Report from Australia: The High Court considers the rights of Terrorists and Prisoners

In the last six months the High Court of Australia has decided two cases with very significant implications for the rights of persons of whom many in the community would be happily dismissive – suspected terrorists and convicted prisoners. In the first case, the High Court has essentially upheld the validity of the Commonwealth’s scheme of control orders which may be used to impose prohibitions and restrictions upon individuals seen as a terrorist threat. This result was largely anticipated, which cannot be said of the Court’s decision a few weeks later to strike out new Commonwealth legislation denying all prisoners the right to vote.

Control Orders Upheld: Thomas v Mowbray, 2007 HCA 33

Jack ‘Jihad’ Thomas was charged with offences under sections 102.6 (intentionally receiving funds from a terrorist organisation) and 102.7 (intentionally providing support to a terrorist organisation) of the Criminal Code (Cth), and section 9A of the Passports Act 1938 (possession of a falsified passport) in relation to his activities in Pakistan from 2001-2003. On the central charge, of providing support to a terrorist organisation, Thomas was acquitted by a jury in the Victorian Supreme Court. He was, however, convicted on the other two charges. The prosecution satisfied the jury that Thomas had received money from al Qaeda to pay for his airfare back to Australia and that he fraudulently altered his passport to conceal the length of his stay in Pakistan. In March 2006, Justice Cummins sentenced Thomas to five years imprisonment for the former and two years for the latter, to be served concurrently. This conviction was then quashed in August 2006 by the Court of Appeal on the ground that the admissions made by Thomas in his interviews with police were involuntary.

Less than 10 days later, the Australian Federal Police sought and were granted an interim control order over Thomas under Division 104 of the Criminal Code. The order restricted him from using various telecommunications devices to contact a number of listed persons, including, to the mirth of the Australian public, Osama bin Laden. Additionally, Thomas was prohibited from leaving his house between midnight and 5 am. His legal representatives commenced an action before the High Court so as to challenge the constitutionality of this order made against him, and the matter was heard across several days of oral argument in December 2006 and February 2007.

There were two significant aspects to the challenge. The first was whether Division 104 could be supported by the Commonwealth Parliament’s legislative power under s.51(vi) of the Constitution to make laws for the purpose of defence. On this question the Court decided 6:1 that the control order scheme was indeed within Parliament’s power. The majority rejected a view of s.51(vi) which would limit it either to ‘naval and military defence’ to which the section refers or to situations requiring defence against an external aggressor in the form of a nation state. Justices Gummow and Crennan led the majority in saying that “protection from a ‘terrorist act’ as defined necessarily engages the defence power” and saw no need for recourse to the so-called nationhood power achieved by the textual combination of pure executive power (s.61) with the express incidental legislative power (s.51(xxxix) to achieve this end. This is an important confirmation that the defence power can support national security initiatives which might traditionally have been seen as falling within ordinary policing, and thus largely a matter for the States. It was a valuable win for the Commonwealth which had been sufficiently uncertain over the point as to shore up the validity of its post-9/11 laws through a referral of power from the States.

Justice Kirby, in dissent, acknowledged (as he does very frequently) that the Constitution “adapts to new and unforeseen circumstances”, but found a number of difficulties with the Commonwealth’s use of the defence power to support control orders. First, he viewed the power as referring to the defence – whether from external or internal danger – of the Commonwealth and States as “bodies politic” but not “individuals or groups or their interest or property.” This was a distinction rejected by the majority who pointed to the role of individuals within the democratic political system. Second, his Honour expressed dissatisfaction with the verification of facts asserted by the Commonwealth as enlivening the power. Finally, Kirby J. was of the view that Div 104, and more significantly the very definition of ‘terrorist act’ upon which it is built, “proceeds outside the proper concerns of s.51(vi) and into ordinary areas of civil government.”

The second, and more contentious, aspect of the Thomas case was Kirby J.’s argument that the use of federal courts to issue control orders amounted to a breach of the Australian Constitution’s strict separation of judicial power. This argument was lost 5:2 with Justice Hayne joining Kirby J. in dissent on this issue. The reasoning of Chief Justice Gleeson was typical of the majority. His Honour said:

The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively.

By way of example, Gleeson C.J. pointed to bail and apprehended violence orders, though he conceded that neither analogy was perfect. His Honour was heavily influenced by the policy considerations of what accepting Thomas’ argument would mean for detention of terrorism suspects:

…the argument is that, even assuming it is within the power of the federal Parliament to legislate for such restraints upon the liberty of individuals, the power to make control orders cannot be given to judges. The corollary appears to be that it can only be exercised by the executive branch of government. The advantages, in terms of protecting human rights, of such a conclusion are not self-evident. In Fardon, I indicated that the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. An argument, as a matter of policy, that legislation for anti-terrorist control orders ought to be subject to some qualification in aid of the human rights of people potentially subject to such orders is one thing. An argument that the making of such orders should be regarded as totally excluded from the judicial function is another… To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights.

Two responses may be offered to the reasoning thus far. One is that the majority failed to consider the significance of the clear overlap between the conditions for the issuing of a control order and the broad preparatory offences found elsewhere in the Criminal Code. This duplication alone provides a point of distinction from other instances of preventative order. The second is that his Honour simply assumed that if the control orders could not constitutionally be made by the federal judiciary then it would necessarily follow that the executive would be able to make them. This was rejected by Hayne J in dissent who pointed out that it may be very difficult for the defence power to confer upon a Minister a similar discretion in a time of “ostensible peace.” In his Honour’s view, constitutional problems, albeit different ones, might attach to any attempt to confer authority to issue control orders – be it upon either the judiciary or the executive.

