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PREVENTATIVE DETENTION AND CONTROL ORDERS
UNDER FEDERAL LAW: THE CASE FOR A BILL OF
RIGHTS
PAUL FAIRALL∗^ AND WENDY LACEY †
[Federal laws passed since the 11 September 2001 attacks in the United States represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the domi- nance of a positivistic legalism in the approach of the High Court of Australia — an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.]
C O N T E N T S
I Introduction .......................................................................................................... 1072 II Background to the Anti-Terrorism Act [No 2] 2005 (Cth) ................................... 1074 III Preventative Detention Orders ............................................................................. 1076 IV Prohibited Contact Orders .................................................................................... 1079 V Control Orders ...................................................................................................... 1079 VI Thomas v Mowbray : The Constitutional Validity of Control Orders ................... 1080 VII Control Orders as an Exercise of Judicial Power ................................................. 1081 VIII The Constitutional Validity of Preventative Detention Orders............................. 1086 IX Divergent Approaches to Human Rights Protection ............................................ 1087 X Judges as Champions of Human Rights Protection?............................................ 1090 XI The Politicisation of Human Rights Protection.................................................... 1092 XII Conclusion............................................................................................................ 1095
I I N T R O D U C T I O N
The sensitive balance between civil rights and national security has shifted since the 11 September 2001 terrorist attacks. In Australia, the adjustment is readily visible in the proliferation of anti-terrorism laws. The scope of such laws
∗ (^) BA, LLB (Hons) (Canterbury), LLM (ANU); Professor and Dean of Law, School of Law, Division of Business, University of South Australia. † BA (Hons), LLB (Hons), PhD (Tas); Associate Professor, School of Law, Division of Business, University of South Australia.
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is very extensive^1 and constitutes a major challenge for traditional thinking about civil rights.^2 This article considers the challenges for federal courts in dealing with such legislation 3 through an examination of the decision in Tho- mas v Mowbray^4 and key counter-terrorism measures adopted in 2002, including preventative detention orders (‘PDOs’) and control orders. In Tho- mas v Mowbray , the control order regime established under Division 104 of the Criminal Code Act 1995 (Cth) sch (‘ Criminal Code ’) survived a constitutional challenge. This important decision of the High Court of Australia has wide ramifications for human rights protection (or the lack thereof) in Australia. The control order is one of a series of extraordinary devices introduced by the Anti-Terrorism Act [No 2] 2005 (Cth) 5 — part of an extensive package of anti-terror laws, the likes of which would have been unthinkable a decade ago. The upholding of legislation providing for the deprivation of liberty of a person not convicted or charged with any criminal offence marks an unfortunate turn in the spiralling descent of civil rights protection in Australia. It graphically illustrates the inability of judges to protect the community from the erosion of fundamental civil rights. Thomas v Mowbray offers a telling example of the inadequacy of judicial review in protecting individual liberty in the face of extraordinary legislative measures — at least when jurisprudential approaches are dominated by ‘a virulent strain of legal positivism’,^6 and where human rights issues tend to remain at the margins of judicial analyses. In this article, we argue that the combined effect of two trends in Australia — the dominance of legal positivism and the political resistance to the statutory implementation of human rights norms at the federal level — has placed High Court judges in a difficult position. The politics surrounding the implementation (or non-implementation) of a federal bill of rights, and human rights generally, are well-known. They have been characterised by a number of tensions including federal–state rivalries,^7 concerns with sovereignty (and the so-called ‘democratic deficit’),^8 executive
(^1) For a comprehensive overview of the government’s response to terrorism: see Parliamentary Library, Terrorism Law (2007) Parliament of Australia <http://www.aph.gov.au/library/intguide/ law/terrorism.htm#court>. (^2) The Law Council of Australia has been especially critical of much of the anti-terrorism legislation: see Tim Bugg, ‘President’s Address: The State of the Profession’ (Speech delivered at the 35 th^ Australian Legal Convention, Sydney, 25 March 2007). (^3) Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ (2007) 10 Flinders Journal of Law Reform 105. (^4) (2007) 237 ALR 194. (^5) Amending div 104 of the Criminal Code. Other similar measures include PDOs and prohibited contact orders (‘PCOs’): at div 105. (^6) A phrase used by the late Justice John Perry of the Supreme Court of South Australia: Justice J W Perry, ‘The Use and Application of International Law in Australia and in Decision Making’ (Paper presented to the Law Society of South Australia, Adelaide, 29 October 2003) 18. (^7) See, eg, Koowarta v Bjelke-Petersen (1982) 153 CLR 168. (^8) For example, the response to the decision in Toonen v Australia , United Nations Human Rights Commission, UN Doc CCPR/C/50/D/488/1992 (1994): Sarah Joseph, ‘Gay Rights under the ICCPR : Commentary on Toonen v Australia ’ (1994) 13 University of Tasmania Law Review 392; Wayne Morgan, ‘Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melbourne University Law Review 740.
