Jack Thomas case: Kirby dissent CLA Civil Liberties Australia Kirby delivers dissenting masterpiece Mr Justice Michael Kirby has delivered possibly his most important contribution to the rule of law in Australia in his dissenting opinion in the Jack Thomas control order case, handed down on 2 August 2007. It is likely his dissent will be quoted hundreds of years from now. His extraordinary dissent includes un-judge-like criticism of the Australian High Court and some of his fellow judges. The High Court s mistakes of the present would eventually need overturning by the wise perceptions of the past, he says. The High Court had surrendered to demands for more and more governmental powers, federal and State, that exceed or offend the constitution and its values, Mr Kirby said. The consequences for the Australian Constitution and the liberty of the individual in Australia could be grave as a result. He said the High Court was passing through a laissez faire era. Australians would look back on the decision in the Thomas case with regret and embarrassment. The Thomas decision called for the foresight, prudence and wisdom of this Court, and of Dixon J in particular, in the Communist Party Case (and in other constitutional decisions of the same era). This had not been delivered, he said. In the Thomas case, the High Court decided by a 5-2 majority that an interim control order on Mr Jack Thomas of Victoria was valid. But behind that simple outcome, the case was one of the most important in decades in relation to the separation of powers, State and Federal rights, and human rights in Australia. Background; Mr Thomas was found guilty, in February 2006, of accepting funds from a terrorist network and holding a falsified passport. The Victorian Court of Appeal quashed the verdict. The Australian Federal Police then put a control order on Mr Thomas, which involves a curfew and restricted communication. He must also report to police three times a week. Mr Thomas took the control order case to the High Court, claiming the order was based on a law not constitutionally valid basically the key Australian anti-terror legislation.
CLA comment: In a 5-2 majority, the court decided it was legitimate for the Australian Government to legislate for control orders under defence powers of the Constitution. In other words, the war on terror is like a real war. In the long run, the Federal Five decision may become a sinking island in the river of Australian judicial history but not before running the gauntlet of extraordinary rapids and razor-sharp rocks thrown into the stream by Mr Justice Kirby, now winding down towards his last year on the High Court bench. Judging by the clarity and conviction in this case, he will be sorely missed when replaced by a judge who will take the court further out on the right limb of the tree of justice. Kirby says: In the Thomas dissent, Mr Kirby said: I did not expect that, during my service, I would see the Communist Party Case sidelined (by fellow judges Gummow and Crennan), minimised, doubted and even criticised and denigrated (by Callinan) in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 {the Communist case} been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing. Whereas, until now, Australians, including in this Court, have generally accepted the foresight, prudence and wisdom of this Court, and of Dixon J in particular, in the Communist Party Case (and in other constitutional decisions of the same era), they will look back with regret and embarrassment at this decision when similar qualities of constitutional wisdom were demanded but were not forthcoming. In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia.
The wellspring of constitutional wisdom lies in legal principle. Its source is found in the lessons of constitutional history. When these elements are forgotten or neglected by a court such as this, under the passing pressures of a given time, the result is serious error. The consequences for the constitutional design, as for individual liberty, can be grave. It must then be left to a future time to return to that wisdom and to rediscover its source when the mistakes of the present eventually send this Court back to the wise perceptions of the past. Mr Justice Kirby s dissenting judgement was a masterly, if tortuous, excoriation of unprincipled federal legislation, agreed to on a wink and a nod by mostly compliant State Premiers and Territory Chief Ministers duchessed over food and wine during a one-day stand in Canberra. Large consequences: As drafted, Div 104 is a law with respect to political, religious or ideological violence of whatever kind. Potentially, it is most extensive in its application. Even reading the Division down to confine it to its Australian application, it could arguably operate to enable control orders to be issued for the prevention of some attacks against abortion providers, attacks on controversial building developments, and attacks against members of particular ethnic groups or against the interests of foreign governments in Australia It is one with large consequences for individual liberty. It therefore attracts strict scrutiny from this Court. To uphold the strictly limited internal deployment and engagement of the defence power in Australia (which historically dates back to the constitutional memories of the military rule of Cromwell), this Court should reject the Commonwealth's emotive arguments. It should adhere to long-established and textually reinforced notions obliging the containment of the defence power. There is no reason to conclude that the deployment of State police power is insufficient. If federal direction is required, it can, subject to the Constitution, be lawfully secured by a valid reference of such powers by the State Parliaments. But there was no valid reference by State Parliaments, Kirby concludes, because the representatives of executive government at federal, state and territory level COAGulated into unparliamentary executive decisions to write new law beyond their powers. Div 104 of the Code is not supported by either aspect of s 51(vi) nor by the implied nationhood power. In so far as the Commonwealth relied on those heads of power, its arguments should be rejected. On such constitutional facts as have been proved and such general knowledge as the Court can properly rely on, the invocation of s 51(vi) is not sustained.
