Preventative detention and control orders under federal law: the case for a bill of rights.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Fairall, Paul

[Federal laws passed since the 11 September 2001 attacks in the United States' represent an extraordinary challenge for human rights protection in Australia. The legislative erosion of rights traditionally assumed as being fundamental within common law countries lies at the heart of this challenge. This article focuses on extraordinary measures recently added to the package of anti-terrorism laws: preventative detention orders; prohibited contact orders; and control orders. These measures were added to Part 5.3 of the Schedule to the Criminal Code Act 1995 (Cth) by the Anti-Terrorism Act [No 2] 2005 (Cth), and directly and explicitly remove or interfere with a number of individual rights. In this article we argue that the threat to human rights posed by such measures derives not only from their legislative enactment and form. The threat is heightened by the dominance of a positivistic legalism in the approach of the High Court of Australia an approach that treats the constitutional text as the foundation of the rule of law in Australia, as opposed to the supreme manifestation of the rule of law that rests on a broader, but less explicit, foundation of constitutionalism. In this respect, the presence of a written Constitution has hindered the protection of rights to the extent that the principle of legality operates within a textual straitjacket. Until such time as Australia adopts a bill of rights at the national level, or there occurs an unlikely shift in the jurisprudential approach of the High Court, the Court will have little room to manoeuvre out of its positivistic corner when faced with other extraordinary legislative measures.]

CONTENTS I Introduction II Background to the Anti-Terrorism Act [No 2] 2005 (Cth) III Preventative Detention Orders IV Prohibited Contact Orders V Control Orders VI Thomas v Mowbray: The Constitutional Validity of Control Orders VII Control Orders as an Exercise of Judicial Power VIII The Constitutional Validity of Preventative Detention Orders IX Divergent Approaches to Human Rights Protection X Judges as Champions of Human Rights Protection? XI The Politicisation of Human Rights Protection XII Conclusion I INTRODUCTION

The sensitive balance between civil rights and national security has shifted since the 11 September 2001 terrorist attacks. In Australia, the adjustment is readily visible in the proliferation of anti-terrorism laws. The scope of such laws is very extensive (1) and constitutes a major challenge for traditional thinking about civil rights. (2) This article considers the challenges for federal courts in dealing with such legislation (3) through an examination of the decision in Thomas v Mowbray (4) and key counter-terrorism measures adopted in 2002, including preventative detention orders ('PDOs') and control orders. In Thomas v Mowbray, the control order regime established under Division 104 of the Criminal Code Act 1995 (Cth) sch ('Criminal Code') survived a constitutional challenge. This important decision of the High Court of Australia has wide ramifications for human rights protection (or the lack thereof) in Australia. The control order is one of a series of extraordinary devices introduced by the Anti-Terrorism Act [No 2] 2005 (Cth) (5)--part of an extensive package of anti-terror laws, the likes of which would have been unthinkable a decade ago. The upholding of legislation providing for the deprivation of liberty of a person not convicted or charged with any criminal offence marks an unfortunate turn in the spiralling descent of civil rights protection in Australia. It graphically illustrates the inability of judges to protect the community from the erosion of fundamental civil rights.

Thomas v Mowbray offers a telling example of the inadequacy of judicial review in protecting individual liberty in the face of extraordinary legislative measures--at least when jurisprudential approaches are dominated by 'a virulent strain of legal positivism', (6) and where human rights issues tend to remain at the margins of judicial analyses. In this article, we argue that the combined effect of two trends in Australia--the dominance of legal positivism and the political resistance to the statutory implementation of human rights norms at the federal level--has placed High Court judges in a difficult position. The politics surrounding the implementation (or non-implementation) of a federal bill of rights, and human rights generally, are well-known. They have been characterised by a number of tensions including federal-state rivalries, (7) concerns with sovereignty (and the so-called 'democratic deficit'), (8) executive accountability (9) and, with regard to the judiciary, the constitutional and policy implications of so-called 'judicial activism'. When faced with legislation that erodes fundamental rights, judges have lacked a positive instrument against which the proportionality of the statute may be measured. Any engagement with human rights issues in the absence of a positive instrument designed to implement such rights carries with it the risk of being perceived as 'activist'. As a consequence, judges (for the most part) tend to approach human rights issues with caution, if they treat them as relevant at all. Whilst largely avoiding the political debate, Australia's judges have frequently been placed at its centre and are far from impervious to its wider implications for judicial decision-making. That is particularly so given the presence of a written Constitution with an entrenched commitment to parliamentary supremacy and the separation of powers. Faced with this reality, we conclude by advocating for the adoption of a bill of rights at the federal level.