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In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or un- necessarily encroaching on the individual rights and liberties that are funda- mental to our democratic system. We think the legislation does just that. 14 The anti-terrorism laws have been progressively supplemented. In 2005, following a Council of Australian Governments (‘COAG’) meeting held on 27 September 2005, the decision was made to ‘strengthen’ Australia’s anti-terrorism laws even further, both at the state^15 and federal level. The Criminal Code amendments contained in the Anti-Terrorism Act [No 2] 2005 (Cth) were extensive and controversial. The control order legislation forms part of a huge package of anti-terrorism laws that would have been unimaginable a decade ago. New laws provide special rules for trials involving security issues,^16 contemplate the effective ‘licensing’ of lawyers by requiring security clearances in sensitive trials,^17 and sanction gross departures from principles of natural justice ordinarily applicable to administrative processes and criminal trials, for example, the right to see the evidence against oneself.^18 In terms of substantive law, there has been a signifi- cant extension of inchoate liability to include a variety of preparatory offences; 19 an expanded definition of terrorism that relies heavily upon motive as a defining factor; 20 and the expansion of extraterritorial reach.^21 The definition of a ‘terrorist organisation’ has been extended and the offence of sedition revital- ised.^22 New offences relating to the financing of terrorism have been introduced and greater powers of criminal investigation conferred. Importantly, for present purposes, the Anti-Terrorism Act [No 2] 2005 (Cth) amendments to the Criminal Code inserted three measures that present particular challenges for civil liberties: control orders, PCOs and PDOs.
(^14) Daryl Williams, Attorney-General of Australia, ‘Counter-Terrorism Package’ (Press Release, 4 June 2002). (^15) See Terrorism (Police Powers) Act 2002 (NSW); Terrorism (Preventative Detention) Act 2005 (Qld); Terrorism (Preventative Detention) Act 2005 (SA); Terrorism (Preventative Detention) Act 2005 (Tas); Terrorism (Community Protection) Act 2003 (Vic); Terrorism (Preventative Detention) Act 2006 (WA); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); Terrorism (Emergency Powers) Act 2003 (NT). (^16) Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information , Report No 98 (2004). (^17) National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 39, 46. See also Criminal Code s 105.37(4). (^18) For example, the rules of discovery have been adjusted and special provisions relating to bail in terrorism cases have been provided: Crimes Act 1914 (Cth) s 15AA; Vinayagamoorthy v DPP (Cth) [2007] VSC 265 (Unreported, Bongiorno J, 17 July 2007). See also Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of Anti-Terrorism Bill [No 2] 2005 (2005). (^19) Criminal Code s 100.4. (^20) Criminal Code s 100.1. See also Thomas v Mowbray (2007) 237 ALR 194, 213 (Gummow and Crennan JJ). (^21) XYZ v Commonwealth (2006) 227 CLR 532. (^22) See, eg, Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia , Report No 104 (2006); Simon Bronitt and James Stellios, ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War on Terror”’ (2006) 30 Melbourne Uni- versity Law Review 923.
