Human rights lawyer Kerry Murphy has a very useful explanation of the weakness of judicial review as a safeguard against new laws foreshadowed by the Abbott government which would permit arbitrary ministerial stripping of Australians’ citizenship from those accused/suspected of terrorist activity. However, if anything the situation is even worse than Murphy says. Citizenship is arguably the most fundamental right any Australian possesses, without which no other human rights protection is assured, even the most basic application of the rule of law. And yet our citizenship right itself is not protected by our Constitution.
We don’t actually know exactly what provisions the citizenship-stripping law proposed by Abbott and his Immigration Minister Peter Dutton will contain, but you can bet they will include the following:
- A subjective opinion clause;
- A clause requiring national security or criminal intelligence information to be withheld from a suspect and his lawyers but nevertheless to be used against him.
These provisions have become increasingly popular with governments at both federal and state levels since the “moral panic” induced by September 11. As a result, the combination of enthusiasm for greater power and less accountability on the part of both politicians and intelligence agencies, and a relatively supine response on the part of the High Court, has had drastic adverse consequences for the freedom and human rights of all Australians. It is hardly an exaggeration to observe that in today’s Australia the right to impartial judicial review of executive government action, which was intended by the drafters of our Constitution to be a fundamental aspect of our system of national governance, is now an optional extra that governments can effectively negate almost at will. And yet hardly anyone knows about it.
That is probably because some of the concepts are quite difficult to explain clearly to non-lawyers. Nevertheless, bear with me. It’s important and worth “unpacking” the argument.
Subjective opinion clauses
As Latham CJ explained in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:
[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. …
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
However, this approach to “subjective opinion” qualifications does not mean that they are ineffective to partially insulate decisions on jurisdictional fact from successful judicial review. As Gummow J explains in Minister for Immigration & Multicultural Affairs v Eshetu :
[W]here the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
It will be especially difficult where the legislation also contains a provision forbidding a suspect and his lawyer from knowing what is alleged against him but nevertheless allowing that material to be taken into account against him. An increasing volume of legislation includes precisely such provisions. In that situation a court conducting judicial review will almost never have any way of effectively scrutinising adverse evidence that may seem superficially plausible. As Brennan J observed way back in 1979:
[I]f an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.
The following is an extract from a recent conference paper I wrote.
Legislative secret evidence clauses
Both the Criminal Organisation Act 2009 (Qld) and the Crimes (Criminal Organisation Control) Act 2012 (NSW) go significantly further than either the South Australian or Northern Territory Acts. Neither contains the provision requiring the court to ‘take steps’ to maintain the confidentiality of criminal intelligence information, words which allowed the High Court in K-Generation to conclude that the Supreme Court retained enough control of its own procedures to ensure that the rules of natural justice were satisfied e.g. by allowing a respondent’s counsel, but not the respondent himself, to have access to secret criminal intelligence information on giving appropriate confidentiality undertakings.
Instead, both the Queensland and New South Wales Acts provide that a criminal intelligence application is to take place ex parte and without notice to the organisation or person to whom it relates, and in a special closed hearing from which both the subject of the application and his/her lawyer are required to be excluded. In other words, there is no capacity in the Supreme Court to ensure any meaningful compliance with the rules of procedural fairness. Although both Acts create an office of public interest/criminal intelligence monitor to provide some degree of independent oversight of police conduct, it is clear that the monitor’s role is not to represent the accused organisation/individual.
The Queensland Act was considered by the High Court in Assistant Commissioner Condon v Pompano Pty Ltd. Despite the fact that the mandated procedure seemingly did not permit the Supreme Court to require any meaningful compliance with the rules of natural justice, and that those rules have repeatedly been held by the High Court previously to be core aspects of judicial power, the Court in Pompano unanimously held that the Queensland anti-bikie legislation was constitutionally valid.
Although the Kable doctrine had been previously deployed by the High Court to strike down other States’ anti-bikie laws in Totani and Wainohu, in Pompano the Court eschewed reliance on Kable and instead followed its earlier reasoning in Gypsy Jokers and K-Generation and developed its own judicial “jurisprudence of secrecy”. The Court unanimously concluded that the Queensland Act’s mandating of complete secrecy of criminal intelligence information did not impair the essential and defining characteristics of the Supreme Court of Queensland so as to transgress the limitations on state legislative power derived from Chapter III of the Australian Constitution. Their Honours resolved the tension between reliance on criminal intelligence and fair trial procedures in favour of secrecy, so long as courts retain discretion to independently assess classified information. It has also been said that as a result of these cases, in criminal intelligence and national security matters the High Court has abolished the doctrine of procedural fairness and replaced it by a newly-fashioned notion of “curial fairness”. The common reasoning linking Gypsy Jokers, K-Generation and now Pompano is that:
evidence that formerly would not have been available to the affected party, pursuant to public interest immunity, on which basis it was not utilised by the court, may now still not be available to the affected party but can be used by the court.
Big Brother is undeniably alive and well, residing happily in the State of Exception that Australia has become since September 11. Be afraid. Be very afraid. The real terrorists are the governments of both major parties that inflict these laws on ALL Australians under the spurious pretext of protecting us from international terrorism, criminal bikie gangs or anyone else they can scare us into fearing sufficiently to distract us from thinking about the fundamental freedoms we are surrendering bit by bit.
 (1999) 162 ALR 577, .
 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.
 Qld Act s 66; NSW Act s 28I.
 Qld Act ss 70, 78; NSW Act s 28K.
 (2013) 252 CLR 38.
 Greg Martin, ‘Jurisprudence of Secrecy: Wainohu and Beyond’ (2012) 14(2) Flinders Law Journal 189, 189.
 Andrew Lynch, Tamara Tulich and Rebecca Welsh, ‘Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia’ in David Cole, Federico Fabbrini and Arianna Vedaschi (eds), Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar Publishing, 2013) 156, 168.
 Steven Churches, ‘Paradise Lost: But the Station is Always There’ (2010) 12(1) Flinders Law Journal 1, 20 (emphasis in original).