Crispin Hull

When The Canberra Times began publishing in 1926, the Australian Capital Territory had no representation in the federal parliament and had no elected local government of its own. It was a fiefdom ruled by a federal minister who was elected by a constituency far away and responsible to a federal government that was elected Australia-wide.

The Territory was a polity of federal public servants, for federal public servants and by federal public servants.

It was not long before things began at to change. Within a decade of the Canberra Times first publishing a Supreme Court had been established and so had an advisory council comprising a three of federal department heads, three elected members and a civic administrator.

As in any democracy, how ever nascent, the press played a fundamental role. In the case of The Canberra Times that was a dual role. In at the news columns it reported the activities of governance. In its it editorial opinion it played the role of advocate. In the 75-year history of The Canberra Times, the paper has been a consistent advocate for the democratic right and responsibility of the people of the territory to govern themselves. However, that has always been in the general context of an overriding duty and responsibility of the federal parliament to deal with the National Capital in the general interest of the Australian people as a whole.
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THE LATIN phrase habeas corpus means “”you should have the body”. For 800 years, habeas corpus has been part of the law we inherited from England.

In 1215 King John granted the right of habeas corpus to his subjects. It meant that a subject could not be imprisoned without due process of law. An imprisoned person could, by a writ of habeas corpus, be brought before a judicial officer who would inquire whether the imprisonment was justified.

So the general proposition that people should not be imprisoned without due process of law became part of the common law of Australia.

So how does Australia get away with a policy of mandatory detention for all non-citizens who do not have a valid visa, including children, some of whom had been locked up behind barbed-wire in the desert for more than a year?

The reason is that the common law can be overturned by Acts of the Parliament and by the Executive Government.

As at December last year, 2023 people were in detention in six immigration detention centres. Of them, 728 had been in detention for more than six months and half of those for more than a year. In 1999-2000, 4174 boat people were detained. Only half that number is in detention at any one time, indicating an average stay of about six months.’

But these are just figures. The Department of Immigration is fairly diligent about making its numbers public. Behind the figures lie many stories of courage, suffering and misery. Until recently these stories were contained behind the barbed wire of the desert detention centres. But thanks to Dr Aamer Sultan, an Iranian refugee who has been in detention for nearly two years, descriptions of the effects on refugees are coming out. Also a video tape has been smuggled out of the Villawood detention centre and was played on the ABC’s Four Corners this week.

One might well ask why it has taken so long to get the story out when the English legal tradition has it that there should be a freedom of communication in society to allow the media access to government institutions. Once again, though, that common-law freedom can be taken away quite easily by Acts of Parliament and by executive acts in the same way that habeas corpus rights can be taken away.

The Migration Act 1992 and the regulations under it provide for mandatory detention for all unlawful non-citizens. Any non-citizen 1/2 including a child 1/2 without a valid visa is deemed to be unlawful. The regulations enable the minister to make exceptions on compassionate, health and other grounds. So we have a reverse onus of proof where people are detained unless the minister decides otherwise. The Migration Act also gives power to the minister to determine the conditions of detention, including restricting communications between detainees and the wider Australian community.

It may be that other factors have caused the delay in getting this story out. They include a lack of interest by people in the media, the sheer cost of getting reporters to these remote places and the a lack of interest by media consumers, many of whom think these people can be dismissed as just foreign refugees 1/2 not real humans with real children and real emotions.

Nonetheless, the legal and political systems have a lot to answer for. Our Westminster system gives all power to Parliament. The Australian Constitution, as a general rule, does not guarantee human rights. And so, when you get a combination of Liberal and Labor MPs taking a certain position, very little can be done.

Notice that the mandatory detention provisions were enacted in the period of the Labor Government and came into force in September 1994, again in the Labor period.

It is apparent that the Westminster tradition and the common law are no longer enough to protect human rights. Before 1992, migrants without visas could only be detained on certain grounds, such as health, security or other threat. That is the approach most European countries continue to adopt, and it is one that you would expect of a liberal democracy.

How can any Australian government justify the detention for months on end of small children? How can any Australian government justify the detention of anyone 1/2 child or adult 1/2 for indefinite periods when the no crime has been committed and when no threat to national health or security is posed? It smacks of oppressive regimes like China, Zimbabwe and Malaysia. Indefinite imprisonment in Australia is usually reserved for the worst category of murderer.