II BACKGROUND TO THE ANTI-TERRORISM ACT [NO 2] 2005 (CTH)

Within days of the destruction of the World Trade Center in New York, the United Nations Security Council passed Resolution 1373, (10) calling upon member states to take specific anti-terrorism measures, including the prevention and suppression of the finance of terrorism and the criminalisation of terrorist acts. Australia's initial response was that it already had a highly coordinated domestic counter-terrorism response strategy incorporating law enforcement, security and defence agencies, and that it had an extensive network of law enforcement liaison officers and bilateral treaties on extradition and mutual legal assistance to facilitate the cooperation with other countries in the prevention, investigation and prosecution of terrorist acts. (11) In February 2002, shortly after the passage of Resolution 1373, the United Nations High Commissioner for Human Rights, Mary Robinson, undoubtedly concerned about the possibility of overreaction by member states to September 11, urged caution in the implementation of anti-terrorism measures and proposed a series of criteria which emphasised respect for human rights. (12) In June 2002, the Australian government introduced a wide range of new counter-terrorism measures, (13) with the reassurance that:

In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system. We think the legislation does just that. (14) The anti-terrorism laws have been progressively supplemented. In 2005, following a Council of Australian Governments ('COAG') meeting held on 27 September 2005, the decision was made to 'strengthen' Australia's anti-terrorism laws even further, both at the state (15) and federal level. The Criminal Code amendments contained in the Anti-Terrorism Act [No 2] 2005 (Cth) were extensive and controversial.

The control order legislation forms part of a huge package of anti-terrorism laws that would have been unimaginable a decade ago. New laws provide special rules for trials involving security issues, (16) contemplate the effective 'licensing' of lawyers by requiring security clearances in sensitive trials, (17) and sanction gross departures from principles of natural justice ordinarily applicable to administrative processes and criminal trials, for example, the right to see the evidence against oneself. (18) In terms of substantive law, there has been a significant extension of inchoate liability to include a variety of preparatory offences; (19) an expanded definition of terrorism that relies heavily upon motive as a defining factor; (20) and the expansion of extraterritorial reach. (21) The definition of a 'terrorist organisation' has been extended and the offence of sedition revitalised. (22) New offences relating to the financing of terrorism have been introduced and greater powers of criminal investigation conferred. Importantly, for present purposes, the Anti-Terrorism Act [No 2] 2005 (Cth) amendments to the Criminal Code inserted three measures that present particular challenges for civil liberties: control orders, PCOs and PDOs.

The PDO regime established by Division 105 of the Criminal Code has yet to be judicially considered. PDOs constitute a latent threat to civil liberties and have been used in the past (although thankfully never in Australia) as a means of stifling political dissent. Administrative detention is anathema to liberal democracy; that an individual should be deprived of liberty by executive order in the absence of any allegation of criminal wrongdoing is so axiomatically wrongful as to require no argument. Save extraordinary threats to public health, in cases of clear mental illness, or in times of declared war, it is unheard of for people to be detained for long periods of time outside the criminal justice system. John North, President of the Law Council of Australia, reminded the Senate Legal and Constitutional Legislation Committee reviewing the proposed legislation, that:

Australia's formal criminal justice system embraces critically important guarantees and safeguards...