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Kirby, Michael --- "Liberty, Terrorism and the Courts" [2005] UWSLawRw 2; (2005) 9(1) University of Western Sydney Law Review 11

LIBERTY, TERRORISM AND THE COURTS

Justice Michael Kirby[*]

An address delivered at the University of Western Sydney, Campbelltown Campus, 15 March 2005

Return to the University of Western Sydney

Thank you Professor Sappideen (Head, UWS School of Law) and thank you Deputy Chancellor (Mr Geoffrey Roberson) for coming to welcome me to the UWS. This is not my first visit here. I came about four years ago, when we had an audience of this size. There were, I recall, wonderful questions, which I am sure we will have at the end of this session. We live in a free country, defended by its Constitution and the rule of law. We are citizens together. It is our entitlement to come out on a beautiful autumn evening to this lovely campus and to exchange thoughts as free people. By exchanging thoughts we learn from each other and rekindle our shared commitment to constitutional fundamentals.

I want to thank Professor Sappideen for starting this evening, in her introduction of me, with the ringing words of Justice Aharon Barak, the President of the Israeli Supreme Court.[1] Justice Aharon Barak was born in Lithuania. As a babe in arms he was smuggled in a hessian bag from Lithuania, then under Nazi rule. Fortunately, the smuggling succeeded. Ultimately, he found himself in Israel where he now presides with great wisdom over the Supreme Court. In the course of these remarks I am going to tell you what he and other great judges in the world have said about the issue that I am are going to deal with. This is the issue of liberty under law. There are few issues more important or urgent.

It is essential that we should have our minds open to the judges of other countries. They speak with great care upon matters that are of universal concern. The issue that I am going to explore is one that is no means confined to Australia. Indeed, for us it is not one of the major questions affecting large numbers of people in our country. However, it is a question that concerns values and standards. Therefore, it is a question that we are well advised to consider and reflect upon.

The Deputy Chancellor mentioned the long time during which I have held various offices. I want to take you back through the decades to an even earlier time when I first heard of the great court on which I now have the honour to serve. I take you back in your minds – and it has to be in the imaginations of most of you – to the middle of last century - to Australia in 1950.

On first encountering the Australian Constitution

In 1950 the Parliament of Australia enacted the Communist Party Dissolution Act. As it happened, the Act had particular significance for my family. This came about because my grandmother had remarried and her new husband was a communist. He was a man who had fought at Gallipoli, where he won the Military Medal. It was conferred on him at Buckingham Palace by King George V. My new ‘uncle’ was a very fine man. In my youth, I experienced the discordance of knowing him as a human being and as an idealistic man with a strong commitment to social justice - and knowing the hatred that existed in our community at the time toward communists and anyone who supported them.

That hatred was expressed, in part, in the law that was enacted by the Federal Parliament with, it should be said, the full support of a mandate from the people given to Mr R. G. Menzies, the Prime Minister, and to the government that he led. The Menzies Government produced a law that would deal eo nomine - by that name - with the Communist Party and its members. Members of the Communist Party were to suffer very significant personal loss of civic freedoms in Australia.

Two events then happened.

The first was a challenge in the High Court of Australia to the Communist Party Dissolution Act. That challenge was mounted by the Communist Party itself and by various trade unions. As a consequence, the High Court had to rule on the validity of the Act. In the result, as we all know, by six justices to one, the High Court of Australia held that the Act was constitutionally invalid.[2]

This was a very important decision. It is, I think, a decision that shows the High Court of Australia at its finest.

Try to imagine the situation in Australia when the Cold War was developing; the Red Army was of great power; a battalion of Australian servicemen was fighting in Korea; and the government had a mandate to enact the law to ban the Communist Party and to impose civil restraints on its members. Yet at that very moment, six of the seven justices of the High Court of Australia held that the legislation was constitutionally impermissible. No-one reads Latham CJ's minority dissenting opinion in this case nowadays, but it is worth a visit, because the Chief Justice laid out strong feelings that he had regarding the importance for Australia to respond effectively and strongly to the perceived dangers of communism.

He quoted a very memorable passage, not from a judge or a lawyer, but from Oliver Cromwell. Oliver Cromwell had said: ‘Being comes before wellbeing.’[3] By this, the Lord Protector meant that existence comes before happiness. In the defence of society, Latham CJ held, it was permissible, constitutionally orthodox and unchallengeable, that the Federal Parliament could say communism was a challenge to our democratic way of life and to the foundations in our Constitution. Therefore, it was permissible for the people to protect themselves and their constitutional form of government, in terms of the Communist Party Dissolution Act.

The majority in the High Court, intellectually led by Dixon J, later to be Chief Justice and one of the greatest lawyers of Australia, held that the legislation was unconstitutional. Substantially, that opinion was based upon the incompatibility of the legislation with the fundamentals of the Constitution.

