In the same week that two Australians were granted relief by the US Supreme Court after two years of harsh detention without access to family or lawyers of choice, Australia got its first Bill of Rights.
It is in a very limited form (legislative only) and a limited jurisdiction (the ACT only). But it is a start. Australia needs a nationwide Bill of Rights now more than ever. The issue is laced with contradictions and ironies. We are in a war against tyranny and terror because we want to preserve liberty. In our eagerness to pursue the war it will be self-defeating if we compromise liberty. The US Administration and the Australian Government have been doing that.
The Australian Government has been keen to please the present US Administration, to suck up to America, if you like. In doing so, though, it has not embraced everything American. It has deliberately excluded the greatest gift America has given to the world – a system of government where power is checked by the rule of law; a Constitution, approved by the people, which guarantees certain rights; and a culture of liberty.
The Australian Government was faced with the choice between, on one hand, approving the Bush Administration’s denial of basic human rights that the US Constitution gives to all people (including Australian citizens) in US jurisdiction, and on theother hand, demanding that the rule of law as provided in the US Constitution be applied, on the other.
The Australian Government chose the former. It approved the system of military commissions set up by Bush to “try” the two Australians – David Hicks and Mamdouh Habib — along with 500 or so others detained at the US base in Guantanamo Bay – territory ceded to US use by Cuba at the beginning of last century.
No other country has done so. The Australian Law Council, the British Attorney-General and virtually every legal body with an opinion on them has condemned the commissions as unfair and the circumstances of the detention as unlawful. The commissions have in these circumstances been aptly referred to as Mickey Mouse courts or Kangaroo courts.
Now the US Supreme Court has held that the conditions of detention are unlawful. The court invoked the Constitution to rule that the US Administration cannot hold these people indefinitely. It must give the detained people access to lawyers and presumably a process for charging and fair trial.
Did the Australian Government applaud? Not a word. Did it point out – as it did after US authorities began prosecuting US soldiers responsible for atrocities at Abu Ghraib prison in Iraq – that the US system has a wonderful self-correcting mechanism that imposes the rule of law? Not a word. No applause for the rule of law and constitutional propriety this time by the Australian Government because its mate, George Bush, was the one being pulled into line.
And there is another reason: the Australian Government has been equally guilty of breaching fundamental human-rights standards during the war on terror and in another related arena: ironically, the treatment of the poor sods who have tried to escape the terror we are supposedly waging war on.
The Government’s proposals, mostly enacted with the concurrence of the Labor Party, on detention of terrorist suspects and witnesses and the powers it gives intelligence agencies breach human-rights standards.
The Australian Government’s treatment of asylum seekers has similarities US detention on Guantanamo Bay.
In November last year, for example, the Australian Government put the proposition to the High Court that Australian immigration law would permit the indefinite detention of an asylum seeker and that such a law would be valid law of the Commonwealth under our Constitution.
We are talking about detention for life without charge or trial of someone charged with no crime.
During the hearing of the Behrooz case (judgment pending), Justice William Gummow asked the Commonwealth Solicitor-General, David Bennett, about what would happen if it were impossible to repatriate an asylum seeker (because there was no country to take the person).
“What is the Commonwealth’s submission in this situation where it can be seen that the attainment of the purpose [repatriation] is impossible?” he asked.
Bennett: Your Honour, we submit it is never impossible.
Gummow: So it is a permanent state of Mr Micawber?
Bennett: Yes, your Honour, and in the present case there are specific findings well short of impossibility, in both the present cases.
(Micawber, you will recall, is the character in Charles Dickens’s David Copperfield who was cast into debtor prison because he was unable to pay his debts. He could not pay them while in prison so it was a case of permanent detention for a man who had committed no crime.)
Gummow: I am not worried about these particular cases. I am trying to worry about validity. Now, you say it can never be – – –
Bennett: It is never impossible for two reasons, your Honour. First, there may be a change of mind or a regime change on behalf of the subject country. Secondly, some other country may take an altruistic view, or the United Nations may arrange something in some other country.
Gummow: But, as against that, there can be lifetime detention.
Bennett: The Minister has his discretion under 417, which, one would expect, might well be exercised – – –
Gummow: Well, one cannot assume that.
Bennett: One cannot assume that . . .
There you have it: the Commonwealth of Australia supporting a proposition that a person can be lawfully detained for life without charge or trial.
Who says we don’t need a Bill of Rights?
Maybe the High Court will find a way to knock down the Commonwealth’s appalling proposition, but it would be better to have rights clearly stated in the Constitution that do not permit the Executive to lock people up without charge, access to lawyers and a fair public trial – as in the US.
Even in nice English-speaking democracies Executive Governments abuse power. In Australia they have argued against Bills of Rights because they put power in the hands of the unelected judiciary rather than the elected Parliament. Twaddle. Any Bill of Rights has to be approved by the people in a referendum and any judicial excess can be over-ruled the same way.
And I would much rather trust a judge with my freedom than the Australian Minister for Immigration or the US Secretary of State for Defense.