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The PDO regime established by Division 105 of the Criminal Code has yet to be judicially considered. PDOs constitute a latent threat to civil liberties and have been used in the past (although thankfully never in Australia) as a means of stifling political dissent. Administrative detention is anathema to liberal democ- racy; that an individual should be deprived of liberty by executive order in the absence of any allegation of criminal wrongdoing is so axiomatically wrongful as to require no argument. Save extraordinary threats to public health, in cases of clear mental illness, or in times of declared war, it is unheard of for people to be detained for long periods of time outside the criminal justice system. John North, President of the Law Council of Australia, reminded the Senate Legal and Constitutional Legislation Committee reviewing the proposed legislation, that:
Australia’s formal criminal justice system embraces critically important guaran- tees and safeguards, including the right of an accused to a fair trial, rules of evi- dence which are fair, the presumption of innocence and the requirement that guilt be established beyond reasonable doubt. These safeguards and minimum guarantees have been in place for centuries to try and punish those who can be convicted beyond reasonable doubt. It is unheard of in Australian law to have people held or detained for long periods under very strict conditions unless we
follow these legal safeguards. 23
Against this, the Howard Coalition government’s position was that such meas- ures were necessary given the nature of the terrorist threat. The safety of the people was the highest law. The logic of this argument can be applied equally in other areas of unlawfulness: drugs, racketeering, juvenile delinquency, gang behaviour, economic crimes, white-collar and especially environmentally damaging crime causing misery to millions. Whether the anti-terrorism measures will lead to other draconian measures remains to be seen, but the early signs are ominous.^24
III P R E V E N TAT I V E D E T E N T I O N O R D E R S The preventative detention scheme is designed to detain persons suspected of some degree of involvement with terrorism where there is insufficient evidence to justify a formal charge.^25 Detention can be for up to 48 hours under federal law, or 14 days under state law. 26 The law has protective and forensic functions — to prevent terrorist attacks and to apprehend offenders. If a terrorist threat is imminent, or expected to occur within 14 days, and there are reasonable grounds to suspect that a person is involved either by way of planning or participation, so
(^23) See Senate Legal and Constitutional Legislation Committee, above n 18, [3.33]. (^24) There have been public calls in both Australia and New Zealand for motorcycle gangs to be proscribed under the model used to outlaw terrorist organisations: Nick Henderson, ‘Crackdown on Gangs in the Pipeline’, The Advertiser (Adelaide), 11 June 2007, 4; ‘Governments Join to Tackle Bikie Gangs’, The Australian (Sydney), 28 June 2007 <http://www.theaustralian.news .com.au/story/0,20867,21983925-1702,00.html>. (^25) See above n 15. (^26) Criminal Code s 105.9; Terrorism (Police Powers) Act 2002 (NSW) s 11(3)(a); Terrorism (Preventative Detention) Act 2005 (Qld) s 12(2); Terrorism (Preventative Detention) Act 2005 (SA) s 10(5)(b); Terrorism (Preventative Detention) Act 2005 (Tas) s 9(2); Terrorism (Commu- nity Protection) Act 2003 (Vic) s 13G(1); Terrorism (Preventative Detention) Act 2006 (WA) s 13(3); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) s 8.
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- a detainee is entitled to contact certain specified persons, for example, a member of their family, a flatmate, a colleague or coworker, but solely for the purposes of saying that they are safe but not able to be contacted for the time being;
- similar provisions apply to interpreters^39 and to monitors 40 responsible for supervising the contact the subject has with their lawyer;
- a detainee is entitled to contact the Ombudsman^41 or a lawyer 42 and there are special contact rules for persons under 18 or persons incapable of managing their own affairs; 43
- a lawyer commits an offence punishable by imprisonment for five years if a person being detained under a PDO contacts the lawyer and the lawyer discloses to another person certain facts relating to the deten- tion; 44
- proceedings may not be brought in a court for a remedy in relation to a PDO, or the treatment of a person in connection with the person’s de- tention under a PDO while the order is in force; 45
- lawyers can only disclose information for the purpose of federal court proceedings, complaints to the Ombudsman, the giving of information or communications to the federal police, or state or territory officials about the detainee’s treatment during detention; 46
- if the order is in force, a court of a state or territory does not have juris- diction; 47
- this provision is said to apply ‘despite any other law of the Common- wealth (whether passed or made before or after the commencement of this section)’; 48
- an application for review may be sought from the AAT, but not while the order is in force; 49 and
(^39) Criminal Code s 105.41(5). (^40) Criminal Code s 105.41(7). (^41) Criminal Code s 105.36. (^42) Criminal Code s 105.37. (^43) Criminal Code s 105.39. (^44) Criminal Code s 105.41(2). (^45) Criminal Code s 105.51(1). (^46) Criminal Code s 105.41(2)(d). (^47) Criminal Code s 105.51(2). (^48) No application lies to the AAT for review of the PDO decision or an extension order made by the issuing authority while the order is in force. The AAT may subsequently declare a PDO decision to be void if the AAT would have set the decision aside if an application for review of the deci- sion had been able to be made to the AAT while the order was in force. The AAT may also de- termine that the Commonwealth should compensate the person in relation to the person’s deten- tion under the order if the AAT declares the decision to be void: see criminal Code s 105.51(5), (7)–(8). (^49) Criminal Code s 105.51(5).