And many refugees now face indefinite detention. If they are denied refugee status they cannot be sent back to places like Iraq, Iran and Afghanistan because (often under government policy) we have trade embargoes or no diplomatic representation.

We need a Bill of Rights in our Constitution. It would provide for such things as no detention without due cause and for freedom of communication to enable the media and others to monitor government performance. Without such constitutional guarantees we can see where the parliamentarians of the past decade or so might take us.

A Bill of Rights would protect us from the worst excesses of parliamentarians. Not only in the human costs from breaching rights, but also from the economic costs. More than 80 per cent of these refugees will ultimately be released and most of the others would present for deportation without detention if we developed a system of bonds from existing citizens and tightened employment procedures so they could not work without a visa. So why lock them up at a cost of $105 a day? So why add to the trauma that will make these people less useful and less grateful citizens, at great future cost in health care and lower employability? And why risk future compensation claims?

Even on the most hard-nosed view, the costs of detention are higher than the risks of release. And the cost to our jurisprudence and reputation for respecting human rights is not measurable.

Mandatory detention of all refugees is not protecting Australia from being swamped. It is a knee-jerk policy developed by fear of voter back-lash by two miserable, lazy, major parties which have not got the leadership, morality or intellect to explain how and why there is a better way.

A couple of letters to the editor this week complained about the high cost of third-party insurance. One wondered why premiums for mid-range sized motor bikes were so high. The other wondered why third-party insurance in the ACT was much higher than in other places like the Northern Territory and country NSW when the fatality rate on ACT roads was much lower.

The NRMA’s response was that intermediate-range motorcyclists are maiming and killing their pillion passengers at a greater rate. And in general in the ACT, those maimed and killed on the road tend to be a younger and earn higher salaries than those elsewhere. So when they make a claim for loss of earnings, the claim is higher. Moreover, the ACT has a generous system of compensation for motor-accident victims. It is a common law system under which the insurer of the driver at fault has to recompense all lost wages and lost earning capacity. Other places have caps

The NRMA’s message his clear. We all pay for the accidents on our roads. Unfortunately, all car owners pay equally even though we draw unequally.

The NRMA’s response to the motor-cyclist’s complaint was reasonable, but did not go far enough. Quite reasonably, the NRMA argued, motorcyclists cause more damage, so should pay a higher premium. But if that is the case, why does someone who has driven 20 or 30 years without an injury-causing accident have to pay the same premium as someone who has had a licence for only a year.
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The Australian public was audience this week to a political roller-coaster ride. Early in the week, Labor was rejoicing in the victory of Claire Martin in the Northern Territory. She had led Labor to its first win in the territory in the 26 years since self government. Suddenly, however, Labor was on the back foot again after revelations that Opposition Leader Kim Beazley had exaggerated or misrepresented the way his daughter had been treated by a Perth public hospital. He also came under fire for using his family experience to score political points. The Coalition was having a field day. But the day was short lived. On Thursday, Labor had some damaging ammunition of its own with which to attack the Coalition. It revealed that the federal electorate council for the Queensland seat of Groom held by the Minister for Small Business, Ian Macfarlane, had not dealt correctly with its GST liability on a fund-raising dinner at which Treasurer Peter Costello was the guest speaker. At best, it was a misunderstanding of the GST rules. At worst, it was this scam to not pay the GST on the function while claiming a rebate for the GST input on it. Worse still, Mr McFarlane was aware of what had happened yet told Parliament that he was unaware of anything untoward. Mr Costello, too, is in trouble. He told Parliament that as guest speaker he was not responsible for the GST payable on the function. True, but the implication was that he knew nothing about it. Afterwards he issued a statement saying that someone troubled by the way the electorate council was handling the GST had complained to his office and that his office had told Mr McFarlane to ensure that the GST obligations were probably met.
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The ACT Legislative Assembly has decided against holding a referendum on the question of whether there should be a safe injecting room for heroin users and at whether there should be a trial to provide registered heroin addicts with heroin in a controlled environment.

The referendum and its subject matter have caused a great deal of heated debate. Indeed, the debate has been so heated and so bipolar that whatever the result, few would have changed their view.

