The discussion around the legitimacy of so-called “preventative legislation” and its place in a liberal democracy has been ongoing since the adoption of such legislative measures following the horrendous attacks in the USA in September 2011. From 2002 onwards, the USA, UK and Australia have adopted laws that severely curtail the rights of certain individuals, justifying such laws by the need to protect the country’s national security. In this article, I will limit my discussion to the control orders adopted in Australia in 2002, in the light of the country’s current political system. I argue that, firstly, “liberal” democracy in Australia is inherently weakened by its history and its present; secondly, that control orders have the potential to seriously damage “liberal” democracy by interfering with the basic pre-requisites of its existence: separation of powers, civil liberties and human rights; and thirdly that these laws have an adverse long-term political impact on the Australian social fabric.
“Mene, Mene, Tekel, Upharsin”
As the horror of the attacks on the World Trade Centre in New York unfolded, few would have been analysing the potential effect of that terrorist act on weakening the fundamentals of liberal democracy in the West. After all, it seemed reasonable that our political system, with all that it stood for in terms of democracy, civil liberties and hard-won rights, was being attacked from outside by elements that seemed to detest what we have achieved. It seemed reasonable that what needed to be done was to strengthen our liberal democracy, and defiantly stand in the face of what the US and its media marketed as “the axis of evil”. And yet the attacks enlivened a worm in the bud of the liberal democracy that has, for the past twelve years, been steadily eating away at the same hard-won rights we want protected, and most ironically, in the name of that protection.
On 28th September 2001, the United Nations Security Council adopted, at its 4385th meeting, a resolution binding all signatory states to take measures which would prevent further terrorist attacks from occurring. These measures include suppression of financing of terrorist acts, intra-state exchange of intelligence, stronger border control, and criminalisation of terrorist acts in national and international legislation through administrative and judicial bodies. More ominously, the resolution also included the mention of asylum seekers and refugees as potential perpetrators of terrorist acts. This prompted words of caution and restrain from the then United Nations High Commissioner for Human Rights, Mary Robinson, expressing
“..deep concern over anti-terrorist and national security legislation and other measures adopted or contemplated that might infringe upon the enjoyment by all of their human rights and fundamental freedoms (…) warned against human rights violations and measures that have targeted particular groups such as human rights defenders, migrants, asylum-seekers and refugees, religious and ethnic minorities, political activists and the media.”
The Australian government’s response was to look into the then current legislation and try to decide if it was sufficient to deal with the potential threat to national security. In a research paper that ensued, Hancock argued that Australia had a “limited understanding of what constitutes 'terrorism' and what constitutes 'the terrorist threat' in Australia” and that the legislation would need to carefully balance the response to threat with the potential impact this legislation will have on civil liberties, and importantly, “the gains to security from enacting new laws that enhance the state's coercive powers outweigh the costs to civil liberties”
So when the Australian Parliament introduced five new bills in June 2002 to presumably combat terror, all the warning signs were already in the air. Between September 2001 and the introduction of the anti-terrorist legislation, the “coalition of the willing”, in a Manichean stand against the “axis of evil” was inflicting heavy collateral damage in Iraq and Afghanistan, while in all Western countries Muslims (or people perceived to be Muslim, including Christian Arabs, Indian Sikhs, and Mizrahi Jews) were being targeted with violence and racism. Yet in the frenzy to protect the liberal democracy, little if any legal action was taken to protect minority citizens in the same democracy, who presumably had the same rights as the attacking majority.
The writing was on the wall. But few could read it for what it was. In 2005, a Council of Australian Governments decided the anti-terrorist legislation needed to be beefed up at state and federal levels. Control Orders constituted part of the ensuing package. In short, they provided for some highly controversial measures that breached a number of fundamental human rights: to fair trial, to freedom of movement and association, and to protection from loss of liberty unless convicted of a crime by due legal process.
The Fallacy of “Constitutionalism”
No constitutional challenge was brought before the High Court of Australia until 2007, when it decided in Thomas v Mowbray that the control order regime was constitutionally sound. Kirby J dissenting, said the control order regime was a “novel and offensive principle” that could render the judicial process “capable of arbitrary and capricious interpretation”, and that “[u]nless this court calls a halt, as it did in that case, the damage to our constitutional arrangements could be profound.” The High Court seems to have lumped the judicial right to make control orders with apprehended violence orders and refusing bail, both of which infringe on the liberty of persons with the aim of keeping peace.
