Peter Kemp has an interesting post at Mark Bahnisch’s place, in which he argues that the “preventative detention orders” to be created under the Howard government’s proposed new Anti-Terrorism Bill 2005 may be unconstitutional, in that the provisions repose non-judicial functions in federal judicial officers as “personae designatae” (acting in their personal capacities rather than as judges). Peter argues that these functions may be held by the High Court to be incompatible with the fundamental nature of federal judicial power in the manner discussed in cases such as Hilton v Wells, Grollo v Palmer or Wilson v Minister for Aboriginal and Torres Strait Islander Affairs.
Readers can find a fairly succinct summary of the Bill here.
It’s conceivable that Peter might be correct, but somehow I doubt it. The drafters of the Anti-Terrorism Bill have been careful to constrain the scope of “preventative detention orders” fairly tightly. Even with extensions, a federal judicial officer can’t authorise deprivation of liberty for any longer than 48 hours. That isn’t significantly longer than the potential effect of an ordinary arrest warrant which can be issued by a federal judge or magistrate as persona designata, and doesn’t appear to be any more incompatible with federal judicial power than a wiretap warrant (the issue of which by federal judges was in question, and held to be constitutionally permissible, in both Hilton v Wells and Grollo v Palmer).
On the other hand, there might well end up being significant constitutional questions about the validity of the proposed complementary State laws, which are apparently intended to give AFP and ASIO officers the ability to seek further extensions of “preventative detention orders” for up to 14 days from a State court or judge. I can’t immediately think of a High Court decision on point, but there must surely be a respectable argument that the Commonwealth can’t simply sidestep the constitutionally-entrenched separation of powers by getting the States to permit Commonwealth officers (of AFP and ASIO) to seek extended detention orders from State judges which federal judges could not constitutionally be empowered to authorise.
Certainly, important aspects of the Commonwealth Corporations Law regime operate by getting State and Territory laws to confer functions and powers on Commonwealth officers (of ASIC) that the Commonwealth Parliament itself is unable constitutionally to confer (in relation to the incorporation of companies). But it may well be one thing for the Commonwealth to co-operate with the States to supplement a mere lack of Commonwealth legislative power (as with corporations law), and quite another to do so for the specific purpose of subverting a fundamental constitutional principle and safeguard, namely the separation of judicial from political power and the fundamental safeguard of a right to seek bail from the first available judge.
I also have serious doubts whether the sedition provisions of the Anti-Terrorism Bill (well discussed by Phillip Gomes at Mark B’s place a couple of days ago) would withstand a challenge that they infringe the implied constitutional freedom of political speech. However, comments earlier today and yesterday by Howard and Ruddock suggest that they may be backing off on these provisions.
Finally, and perhaps most importantly, I also have some doubts about the constitutionality of the “control order” provisions of the Bill. In contrast to the “preventative detention orders” (which can be authorised by a Commonwealth judicial officer as persona designata for a maximum 48 hour duration), control orders are issued by federal courts themselves, and may be of up to 12 months duration.
Control orders may impose a wide range of restrictions on the subject’s personal liberty (see section 104.4), including “a requirement that the person remain at specified premises between specified times each day, or on specified days” i.e. home detention. Control orders may also contain requirements for mandatory wearing of tracking devices, keeping away from specified places and so on. These restrictions are arguably punitive in nature; they certainly involve serious deprivation of liberty. Moreover, they are measures that could usually be imposed by a court (at least a federal court constrained by the constitutional separation of powers) only after a criminal trial and finding of guilt (or at least in a process directly associated with the judicial trial process i.e. setting bail conditions). In Chu Kheng Lim v Minister for Immigration , Justices Brennan, Deane and Dawson said:
“(P)utting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”.
The exceptional cases to which their Honours referred are committal to custody pending trial, involuntary detention in cases of mental illness or infectious disease, the traditional power of Parliament to punish for contempt and of military tribunals to punish for breach of military discipline.
In Chu Kheng Lim the Court was dealing with the question of whether a non-judicial body could exercise a power that is normally regarded as judicial. However, it is equally problematic if legislation (as here) purports to vest power in a federal court to “punish” a person entirely divorced from any judicial process designed to establish guilt or innocence of a crime. This does not appear to be judicial power, and federal courts cannot be vested with non-judicial power under the separation of powers doctrine.
