cheerful lady on the phone found my records immediately and welcomed me back to the profession. I have held a practice certificate ever since and remain grateful to her!

I would like to speak to you today about the expansion of executive discretion, the failure of parliaments to protect our liberties, and the diminution of the judicial role in application of common law principles. These ideas are of course somewhat abstract. I will explore some concrete examples by looking at the growing use of administrative detention without trial, the introduction of new laws to strip away citizenship and proposals for marriage equality.

At the core of my concerns is the question:

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

It is a question that is a live one for contemporary Australian democracy, for 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 counter- terrorism laws. 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 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 to agree upon laws that threaten fundamental freedoms under the common law and breach Australia’s obligations under international treaties?

The Legacy of Magna Carta

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 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 21st century.

In the 17th 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 5th and 6th 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.

It is nonetheless true that Magna Carta is more honored today as an historical and political symbol, than as a directly applicable source of legal rights and freedoms. Little remains on our statute books of the liberties set out in Magna Carta. Indeed, Magna Carta is dismissed by some as an overrated political myth.

But it also 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.

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

Human Rights are not absolute

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 is 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 argued, were intended to protest against our participation in the Afghan 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.

Each of the examples of recent laws that threaten democratic freedoms, taken individually, might be justified on the legal test of necessity and proportionality. Viewed together, however, 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 the presumption that parliament intends to comply with international law.

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

Arbitrary and indefinite detention

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. Few of those detained under such laws have meaningful access to legal advice or regular independent judicial or administrative review.

The High Court in Lim’s case in 1992 has determined that detention will be valid if it is for a legitimate non-punitive and essentially administrative purpose. The 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 Australian Human Rights Commission 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 Commission 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 four 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

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 138 children, remain in closed detention in Australia and 943 males remain on Manus and 448 refugees on Nauru, including 81 children. Most have been held for well over a year in conditions that have been criticised by the UN as breaching the Torture Convention.

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

The second major example of executive overreach are the:

Counter Terrorism and loss of citizenship laws

Counter-terrorism laws have been significantly extended over recent years to modernise our outdated laws and to recognise 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 Data Retention laws 2015, potentially applicable to 24 million Australians, are so extreme as to be “sledge hammer to crack a nut.”

• 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, 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.]

• New crime of “advocating terrorism” and penalties for the disclosure of protected information.

• New laws are proposed by the Attorney to create a “social media monitoring capability” on the ground that terrorist propaganda is seen by the government as one of the greatest threats to Australia.

• Freedom of movement is threatened by the Foreign Fighters Act. 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.

• 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.

• The new secrecy provisions of the Australian Border Force Act 2015 (Cth) provide that medical officers, teachers and other professionals employed by the Department 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 operation of the Department. While the Act is thought not to prevent reporting of acts that threaten the life of 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. (Role of Public Interest Disclosure Act… whistleblowers laws)

• The Australian Citizenship (Allegiance to Australia) Bill 2015 has just been introduced to ensure that Australian citizen 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. Under current law, the power of the Minister to revoke arose 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.  But it is also proposed that the Minister be granted a non-compellable power to exempt the citizen from the automaticity of the loss of citizenship ‘if the Minister considers it appropriate to do so.’

The Government’s Statement of Compatibility with Human Rights recognises that the ICCPR and CROC are engaged by the Bill, especially the right to enter one’s own country, equality before the courts and the right to a fair hearing, and “the best interests of the child.”  Despite risking violations of these international obligations, the Statement concludes that any such risks are justified by national security considerations. Minister Dutton considers that any breaches of the treaties will be reasonable and proportionate measures to achieve a legitimate aim.

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 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 and to the principle of the separation of powers for Parliament to do so and then to grant discretion to the Minster to provide an exemption. The effect of the Bill is to allow the Government to pass laws through Parliament, and to determine when those laws will apply.

The Government argues that the right to a fair trial is not threatened by the Bill because it remains possible for 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.

