Detaining terrorism suspects : – some constitutional dimensions

Here is a discussion board post I’ve prepared for my first year Introduction to Public Law students here at CDU, to focus their minds on fundamental constitutional concepts in a topical, real world context. I thought some Troppo readers might also be interested.

Richard Ackland wrote last week in the Sydney Morning Herald about a recent (December 2004) UK House of Lords decision (FC v Home Secretary) which declared unlawful a Blair government law providing for the long-term imprisonment without trial of terrorism suspects. Ackland compared the House of Lords’ pro-human rights stand unfavourably with the recent performance of the High Court of Australia.

However, Ackland failed to note that the UK Parliament only last week re-enacted detention-without-trial legislation which:

allows suspected terrorists, including British citizens, to be held under house arrest or supervised under control orders without being brought to trial.

Conservative and Liberal Democrat MPs, as well as a number of rebellious Labour politicians, opposed the new law on the grounds that it violates one of the oldest principles of British law, habeas corpus, or the right not to be imprisoned without recourse to the courts.

The Government argued that some dangerous terrorists could not practically be brought to trial, either because the evidence against them was obtained through surveillance and therefore inadmissible, or because the evidence was classified.

FC v Home Secretary brings into sharp relief some of the fundamental constitutional concepts we’ve recently been studying (especially rule of law, Parliamentary sovereignty and separation of powers), as does the Blair government’s re-enactment of detention-without-trial legislation. What would happen, I wonder, if an Australian government attempted to introduce detention-without-trial legislation similar to Britain’s? Would our constitutional system make it easier or more difficult to do so?

The House of Lords’ decision in FC v Home Secretary rested in considerable part on underlying constitutional notions of “rule of law”. But the legacy of A.V. Dicey’s arguably ahistorical notion of parliamentary sovereignty (“Parliament can make or unmake any law whatsoever“) meant that the H of L could not have held the detention law invalid but for the provisions of the European Convention on Human Rights, to which Britain is a signatory and which has been incorporated in British domestic law by the Human Rights Act 1998. As Lord Bingham of Cornhill explained:

It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it

“The courts are charged by Parliament with delineating the boundaries of a rights-based democracy” (“Judicial Deference: servility, civility or institutional capacity?” [2003] PL 592, 597)”.

See also Clayton, “Judicial deference and ‘democratic dialogue’: the legitimacy of judicial intervention under the Human Rights Act 1998” [2004] PL 33.

Whether the Blair government’s new law withstands judicial scrutiny remains to be seen. But Australia doesn’t have bill of rights provisions (constitutionally-entrenched or otherwise) equivalent to the European Convention provisions (on proportionality and discrimination) which formed the linchpin of the House of Lords decision in FC v Home Secretary. In fact, our High Court has expressly disapproved the use of the European civil law doctrine of proportionality when judging the validity of Commonwealth laws supported by “non-purposive” powers. See e.g. Leask v Commonwealth. The aliens and immigration powers, which could potentially be relied on to support a law providing for the detention-without-trial of non-citizens, are both non-purposive. However, the defence power, which is probably the only head of Commonwealth law-making power that could be used to support the detention of Australian citizens, is purposive in nature, so there might be some limited scope for an argument that such a law (depending on its terms and safeguards) is ill-adapted and disproportionate to the potential threat of terrorism having regard to the breadth of its attack on fundamental freedoms.

More probably, however, the only real scope for successful constitutional challenge of any Australian detention-without-trial legislation would lie in the interplay between “rule of law” and the constitutionally-mandated separation of judicial from political powers. In Plaintiff S157/2002 v Minister for Immigration (2003), a case in which the Court restrictively interpreted a Commonwealth attempt to deny asylum seekers access to judicial review of the legality of migration decisions made about them, Gleeson CJ drew an explicit link between rule of law, judicial review and separation of powers:

Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. Brennan J said:

“Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.”

In the same case, Justices Gaudron, McHugh, Gummow, Hayne and Kirby cite Dixon J as observing that the Australian Constitution “is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.”