It was in the Communist Party Case that Dixon J propounded the principle that the rule of law is fundamental to the operation of the Australian Constitution. In a very memorable passage in his reasons he pointed out that history - and not just ancient history - taught us of the way executive governments, and governments generally, can use their powers to suppress alternative opinions.[4] So the majority held that the legislation was invalid.

I remember the day of the High Court decision. I was 12 years of age at that time. Of course, I didn't know the nuances at that stage. I didn't then spend my life reading the Commonwealth Law Reports. But I knew that, somehow, a great cloud had lifted over my grandmother's new husband, Uncle Jack as I called him. I knew that a court in a faraway place had pronounced orders that meant that he was not in danger of having to hide. He was not in danger of being arrested or losing his civil rights as an Australian. He was entitled to go about his affairs, and to propound his views as a communist. It was a liberating feeling for me and my family. I have never forgotten that feeling.

As it happened, I later came to the view that most people came to. I concluded that my new uncle was misled in many of his opinions. Yet, his opinions were a kind of religion for him. They were a deeply held world view. It was, viewed in retrospect, a spiritual view, that he held about a new order of justice in the world.

Many members of the Australian Communist Party later became very disillusioned with communism and the Communist Party, especially after the uprisings in Europe in the 1960s. However, there is no doubt that people like my Uncle Jack were idealists. They had an opinion. In effect, the High Court of Australia said the way to fight that opinion was to fight it with other opinions and with other points of view. It was not to deprive a voice to those who held dissident opinions.

The second event quickly followed. Mr Menzies put to the people of Australia, at a referendum in 1951, the question whether the Constitution should be amended to overcome the decision of the High Court. In his arguments, he referred very strongly to a decision of the Supreme Court of the United States, in Dennis v United States.[5] The Dennis case had been decided just a few weeks before the decision in the Australian High Court in the Communist Party Case. It is an interesting observation on the way Australia and Australians tend to face issues of this kind, and the way the United States of America and Americans tend to face them. Then, as later (perhaps now) there were significant differences in our approaches.

In Dennis, despite the First Amendment to the Constitution of the United States, despite the promise in that First Amendment of freedom of expression and freedom of association for Americans, the Supreme Court of the United States (with ringing dissents by Black and Douglas JJ) concluded that the Smith Act, which was their local equivalent to the Communist Party Dissolution Act, was constitutionally valid under the American Constitution.

These two cases present an interesting contrast, between the response of the United States court, which contained a large number of justices who had quite a lot of political savvy and experience, and many of whom had mixed with the powers in the land; and the court in Australia, which was made up of judges who wore - at the time - horsehair wigs, and whose background had been almost exclusively in commercial law.

Please remember this when you consider questions concerning appointments to the High Court of Australia. Sometimes out of commercial law can come very good results. The justices of the High Court of Australia who struck the legislation in Australia down didn't have a Bill of Rights. They didn't have a guarantee in the Constitution of freedom of expression. They didn't have a constitutional protection of freedom of association. They nevertheless came to what we would now say was the right decision. I think most people would agree that the American court came to what we would say was the wrong decision. Mr John Howard, when he was in China last year, very correctly, if I may say so, told the Chinese Communist Party meeting that he addressed of this story. It is a story of Australia. Of the legislation against the Communist Party and its members. And of how Australians, first in their High Court and subsequently at a referendum proposal, rejected the notion and upheld the entitlement of people to speak and collect and share views, however irrational and wrong-headed one might believe such views to be; so long as they kept within the law.

As the High Court said at that time, the law had many sanctions for antisocial conduct. That was the traditional way in which a society like ours responded to this form of problem. So, from personal experience, from my experience as a lawyer, from my reading of the decisions of the High Court including in the Communist Party Case, I come to the issue which we are here to discuss. I come to this issue with a strong belief which is integral to every one of the thousand students at the University of Western Sydney who are studying law. Indeed, I hope this belief exists in the heart of every lawyer in this land. I refer to a commitment to the rule of law and basic human rights and freedoms.

We do things in that way in Australia. We enact laws. We test such laws against the Constitution. In the end, it's the courts that judge whether the law is within, or outside, the constitutional mandate. Let it be clear at the outset that, if the law is within the constitutional entitlement of a Parliament in Australia, and if the law is clear, it is the duty of the judges to uphold the law. It is their duty to ensure that the law is applied.