Thomas v Mowbray highlights the inability, as much as unwillingness, of the Australian judiciary to tackle human rights protection. There are two main reasons for this state of affairs. The first has to do with the fact that Australia, unlike the USA, does not have a Bill of Rights in its constitution. Nor, unlike the UK, does it have any special act of parliament protecting the citizens’ basic rights and freedoms. In addition, Australia has not “domesticated” its international obligations as a signatory to the UN International Covenant on Civil and Political Rights, which it has been party to since 1980.
The reason why Australia does not have a Bill of Rights is that the draft prepared by Andrew Inglis Clark and based on the US Constitution was opposed at the 1898 Convention in Melbourne– theoretically, because the rights to equal protection and due process guarantees would affect the legislative powers of the States and because they “were unnecessary for the protection of the rights of citizens in a polity based on representative and responsible government”. In reality, the opposition was to the diminishing privileges of the ruling class - they were seen as having the potential to restrict colonial laws that limited the employment of Asian workers. The men who wrote the Australian Constitution were essentially white British colonialists, seeking to protect their privileges vis-à-vis “aliens”. In the 21st century, the “aliens” have a slightly different profile, but they nevertheless still exist and the “privileged” majority still feels it incumbent to legislate against their human rights.
As a result, a watered down version of Clark’s proposal of rights made its way into the Constitution: the right to trial by jury in cases of offences against the Commonwealth tried by indictment (s 80), a prohibition on the Commonwealth establishing any religion or preventing the free exercise of any religion (s 116), and the protection of the residents of one State from discrimination by another State on the basis of residence (s117). However, the Constitution operates on certain assumptions about the rule of law and basic freedoms reflected in the common law. Common law continues to evolve, although recently being progressively displaced with the minutiae of legislation, and as such the understanding of “basic freedoms” also evolves, affecting how constitutional institutions operate and how legislation is interpreted by the courts. The highest jurisdiction in Australia is the High Court, which alone can interpret the Constitution and decide on whether certain legislation is constitutionally sound. In this, it takes the approach of J.S. Mill, respecting the rights and freedoms of the majority, protecting them from interference, but without declaring what they are. Lacking an actual instrument – a bill of rights – that would guide it in discerning whether a legislation breaches constitutionally given human rights and liberties, the High Court is left to its own devices to make such judgements as it feels necessary. Herein lies the second main reason of why it so spectacularly fails to do so.
The “Apolitical” High Court
Since the abolishment of appeal process to the Privy Council in 1987, the High Court has become the final arbiter of cases in Australia, and its decisions are final and binding on all parties.
No judiciary system exists in a vacuum. There is always a particular social and political context to the court, where a specific set of institutional features and procedures shapes its work. As Gleeson J aptly noted, democracy does not have an inherent definition of the role of courts. The justices to the High Court are appointed formally by the Governor General, but in fact the decision as to who is appointed rests with the incumbent Cabinet. The timeframe between announcing a candidate and their appointment is very short, precluding a more thorough research by the public into the proposed justice’s history.
Once elected to the High Court, their tenure is for life (they retire at 70), making them politically unaccountable and fully independent from the executive. Although the High Court has an inherent right to judicial review, the fact that there is no Bill of Rights, as mentioned above, makes it difficult for the Court to decide on cases of human rights. As a result, they tend to be conservative in their judgements, adhering to the letter of the Constitution rather than to its spirit, thus preserving the fiction of a legalist perspective. This in turn assists in creating the perception of an impartial and bipartisan (while apolitical) High Court. The High Court tries its best to maintain that politics of the members do not affect their decision making, despite Kirby J’s opinion that “[f]or an appellate court to reach great strengths there is a need for diversity amongst its members. If everyone has the same judicial philosophy, background and experience, a court is seriously weakened.”
Nevertheless, there is jurimetrics research that shows justices have plenty of discretion to make decisions that agree with their political and social views, even within the constraints of law.This research, based on the collection of 40 years’ worth of data, shows justices make decisions based on two perceptions – policy preferences and attitude to the distribution of legal control across the government.