Kirby footnote 277: Communist Party Case (1951) 83 CLR 1 at 187: "History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power." Control orders undoubtedly impinge upon the basic rights to liberty of those made subject to them. This Court's duty under the Constitution is to guard against unwarranted departures from fundamental rights and freedoms which the Constitution and applicable law defend. Yet Div 104, in its present form, undermines the judicial power of the Commonwealth by attempting to deploy federal judges upon tasks that are nonnormative and that are performed in accordance with procedures that seriously depart from the basic rights normal to judicial process. The uniqueness of Div 104: In the plaintiff's case, Div 104 of the Code contemplates the possibility of the loss of liberty, potentially extending to virtual house arrest, not by reference to past conduct or even by reference to what that person himself might or might not do in the future. It is based entirely on a prediction of what is "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act", a vague, obscure and indeterminate criterion if ever there was one. The judicial process, said to be enlivened by s 104.4, is not therefore refined. On its face, it is capable of arbitrary and capricious interpretation. This invites the question: if the community of nations, with all of its powers and resources, cannot agree on what precisely "terrorism" is (and how it can be prevented), how can one expect a federal magistrate or court in Australia to decide with consistency and in a principled (judicial) way what is reasonably necessary to protect the public from a terrorist act? How can such a decision be regarded as one proper to a court limited, as such, to the application of a pre-existing norm and especially in decisions critical to the liberty of the person affected? This Court has accepted that, in "strictly limited circumstances, the judiciary permits 'executive interference with the liberty of the individual' where 'the purpose of the imprisonment is to achieve some legitimate non-punitive object". However, in Australia, judges in federal courts may not normally deprive individuals of liberty on the sole basis of a prediction of what might occur in the future. Without an applicable anterior conviction, they may not do so on the basis of acts that people may fear but which have not yet occurred. Much less may such judges deprive individuals of their liberty on the chance that such restrictions will prevent others from committing certain acts in the future. Such provisions partake of features of the treatment of hostages which was such a shameful characteristic of the conduct of the oppressors in the Second World War and elsewhere. It is not a feature hitherto regarded as proper to the powers vested in the
Australian judiciary. In Australia, we do not deprive individuals of their freedoms because doing so conduces to the desired control of others. Alternative systems: Other countries with legal systems generally similar to those of Australia have either legislated for, or required the availability of, special advocates in circumstances where accused persons are not entitled to access to the full case against them on grounds, asserted by the executive, of national security. There is no similar facility in Div 104 of the Code for an independent person to have access to the executive's material or to controvert the veracity of the evidence relied upon. To expect a court to rely for its decisions solely upon the evidence supplied by the very officers seeking to secure or uphold the control order, is fundamentally inconsistent with the adversarial and accusatorial procedures, observed by the Australian judiciary until now in serious matters affecting individual liberty, as contemplated by Ch III of the Constitution. It would seriously undermine public confidence in federal courts for judges to subject individuals to any number of "obligations, prohibitions and restrictions" for an indeterminate period on the basis of an estimate that some act, potentially committed by somebody else, may occur in the future. To do this is to deny persons their basic legal rights not for what they have been proved to have done (as established in a criminal trial) but for what an official suggests that they might do or that someone else might do. To allow judges to be involved in making such orders, and particularly in the one-sided procedure contemplated by Div 104, involves a serious and wholly exceptional departure from basic constitutional doctrine unchallenged during the entire history of the Commonwealth. It goes far beyond the burdens on the civil liberties of alleged communists enacted, but struck down by this Court, in the Communist Party Case. Unless this Court calls a halt, as it did in that case, the damage to our constitutional arrangements could be profound. Not judicial power The "thin veneer of legality" which s 104.4 of the Code seeks to create by vesting this power in federal courts "cannot disguise the reality" that it is not judicial power. It is in cases such as the present that the Court is tested. When the test comes, it is not to be answered by endorsement of grave departures from longstanding constitutional history and judicial tradition. Least of all is it to be answered in terms of the emotional appeals by the Commonwealth and its supporters to notions of legal exceptionalism which this Court firmly rejected in its decision in the Communist Party Case.