The constraints and limitations of the rule of law

Judges in this country do not have an unlimited entitlement to impose their views on the Constitution and the law. I do not support the notion that judges can simply give effect to their own values and their own opinions. Certainly, judicial values and conceptions of the nature of our Constitution and of the society that it protects, influence the way judges look at the Constitution. They influence the way judges look at legislation, and endeavour to give meaning to the Constitution, and interpret the legislation. It would be naïve to suggest otherwise. Furthermore, judges can use fundamental values enshrined in human rights principles, in my view, in the way they address the Constitution and in the way they interpret the laws made by our Federal Parliament. They can uphold deeply ingrained principles of the common law. We assume that our laws are compatible with fundamental rights and read them accordingly.[6]

However, if the law is clear, and if the Constitution clearly gives the Parliament the power to enact the law, it is not the right of judges in our form of society - indeed, it's the denial of the rule of law - for judges simply to give effect to what they think is a good thing. That's not what I am here to support. I am here to support the rule of law, just as the majority of the High Court did in the Communist Party Case.[7] Remember that case. It is a shining moment in our law.

A number of cases in the last year or so have tested the High Court on analogous questions. One of them was Minister for Immigration and Multicultural Affairs v B.[8] That was a decision in which the Full Court of the Family Court of Australia, by majority, had held that federal legislation that permitted the retention in immigration detention of children was first, ambiguous, and secondly, if it meant what it seemed to say, unconstitutional.

When that matter came to the High Court, we looked at the suggested ambiguity. The suggestion was that, because the Migration Act 1958 (Cth) had not expressly and specifically said the Minister could detain children in migration camps, and because international human rights principles, including an article of the Convention on the Rights of the Child, said detention of children, involving a loss of liberty for children, should be a last resort, and because the Migration Act made it, in effect, a first resort for illegal immigrant or alien children, we should read down the statute. We should say, if Parliament had meant to permit the detention of children, it would have expressly said so. It would have made a specific provision to that effect.

There were a number of problems with that interpretation. The clearest of them was that, in the provisions in the Act there was a specific section which said that, if children in detention had to be searched, this was how it would happen. That provision indicated quite clearly that the Parliament had addressed its attention to the question of detention of children. For that reason, the ambiguity question, which was the first proposition in the challenge to the mandatory detention, fell away.

The second question related to the power of the Federal Parliament, in such a case, to provide for the immediate detention, not only of adults who have come to Australia by their own will without appropriate visa and other entitlements and entered Australia on that basis, but also for their children. Was the provision for their detention something that fell outside the propounded heads of power on which the Federal Parliament had relied in enacting the legislation?

The propounded heads of power were the power to make laws with respect to ‘aliens’, the power to make laws with respect to immigration, and incidental powers that embellished those two. Since the very earliest days of the twentieth century, the ‘aliens’ power has been given a very wide reading. It was intended to be wide because, as we of the older community know, it was originally intended to sustain the White Australia Policy. It was in the Constitution to give the Federal Parliament a very large power in that respect. At the beginning of the Commonwealth, there were real difficulties in this respect, because, at that stage, nationality status was that of being a British subject. The British Empire was a multiracial, multicultural community. The British government was forever trying to tell settler governments in the far-off colonies, in Australia and South Africa and New Zealand and elsewhere, that they simply couldn't discriminate against people because of their different skin colour or ethnicity.

That is why in the Australian Constitution there was a very clear power to make laws with respect to aliens, and that power was intentional. It was intended to have a wide ambit. It was wide in expression and wide in interpretation. Accordingly, the arguments propounded by the majority in the Family Court really came down to the proposition that the Federal Parliament had enacted this law contrary to the fundamental principles of human rights, which principles were, in some way, upheld by the Constitution.

That took the High Court to a large number of the international treaties, and especially the provision in the Convention on the Rights of the Child that I have mentioned, which says that detention of children must be a last resort, not a first resort. It also took us to the debates in our Federal Parliament. When we went to those debates, the High Court was shown three reports that had been given in Parliament successively to the Hawke Government, the Keating Government and the Howard Government.

Those reports, one of which was from the Federal Attorney-General's Department, made the point that enacting legislation that provided for the mandatory detention of alien children without visas was almost certainly contrary to the obligations that Australia had assumed by ratifying the Convention on the Rights of the Child. The High Court was therefore faced with the fact that our Federal Parliament did not make its law by oversight. It hadn't enacted the law simply because it hadn't turned its mind to the question of the provisions of the international treaties. It knew. Yet it made the law for mandatory detention notwithstanding.

Accordingly, in my reasons, I indicated that the constitutional power was clear. It was intended to be wide. The legislation was not relevantly ambiguous. The decision was intentionally made by the representatives of the people of Australia in their Federal Parliament. Even if (as seemed distinctly arguable) that put the Federal Parliament out of step with the obligations assumed by international law and out of step with international human rights law, that was not a basis upon which an Australian court could override a clear and valid law of the Federal Parliament.

