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”?
Great to see this post Ken. Constitutional law is a fascinating subject in itself. On reflection I should have stressed in my post that the control orders were the more relevant to my argument, however where you say:
”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…”
–the same issues arise as to what the warrant is for, ie under the proposed legislation, as you later point out, where there is punitive treatment it should only be (bar the exceptions) where there is going to be a trial. I’ll concede that with such short periods of time, the Cth may get away with the preventative detention, although I’d argue the principle should hold as for control orders, ie if its punitive where’s the trial?
I agree fully with your state extension argument for the preventative detention orders. Short of freeing the subject and re-arresting under identical state laws, I don’t see how the Cth can avoid having its imprimatur all over the shop allowing a section 75 (v) writ of mandamus, prohibition or injunction.
In any case the constitution says normally Fed law supersedes State law to the extent of the inconsistency. What the states enact therefore will be interesting, but if the Feds say they don’t intend to ‘cover the field’ in trying for a seamless integration with state law, that will make life interesting. Somewhere in there, my instinct tells me, is some constitutional quicksand.
As I pointed out at LP, the greatest danger of all this is the trashing of our legal heritage: rights of a trial; presumption of innocence; right to cross examine the witnesses; rules of evidence and transparency in the operation of the law.
It is simply not good enough to cry ‘security’ as an excuse for having a secret process, not an open trial, which puts people in jail or under house arrest.
We have lost our sense of perspective if we allow this legislation inspired by Howard and indirectly egged on by ‘Lockdown’ Kimbo, to go through. One’s chances of being bowled over by an act of terrorism must be ten thousand times less than being bowled over by a car on all the evidence so far. Work out the loss of car injuries and deaths nationwide and contrast that to acts of terrorism including Bali and then ask this final question.
‘Wouldn’t we be even more safe if we declared war on motor vehicles?’
Peter
Your section 109 inconsistency observation is a potentially interesting one. However, obviously we won’t know what arguments might apply to the complementary State legislation until we actually see it. It would actually be quite easy for the Commonwealth to avoid any conclusion of inconsistency by expressly providing in its own Anti-Terrorism Bill that there is no intention to “cover the field” and that the State laws are intended to be supplementary to the Commonwealth one. However, that would in turn increase the probability that the whole thing could be adjudged to be a Commonwealth scheme to subvert constitutional separation of powers.
Dealing with your point about the preventative detention orders, you say “if it’s punitive where’s the trial?”. However, wiretap warrants may or may not ever lead to a criminal trial, and yet they were held in both Hilton v Wells and Grollo v Palmer to be fit executive powers to repose in a federal judicial officer as persona designata.
Ken, in my layperson-ish way I was trying to make some of the same points to Peter over at After Us the Rodeo.
Under the TI and ASIO Acts, an officer furnished with a warrant form the AG can search your premises, search your person, ransack your computer, etc. Conventional police powers enable the arrest of a suspect, often with the use of force, even lethal force if the suspects resists.
These are all terrible intrusions on an individual’s personal integrity and privacy and human rights. But the Parliament has determined that in particular cases it is justified in the interests of the protection of the community; and it endows that power, hedged around with constitutional or customary limitations, upon designated officials of the executive provided it is sanctioned by either an elected offical with sworn constitutional responsibility (the minister) or an officer of the judiciary, or both.
It’s not necessary that an arrest should lead to a charge, although, failing such, it must result in the release of the suspect. None of the other intrusions need result in a charge. They are sanctioned for the purpose, among other things, of collecting criminal or national security information, which may or may not result in a charge.
In other words, the Parliament has determined that in particular cases a signficant trespass on the rights of individuals may be justified if certain necessary criteria have been met. In the case of the present draft legislation, the Parliament is being asked to agree to something similar – new, yes, but not as far as I can see significantly different in nature or effect. The person’s liberties are eroded; but so are they in the other cases where Parliament has sanctioned the exercise of other special powers.
As a demorat and a ctizen I am worried about this legislation and want to see it debated thoroughly in the place it most properly should be – not the courts (excuse me), or the media, but in the Parliament. But I don’t think there’s any cause for panic, at least, not yet.
Trackback:
http://larvatusprodeo.redrag.net/2005/10/18/draconian-politics/
Peter Kemp, it should be remembered, believes free speech is problematic and that critics of Islam should be jailed.
Ken I am equating wiretap warrants (as an acceptable exercise of non-judicial powers per Hilton and Grollo) with preventative detention (PD) warrants only as a comparative study in non-judicial exercise by Chapter III judges.
Clearly the wire tap warrant may not necessarily lead to a trial and punishment, but my point is, unlike the wiretap warrant, a PD warrant is directly punitive without a trial, and being so close to judicial activity, it is incompatible per the majority in Wilson v Minister (Hindmarsh):
”if…performance of non-judicial functions prejudices that
capacity [to perform judicial duties] it is incompatible with
the office and function of a Chapter III judge”
It cannot be said the act of a judge approving a PD warrant (with the irrelevant window dressing of ‘on the balance of probabilities’) is a judicial function. It has the trappings of a judicial procedure but I contend it is not. The section I quoted in LP where the Attorney General may appoint a judge to continue an order is the giveaway, which is that the exercise of the power is non-judicial. To say ‘he may appoint’ a judge implies he may appoint anybody, including the chief of the AFP. (and that would prove my point in spades of the executive being judge, jury and executioner)
Note I am leaving aside the non judicial exceptions you noted including the setting of non-parole periods ie: ”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.”