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- no application can be made (at any time) under the Administrative De- cisions (Judicial Review) Act 1977 (Cth). 50
IV P R O H I B I T E D C O N TA C T O R D E R S
PCOs were introduced into Australian law by the Anti-Terrorism Act [No 2] 2005 (Cth).^51 The grounds for making a PCO reflect the protective and forensic purposes underlying these measures. A member of the Australian Federal Police may apply for a PCO if he or she is satisfied that the order is reasonably neces- sary to:
1 avoid a risk to action being taken to prevent a terrorist act occurring; 2 prevent serious harm to a person; 3 preserve evidence relating to a terrorist act; or 4 prevent interference with the gathering of information.^52 An order can also be made to facilitate the arrest of a suspected terrorist, a person subject to a PDO, or a person in relation to whom such an order is likely to be made, or to facilitate the service of a control order on a person. 53 A PCO can apparently exist independently of a PDO, although a member of the Austra- lian Federal Police may apply for a PCO when applying for a PDO, or indeed where a PDO has already been made.^54 The issuing authority may order that the detainee is not, while in detention, to contact the person specified in the PCO. 55 The Criminal Code sets out the information that must be provided to the issuing authority. It must be in writing 56 and the Commonwealth Ombudsman must be notified in writing of the making of the PCO and receive a copy of the PCO. 57
V C O N T R O L O R D E R S Division 104 grants a federal court the power to make control orders for peri- ods of up to 12 months. In making a control order, the court must be satisfied, on the balance of probabilities, that making the order would substantially assist in preventing a terrorist act, or that the person has provided training to, or received training from, a listed terrorist organisation.^58 Control orders can be used to impose drastic restrictions on movement, association and communication. A person may be required to stay at, or away from, certain premises; wear a
(^50) Criminal Code s 105.51(4). (^51) These measures were not part of the Anti-Terrorism Bill 2005 (Cth) submitted to the House of Representatives and were inserted by House amendments. As a result, state legislation modelled on and passed before the Anti-Terrorism Bill [No 2] 2005 (Cth) required subsequent amendment: see, eg, Terrorism (Preventative Detention) (Miscellaneous) Amendment Bill 2007 (SA). (^52) Criminal Code s 105.14A(4). (^53) Criminal Code s 105.14A. (^54) Criminal Code s 105.16. (^55) Criminal Code s 105.15(4). (^56) Criminal Code s 105.15(5). (^57) Criminal Code s 105.15(6). (^58) Criminal Code s 104.4(1)(c).
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VII C O N T R O L O R D E R S A S A N E X E R C I S E O F J U D I C I A L P O W E R The judicial power of the Commonwealth is vested in courts established under Chapter III of the Constitution. It is a basic if non-obvious principle underlying the separation of powers doctrine as articulated in the Constitution that only Chapter III courts can exercise the judicial power of the Commonwealth and, conversely, Chapter III courts can only exercise judicial power.^71 The latter aspect is perhaps the less obvious and was undiscovered until 1956. Post -Boilermakers’ Case jurisprudence suggests a clear cleavage^72 between judicial and non-judicial power. The precise expression of judicial power is however elusive and continues to trouble the High Court. 73 It is perhaps too easy to state simply that the power to apply pre-existing law in order to resolve a dispute between the parties is an expression of judicial power; whilst the power to determine the content of rights and obligations governing particular circum- stances in futuro is a legislative function. As Thomas v Mowbray demonstrates, this formulation does not logically determine whether the power to determine the extent of a control order regime based on an assessment of future risk is a judicial or executive or indeed legislative function. The plaintiff argued that because Division 104 conferred upon the court the power to determine what legal rights and obligations should be created, it conferred non-judicial power on a federal court.^74 Accordingly, the process of making a control order lacked the essential criterion for the exercise of judicial power, namely the application of existing rights and obligations to particular factual circumstances.^75 The plaintiff argued that the power to deprive a person of liberty, not as an incident of past unlawful behaviour, but on the basis of future conduct, was inherently non-judicial.^76 The plaintiff also argued that restraints upon liberty of the kind envisaged in Division 104 could only be imposed by a court as an incident of deciding or punishing criminal guilt, and that in any event the criteria for the making of a control order were too vague. 77 Gleeson CJ was not persuaded by these arguments. His Honour noted that the legislative, executive and judicial powers were not mutually exclusive and did not operate in completely separate spheres.^78 Gleeson CJ rejected both the notion that the power to make control orders was exclusively non-judicial and the
(^71) R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 296 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) (‘ Boilermakers’ Case ’): ‘Chap III does not allow a combina- tion with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it’. (^72) W Harrison Moore, The Constitution of the Commonwealth of Australia (2 nd^ ed, 1910) 101, quoted in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 117 (Evatt J). See also Thomas v Mowbray (2007) 237 ALR 194, 218–19 (Gummow and Cren- nan JJ). (^73) See R v Elliott (2006) 68 NSWLR 1 as to whether legislation giving effect to a recommendation that the defendants be never released was a violation of Ch III. (^74) Thomas v Mowbray (2007) 237 ALR 194, 201 (Gleeson CJ). (^75) Ibid 205 (Gleeson CJ). (^76) Ibid. (^77) Ibid 206 (Gleeson CJ). (^78) Ibid 204; see also Boilermakers’ Case (1956) 94 CLR 254, 278 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