If there is doubt in the meaning or absence of constitutional power, there is opportunity for construing legislation conformably with international law. However, if there is no doubt about the meaning of the Act of Parliament and if the Act is constitutionally valid, it is not the function of judges to stretch the law and to pretend that it is otherwise than clear and valid. That's why, in Minister for Immigration and Multicultural Affairs v B,[9] the High Court was unanimous in concluding that the Family Court majority had erred. The constitutional power was there. The legislation was clear. There was nothing that the court could do about it in those circumstances. It was duty bound to uphold and enforce the law.

A decision of the South African Constitutional Court

I want to take you now to a series of cases in foreign jurisdictions, to show how courts in other countries have addressed analogous or similar questions. In most other countries, courts have either their own constitutional Bill of Rights to which they can refer in testing the validity of legislation. Or they have a regional human rights statement, such as the European Convention on Human Rights, which they can look to for the purpose of measuring the compliance of their local law with that international or regional law, set out in such instruments.

The first case to which I will refer is a decision of the South African Constitutional Court.[10] In that case, a question arose concerning a person who was alleged to have been involved in the bombing of the United States embassy in Dar es Salaam in Tanzania. The accused had entered South Africa. He was an alien in South Africa. The United States Government heard of his presence there. It asked that he be deported to the United States. In fact, the officials in South Africa moved to deport him.

The accused immediately sought protection under the Constitution of South Africa. The South African Constitutional Court had interpreted a provision of the South African Constitution to hold that it was unconstitutional to execute people.[11] Capital punishment is thus forbidden in South Africa. So Mr Mohamed, as the accused was named, fearful that if he were returned to the United States of America he might be executed under the United States laws, moved quickly in the Constitutional Court for a protective order forbidding his deportation to that country.

In the event, the judge at first instance decided that he could be deported and should be deported. The judge so ordered. Before the Constitutional Court could deal with the case, the applicant was deported to the United States. He was handed over to the authority of the U.S. federal courts. Notwithstanding this, his legal representatives continued their proceedings in the South African Constitutional Court.

That court said, in effect, that it would rule on the constitutional loss of liberties in South Africa. The accused had rights under the Constitution of South Africa. This was so even though he is an alien. He should not have been deprived of those rights by the act of the government in deporting him whilst the matter was still before the courts.

I am sure that you will understand that it would have been an easy thing for the South African court to say: this case is now moot. It's now academic. The accused is not now in our jurisdiction. Any order we make will not have any practical effect. It can't be enforced. We can't force the American courts to take heed of our opinions. Therefore, this is hypothetical and we won't deal with it.

However, the South African Constitutional Court is made of sterner stuff. The judges took the view that the actions of the government officials of South Africa had breached the requirements of the South African Constitution, and that was impermissible. They went on to hear the case. They held that he had not been dealt with under the right legal category. It was not a case for deportation. It was a case for extradition. It is very common in extradition law, and is the case in South Africa, that if a person is extradited, he or she is entitled to a commitment by the country to which the extradition is requested, that it will not carry out capital punishment. In the Extradition Act of Australia, there is such a provision. Australia will not extradite people unless we get an assurance from the countries receiving them that capital punishment will not be carried out. The interesting question, relevant to the point under consideration, is that such procedures matter. This point was made by the decision of the Constitutional Court of South Africa.

This is what the judges said:[12]

We saw in the past what happens when the state bends the law to its own ends, and now, in the new era of constitutionality, we may be tempted to use questionable measures in the war against crime. The lessons become particularly important when dealing with those who aim to destroy the system of government ... by means of organised violence. The legitimacy of the constitutional order is undermined rather than reinforced when the state acts unlawfully.

The South African judges held that the accused's constitutional right had been lost. They ordered the registrar of their court to communicate their decision to the judge in the United States who was trying Mr Mohamed. That was done. Whether it was because of that communication or anything else, the outcome was that, although Mr Mohamed was found guilty, he was not sentenced to death.

A British case overturning a counter terrorist detention

The second case I will mention is from the United Kingdom. It concerned a person accused of a terrorist offence. The accused was named in a declaration by the then Home Secretary, Mr David Blunkett, in 2004. He appealed against the decision to the Security Commission, which is established in the United Kingdom to review terrorism declarations, partly in consequence of decisions of the European Court of Human Rights in some of the Irish cases that had criticised the United Kingdom for the way in which it had dealt with people who were charged under counter terrorism legislation.

The British legislation establishing the Security Commission contained an interesting provision. It provided for a special advocate. The special advocate was to be appointed by the government. However, he was to have access to the government materials, including the security materials, and also to the accused's materials and other matters that were generally available.

This procedural device was an attempt on the part of the United Kingdom Parliament to provide a means whereby, whilst not giving all of those materials to the accused or the accused's lawyers, the materials were given to somebody independent who was appointed and paid to provide, as best as possible, representation and submissions to the courts.

