Jon Stanhope was the last Australian head-of-government standing up for the principles of liberal democracy, the rule of law and the separation of powers. Now he, too, has capitulated. The mouse that roared now squeaks.
He was sucked into the false importance of the private briefing. He was made to feel that he now “knows”. He “knows” what the voters cannot be told, now that the intelligence services have told him that we are in danger and why we are in danger.
These, by the way, are the same intelligence services who advised us that Iraq had weapons of mass destruction and that we were in danger from them.
So, we are to have laws that enable people to be detained for up to 14 days without charge or trial. We are to have laws under which people who have not been charged can be subjected to a restraining order for up to a year – restraining them within their homes (house arrest), within a suburb or a town, or preventing them from associating with certain people.
What does that remind you of? It reminds me of the banning orders in apartheid South Africa. It reminds me of what the military government in Burma is doing to Aung San Suu Kyi.
Of course, it is of a much lesser degree, but it is on the same path in the same direction.
These proposals strike at the heart of things that Australians – indeed, all people, should hold dear. Things people have for centuries hoped for and fought and died for.
Stanhope had it right before he capitulated. These are the measures of a police state.
We can tell how corrosive of human rights they are by the fact that the national government felt it was constitutionally incapable of enacting them. It needed the states to enact them.
The Australian Constitution is fairly feeble in protecting individual rights, but even it baulks at what is being proposed. Our Constitution vests the judicial power of the Commonwealth in the courts. “Judicial power” includes the power to punish. So it is not for the Executive Government (of which the police are a part) to lock people up – a form of punishment – for more than about 48 hours, a reasonable time to work out whether to charge someone. Nor is it possible for judges to lock people up beyond about 48 hours without charge. This is called the separation of powers.
The states, unfortunately, do not have that constitutional restriction and that is why the Howard Government is getting them to do his dirty work.
Incidentally, Stanhope’s capitulation may at least have the beneficial side effect of leaving an opening for a constitutional challenge to these laws.
It may be that the two internal Commonwealth territories (the ACT and the Northern Territory) are under the same constitutional restraint as the Commonwealth itself. That would make sense because their legislatures are, after all, creatures of the Commonwealth Parliament.
Some High Court judgments suggest that the Commonwealth’s power to make laws with respect to the two internal territories is constrained by some or all of the limited guarantees of freedom in the Constitution — separation of powers, religion, political communication and trial by jury. They suggest that the ACT and Northern Territory are part of the constitutional pact. Other judgments go the other way.
If the former is the case, these new draconian laws as they apply in the territories could be struck down by the High Court as offending the separation of powers.
The separation of powers is not some esoteric legal theory. It is a practical force which is fundamental to liberty in a democracy. An independent judiciary applying the rule of law determines guilt and punishment; detention cannot continue without charge more than a reasonable time to put the charge together – say 48 hours.
The separation of powers underpins freedom from fear in society – the fear of arbitrary detention. This is a fear humans have sought to free themselves from for thousands of years – in the Roman Empire, in the absolute monarchies of France and Britain. It caused the French and American Revolutions. The freedom is fragile, as the French experience of the late 18th and early 19 centuries and the American Civil War showed. This is why these laws must be resisted.
These laws threaten to corrode our democracy.
They are a damning admission that liberal democracy and the rule of law cannot cope with terrorism, cannot survive terrorism, and are defeated by terrorism.
Prime Minister John Howard and the state and territory “leaders” have got this wrong. Dealing with terrorism is not a war. These are crimes, not acts of war, and can be dealt with by existing criminal law.
War is different. The existence of the nation is under threat in a way obvious to all. And people will accept restrictions on liberty for the duration of the war, so that democracy can flourish after it.
But this so-called war on terror has no end in sight – there is no “duration” — and the threat to the nation’s existence is not obvious. Indeed, it probably does not exist. We are being asked to give up essential liberties on the say-so of intelligence agencies.
I say this even if there is a deadly terrorist attack in Australia tomorrow. I would still oppose these laws. If someone is planning a criminal act, charge them under existing criminal law. We should not destroy liberty in order to save it.