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contention that an assessment as to future dangerousness was outside the scope of the judicial power:
The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determi- nation of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about exist- ing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively.^79 To hold otherwise, according to the Chief Justice, would be to consign such determinations to the executive branch of government. 80 His Honour did not think this would advance the cause of protecting human rights.^81 Gleeson CJ also rejected a submission that restraints on liberty could only be imposed by courts as an incident of deciding or punishing criminal guilt, or that the criteria for the making of a control order were too vague.^82 His Honour referred to Fardon v Attorney-General (Qld) (‘ Fardon ’) 83 where the High Court upheld state legislation which conferred on the Supreme Court of Queensland a power to detain in custody certain prisoners who had served their sentences on the basis that the order was necessary to ensure adequate protection of the community. Continuing detention orders would be made on the basis that there was an unacceptable risk that the prisoner was likely to commit a serious sexual offence. The Chief Justice cited with approval McHugh J’s comment that ‘the exercise of judicial power often involves the making of orders upon deter- mining that a particular fact or status exists.’^84 There were cases where the judicial exercise of power was used to create new rights and obligations restric- tive of a person’s liberty, such as bail and apprehended violence orders, the latter deriving from the ancient power of justices and judges to bind persons over to keep the peace.^85 Nor did the Chief Justice think that there was something intrinsic about the threat of terrorism that rendered it inherently unsuited to the subject of judicial decision:
predictions as to danger to the public, which are commonly made against a background of the work of police, prison officers, public health authorities, welfare authorities, and providers of health care, are regularly part of the busi- ness of courts … I am unable to accept that there is a qualitative difference be- tween deciding whether an angry person poses an unacceptable risk to his or her family, or to the community or some section of the community, or whether a sexually dysfunctional man poses an unacceptable risk to women, and decid- ing whether someone who has been trained by terrorists poses an unacceptable risk to the public. The possibility that the person will do what he or she has
(^79) Thomas v Mowbray (2007) 237 ALR 194, 205. (^80) Ibid. (^81) Ibid 206 (Gleeson CJ). (^82) Ibid 207–8. (^83) (2004) 223 CLR 575. (^84) Thomas v Mowbray (2007) 237 ALR 194, 205, citing Fardon (2004) 223 CLR 575, 596–7. (^85) Thomas v Mowbray (2007) 237 ALR 194, 205 (Gleeson CJ).
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adjudication of criminal guilt of that citizen for past acts’,^93 but this did not mean that any deprivation of liberty such as that entailed by a PCO was beyond the judicial power of the Commonwealth. The learned justices noted that detention in the custody of the state ‘differs significantly in degree and quality from what may be entailed by observance of an interim control order.’ 94 Callinan and Heydon JJ agreed in separate judgments. Callinan J held that Chapter III was not infringed by Division 104.^95 His Honour rejected the claim that Division 104 raised issues that were essentially non-justiciable and properly left to the executive to determine. Heydon J agreed with everything said by the other judges in the majority on the matter of judicial power. 96 In dissent, Kirby J noted that the control order regime was ‘novel and offen- sive to principle’:
It provides for the deprivation of liberty because of an estimate of some future act, not necessarily one to be committed by the person subject to the proposed order. To uphold the validity of that type of control order for which Div 104 of the Code provides would be to erode the well-founded assumption that the ju- diciary in Australia under federal law may only deprive individuals of their lib- erty on the basis of evidence of their past conduct … To do this is to deny per- sons their basic legal rights not for what they have been proved to have done (as established in a criminal trial) but for what an official suggests that they might do or that someone else might do. To allow judges to be involved in making such orders, and particularly in the one-sided procedure contemplated by Div 104, involves a serious and wholly exceptional departure from basic constitutional doctrine unchallenged during the entire history of the Common- wealth. It goes far beyond the burdens on the civil liberties of alleged commu- nists enacted, but struck down by this court, in the Communist Party Case. Unless this court calls a halt, as it did in that case, the damage to our constitu- tional arrangements could be profound.^97 Hayne J also concluded that Division 104 was beyond the judicial power of the Commonwealth. A major problem was that the relevant provision offered ‘no legal standard against which an application for a control order is to be judged’.^98 Part of the problem was that the process of making a succession of ‘factually specific predictions’ was unlikely to yield ‘any rule or standard of law that subsequent courts could identify and apply’.^99 Hayne J emphasised that the defence of the nation was ‘particularly the concern of the Executive’.^100 This did not extend to detaining or restraining persons with specific lawful authority.^101 Granting to a federal court the power to restrain unlawful behaviour would be ‘an orthodox and unremarkable conferral of jurisdiction’.^102 The present legisla-
(^93) Fardon (2004) 223 CLR 575, 612. (^94) Thomas v Mowbray (2007) 237 ALR 194, 229 (Gummow and Crennan JJ). (^95) Ibid 357. (^96) Ibid 371. (^97) Ibid 293. (^98) Ibid 328 (Hayne J). (^99) Ibid. (^100) Ibid 330. (^101) Ibid 331 (Hayne J). (^102) Ibid.