The accused, a Libyan national who was suspected of terrorism involvement, refused to have anything to do with the special advocate. He must have thought that the special advocate was one of those Sir Humphrey Appleby-type provisions, enacted by the British to give the appearance of some protection but not the reality. Apart from denying that he was involved in terrorism or had anything to do with it, and indicating that he disapproved of it, the accused refused to have any part in the proceedings. Yet, he maintained his appeal.

The Security Commission in Britain, found, on the submissions of the special advocate, that the decision of the Home Secretary, Mr Blunkett, was in error. It set the decision aside. Mr Blunkett, you may remember, was a man not inclined to accept decisions of this kind. He said this was ‘judicial activism’ and an unwarranted interference by the courts in the decision which he, as the elected minister responsible to the people of the United Kingdom, had the right and duty to decide. Meanwhile, the accused remained in detention.

The Home Secretary appealed to the Court of Appeal in the United Kingdom. That court assembled and was headed by Lord Woolf, Lord Chief Justice of England. In giving his decision, dismissing Mr Blunkett's appeal, the Lord Chief Justice said:[13]

Having read the transcripts, we were impressed by the openness and fairness with which the issues in closed session were dealt with. We feel this case has additional importance because it does clearly demonstrate that while the procedures that the Commission has to adopt are not ideal, it is possible, by using special advocates, to ensure that those detained can achieve justice; and it is wrong, therefore, to undervalue the appeal process in the Commission itself.

The Court of Appeal dismissed the Minister's appeal. It concluded that the decision made by the Commission was both open to it and correct. The accused Libyan national was immediately released from custody to the surprise and jubilation of his supporters.

The Israeli Supreme Court and the Separation Wall

The third decision is the decision that Professor Sappideen mentioned. It's the decision which I referred to in a decision in the High Court in Al-Kateb. I refer to the judgment of President Aharon Barak in Beit Surik Village Council v Government of Israel.[14] That case did not concern a person in detention. However, it concerned an equally sensitive question, namely the building of the security fence, or wall, in Israel separating the Palestinian lands and the State of Israel.

The stated purpose of the wall was to cut down on the number of terrorist offenders coming into Israel and causing deaths in the civilian and military populations. The wall was built inside the Palestinian lands and beyond the border of Israel. It was maintained by the Israeli Defence Force as absolutely imperative to the defence of Israel and its people.

Again, one could imagine that it would not be difficult for a court, faced with such a case, to say, in effect: ‘This is not justiciable. This is a matter that concerns the defence of the country. This is a matter upon which the executive government has the obligation and the constitutional duty to defend the country. Courts can't second guess decisions of this kind. They're too difficult. They're often too urgent. We just can't get involved in those matters and therefore we won't.’ That would not have been an entirely surprising decision.

But that is not the way the Supreme Court of Israel, under its President, Justice Barak, dealt with the case. In his decision for the court, Justice Barak said:[15]

We are aware that this decision does not make it easier to deal with the reality. This is the destiny of a democracy. She does not see all means as acceptable, and the ways of her enemies are not always open before her.

The decision of the Israeli court was that the building of the security wall had exceeded, in particular respects, what was proportional and legitimate. Accordingly, the villagers who had challenged the dimensions of the wall were entitled to have redress.

The Israeli court didn't get into the question of whether a wall at all was permissible, in Israeli law or international law. That is a question which the General Assembly of the United Nations referred for an advisory opinion to the International Court of Justice. That court came down with a decision against Israel.[16] But in the meantime, the Israeli court had upheld the entitlement of the Palestinian villagers to more particular relief.

The American cases on Guantanamo Bay

The most famous cases concerning detention are those in the United States of America. These are cases concerned with the challenges in the courts in relation to those who have been detained without trial for a very long time in Guantanamo Bay. In Johnson v Eisentrager,[17] in 1950, the Supreme Court of the United States had decided that German nationals who were arrested in the United States and were held outside the country had no remedies. The American court upheld the powers of the President of the United States, as commander in chief, to detain foreign nationals without the inconvenient scrutiny of the courts.

Eisentrager was an important decision. However, it was not entirely on all fours with the Guantanamo Bay cases, because in Eisentrager, the German spies had entered the United States in a submarine and been put ashore in New Jersey. They were therefore captured on American soil as invaders during a time of war.

Most of the prisoners in Guantanamo Bay were not first taken into custody in the United States. They were brought to the United States from other countries with which, at the time, the United States was not at war. So the question was, did Eisentrager govern the case? In the decision in Rasul v Bush, the majority of the Supreme Court said that it did not. Stevens J said:[18]

At stake in this case is nothing less than the essence of a free society. Even more important that the method of selecting the people's rulers and their successors, is the character of the constraints imposed on the executive by the rule of law. Unrestrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the star chamber; for if this nation is to remain true to its [ideals], it must not wield the tools of tyrants, even to resist an assault by the forces of tyranny.