Successive federal governments failed in bringing Australia’s international human rights obligations to impact on domestic legislation, on the proviso that abiding by the international charters in some way undermines Australia’s sovereignty, putting pressure on the High Court so as not to be seen as too “activist” by venturing into law making which is constitutionally the domain of the executive and legislative arms of the government. A few of the High Court justices since the 1980s have engaged in legal activism, among them Mason J and Kirby J. It was telling that Kirby J was the sole dissenting voice in Thomas v Mowbray. Coupled with the conducted research, it would seem reasonable to reach a perception that sidelining fundamental human rights issues to make legislation breaching them constitutionally sound, must be a preference for the current High Court.
The Dilemma of Representation
As stated above, Australia’s Bill of Rights was aborted on the theoretical basis that “good governance” will render any constitutionally enshrined protection of rights and liberties (and also of equality) unnecessary. The “good government”, chosen by the masses since 1924 as a compulsory obligation on every Australian 18 years of age or over, is still perceived as the best means to achieving direct democratic “representation” and thus forcing the government to “consider the total electorate in policy formulation and management”. Unfortunately, this is not a totally correct perception when it comes to the “total electorate”. Firstly, a large number of citizens vote without having the understanding of political issues necessary for making an educated decision, either because they lack the necessary intellectual acumen to do so, or because – in our multicultural society – of linguistic and social issues. Secondly, election campaigns in Australia are a “media circus”, with almost no independent, unbiased media available to the public. Thirdly, there is no mechanism to make the elected government actually abide by its election promises, other than waiting for its term to end and then going again to the polls. Because of this, the government considers the majority of voters, which can often leave quite a large minority without due consideration. Fourthly, because of the relatively short government terms, the elected governments in Australia often have a single goal in sight – that of being re-elected. As such, they often resort to acts that would be seen as “doing something” instead of actually achieving a long term desired outcome for the benefit of the populace. Often these acts of “doing something” aim at weakening the opposition, not strengthening the country. Lastly, the elected parliament engages in passing laws that impact on all the electorate without asking the affected electorate its direct opinion via polls and referenda. Once elected, the legislature is accountable to itself, to the exclusion of the voters. As such, one finds it hard to call the form of “liberal democracy” we have in Australia in any way “representational”, and since it is not representational, its claim to “good governance” lies on shaky foundations.
Fairall and Lacey in their argument for the need of a Bill of Rights, state that in uncertain times, such as after the 09/11 attacks, the judiciary may be less inclined to obstruct the parliamentary legislation, and that despite Australia’s “robust press culture, an impartial and professional public service (…) and a long tradition of good governance based on shared values” which according to the two writers form the pillars of successful liberal democracy in the country, these pillars might not be strong enough to withstand the onslaught:
“The situation in Australia is currently such that basic and fundamental freedoms are being eroded by a Parliament with increased legislative powers and an all-powerful executive government with the political will to use them. Politicians have an agenda, and are frequently willing to trade hard-won privileges and freedoms for short-term advantage. Recent legislative measures have highlighted, to an unprecedented degree, the threat to human rights.”
Also as mentioned above, the failure to enshrine a Bill of Rights in our constitution was an outcome of protectionist privilege as perceived by white, Anglo-Saxon settlers. Almost all men involved in writing the constitution were moneyed. Australia’s protectionist policies continued until the 1970s, when the country embraced “tolerance” and “multiculturalism”. The gains in rights by the Indigenous community and non-white migrants, not to mention women, the disabled and the LGBT community, are relatively new, and vulnerable to attack and attrition by those elements in our society who would like to see that “privilege” returned to its original owners. While most discussion about control orders revolves around security and protection, few mention the fact that they have created a new class of humans specifically targeted by these orders. In essence, control orders are the newest tool in racial profiling in the name of protecting the “mainstream” from the “aliens”.
Protection or Control?
Anti-terrorist legislation in the West, of which the Australian control orders form a part, were instituted to “protect” civilians, the state and its assets from the violent acts of terrorists. They constitute a part and parcel of the civilised, democratic, liberal West’s “war on terror” – a war that has no identifiable space, borders or nationality, and which transcends international conventions. To better understand the danger that control orders and similar legislation pose to the notion of liberal democracy, and its fundamental principles of protecting the rights of minorities and individuals, of human rights, civil and political liberties, the separation of powers and the rule of law, I propose now to look at the changes in definitions of the terms used to promote this legislation.