Another exception is in the case of non citizens under the (majority 4:3) Al Kateb? 2004 case where people can be locked up administratively for ever– and that is not considered to be punitive, it’s peculiar to the Constitutional power to control aliens; for locking up citizens, bar the odd exception, it is punitive.
So 1) Non-judicial exercise same as wire tap warrants.
2) I think we agree on punitive if arguably not for PD then at
least unquestionably for a Control order;
3) Incompatibility between the judicial and non-judicial
function: not simply bringing judges into disrepute but
such quasi judge sanctioned punishments would reek of a
‘Peoples Court’ style of pre-determined guilt and
punishment.
4) Therefore unconstitutional.
Forgive me if I have been too repetitive.
Peter
The Al-Khateb comparison is also an interesting one. Not only does it seem that indefinite administrative detention of unsuccessful asylum seekers is constitutionally permissible, but it seems that the majority also regard administrative detention of “enemy” aliens during wartime as still being constitutionally permissible as well.
Somewhat perversely, it may well be that the executive government can deprive a person of their liberty without trial in certain specific circumstances, whereas a court exercising federal judicial power would not be able to do so except incidentally to a judicial process involving a finding of guilt or innocence of a crime. It might actually be safer constitutionally for the Commonwealth to establish a credible, independent but non-judicial federal watchdog to ensure that ASIO and AFP don’t abuse their powers in relation to preventative deteion and control orders. But no doubt civil liberties groups would scream even louder then!
Here is what I said in my post about the Al-Khateb case at the time (see http://troppoarmadillo.ubersportingpundit.com/archives/006743.html ):
The majority Justices (McHugh, Hayne, Callinan and Heydon JJ) rejected this argument, though very unconvincingly. Justice McHugh said:
It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”. During the First and Second World Wars, the National Security Regulations authorised the detention of persons who, in the opinion of the executive government, were disloyal or a threat to the security of the country. Many persons born in Germany were detained under these Regulations in both wars, while many persons born in Italy were detained under the relevant regulation during the Second World War. However, detention was not confined to those born in the countries with which Australia was at war. As the detention of members of the Australia First Movement demonstrates, foreign birth was not a necessary condition of detention. P R Stephensen, one of the leaders of that Movement, was detained for almost three and a half years.
Indeed, it wasn’t only the Australian government that perpetrated such acts. The US Supreme Court also upheld detention of ‘enemy’ aliens during World War 2, in Korematsu v United States (1944). But, as Justice Kirby tellingly observes:
Such cases are now viewed with embarrassment in the United States and generally regarded as incorrect. We should be no less embarrassed by the local equivalents.
Kirby goes on to observe that current US constitutional law (in an area where our constitutional structure was directly copied from the US model) rejects Korematsu:
In another important and recent case which can now be added to those that I have cited, Rumsfeld v Padilla, Stevens J (Souter, Ginsburg and Breyer JJ joining) explained:
“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.”
C.L. believes that if someone disagrees with his notion of incitement, that someone’s dialogue on other law subjects should be disregarded. As his is so far, for no relevant content at all.
No, I believe your notion of incitement is contrary to free speech as it has been widely understood and hitherto enjoyed in Australia. And yes, such illiberality means your ‘dialogue’ on this particular law subject is hypocritical. Why not get as agitated about existing laws that can be used to jail Christian ministers as you are about these latest proposals, the most drastic of which will require court approval anyway? The question is legitimate.
Good to see you back, Ken.
Kirby’s a gem on applying current ideas on international law when interpreting the constitution. Sad that nobody else agrees with him.
Re ”It might actually be safer constitutionally for the Commonwealth to establish a credible, independent but non-judicial federal watchdog to ensure that ASIO and AFP don’t abuse their powers in relation to preventative deteion and control orders.”
There’s nothing to stop the parliament calling persons before the bar of the house who are in ‘contempt’ of the parliaments laws is there Ken?
(I can see it now, Ruddock with his ‘judge’s’ black hat on, perpetually pronouncing sentence ‘in relation to…’, Downer as the bouncing sargeant at arms with Senate backup from Heffernan as necessary, Howard as the solicitor prosecutor and Bronwyn Bishop emulating Madame Defarge the chief intimidating glarer.)
Peter
I realise your last comment is tongue in cheek. But I’m trying to be a serious old insect just for now. I happen to accept that there may well be some need for a mechanism such as control orders and/or short-term preventive detention. The example of the London bombings, and the apparent role of some UK mosques in fostering them, suggests a possible need for some such provisions. Moreover, the intelligence information given to State Premiers seems to have convinced them of the need as well. I accept that such intelligence can’t simply be disseminated to the public at large, and I’m prepared to trust the bipartisan judgment of our senior politicians to that limited degree.