It is difficult to conceive of any aspect of the rule of law, even the narrowly procedural, formalist version propounded by Dicey, that is quite so fundamental as the prohibition on punitive imprisonment without a fair trial in a court of law.

Moreover, the High Court’s conceptualisation of separation of powers would seem to bolster that conclusion. In Chu Kheng Lim v Minister for Immigration (1992), Justices Brennan, Deane and Dawson said:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to the judicial power of the Commonwealth. That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s.51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

In exclusively entrusting to the courts designated by Ch.III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting 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. Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else” ((45) Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p 202.). As Blackstone wrote ((46) Commentaries, 17th ed. (1830), Bk.1, pars 136-137.), relying on the authority of Coke ((47) Institutes of the Laws of England, (1809), Pt 2, p 589.):

“The confinement of the person, in any wise, is an imprisonment. So that the keeping (of) a man against his will … is an imprisonment … To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus.”

However, despite this ringing statement of fundamental principle, the Court managed to find most aspects of the Commonwealth regime for universal detention without trial of illegal entrant asylum seekers to be constitutionally valid. It did so by teasing out several exceptions to the fundamental principle. One was the well-known provision for remanding an accused person in custody pending facing trial for a criminal offence. This is generally accepted as a necessary protection of public safety especially in serious criminal cases, and is said to be incidental to the administration of justice in ensuring that an accused person will not abscond and will appear to face trial.

By analogy, the mandatory administrative detention of asylum seekers was seen as reasonably incidental to the Commonwealth’s administration of a law concerning aliens and immigration, in that detention ensured that unsuccessful asylum seekers could not abscond and would be available for deportation. In order to reach this conclusion, the Court made a clear distinction between aliens and Australian citizens:

While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects. For present purposes, the most important difference has already been identified. It lies in the vulnerability of the alien to exclusion or deportation …

The High Court also relied in reaching this conclusion on the somewhat less convincing argument that the detention policy wasn’t really punitive (and thus inherently judicial) in nature, because it was always open to an applicant who didn’t want to remain in custody to give up and go back to his own home country! Of course, that reasoning studiously ignores the fact that, for applicants who really are genuine refugees, return to their homeland is hardly a viable option.

Last year, the High Court took this rather strange reasoning about administrative detention of asylum seekers to a new and even more bizarre level in Al-Khateb v Godwin, where a majority held that ongoing indeterminate administrative detention-without-trial of unsuccesful asylum seekers was also constitutionally permissible, even where the asylum seeker was ready and willing to return home but neither his country of origin nor any other country would have him!! Conceptualising that sort of detention as either non-punitive or genuinely incidental to a good faith power of deportation of aliens is much more problematic. For students who may be interested, I wrote more extensively about the Al-Khateb decision here.

Does this mean that any constitutional argument against a future anti-terrorism detention-without-trial law would be doomed to failure? What do you think? Certainly, the threat of terrorism is a real and very serious one, and the High Court might well think long and hard before placing a constitutional impediment in the way of an executive government which might well be in a better position (from intelligence information and so on) to assess the extent of the threat and the best ways of dealing effectively with it. Courts in both Australia and the US declined to hold unconstitutional the mandatory detention of illegal aliens (especially Japanese immigrants) during World War 2, largely for reasons of deference to the judgment of the Executive government during wartime.

But is Australia in a wartime situation at present just because the Howard government rhetorically styles it as the “War Against Terror”? There hasn’t been any declaration of war against any country (the usual signifier of the existence or otherwise of a state of war), but one might conceivably argue that that is merely because terrorists are non-state actors whose behaviour and threat level make traditional notions of war and peace old-fashioned and irrelevant. Perhaps more tellingly, a law like the one just enacted by the Blair government in the UK applies to citizens and non-citizens alike. That wasn’t the case with the detention regimes of World War 2, which applied only to aliens. Having regard to the distinction drawn by the High Court in Chu Kheng Lim (see above), that may be a critical point. It’s hard to see how the constitutional doctrine of separation of powers would remain a meaningful one if the High Court held that it was constitutional for the Executive government to detain Australian citizens indefinitely without trial.