The landscape of post-modern liberalism in the West is, according to Prof. Vivienne Jabri, one of an ever-present condition of war:
“… one of camps, oneof the detention of groups of people irrespective of their individual needs asmigrants, one of the incarceration without due process of suspects, one ofoverwhelming police powers to stop, search and detain, one of indefinitedetention in locations beyond law, one of invasion and occupation…” leading to the “disappearance of distinctions between warand criminality, war and peace, war and security.”
Jabri explains that the “war on terror” has permeated normality to the point that it has become a permanent feature of liberal democracy – we are in a constant state of war, and therefore a constant state of applying “exceptional” legislative instruments against some specified “other” with no end in view to the conditions that made these instruments exceptional. As such, the exceptional has become “normalised”. This “normalisation” can be evidenced in what happened to the control orders in Australia – aimed at the “exceptional” threat of terrorist attacks, they have become an instrument against “organised crime”, i.e. sex offenders, bikie gangs and tattoo parlours. Jabri warns against assuming that liberal democracies are averse to war, in fact, that a global war such as the one on terror is deeply institutionalised and pervasive and therefore extremely threatening to political and civil liberties, being located within “the framework that enables us to see the workings of discretionary power and its associated practices, from the most blatant act of war to the most invisible procedure enacted in some office beyond our gaze.”
The “normalisation” of control orders flies in the face of evidence that applying them to the criminal elements in Australia has not delivered the intended results. The 2011-12 Attorney General Control Orders and Preventative Detention Orders Report shows that they have not been used. However, their latent threat to democracy is palpable – declaring any organisation illegal (or criminal) targets the freedom of association and expression.
The language used in describing the war on terror has, over the past 12 years, portrayed it and its human rights abuses as legitimate, because geared towards protection against a violent threat. Jabri’s list of what anti-terrorist legislation permits internationally and domestically in terms of human rights abuses is lengthy: from Guantanamo Bay and Abu Ghraib, to indefinite detention of asylum seekers, to breaches of privacy and liberty of citizens, all in the name of security. Underlying the dialectic of security is an increasingly harsh tone of political xenophobia and nationalistic emotionalism. We heard it in Australia during the Tampa Children Overboard incidents, and when Kevin Andrews, the then Minister for Immigration, cut the quota on African refugee intake because, as he claimed, they had issues integrating with the Australian society. We saw it during the Cronulla riots, in the Habib and Dr Haneef cases, and in the Citizenship Test. Control orders are one of the tools that the ruling bureaucracy uses in perpetuating the state of war based on promoting fear against the cultural “other”, based on ethnic origin, religion, or language.
We are back at the inception of our Constitution: we cannot have everyone equally equal and maintain privilege at the same time. The difference between then and now is that we live in a globalised, multicultural world, connected via telecommunications, and engaged in trade and commerce across borders and jurisdictions. Profiling minorities and creating securitised ghettos does not sit comfortably with the liberal democracy’s notions of equality and freedoms. Preserving security can be used as an excuse to serve the interests of a particular class of people who are comfortable with the current status quo: the traditional security actors (military, police, intelligence) will be granted a privileged voice in dictating the rules of the game. It bodes poorly for the future of liberal democracy in Australia. “Exceptional” anti-terrorist legislation which became normalised to include local criminals, which is in many ways extra-judicial, and which flies in the face of many of our rights that we have long taken for granted, begs the question: today, Muslims, bikies and sex offenders; who will it be tomorrow? The ruling bureaucracy, no longer bridled by any judiciary qualms about the constitutionality of what it does, can choose some other victims to profile tomorrow – be it another inconvenient minority, or an opposing party, or the media. The choice is endless. In a state of war, nothing is sacred. Where there is no Bill of Rights, we can easily be divested of “rights” to freedom of expression, rights to privacy or to information.
This paper aims at explaining the danger posed by control orders to the liberal democratic political system in Australia. It bases its premise on the fact that Australia, alone among the common law countries, lacks a constitutionally enshrined Bill of Rights that would permit its High Court proper oversight of parliamentary legislation instituted to protect the national security but breaches human rights and civil liberties fundamental to the liberal democracy is purports to protect. The lack of the Bill of Rights is coupled with the inherent conservatism and legalism of the Australian High Court, manifested as a willingness to sideline human rights issues and parliaments that have no intention of implementing the statues of international human rights instruments in their domestic statues.