It's an interesting thought that the United States Constitution, the product of the revolutionary war of 1776, enshrined effectively the notions of the power of the head of state, which were current in Britain in the 1790s. The purpose of the United States Constitution was, in effect, although with some changes, to capture the rights of Englishmen, which it was contended King George III had denied to the American colonists.

The notion of the commander in chief as a kind of constitutional king, who was above the law and not answerable to the courts, was one which Stevens J and the majority (against strong dissents from the minority in the Supreme Court of the United States) held was simply not consistent with the Constitution of the United States and the rule of law notions that it enshrines.

The American judges didn't quite explain it in the way that Dixon J did in the Communist Party Case. They did not say that, as commander in chief, the President 's claim to be above the examination of the courts, was one fundamentally inconsistent with the rule of law, which is the foundation of the Constitution.[19] Yet, that was the essence of it. The result was that the American court held that the United States government was accountable, at least in the cases that were presented. Further cases will appear. But the judicial supervision of the Guantanamo detainees has been strongly asserted and upheld.

Mr Ashcroft, the then Attorney-General of the United States, denounced these and other decisions as ‘judicial activism’ on the part of the judges in the United States. That question became quite a significant issue in the American elections that were to follow. But the courts stood firm.

The House of Lords on the importance of liberty

There is one last case that I should mention. This is because it's an important one, important for us because of the way in which our law is still so greatly influenced by the law of the United Kingdom. It's the decision of the House of Lords on 16 December 2004 in A & Ors v Secretary of State for the Home Department.[20]

This was a case in which eight persons had been certified under the Anti-terrorism, Crime and Security Act 2001 (UK), which was enacted after 11 September 2001. The suspects had been first detained as long ago as 25 October 2002. Thus, they had been in detention for more than two years at the time their case came before the House of Lords.

Not all of them were still in the case. Two of them had left the United Kingdom voluntarily. One of them had been committed to the mental prison at Broadmoor. Another had been released on very strict bail conditions. One had been released unconditionally by the then Home Secretary, Mr Blunkett. That left four suspects who were still in detention. They continued their appeal. They went first to the Security Commission, secondly to the Court of Appeal, and finally to the House of Lords.

They won in the Security Commission. Like the Libyan national previously mentioned, they were successful there. That decision was then overturned in the English Court of Appeal. That court said, in effect: ‘These are very serious questions that are best left to elected ministers and we can't deal with them; at least, we can't reverse the Home Secretary's opinion.’ Then the detainees appealed to the House of Lords, where they succeeded.

In the House of Lords, the leading speech or opinion was given by Lord Bingham, the senior law lord. He quoted three sources which are worth reflecting upon. One of them was a decision of the European Court of Human Rights in an appeal from England in one of the Irish cases. The court would stress the importance of the convention system, that is the European Convention on Human Rights:[21]

It enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the state with his or her right to liberty. Judicial control of interference by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in the European Convention, which is intended to minimise the risk of arbitrariness and to ensure the rule of law.

Lord Bingham also quoted a decision of Patel J in a Federal Court in the United States in the rerun of the case of Korematsu v United States.[22] Mr Korematsu was a Japanese American who was detained during the Second World War, for no offence but because he was a Japanese American. He later brought proceedings for compensation.

In the course of that case Patel J said of the decision of the Supreme Court of the United States, which had upheld Mr Korematsu's detention in wartime:[23]

[It] stands as a caution that in times of distress, the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.

Lord Bingham of Cornhill, the senior law lord of England, also cited with approval the earlier reasoning of Simon Brown LJ, who said:[24]

The court's role under the Human Rights Act in the United Kingdom is as the guardian of human rights. It cannot abdicate this responsibility. Judges nowadays have no alternative but to apply that Act. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision making, just as there are to decision making by the courts.

This was, presumably, Simon Brown LJ's and Lord Bingham's answer to those in the legislature and the executive government who cried of ‘judicial activism’. Sometimes, where the constitution is clear, and where the law requires it, judges must be active or they will fail in the performance of their judicial duties.

Lord Bingham upheld the complaint that the detention of the remaining four detainees was contrary to the European Convention. To the extent that the English law appeared to permit it, it was not a detention that could be upheld by an English court. Lord Nicholls, who was of like mind, began his opinion with these words:[25]

Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection of a criminal trial which the protection of a criminal is intended to afford. Wholly exceptional circumstances must exist before this extreme step can ever be justified.