Balance What has hitherto been regarded as wholly exceptional, within the grant or refusal of a judge and adaptable to particular needs in very special circumstances, is rendered by Div 104 the universal norm. This change seriously alters the balance between the State and the individual whose liberties are potentially affected by the federal court's orders. It reduces, and in some cases destroys, the capacity of federal courts to be, and to appear to be, independent and impartial as between the executive and the individual. The resulting legislative scheme is therefore incompatible with the postulate upon which the federal Judicature is created by the Constitution. If the courts are seen as effectively no more than the pliant agents of the other branches of government, they will have surrendered their most precious constitutional characteristic. This Court should not allow that to happen. In effect, and in substance, the federal courts are rendered rubber stamps for the assertions of officers of the Executive Government. They, and those whose liberties are most affected, are deprived of any effective means to test and contradict the executive's assertions. Division 104 of the Code attempts an unbalanced and unequal departure from the Constitution's guarantee of equal justice to all who come before the independent federal courts of the nation. It is therefore invalid on this further ground. Special advocate: Nevertheless, the role of the special advocate has proved instrumental in ensuring that the tribunals and courts established by law can discharge their functions at least with a minimum of informed scrutiny of executive allegations which have in this way sometimes been found unsustainable. One final aspect of these proceedings should be mentioned. International law, ratified by and binding on Australia, protects the rights of individuals to be free of arbitrary detention and the unlawful deprivation of liberty. International law also safeguards individual rights to privacy and respect for family life; to freedom of expression and association; to freedom of movement; and to a fair hearing in the determination of one's rights and obligations. Clearly, the obligations, prohibitions and restrictions that might be imposed by an order made under s 104.4 of the Code will potentially infringe any, or all, of these rights. The foregoing principles of international law have not been incorporated by municipal law into federal law in this country. However, that does not mean that the principles are irrelevant to the functions of the courts. An Australian statute must be interpreted and applied, as far as its language admits, so as not to be inconsistent with established rules
of international law. This Court will also refuse to uphold legislation that abrogates fundamental rights, recognised by civilised countries, unless the purpose of the legislature is clear, evidenced by unambiguous and unmistakable language. These principles are not just aspirational statements. The Australian Constitution should be read, so far as the text allows, in a way that is harmonious with the universal principles of the international law of human rights and not destructive of them. Australia has ratified and accepted those principles. They are upheld by other civilized nations. They are available to assist our understanding of the contemporary limits and requirements of the Australian Constitution. As such, they confirm the constitutional conclusions that I have already expressed. Constitutional values: In the past, lawyers and citizens in Australia have looked back with appreciation and gratitude to this Court's enlightened majority decision in the Communist Party Case. Truly, it was a judicial outcome worthy of a "free and confident society" which does not bow the head at every law that diminishes liberty beyond the constitutional design. CLA Civil Liberties Australia A04043 Box 7438 FISHER ACT 2611 Australia Email: secretary@cla.asn.au Web: http://www.cla.asn.au/