The second premise on which the paper bases its discussion of the threat posed by the control orders arises from political science. The fact that the Bill of Rights was rejected to protect the privilege of ruling class against what was then perceived as aliens, and the current representation of the war on terror as a global exercise in demonising specific others as aliens and therefore dangerous to our liberal values and mode of life is seen as a parallel manifestation of entrenching a status quo for a specific part of the Australian population – white, Anglo-Saxon, moneyed males – against the masses which do not fit that description. To this end, the privileged classes, in the guise of a bureaucracy, implement control orders to keep these “aliens” in check. The rhetoric of permanent threat also aims at normalising these orders, so they can be equally applied to any unwanted elements, criminalised by the privileged bureaucracy. The argument shows that compulsory elections – one of the fundamental principles of “good governance” on the pretext of which the Bill of Rights was originally rejected – are in themselves flowed and do not provide for “representation” nor protect the voters from encroachment by the politicians and bureaucrats on their rights.
The paper concludes that control orders, in the absence of judicial oversight and the presence of vested interests, have the potential to undermine liberal democracy to an unforseen extent. Intense debate about them seems to be carried out solely among academics, while majority of Australian population seems blissfully unaware of the harm on the horizon. It would have been encouraging to believe that “good governance” will prevail, however, any reasonably prudent reading of the current political landscape, whether in Australia or internationally, does not permit such optimism.
“The writing on the wall” from the Book of Daniel 5:25-28.Translation: “numbered, weighed, divided” .
See items 3(f)-(g), SC Res1373, UN SCOR, 56th sess, 4385th mtg, UN DOC S/RES/1373 (28 September 2001) 6  <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1373(2001)>
United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, 4,UN Doc E/C/N.4/2002/I 8 (27 February 2002)
Nathan Hancock, 'Terrorism and the Law in Australia: Legislation, Commentary and Constraints' (Research Paper No 12, Parliamentary Library, Parliament of Australia, 2002); ii
Thomas v Mowbray (2007) 237 ALR 194, 63
Kirby J is referring to the Australian Communist Party v The Commonwealth (1951) 83 CLR 1, commonly known as the Communist Party Case
 Thomas v Mowbray (2007) 237 ALR 194, 292-3
See discussion in Paul Fairall and Wendy Lacey, 'Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights' (2007) 31 Melbourne University Law Review 1072, 1080-85.
Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, ‘Bills of Rights in Australia: History, Politics and Law’ (UNSW Press, 2009) 25
See, for example, Australian Constitutions51(xxvi)
Murray Gleeson, ’The Role of the Judiciary in a Modern Democracy’ (Paper presented at Judicial Conference of Australia Annual Symposium, Sydney, NSW 1997)
See affirmation to that effect by Gleeson J in Murray Gleeson, ‘ The Centenary of the High Court: Lessons from History’(Paper read at Australian Institute of Judicial Administration, Melbourne, VIC 2003).
Michael Kirby, ‘Dissent and the Importance of Judicial Diversity’ (Paper presented at The Institute of Judicial Studies of New Zealand Conference: Equality and Diversity in Our Community, Rotorua New Zealand, 18 – 19 August 2005) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/>
For discussion, see analysis of judicial voting in Jeffrey A. Segal and Albert D. Cover. ‘Ideological Values and the Votes of U.S. Supreme Court Justices’ (1989) 83(2)American Political Science Review 557. Also, Tony Blackshield, ‘Jurimetrics’ in Tony Blackshield, Michael Coper and George Williams (eds.), The Oxford Companion to the High Court of Australia, (Oxford University Press, 2001)
Australian Electoral Commission, Compulsory Voting <http://www.aec.gov.au/voting/Compulsory_Voting.htm>
 Paul Fairall and Wendy Lacey, 'Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights' (2007) 31 Melbourne University Law Review 1072, 1095.
Vivienne Jabri, ‘War, Security and the Liberal State’ (2006) 37 Security Dialogue 47, 48
Nicola McGarrity, ‘From Terrorism to Bikies: Control Orders in Australia’ (2012) 37(3) AltLJ 166