The Blair government’s new legislation (if enacted here) would also raise another challenge to Australia’s constitutional separation of powers arrangements. One of the concessions Blair was forced to make to get the law through the House of Lords (and to appease his own restive backbenchers) was to agree that the preventive detention of terrorism suspects would have to be reviewed and approved by a judge, albeit in camera and in the absence of the accused/suspect, so as not to reveal any secret intelligence evidence against the suspect. Of course, this bears no resemblance to a court trial, not least because the suspect is being imprisoned not for a criminal act he’s already performed but for what it’s feared he might do in future. But at least judicial oversight potentially provides some degree of independent, impartial judicial protection from arbitrary and unfair executive action.

But would such a protection be available in Australia? There is no doubt that an oversight function of preventive administrative detention is inherently an executive rather than a judicial function, because it involves an estimation of future risk rather than the adjudication of criminal guilt or innocence. Hence, prima facie such a function could not be vested in the federal judiciary because it would breach separation of powers.

However, the High Court has sometimes been prepared to allow Parliament to sidestep the strict rigidity of the separation of powers doctrine by reasoning that it may be OK to vest some non-judicial functions and powers in federal judges in their personal capacities as personae designatae rather than in their capacities as judges per se. Thus federal judges are sometimes permitted to accept appointment as Royal Commissioners (clearly an executive function). Justice Trevor Morling’s appointment as a Royal Commisioner to review the murder conviction of Lindy Chamberlain is an obvious local example. Similarly the High Court has repeatedly (albeit with a certain amount of trepidation) held that it is permissible to give federal judges the power to issue search and other warrants (again clearly an executive rather than judicial function).

But the qualification the Court puts on this persona designata exception is that an executive function can only be vested in a judge if it is compatible with his or her judicial role, in that it must not undermine public confidence in the independence (from political control or influence), integrity or impartiality of the federal judiciary. Vesting in federal judges an oversight role of the indeterminate preventive administrative detention of terrorism suspects would put severe strains on that critical judicial independence qualification. Judges might well be perceived by the public to be merely rubber-stamping the executive government’s denial of basic civil rights to Australian citizens, and doing so in secret session reminiscent of the old Star Chamber. Moreover, how meaningful could any such oversight really be? Judges would have no real practical way of testing or assessing the reliability of intelligence information presented to them. Given the manifest unreliability of the intelligence information about Saddam’s alleged possession of Weapons of Mass Destruction, does judicial oversight of inherently unverifiable intelligence really provide any meaningful protection to an accused terrorism suspect?

As you can see, the fundamental constitutional concepts you’re currently studying in Introduction to Public Law have some very significant real world applications. Feel free to discuss them here, and to read the various linked cases and articles, to enrich your understanding of this aspect of the subject.

PS – For a good comparative overview of anti-terrorism laws in a variety of countries (albeit a couple of years old now), students might also be interested in reading a paper by CDU’s Professor Jesse Wu titled Sacrificing Personal Freedom in the Name of National Security.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Peter Kemp
Peter Kemp
2022 years ago

Ken P, wonderful post , but to be more precise re ” executive function…if it is compatible with his or her judicial role” is expressed perhaps more accurately in the negative sense:

“No judicial function that is not incidental to a judicial function can be conferred without the judges consent, and second, no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power–(-the incompatibility condition)” per:

Brennan CJ, Deane, Dawson and Toohey JJ–Grollo V Palmer (1995) 184 CLR 348

Even if the power is exercised that is INCIDENTAL to a judicial function, I think the rule of incompatibility applies as for example the UK judges would be in overseeing the machinations of the executive seeking house arrest of a suspect without the proper judicial proceeding of determining guilt beyond reasonable doubt.

Our Judges could refuse any attempt to follow in their UK colleagues footsteps per Grollo, as personae designatae, but the HCA having ruled that administrative not punitive detention can exist in perpetuity for refugees, does not auger well generally for Federal legislation in regard to foreign terrorist suspects. For local citizen suspects, it seems to be a moot point.