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tion was defective in seeking to give to the courts ‘the decision of what is necessary to protect the public and, for the reasons earlier given, offers the courts no standard by which to decide that question.’^103 His Honour contrasted Divi- sion 104 with the equivalent provision contained in s 83.3 of the Canadian Criminal Code.^104 The structure of that provision was such that the role of the provincial court was to determine whether the conclusions reached by a ‘peace officer’ were based on reasonable grounds that a terrorist activity would be carried out or whether the peace officer ‘ suspects on reasonable grounds that the imposition of a recognisance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity’.^105 Hayne J offered the following comments on this issue:
The issue that is then presented for judicial determination is whether the judge is ‘satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion’. That is an issue of a kind that courts deal with fre- quently. It requires consideration and evaluation of what the relevant official puts forward as the grounds upon which the impugned decision has been made. It does not require, as the provisions now in issue do, the court to decide for it- self what is necessary or desirable for protection of the public.^106 It is interesting to compare the judgments of Hayne J and Gleeson CJ on the question of judicial power. Hayne J eschews a policymaking role for judges — which his Honour considers would necessarily be involved in making a control order in a particular case — considering it to lie beyond the proper scope of the judicial power.^107 In contrast, Gleeson CJ is content to bring such activities under the umbrella of judicial power, hoping that by reason of judicial involvement, the subject will have greater protection.^108 This raises a question whether any short-term gain from judicial involvement is worth the cost of potential damage in the longer term to judicial independence (perceived or otherwise). Hayne J fears the danger of being too close to the executive, for fear of undermining judicial independence and autonomy. The judges in the majority apparently have no such qualms. It is a deep irony that conservative judges, so reluctant to assume responsibility for filling in the gaps left by language and bad law-making, should be so willing to extend judicial power into areas of practical law enforcement. This form of judicial activism, in which judges readily assume an executive function, is to our minds far more controversial than the old-fashioned kind, which Heydon J decried prior to his elevation to the High Court bench in his extrajudicial article in Quadrant.^109 That judges make law from time to time can hardly be seriously doubted. Whether judges should be
(^103) Ibid. (^104) Ibid. (^105) Criminal Code , RSC 1985, c 46, s 83.3. (^106) Thomas v Mowbray (2007) 237 ALR 194, 307–8. (^107) Ibid 327–8. (^108) Ibid 204. (^109) Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(2) Quadrant 9.