The majority did not think that the Division’s criteria for the making of an order – that the conditions imposed be “reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act” – was outside the realm of judicial functions. The judges canvassed many uses of the standard of “reasonable necessity” in the law – even though these examples did not have the kind of consequences for individual liberty as the orders under review in this case. In contrast, both dissentients objected to the standard set down by the legislation with Kirby J. describing the discretions conferred upon the federal judiciary as being of “nebulous generality.” Hayne J was even more damning:

That criterion is unlike any that hitherto has been engaged in the exercise of judicial power… It is a criterion that seeks to require federal courts to decide whether and how a particular order against a named person will achieve or tend to achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court.

Standards expressed in general terms, like those that are referred to earlier, are susceptible of ‘strictly judicial application.’ The criterion that is fixed by the impugned provisions is not.

Thomas v. Mowbray also raised issues in respect of the constitutional powers of the Commonwealth with respect to external affairs (s.51 (xxix)) and the States to refer law-making power to the central government but these issues were not central to resolution of the case.

The significance of the decision is twofold. First, it is a victory in the first test case for the validity of Australia’s controversial new anti-terror laws. Second, it continues the Court’s weakening of the implications for individual liberty which accrue from the strict separation of judicial power. In Chu Kheng Lim v. Minister for Immigration (1992) the joint judgment said that the involuntary detention of a citizen in custody by the state is penal or punitive in character and could exist only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Thomas v. Mowbray is in line with the 2004 cases of Al-Kateb v. Godwin and Fardon v. Attorney-General (Qld) in reducing the scope of constitutional protection on this score.

Prisoner’s Disenfranchisement Invalidated – Roach v. Electoral Commissioner

A month after the Thomas decision was handed down, the High Court determined another significant constitutional law case concerning human rights. In the absence of a Charter of Rights, the way in which these issues are litigated and decided in Australia must seem rather crabbed and artificial to outsiders. This is as true of Roach v. Electoral Commissioner as it is of Thomas. Roach concerned the validity of 2006 Commonwealth legislation disenfranchising any persons serving a full-time sentence of imprisonment (as opposed to periodic detention). Unlike Canada, for example, there is no formal recognition of a right to vote in Australia and the Commonwealth Parliament has essentially enjoyed free rein as to determining the composition of the electorate. This is demonstrated by the fact that prisoners serving sentences of variable lengths – but never, it should be stressed, less than 1 year – have from time to time been disqualified from voting in federal elections for most of the history of the Commonwealth.

It was surprising then for the Court to decide 4:2 that the legislation in question was unconstitutional. The basic argument made by Vicki Roach – a woman serving a six year sentence – was that the disenfranchisement of prisoners was contrary to the text of sections 7 and 24 of the Constitution which provide respectively that the members of the Commonwealth Senate and House of Representatives are to be “directly chosen by the people.” Those words, discounted for much of their existence, came to assume dramatic significance in recent times as the basis for the Court’s securing an implied freedom of political communication in the case of Lange v. Australian Broadcasting Corporation (1997). Did they also amount to guaranteeing a right to vote?

The answer, to some extent, is yes. The Parliament may exclude people above the age of majority from the franchise but only for a “substantial” reason. The joint judgment of Gummow, Kirby and Crennan JJ determined that, consistently with the focus upon the words of ss. 7 and 24 and the way in which the implied freedom of communication has developed around them, this was determined through deciding whether the disenfranchisement was “consistent or compatible with the maintenance of the constitutionally prescribed system of government.” The clear advantage of such an approach is that legislative attempts at wholesale ejection of persons from the franchise – based on gender or race or wealth for example – would surely fail and thus be unconstitutional (even though, many of the original framers of the Constitution would certainly have drafted the sections in question with all three qualifications in mind).

A clear indicator on the face of the Constitution itself that the 2006 law was not “reasonably appropriate and adapted” to serve an end consistent with representative government was that Senators or members of the House of Representatives were not themselves barred from sitting in either house of parliament even if serving a term of imprisonment of less than a year (section 44(ii)). In light of this, how could it be appropriate to deprive persons merely voting for their representatives from doing so when serving a sentence of the same limited duration?

This “disharmony” was pivotal to the majority’s finding that the 2006 law’s blanket prohibition on prisoner voting was unconstitutional. It is clear at least that, taking s 44(ii) as a cue, persons sentenced to jail for less than a year cannot be constitutionally disenfranchised. The majority stopped short, however, of accepting Roach’s argument that no disenfranchisement was possible at all and confirmed the validity of earlier legislation which denied the ability to vote to persons serving a jail term of three of more years. In explaining why that scheme satisfied the constitutional test, the joint judgment said:

The three year provisions… differ in their nature from the 2006 Act. They operate to deny the exercise of the franchise during one normal electoral cycle but do not operate without regard to the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process. In that way the three year provisions are reflective of long established law and custom, preceding the adoption of the Constitution, whereby legislative disqualification of electors has been made on the basis of such culpability beyond the bare fact of imprisonment.

This result obviously does not assist the litigant. With the invalidation of the 2006 total ban, the earlier scheme became operative once more – and as Roach’s sentence exceeds three years, her victory in the High Court was a hollow one.

Nevertheless, the case is significant in a number of ways. First it sees the Court taking an approach to electoral issues which does not simply defer to the judgment of the Parliament but which imposes a constitutional check. This has hardly been the norm of the Court’s approach to such questions – of which the dissenting opinions of Hayne and Heydon JJ in Roach are far more reflective. Second, it draws on the method applied in respect of the implied freedom of political communication – an area of constitutional law in which the present Court has been far from enthusiastic – not merely to (once more) invest the words “directly chosen by the people” with the capacity to constrain power but also to determine how this will occur. Lastly, the decision provides yet another illustration of the unpredictability of rights protection in Australia.

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