Nicholas Gruen
2022 years ago

Thanks for the post Ken. It seems to me really weird that our politicians are champing at the bit to strip away basic protections of the rule of law. Really weird. Firstly the extent of the terrorist threat is quite unclear. But lets say that it was large. Then one might want to have detention without disclosure of the case against people – because you don’t want to give information away to the terrorists.

If that was the case you’d expect the safeguards you mention – particularly the right to judicial or other independent review in camera to be prominent in the proposals. (And you’d expect the red cross to be buzzing through Guantanameo on a weekly or daily basis – just to ensure us that there are some checks on what can happen behind closed doors.) But those governments implementing these measures seem to think that transparency of this kind is for wimps – that sunset clauses are for wimps.

I really don’t get it.

John Morhall
John Morhall
2022 years ago

Ken I think that this is an excellent question to wrestle with, albeit one which leaves a certain sense of inequity and perhaps despair, based contrast between the UK and Australia on this question.

It is interesting to note incidentally that the definition of terrorism within the UK Act includes events external to the United Kingdom where the threat is to the public or government of another nation such as to include a similar event to 9/11.

As you point out, in framing their judgement, the House of Lords were able to constrain the Act through the commitment of the United Kingdom in the European Convention on Human Rights, the core articles of which were given domestic effect by the Human Rights Act 1998. As Bingham LJ stated at para 8: “Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated”

Mark Lillywhite
Mark Lillywhite
2022 years ago

I find this talk of taking away our rights to be frightening and terrible.

how is it possible that the government can have “secret” information about someone, whose importance is such that the revelation of it will cause chaos and the end of civilisation as we know it? surely the moment that the (barely) accused terrorist is put under arrest, the most important information the government has – that they’re onto you – has been revealed?

so what’s the deal with secrecy? what is it that is so terrible and so sensitive that the government couldn’t possibly tell us? does the australian constitution allow – or put any limits on the amount of – information that can be classified as secret? are there any third-party (judicial?) reviews of secret information or classification? and why does one branch of the government appear to have a monopoly on secrecy – surely the judiciary should have access to the same information as the executive in order to be able to make an informed judgement?

given the amount of terrorism we’ve seen so far on australian soil since 9/11 – namely, zero that i’m aware of – why are we being told that the risk of terrorism is increasing? admittedly we had the terrible bombings in bali – but how would these laws have changed that?

this whole thing reeks only of the taking of power from citizens. if any constitution allows for the /arbitrary/ confinement of any person under any circumstances then it is deficient. is it not time to start a referendum to /strengthen/ the constitutional rights given to citizens? is there nothing we can do to prevent this?

Andrew Bartlett
2022 years ago

A very helpful post. I gave a speech on some of the issues you raise in the Senate last week (which was nowhere near as comprehensive as you have outlined here I might add). I also wrote an article on the UK decision at the end of last year which the media weren’t interested in publishing (a slightly newer version is on my site http://www.andrewbartlett.com/PDF%20Other/Freedom%20From%20Prison%20Article%20March%202005.pdf), but I’m pleased Richard Ackland has been able to cover it (not as pleased as I would be if I’d got a run, but I’ll get over it one day)

It remains to be seen whether the new UK law stands up in Court – I am nowhere near well versed enough in the law to make a guess. My understanding was that the previous law was also thrown out in part because it applied in a discriminatory way to non-British citizens, but this is not the case in the new law.

Whilst I don’t support what the new UK law contains (from my relatively cursory knowledge of it), I do acknowledge that balancing the risks to public safety of people genuinely suspected of being a danger to the community is difficult.

However, for me the real tragedy is that in Australia, our High Court has said it’s OK to indefinitely lock people up who are no threat to the public purely for ‘administrative’ reasons – nothing to do with terrorism at all! That leads me to think that any law passed in Australia restricting rights on the grounds of suspected links to terrorism would have little trouble holding up (as long as the drafters of the law weren’t too lazy about it). The various “anti-terrorism” laws that the Senate has passed over the last couple of years already give some significant powers to the State (although still with more rights to people than asylum seekers get in some important respects).

