As a prelude to this post I would like to congratulate former Solomon Islands’ Attorney-General Julian Moti on his win in the High Court. On Friday 8th April 2011 the High Court approved Mr. Moti’s application for special leave to appeal a Queensland Court of Appeal ruling allowing the politically motivated prosecution of him to proceed. While this is obviously good news for Mr. Moti, the Commonwealth didn’t leave the court without firing one last and very ominous shot in the direction of the civil liberties of all Australians.
The Commonwealth Department of Public prosecutions (CDPP) John Agius stated the intention of the CDPP to file a notice of contention, challenging the constitutional validity of the High Court reviewing the legality of the Australian government’s actions in the Solomon Islands during Mr. Moti’s illegal rendition to Australia. In a nut shell, the CDPP will argue that Mr. Moti’s rendition to Australia from Honiara in December 2007 falls into the category of “non-reviewable executive action,” or executive action carried out internationally that, under the Australian constitution, cannot be assessed by the judiciary.
What does this mean?
The Australian system may be described as ‘government under the Constitution’. Critical to the notion of government under the Constitution is that the Australian Constitution not only limits the powers of the branches of government, but also binds the branches of government to comply with these limits. This is reflected in clause 5 of the Commonwealth of Australia Constitution Act 1900 (UK), which relevantly provides that ‘[t]his Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and of every part of the Commonwealth’.
In order for judicial review to be effective, it is important that the courts are independent from the legislative and executive branches of government. In recent times some Australian judges and commentators have observed a weakening of judicial review, particularly in the counter-terrorism context.
In Thomas v Mowbray (2007) 233 CLR 307, the High Court upheld the constitutionality of Australia’s controversial control order regime in Division 104 of the Commonwealth Criminal Code Act 1995. In finding that the regime fell within the defence power, the High Court gave considerable scope to the executive to calculate the terrorist threat and the necessity for particular legislative measures to be introduced in response to that threat.
The High Court also rejected challenges to the regime based on the separation of powers. It found that federal courts could issue control orders because this was a judicial (and not an executive) function. Furthermore, the prevention of terrorism was an exception to the general rule that a person could only be detained as a consequence of a judicial finding of guilt. Justice Kirby (in dissent) at - was scathing of his fellow High Court judges, saying that this case provided:
“[F]urther evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing.”
What this application by the CDPP will potentially mean for all Australians, if upheld by the High Court, is that the Australian government will have carte blanche to engage in unlawful activity internationally, and the legal and democratic rights of those Australian citizens targeted by this unlawful activity will be void. Is this the kind of Australia we want to live in?
SAPIENTIAM SAPIENTUM PERDAM (“I will destroy the wisdom of the wise”)
The above quote, for those who don’t know their bible, is from the Apostle Paul and was the opening shot in the war between Christianity and science; a war that saw a shift in emphasis in the west, at least, away from the rational thought established by the Greeks to the dogma of faith, mystery and the irrational that was Christianity from the time of the Council of Constantinople in 381CE until the beginning of the European Enlightenment which started in the 1680s.
The Enlightenment was not simply a movement confined to the level of ideas. It also manifested itself on the level of new institutions. It gave birth to important thinkers such as Voltaire, Diderot, John Locke, and Immanuel Kant, as will as to such important institutions as scientific academies, salons, coffee houses, and secret societies and the new forms of social interaction they made possible.
The Enlightenment played a central role in shaping the world in which we live. This was an age that first raised science to the level of prestige that it now enjoys in our society. It was also an age that saw religious fanaticism as the greatest evil facing society and hailed religious tolerance as the cornerstone on which any truly civilized government would have to rest. This was a period that gave a new urgency to the notion that individuals possessed certain rights and that these rights could and ought to be protected against rulers and enshrined in laws. Finally, the thinkers associated with the Enlightenment emphasized that this world should not simply be seen as a preparation for a happiness that would only come in the next. They maintained that being useful to one’s fellow citizens was at least as important as service to God and that the pleasures of this world—friendship, sociability, and material comfort—were not to be dismissed.
A period that gave a new urgency to the notion that individuals possessed certain rights and that these rights could and ought to be protected against rulers and enshrined in laws. From this perspective, the proposed application to the High Court by the CDPP challenging the constitutional validity of the High Court reviewing the legality of the Australian government’s actions in the Solomons can be seen as a move away from the Enlightenment ideals of individual rights and the supremacy of the law towards a new kind of sapientiam sapientum perdam, where wisdom gives way to dogma.
It is also worth remembering that Australia is unique amongst western democratic nations in not having a Bill or Charter of Rights. The Australian Constitution contains limited express rights, and the High Court has tended to interpret these in narrow terms. (For example, the requirement in section 80 of the Constitution that ‘[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury’ has been interpreted by the High Court as conferring on the Commonwealth Parliament the power to itself determine what offences shall be ‘on indictment’, and thus subject to a jury trial; see R v Bernasconi (1915) 19 CLR 629.) The rule of law and the separation of powers have formed the basis for the implication of some procedural rights into the Australian Constitution. For example, the High Court has held that the Australian parliament may not enact a Bill of Attainder. A declaration of the guilt of a particular person or class of persons by the Commonwealth Parliament would constitute an improper exercise by the Parliament of judicial power (Polyukhovich v Commonwealth (1991) 172 CLR 501.). However, to date, the High Court has stopped short of implying substantive rights from the rule of law and separation of powers (McHugh 2001). In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 23, McHugh and Gummow JJ stated:
“In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution.”
The High Court was unable to reach a consensus in Polyukhovich v Commonwealth (1991) 172 CLR 501 as to whether the Australian Constitution prohibits the Australian parliament from making retrospective criminal laws. Furthermore, in Kruger v Commonwealth (1997) 190 CLR 1, five members of the High Court rejected the existence of an implied guarantee of general legal equality in the Australian Constitution (Kruger v Commonwealth (1997) 190 CLR 1 44-45 (Brennan CJ), 63-68 (Dawson J, with whom McHugh J agreed at 142), 112-113 (Gaudron J), 153-155 (Gummow J)).
What we are witnessing in Australia at present is a move away from the Enlightenment ideals of equality and justice towards a dogmatic view of the world, which is informed by self-interest and greed rather than by wisdom.