Introduction
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”[1]
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[2].
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.”[3]
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”[4]
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”[5]
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”[6]
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[7],
the damage to our constitutional arrangements could be profound.”[8]
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[9]. 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”[10].
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[11].
The men who wrote the Australian Constitution were essentially white British
colonialists, seeking to protect their privileges[12]
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.[13]
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,[14]
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.”[15]
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.[16]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”[17]. 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.”[18]
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.”[19]
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.”[20]
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.[21]
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.
Conclusion
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.
[1]“The writing on the wall” from the Book of Daniel 5:25-28.Translation:
“numbered, weighed, divided” .
[2]See items 3(f)-(g), SC Res1373, UN SCOR, 56th sess, 4385th mtg, UN
DOC S/RES/1373 (28 September 2001) 6 [3]
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1373(2001)>
[3]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)
<http://daccess-dds-y.un.org/doc/UNDOC/GEN/G02/110/21/PDF/G0211021.pdf?OpenElement>
[4]Nathan Hancock, 'Terrorism and the Law in Australia: Legislation,
Commentary and Constraints' (Research Paper No 12, Parliamentary Library,
Parliament of Australia, 2002); ii
[5]ibid
[6]Thomas v Mowbray (2007) 237 ALR 194, 63
[7]Kirby J is referring to the Australian
Communist Party v The Commonwealth (1951) 83 CLR 1, commonly known as the Communist
Party Case
[8] Thomas v Mowbray (2007) 237 ALR 194, 292-3
[9]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.
[10]Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, ‘Bills of
Rights in Australia: History, Politics and Law’
(UNSW Press, 2009) 25
[11]ibid.
[12]See, for example, Australian Constitutions51(xxvi)
[13]Murray Gleeson, ’The Role of the Judiciary in a Modern Democracy’
(Paper presented at Judicial Conference of Australia Annual Symposium, Sydney,
NSW 1997)
[14]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).
[15]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/>
[16]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)
[17]Australian Electoral Commission, Compulsory Voting <http://www.aec.gov.au/voting/Compulsory_Voting.htm>
[18] 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.
[19]Vivienne Jabri, ‘War, Security and the Liberal
State’ (2006) 37 Security Dialogue 47, 48
[20]Ibid. 60
[21]Nicola McGarrity, ‘From Terrorism to Bikies:
Control Orders in Australia’ (2012) 37(3) AltLJ 166
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