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PDOs are also hard to reconcile with a bundle of rights recognised by the international community, many of which are enshrined in the International Covenant on Civil and Political Rights (‘ ICCPR ’),^118 including the rights to personal liberty and security,^119 freedom of movement,^120 privacy,^121 freedom of assembly 122 and association.^123
IX D I V E R G E N T A P P R O A C H E S T O H U M A N R I G H T S P R O T E C T I O N Thomas v Mowbray^124 is a stark indication of the significant power of the legislature in addressing threats to security. Chapter III of the Constitution is unlikely to constitute much of an obstacle to the exercise of that power. The separation of judicial power was once described by the Privy Council as follows:
in a federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the legislature or by the ex- ecutive. To vest in the same body executive and judicial power is to remove a vital constitutional safeguard.^125
That same sentiment could be used to characterise the jurisprudence of the Mason and Brennan High Courts. Yet, what has occurred under the Gleeson Court is an increase in the scope of judicial power, and at the same time, a relaxation of the Chapter III restrictions set out by the Mason and Brennan Courts. In essence, what has occurred is the rejection, or marginalisation, of ‘incompatibility’ as an overriding approach to Chapter III jurisprudence — whether at the state^126 or federal level.^127 Though it remains a dominant theme in the dissenting opinions of the High Court, it has unquestionably become a dangerous point upon which to base an appeal. Each of the judgments in Thomas v Mowbray^128 is informed by a concern for human rights. Yet, for the most part, there is a conspicuous unwillingness on the part of the majority judges to adopt an overt human rights discourse in consider- ing such measures. The case concerned the right to personal liberty which, as Gleeson CJ has previously demonstrated, represents a fundamental and long-ac- cepted right at common law.^129 The question centres upon what Andrew Lynch and Alexander Reilly have described as the ‘conundrum at the heart of the incompatibility doctrine’ in Chapter III jurisprudence:
(^118) Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). (^119) Ibid art 9. (^120) Ibid art 12. (^121) Ibid art 17. (^122) Ibid. (^123) Ibid art 22. (^124) (2007) 237 ALR 194. (^125) A-G (Cth) v The Queen (1957) 95 CLR 529, 540–1 (Viscount Kilmuir LC, Viscount Simonds, Lords Morton, Tucker, Cohen, Keith and Somervell). (^126) Fardon (2004) 223 CLR 575. (^127) Thomas v Mowbray (2007) 237 ALR 194. (^128) Ibid. (^129) Al-Kateb v Godwin (2004) 219 CLR 562, 577.
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It is the perceived independence of judges that makes them particularly appro- priate persons to administer clandestine and secretive executive orders. The more clandestine and secretive the executive action is, the more important it would appear to be to have the judiciary involved in its implementation as a check on the executive. And yet, courts are only independent of the other branches of government as a result of the separation of their functions, and as a result of the particular judicial methods they adopt in the exercise of judicial power. When the judiciary is employed to exercise non-judicial power, its inde- pendence is necessarily compromised. The very fact of acting for the executive means the judiciary is not acting independently, though a reputation for inde- pendence provides a cloak of legitimacy for the executive action. Clearly, the more often the executive uses judicial independence to bolster the legitimacy of its actions, and the more often the judiciary participate in processes that are not judicial in nature, the weaker judicial independence is for the future. 130 Though Lynch and Reilly adopted a different position from the majority in Thomas v Mowbray on the validity of the control order regime, the ‘conundrum’ that they speak of assists in highlighting the human rights concerns of the majority judges. The concern of those judges, which is clearly evident in Gleeson CJ’s decision, rests with the desire to ensure a central role for courts (that are both independent of government and impartial) in relation to orders that may significantly restrict the personal liberty of individuals. That the High Court concerned itself with the technicalities of what is, or is not, ‘judicial power’ and whether Chapter III courts could validly make control orders, belies the human rights concerns (and, if not concerns, then certainly an awareness of the implica- tions) of invalidating the regime under Division 104. What is important to highlight is that, even aside from the Chapter III issue of complying with the Boilermakers’ Case , international human rights instruments clearly envisage different methods for the protection of human rights. Specifi- cally, human rights conventions to which Australia is bound do not envisage a uniform role for the courts in their protection. Although the remedies for breaches of human rights are intended to be administered by the courts, different human rights require different roles for national courts in their practical opera- tion (and thereby protection). For example, some human rights merely require the judicial oversight (that is, judicial review) of certain executive decisions. Examples under the ICCPR include arrest and detention 131 and, potentially, the deportation of aliens.^132 The CRC requires the judicial review of decisions by
(^130) See Lynch and Reilly, above n 3, 138 fn 187. (^131) Opened for signature 16 December 1966, 999 UNTS 171, art 9.4 (entered into force 23 March 1976): ‘Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.’ (^132) Ibid art 13: An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the rea- sons against his expulsion and to have his case reviewed by, and be represented for the pur- pose before, the competent authority or a person or persons especially designated by the com- petent authority.
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issue’ by most judges — a hangover from the conservatism of judges and driven by the politicisation of the human rights debate in Australia. It is time that the Chapter III considerations were informed by an examination of how international human rights law envisages the role of national courts in the protection of specific rights. Whilst a quick examination of art 9 of the ICCPR^136 might seem to favour the approach of Kirby and Hayne JJ in Tho- mas v Mowbray , in some respects the majority approach might also be read consistently with that article — perhaps even going further than it requires by ensuring a role for the judiciary from the outset.^137 Whatever the answer to that question, the constitutional issues should not be used to obscure the underlying human rights issues. The issue is too fundamental to ignore and a positivistic legalism should not be used to evade the question.