However, even the legality/constitutionality of mandatory detention only survives in part because of the fiction that it is not punitive or a deterent – John Howard’s statements just in the last couple of days saying mandatory detention is an essential cornerstone of their policy of keeping asylum seekers out shows how dubious that reasoning is. When you’re dealing with legal constructs that are that far removed from a common sense view of reality, that’s when I just have to leave it up to the lawyers to argue about.

Ken Parish
Ken Parish
2022 years ago

“When you’re dealing with legal constructs that are that far removed from a common sense view of reality, that’s when I just have to leave it up to the lawyers to argue about.”

Andrew, I agree that the High Court’s construction of the nature of administrative detention, in both Chu Kheng Lim and Al-Khateb, was utterly divorced from the reality. No doubt PART of the motive for detention is to ensure availability for deportation, but a large part is also undeniably punitive. And Howard/Vanston/Ruddock don’t even make any secret of that fact.

The comparison the Court made with remand in custody of accused criminals is actually potentially very instructive in highlighting the conceptual contradiction and duplicity at the heart of universal mandatory detention of asylum seekers. We don’t have universal remand in custody of accused criminal offenders. To do so would breach the fundamental presumption of innocence. We generally only deny people bail and remand them in custody where there is cogent evidence that they pose a serious absconding risk, or some other serious risk to the community (assessed on an individual basis). Imagine the public furore if governments introduced laws providing that all persons accused of criminal offences must be imprisoned until their cases were heard and determined!!!

The fact that no such individual assessment is made in the case of irregular asylum seekers, and that they are simply all imprisoned without distinction or evaluation, strongly indicates that something utterly qualitatively different from the bail/remand situation is taking place. Fairly clearly any motive of ensuring applicants are available for deportation is very subsidiary indeed; the primary motive is punitive/deterrent.

However, I don’t necessarily agree that the Court would readily endorse the constitutionality of an anti-terrorism law like the UK one, providing for detention of citizens and non-citizens alike. I think the aliens/citizens distinction the Court drew in Chu Kheng Lim is likely to prove very important, both legally and politically. It’s one thing to impose a harsh, unfair regime on the “other” or alien, because we can all reassure ourselves it can never happen to us. But a law that potentially applies to all of us is a quite different animal.

I think the High Court bent its will and deferred to the strongly and repeatedly expressed bipartisan demands of the Parliament that asylum seekers were to be treated harshly, and in so doing the Justices prostituted themselves and adopted perverse, illogical and even fanciful reasoning. It’s much less likely that they would do so with a law that affects citizens as well, and that presumably won’t enjoy bipartisan support (although with Beazley you can never be sure). Apart from anything else, the Court really would be robbing the constitutionally crucial separation of powers doctrine of any meaningful content.

Peter Kemp
Peter Kemp
2022 years ago

Andrew B, Thank you for your contribution to this subject, one of the very few ‘pollies’ who think it is an important issue outside the normal ‘I never thought for myself at all, I always voted for my party’s call’ Gilbert and Sullivan-esque standard operating proceedures of major parties, especially the LNP whose main game appears to be wedging the issue for political gain.

I think any future legislation could be dependant on how the HCA (assuming the legislation is challenged) regards the war/peacetime, primary/secondary considerations of s.51(vi) defence powers. If they consider that there is a war, tradition holds to ‘having a complaisant liquidity’ ie Lloyd v Wallach 1915, Farey v Burvett 1916, but in peacetime, the opposite applies ie Australian Communist Party v Cth 1951.

As far as I know the 2002, 2003 (4X) pieces of legislation hasn’t been challenged, but if new draconian legislation is applied to Aus citizens, I wonder if the war/peacetime dichotomy lattitude of the HCA will apply. What are your thoughts on this Ken?