Under Howard’s Anti-Terrorism Bill, federal courts will be able to authorise involuntary detention of citizens who have never been and may never in future be charged with or convicted of any criminal offence at all. Indeed they may not have committed an offence at all. Section 104.3 purports to permit a federal court to make such a control order where it is satisfied “that making the order would substantially assist in preventing a terrorist act“. Moreover, the order is made on satisfaction on the mere balance of probabilities (rather than the heavier criminal onus of beyond reasonable doubt), and may be imposed in the first instance without the person subject to the order being present or represented or even notified that an order is being sought by the AFP or ASIO.
The structure and effect of these provisions brings to mind the facts in Kable v DPP (NSW) where the High Court held unconstitutional a State law which purported to authorise the NSW Supreme Court to order preventative detention of a particular person named Gregory Wayne Kable who had (almost) completed a sentence for manslaughter but who the politicians thought was too dangerous to be released. A High Court majority held that the law was unconstitutional because, although State courts aren’t subject to the same rigid separation of powers doctrine as federal courts, they nevertheless can’t be vested with powers or functions that are fundamentally incompatible with the exercise of federal judicial power (State courts can and do exercise federal judicial power under the Commonwealth Constitution). Justice Toohey explained the doctrine most clearly:
The appellant’s argument of incompatibility of function rests on several foundations. But fundamentally it relies upon the nature of the Act whereby the Supreme Court may order the imprisonment of a person although that person has not been adjudged guilty of any criminal offence. The Supreme Court is thereby required to participate in a process designed to bring about the detention of a person by reason of the Court’s assessment of what that person might do, not what the person has done. …
The situation in the present case is quite different from that in Lim. Preventive detention under the Act is an end in itself. And the person so detained “is taken to be a prisoner within the meaning of the Prisons Act 1952″. It is not an incident of the exclusively judicial function of adjudging and punishing criminal guilt. It is not part of a system of preventive detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt.
So it is with Howard’s Anti-Terrorism Bill. A federal court can make a control order in respect of a person if it is satisfied “that making the order would substantially assist in preventing a terrorist act“, and irrespective of whether that person has committed any criminal offence. Justice Toohey and the other members of the majority in Kable reasoned that such powers and functions were incompatible with federal judicial power because they tended to undermine public confidence in the impartiality and independence of the courts from the political arms of government.
True it is that federal courts frequently make assessments of future risk when imposing non-parole periods as part of the criminal sentencing process, and when deciding whether to grant bail. Moreover, bail and parole conditions (the latter being set by non-judicial bodies anyway) frequently contain restrictions not unlike those a federal court can impose as part of a “control order” under the Anti-Terrorism Bill. But both those functions (fixing bail and parole conditions) are at least incidental to the traditional criminal process, where the subject will receive (or has already received) the benefit of a full criminal trial and adjudication of guilt. In the case of a “control order” under Howard’s Anti-Terrorism Bill, there is no requirement for a person ever to be charged with or convicted of any offence at all, either before or after being subjected to a court order that may drastically restrict their liberty for up to 12 months, based only on the court’s assessment of risk and consequent satisfaction that the order “would substantially assist in preventing a terrorist act”.
Like the State Premiers (and unlike the Law Council of Australia), I’m prepared to accept that the current terrorism risk (especially in light of apparent specific Australian intelligence and the events surrounding the London bombings) is great enough to justify at least some of the measures Howard is proposing. But in the areas discussed here, I think Howard and Ruddock are paying insufficient attention to fundamental constitutional and common law safeguards. Hopefully ACT Chief Minister’s leaking of the draft Bill will assist in eliminating these excessive aspects of the proposed law before it is introduced.
John Stanhope has done a considerable service to liberty and the rule of law, whatever Howard and the Premiers may say. I suppose they would argue that the dialogue process between Commonwealth and States would have resulted in these defects being identified and remedied prior to the Bill’s introduction to Parliament in any event, and without breaching inter-government confidentiality. Somehow I doubt it. A Bill that affects fundamental liberties as seriously as this one must be subjected to as much public scrutiny as possible, yet Howard’s legislative timetable apparently calls for it to remain confidential until introduced and then be scrutinised by Parliament for only a single day. Why Beattie and other premiers and chief ministers are seemingly acquiescing in this charade of democratic transparency is a puzzle. Do they just fear being labelled by Howard and Ruddock as “soft on terrorism”?