Lord Hoffman, another member of the House of Lords, expressed his opinion in equally blunt and clear words:[26]

This is a nation which has been tested in adversity which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy. But they do not threaten the life of this nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive al-Qaeda... The Spanish people have not said that what happened in Madrid, horrendous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

Baroness Hale, the first woman member of the judicial board of the House of Lords, said this:[27]

Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities... No-one has the right to be an international terrorist. But substitute 'black', 'disabled', 'female', 'gay', or any other similar adjective for ‘foreign’ before 'suspected international terrorist', and ask whether it would be justifiable to take power to lock up that group, but not the white able-bodied male or straight suspected international terrorists.

The British Act, authorising detention, differentiated between the treatment of British citizens and foreigners. On that basis, it was found by the House of Lords to be discriminatory. The decision was made that the government could not proceed with the detention of the four offenders. They were ordered to be released.

That led immediately to steps in the United Kingdom Parliament to try to close the gap which had been revealed by the decision in the House of Lords. Three matters delayed the passage of the Terrorism Bill 2005 through the British Parliament. One of them was the introduction, as the opposition urged, of a sunset clause. In the end, in all but name, the government gave way on that provision.

The other was the substitution of the criminal onus as against the civil onus which was provided in the Bill. That is to say it was urged that the government should have to prove beyond reasonable doubt that the suspect was a terrorist. The government did not give way on that. The government's opinion prevailed in the Bill that finally passed after an all-night session on 11 March, 2005.

The third controversy was the most important one. On this, Mr Blair said that it was a sticking point and he would not give way. This concerned the involvement of the judiciary in the orders that were made by a politician, the Home Secretary. However, in the end, at the conclusion of an all-night session, Mr Blair, the Prime Minister, agreed to include the requirement for the Home Secretary to get the approval of a judge when making a detention order.

It is interesting if we look at these cases in foreign courts and compare the constitutional setting and the powers of the courts to deal with these matters, that we can contrast the position in the United Kingdom, the position in the United States and the position in other lands.

Testing Australian decisions by international standards

In Al-Kateb v Godwin,[28] the question that arose in the Australian courts was whether our Constitution permitted indefinite detention of a detainee in immigration detention. That question arose because the detainee, Mr Al-Kateb, was a person who had been held in detention for two years. It had become clear that he could not be removed from Australia because he was a stateless person. He had no state of nationality to which he could be removed, or remove himself.

The issue before the High Court was twofold. First, did the Migration Act 1958 (Cth) apply to Mr Al-Kateb; and secondly, if it did, was it constitutionally valid in that respect? The High Court divided on those questions. The decision was handed down in August, 2004. By majority of four justices to three, it was held that the Migration Act did apply to Mr Al-Kateb. By a majority of five justices to two it was held that in doing so, the Act was constitutionally valid.

On the interpretation of the Act in such a case, the relevant question arose because it was suggested that the Act was founded on the conception, or hypothesis, that a person who was in migration detention could always terminate the detention (and thus the loss of liberty) by opting to go back to his country of nationality. That was, as it were, the premise upon which the provisions of the Australian legislation had been drafted. It was that fact that led Chief Justice Gleeson, Gummow J and myself to conclude that, because that was not the fact in Mr Al-Kateb's case, therefore the Act did not attach. The Act only attached where you could send a person back to their country of nationality, and this could not happen to Mr Al-Kateb. So he was entitled to his freedom. The Act did not apply to him. However, the majority disagreed.

The follow-up question was whether or not, even if the Act did attach, it was constitutionally valid. On that question there was a vigorous exchange between McHugh J and myself.[29] This concerned whether one could, in resolving such a constitutional issue, have regard to international human rights principles. McHugh J, in robust language, said you couldn't. He said that such an idea was legal heresy. I said, I hope in equally gentle and appropriate language, that one could have resort to international law. Indeed, I pointed out that this was happening all around the world and we should not be cut off from this beneficial and timely development in constitutional doctrine.

Gummow J concluded that, in our polity, you could not detain a person indefinitely because indefinite detention would constitute effective punishment of the person. That was a matter for the judicial branch under Chapter III of the Australian Constitution. This was also my own view, and I called in aid the international human rights principles of the kind that are now commonly referred to in the decisions of so many courts elsewhere.[30]

The result in Al-Kateb is that the High Court of Australia has held, and it is the law of this country, that a person can, under the Australian Constitution, be detained indefinitely. Doing so is within the scope of the power. It does not require a court order. It can be enacted by Parliament. Gleeson CJ sided with the majority on that question, holding that the aliens power was a purposive power, and it could be used to uphold the detention of a person indefinitely, that being the purpose of preventing their entering the Australian community or ensuring their ultimate removal, in cases where that could be effected. The contrary view on the constitutional question is, for the moment, a minority one.