X J U D G E S A S C H A M P I O N S O F H U M A N R I G H T S P R O T E C T I O N?
For many years the history of the protection of civil rights and freedoms, at least in the old common law world, did not depend upon constitutional protec- tions contained in a rights document. The judges, as an extension of governmen- tal power, were seen as providing institutional protections for civil rights. Thus, in the famous World War II case of Liversidge v Anderson^138 the House of Lords held that a person detained under reg 18B of the Defence (General) Regulations 1939 had no right to compel particulars upon which the detention was justified; production of the order of detention by the Home Secretary being of itself sufficient justification. But the case is remembered for Lord Atkin’s searing dissent, which subsequently became law: ‘It has always been one of the pillars of freedom … that the judges … stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’^139 This assumption of the common law is commonly referred to as ‘the principle of legality’ — an assumption that derives from the rule of law. An important manifestation of the broader principle is commonly referred to in Australia as the fundamental rights principle^140 and was articulated by Gleeson CJ in Plaintiff S157/2002 v Commonwealth as follows: 141
(^136) Opened for signature 20 November 1989, 1577 UNTS 44, art 37 (entered into force 2 September 1990). (^137) Thomas v Mowbray (2007) 237 ALR 194, 211 (Gummow and Crennan JJ). (^138) [1942] AC 206. (^139) Ibid 244, cited by Nicholas Cowdery, ‘Terrorism and the Rule of Law’ (Paper presented at the Criminal Lawyers Association of the Northern Territory Conference, 28 June 2003) 14. (^140) See, eg, Margaret Allars, ‘International Law and Administrative Discretion’ in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (1997) 242–3. Margaret Allars describes the principle as the ‘fundamental common law rights principle’: at
- The principle has been endorsed in the following cases: Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Bropho v Western Australia (1990) 171 CLR 1, 17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Wen- tworth v New South Wales Bar Association (1992) 176 CLR 239, 252 (Deane, Dawson, Toohey and Gaudron JJ); Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J); Ex parte Walsh; Re Yates (1925) 37 CLR 36, 93 (Isaacs J); Sorby v Commonwealth (1983) 152 CLR 281, 289– (Gibbs CJ), 309–11 (Mason, Wilson and Dawson JJ); Re Bolton; Ex parte Bean (1987) 162 CLR 514, 523 (Brennan J); Balog v Independent Commission against Corruption (1990) 169 CLR 625, 635–6 (Mason CJ, Dawson, Deane, Gaudron and Toohey JJ); Corporate Affairs Commis-
2007] Preventative Detention and Control Orders under Federal Law 1091
courts do not impute to the legislature an intention to abrogate or curtail fun- damental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language. General words will rarely be suffi- cient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to con- front such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’. Gleeson CJ was referring to the judgment of Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms , where his Lordship had offered the following comments on the principle of legality: 142
the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary impli- cation to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited
by a constitutional document.
Whether or not a society chooses to enshrine fundamental rights in a constitu- tional document, a strong judiciary anchored firmly in the rule of law has a vital role to play in preserving fundamental rights. This may require hard decisions. Arguably the 6:1 decision by the High Court to strike down the Communist Party Dissolution Act 1950 (Cth) was a hard decision at a time of perceived national threat from communism.^143 Kirby J referred to this case towards the end of his judgment in Thomas v Mowbray , with obvious sadness: 144
I did not expect that, during my service, I would see the Communist Party Case sidelined, minimised, doubted and even criticised and denigrated in this court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitu- tional validity would have been upheld. This is further evidence of the unfortu- nate surrender of the present court to demands for more and more governmen-
sion (NSW) v Yuill (1991) 172 CLR 319, 322 (Brennan J), 331 (Dawson J), 338 (Gaudron J), 348 (McHugh J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 12 (Mason CJ); Kruger v Commonwealth (1997) 190 CLR 1, 107 (Gaud- ron J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 417–18 (Kirby J); Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 414 (Kirby J); Daniels Corporation Interna- tional Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 553 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241, 268 (Black CJ, Sundberg and Weinberg JJ). (^141) (2003) 211 CLR 476, 492 (citations omitted). (^142) [2000] 2 AC 115, 131. (^143) Australian Communist Party v Commonwealth (1950) 83 CLR 1 (‘ Communist Party Case ’). (^144) (2007) 237 ALR 194, 301–2 (citations omitted).
