18 December 2004

derogatory rights

Abraham Lincoln 1838
How then shall we perform it? At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

A (FC) and others v. Secretary of State for the Home Department (Respondent) per Lord Hoffmann:
This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.


The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Ahmed Ali Al-Kateb V Godwin per Gleeson CJ:
During the Second World War, reg 26 of the National Security (General) Regulations 1939 (Cth) provided:

The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth it is necessary to do so make an order ... directing that he be detained in such place and under such conditions as the Minister from time to time determines ...

This Court unanimously upheld the validity of the regulation in Ex parte Walsh[48]. Starke J said that the application for habeas corpus was "hopeless"[49]. In Little v The Commonwealth[50], Dixon J held that an order of the Minister under this regulation was not examinable upon any ground other than bad faith.

During the greater part of the period when reg 26 was in force, the relevant Minister was Dr H V Evatt, who had been a Justice of this Court and was later to become President of the United Nations General Assembly. According to a speech he gave in Parliament on 19 July 1944, 6174 persons were detained under this regulation at the time when he became the Minister and 1180 persons were still detained under the regulation in July 1944[51]. He does not appear to have thought that, in making orders under reg 26, he was acting in breach of Ch III of the Constitution

The High Court also upheld a similar regulation during the First World War. My great grandfather, whose family had lived here since the 1840s, faced internment because he had a German name.

In August the High Court made a legally impeccable and morally repugnant decision that our constitution permits indefinite detention without charge. The moral repugnance does not belong to the judges, it belongs to a political elite which has always opposed a bill of rights in Australia. The Court said, also per Gleeson CJ:

Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments[75]. It is an enduring - and many would say a just - criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country. It would be absurd to suggest that the meaning of a grant of power in s 51 of the Constitution can be elucidated by the enactments of the Parliament. Yet those who propose that the Constitution should be read so as to conform with the rules of international law are forced to argue that rules contained in treaties made by the executive government are relevant in interpreting the Constitution. It is hard to accept, for example, that the meaning of the trade and commerce power can be affected by the Australian government entering into multilateral trade agreements. It is even more difficult to accept that the Constitution's meaning is affected by rules created by the agreements and practices of other countries. If that were the case, judges would have to have a "loose-leaf" copy of the Constitution. If Australia is to have a Bill of Rights, it must be done in the constitutional way - hard though its achievement may be - by persuading the people to amend the Constitution by inserting such a Bill.

The moral fault lies with both major parties who show a consistent record of threatening the nation, as Lord Hoffman and Abraham Lincoln said, by abridging liberties in the name of crisis. We need a major political party that accepts the priority of human rights. We do not have such a major party. To return to Lord Hoffman:

When Milton urged the government of his day not to censor the press even in time of civil war, he said:

Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours

96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

Australia will survive al-Qa'ida as well. But we need to stop empowering the terrorists by abridging our liberties.

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