Finally, the proposal strikes at the heart of Australia as a largely migrant nation. 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.

Parliament’s traditional restraint to protect liberties

Respective Parliaments have, I believe, 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 prioritising governmental power has become a “routine part of the legislative process,” stimulating 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 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.

But, it might be thought, 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 17th century 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. [The unanimous decisions in S4 and S297 (where the High Court issues a writ of mandamus against the Minister of Immigration requiring him to meet his statutory obligations) are illustrations].

Marriage Equality

The contemporary question of marriage equality demonstrates many of the points I have been making about the ‘exceptionalist’ approach by Australia to the protection of human rights, the inability of the courts to resolve the current impasse in the absence of constitutional rights and the failure of Parliaments to provide leadership against politicisation of the issue.

What does international law have to say on the subject?

•  Art 26 ICCPR

• Art 2 ICCPR

• No positive obligation to recognise same sex marriage

What is state practice internationally?

•  21 states legalise same sex marriage.

What is Australian law?

Marriage Act 1961 (Cth)

• marriage is defined as “the union of a man and a woman.”

• Discriminates against same sex couples, transgender persons etc.

In December 2013 the High Court decided it has the Constitutional power to legislate for same sex marriage. It thus depends upon Parliament to agree to pass laws changing the Marriage Act.

Research has demonstrated that there is strong support for marriage equality in Australia. In a 2014 survey Crosby/Textor (leading research company) found that 72% of Australians support marriage equality. This represented all demographics and included people of faith.

What has been the role of the Australian Human Rights Commission?

• Principle of equality in the ICCPR means that civil marriage should be available without discrimination to all couples regardless of sexual orientation or gender identity.
• Social and health implications of discrimination and marginalisation.
• Report, Same Sex-Same Entitlements 2007 led to amended Commonwealth legislation to remove discrimination. This Report stimulated a major step forward re de facto status of same sex couples.
• No necessary conflict between right to equality and freedom of religion as Ministers of religion will not bound be to marry a same sex couple and proposed legislation does not interfere with the religious institution of marriage.
• Propose:  amend Marriage Act to create a ‘union of two people’.

Legality of same sex marriage can and has been achieved by differing routes according to national constitutions and laws.

Ireland’s referendum: long process of consultation, strong public support for legislative recognition.

United States Supreme Court:

The decision in Obergefell v Director, Ohio Department of Health et al, 26 June 2015 by 5 of the 9 judges of the US Supreme court is that the 14th Amendment requires states of the union to license a marriage between two people of the same sex and to recognise that marriage.

The 14th Amendment provides that:

No State [within the Union] shall make any law… which shall abridge the privileges or immunities of citizens… nor shall any state deprive any person of life liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

The majority considered that the challenged state laws burden the liberty of same sex couples and abridge the central principles of equality. Court applied four principles:

1. Individual autonomy
2. Right to have a two person union on an equal basis
3.  Protection of children from stigma and insecurity
4. Marriage a keystone of social order guaranteed by equal protection laws that are closely connected to the due process clause. Right to marry is inherent in the liberty of the person.

The Court confirmed that equality of marriage does not affect the 1st Amendment right protecting religion.

The Supreme Court decision reflects the role of the US judiciary in interpreting Constitutional rights to reflect contemporary views of marriage and the right to equality. In this way, the United States system of checks and balances among the President, Congress and the courts enables major social issues to be resolved.

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 environment.

Other options are to strengthen scrutiny by the Joint Parliamentary Committee on human rights. This Committee, established five 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 Australian Human Rights Commission as an independent statutory body - one of 110 such national human rights institutions 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 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 preserve s18C of the Racial Discrimination Act.

Promoting a community culture that respects human rights 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, I hope that, despite challenging the power of the executive, I, as an English migrant, can keep my Australian passport secure and escape statelessness, eventually to retire in peace.

Thank you