But there need to be adequate safeguards to ensure that ASIO and AFP don’t abuse their roles and people’s rights. Hence my suggestion for an unimpeachably independent but non-judicial watchdog. It could even be a body (cf the AAT or Migration Review Tribunal) headed by a retired judge. This body would oversee and authorise the issue, renewal and revocation of preventative detention orders and control orders.
Such a body would probably avoid problems with separation of powers, while still providing essential independent oversight. It would no doubt be derided by civil liberties groups/the left as a kangaroo court (or whatever), but that doesn’t mean it’s necessarily a bad idea. Many of these groups regard the whole notion of the war against terrorism as a RWDB beatup by the Bush/Howard forces of evil. I don’t, but we need to be careful not to throw out the liberty baby with the terrorist bathwater. That’s why I think it’s important not only to point out problems with the Howard legislation but also to propose constructive alternatives.
Ken. re ”State Premiers seems to have convinced them of the need as well.”
I think its more accurate to say they are scared of being labelled ”soft on terrorism” and even more scared witless of that in the event of an attack. You can be sure the AFP layed on the scare ‘evidence’ with a trowel.
I’m with the ‘lefty Kangaroo court’ brigade ie that the so called war on terror was the greatest strategic blunder the US (and us) has ever made, far worse than Vietnam with its long term consequences of sowing hatred that will not be easily repaired in a generation. That’s politics.
Getting back to your non-judicial body, ‘an unimpeachably independent but non-judicial watchdog’ –I agree in principle that by the constitution it may be acceptable although it could possibly be shot down on appeal to the FCA/HCA on s 75(v) prohibition—different argument, same as an arbitrator acting judicially, –forgotten the cases there, (one was about imposing a penalty for contempt as I remember.)
The Brits I think are doing something like this with an independent organisation and a retired Judge and the French give interrogative powers to their special anti-terrorist judges I believe. I’m against that unless there could be iron clad guarantees that the pollies or the AFP/ASIO can never use the laws for their selfish self serving machiavellian machinations to grow their departments for the purpose of accumulating more and more power.
Perhaps if they gave control of such an independent organisation to people of the calibre of ex HCA Justice/ex GG Deane, we could rest easy. One of Howard’s (eg DIMIA qualified) flunkies, no thanks.
In my 30 September 2003 published book;
INSPECTOR-RIKATI
For anyone who hasn’t guessed, the immediately preceding comment is complete nonsense. In fact it’s wrong in just about every single assertion.
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin
Just a question about constitutionality: how is it that the Territories seem to have the same legislative power in respect of the 14 day detention period as the States? Aren’t the territories self-governing via acts of the commonwealth parliament? If so, surely the Cwth couldn’t assign more power to the Territory parliaments than the Commonwealth itself actually holds? That is, if the Commonwealth is subject to certain legal constraints, how could it get out of them by setting up territory governments with greater legislative freedom in the area of policing and detention than the Commonwealth itself has?
We are now at the situation of the Premier’s argument that the shoot to kill part of the anti-terror legislation was not part of the original agreement between the Federalistas and the states.
Howard claims it is no different to existing state legislation, but whatever the merits of that argument one thing is crystal clear, the state legislation relates to people who have committed or are in the process of committing a crime. Howard conveniently for his own cause forgets to mention his legislation is about shooting people about whom the authorities only have suspicions insufficient to make a charge stick.
So given the presumption of innocence, Howard wants the police, apparently, to shoot people who may attempt to run away from the attempt to execute a control order/preventative detention order, people who have not committed any crime, people who the authorities are suspicious of only.
Exactly like Menez in London.
Ken, I agree with you that “the sedition provisions of the Anti-Terrorism Bill would withstand a challenge that they infringe the implied constitutional freedom of political speech”. This would be for several reasons. First, I think that the sections on sedition are old – they have simply been augemented by additional penalties (and designed to trigger more powers in law enforcement). Second, the Court has been extremely reluctant ever since Lange to actually hold that anything infringed the implied freedom and I would be surprised if they changed their approach on this issue. Even if they found that the law did in fact impinge on the implied freedom, they would be highly likely to then find that the law was “appropriate and adapted to a legitimate purpose” and, thus, remained valid.
However, I don’t exactly agree with you about the preventative detention. First, I do agree that these sections should be found to be unconstitution – since they clearly fit within kind of law that was found to be unconstitutional in Kable and Chu Kheng Lim – in that it is exercised by a non-judicial body and potentially too specific in terms of the kind of person it seeks to place outside the law. However, my concern is that these laws will be passed and that, if challenged, the Court will uphold them due to the pressure of “the war on terror’, thus leaving us with a legacy that will change the nature of our limited Constitutional freedoms/rights for the worse. My only hope is that the Court will surprise me – as it surprised many in the Communist Party case – by acting against the dominant hype that the “war-on-terror” justifies anything and everything…