A journey with constitutional fundamentals

So that is where we stand in this question at the moment. I have described a long journey. For me, it began in 1951. It's a journey which has passed through old, and now only partially remembered, events including the rounding up of the communists and the fears that my Uncle Jack would have to go into hiding. The journey has seen us through the events of recent times after 11 September, 2001.

It's a journey that's taken us through the terrorism legislation of many lands. It has seen responses from courts in countries as diverse as South Africa, the United Kingdom, the United States of America, Israel, and Australia. The fundamental issue is still before us. It's a question which, as citizens, everyone in this audience and beyond are entitled to debate. As lawyers, we should be examining it. It is the question of ordered liberty under law. Of the proper constraints on the legislature and executive in detaining suspects of liberty without first having judicial authority. Does the Australian Constitution really permit prolonged or indefinite detention without trial or judicial order? If it does, what should we do about a result that, clearly, places Australia at odds with the laws and the courts of most civilised countries?

We shouldn't examine this question of liberty under law, thinking that all wisdom lies here in Australia, in the south seas. We are part of the main. We are part of the world. Indeed, as I have shown, the issue is common to the whole world. The issue is one of the balance between our liberties and the security of our people.

Latham CJ rightly said, in Oliver Cromwell's words, ‘Being comes before wellbeing.’ However, the lesson of the Communist Party Case in Australia in 1951, where those words were written by the Chief Justice, is that part of being in Australia is wellbeing. Part of being for us is liberty. That has been part of our constitutional fabric and we should keep it so. It is important that we should be no less vigilant today, in 2005, in ensuring that liberty under law remains true in Australia as in the other countries whose distinguished judges I have quoted.

Now is not a time to falter in constitutional fundamentals. Whenever we have doubts, we should re-read the High Court's decision on the communists and maintain the same commitment, evident in that case - a commitment to the rule of law and the protection of basic human rights and fundamental freedoms. Normally, our Constitution and laws uphold these commitments. And wherever there is doubt the courts of Australia should err on the side of liberty. Always.


[*] Justice of the High Court of Australia. The ex tempore character of this address has been preserved from the transcript taken from a recording of the occasion.

[1] Referring to Beit Sourik Village Council v Government of Israel, unreported, SC Israel, HCJ 2056/04.

[2] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

[3] Ibid, 141.

[4] Ibid, 187-188.

[5] 341 US 494 (1951).

[6] Cf. Coco v The Queen [1994] HCA 15; (1984) 179 CLR 427 at 437.

[7] [1951] HCA 5; (1951) 83 CLR 1 at 193.

[8] [2004] HCA 20; (2004) 78 ALJR 737 at 768-769 [169]- [173]. See also Re Woolley; Ex parte Applicant M 276/2003 (2004) 79 ALJR 43 at 79 [173].

[9] [2004] HCA 20; (2004) 78 ALJR 737.

[10] Mohamed v President of the Republic of South Africa [2001] ZACC 18; 2001 (3) SA 893.

[11] S v Makwanyane 1995 (3) SA 391.

[12] Mohamed v President of the Republic of South Africa [2001] ZACC 18; 2001 (3) SA 893 at 921 [68].

[13] Secretary of State for the Home Department v M [2004] EWCA Civ 324 at [34].

[14] Unreported, HCJ, Supreme Court of Israel, 2056/04.

[15] Ibid, pp 44-45 [86].

[16] Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, unreported, 9 July 2004.

[17] [1950] USSC 60; 339 US 763 (1950).

[18] In Padulla v Rumsfeld [2004] USSC 2816; 124 Sct. 2711 at 2735 (2004). His view in Rasul was to like effect.

[19] Cf Communist Party Case [1951] HCA 5; (1951) 83 CLR 1 at 193 per Dixon J.

[20] [2004] UKHL 56.

[21] [2004] UKHL 56 at [41], citing Aksoy v Turkey (1996) 23 EHRR 533 at [76].

[22] [1945] USSC 43; 323 US 214 (1994).

[23] Korematsu v United States 584 F Supp 1406 (1984).

[24] International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 at [27].

[25] [2004] UKHL 56 at [74].

[26] [2004] UKHL 56 at [96].

[27] [2004] UKHL 56 at [237]- [238].

[28] [2004] HCA 37; (2004) 78 ALJR 1099.

[29] See [2004] HCA 37; (2004) 78 ALJR 1099 at 1112 [62]- [71]; cf at 1136 [190]-[191].

[30] See e.g. Atkins v Virginia [2002] USSC 3164; 536 US 304 at 347-348 (2002); Lawrence v Texas [2003] USSC 4776; 539 US 558 (2003) and Roper v Simmons [2004] USSC 5391; 543 US 1; 73 USLW 4153 (2005).


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