The ACT Liberal Party has been accused of floating the referendum as a smokescreen during the election which would distract voters from the main issues of economic management, health, education, and accountability for public spending. More likely, it disguises the deep divisions within the party on heroin with a united approach on a no-risk referendum — a no-risk strategy to be seen to be doing something while having to actually do nothing. A No vote would have resulted in giving the incoming government – – whether Liberal or Labour – – an excuse to do nothing. A Yes vote would have still been met with enough resistance on the four of the Assembly and from the federal government to still result in no action.
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Suggestions that the Federal Parliament should take action on the goings-on in the ACT territory usually draw cries of foul or interference. The latest is the question of Gungahlin Drive.

On its face, it seems like a simple case of providing a road for the people of Gungahlin to get expeditiously to the other parts of Canberra. So why should the Federal Parliament or the Federal Capital Authority get involved?

Previously the Federal Parliament has got involved over the great moral issues of euthanasia and how to deal with the drug problem.

In the case of euthanasia, the Northern Territory and the ACT had much to be upset about. Having been granted self-government, the Federal Government singled them out for special treatment, using the territories power in the constitution. It did not attempt to ban euthanasia throughout Australia, presumably because it thought it did not have the constitutional power. That being the case, it was an unprincipled interference in local affairs based upon the personal moral predilections of the individual parliamentarians who voted for it.
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The genetically modified food industry has received a double boost in the past week or so. A Royal Commission in New Zealand brought down findings more favourable to the GM food industry than had been expected and a survey in Australia showed more people are supporting GM technology.

The New Zealand Royal Commission is significant because it was the first thorough judicial inquiry in the world on GM technology. The commission did not advocate a laissez-faire approach, but did not advocate an outright ban on the technology as was expected. The commission said a ban on GM technology would have an adverse effect on farmers, consumers, and in medicine. In the case of medicine, the commission said that a ban would mean that existing medical uses, especially the use of GM insulin by diabetics, would have to cease. The commission also expressed concern that with a ban on GM food in New Zealand there would be an exodus of scientists and other skilled people and the economy would contract.
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The Federal Government has had plenty of warning on the issue which is now causing such strife in the automotive industry.

About 300 workers of the TriStar steering and suspension company went on strike over the failure of the company to entertain negotiations over protecting employee entitlements during enterprise bargaining negotiations. The company supplies components to major manufacturers who have now stood down, or are about to stand down, 12,000 workers. It seems that that TriStar was the first company to be hit by a campaign by the Australian Manufacturing Workers Union to set up a fund to protect employee entitlements.

The campaign arose after the failure last year of National Textiles, a company in which the Prime Minister’s brother, Stan Howard, was a key manager. About 300 employees stood to lose about $11 million in holiday, long service and other entitlements. However, the federal government bailed them out on a special-case basis. Since then, many other companies have failed, leaving employees in the lurch. Perhaps the largest was the case of OneTel in which 1400 employees were owed at total of $25 million.
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THE ACT needs to be careful. Tacit assumptions that we have the best educated, most caring society and are best able to deal with social questions of any jurisdiction in Australia are under threat.

The ACT still has a very low imprisonment rate compared to other states or territories, but if present trends continue that will not last much longer. Recent statistics put out by the Australian Bureau of Statistics and the Australian Institute of Criminology reveal that the ACT is increasing its rate of jailing faster than all other jurisdictions and has among the worst jail rates for youth.

And, contrary to popular mythology, crime at rates are falling, not rising.

These figures come at a time when the ACT is proposing to build its own prison. Moreover, the Government’s preferred option, expressed as recently as last week, is for it to be run by the private sector. The plan is for up to 400 inmates. Compared to our population of 320,000, this would increase our jailing rate by 25 per cent unless we took a significant number of prisoners from NSW. On this sort of population base, Sydney would require more than 10 jails. The danger for the ACT will be that once we have a jail, there will be a tendency for the courts to fill it up.
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This week the Victorian Supreme Court brought out the red flags. It was the same red flag that legal authorities required to be waved by a walking person in front of the devilish new contraption called the automobile.

This week it was the Internet.

Justice Hedigan was hearing a case brought by the Melbourne businessman and flamboyant owner of the Melbourne Football Club, Joseph Gutnick. Gutnick was suing for defamation over an article published in the Wall Street Journal. In normal circumstances, he would have no action in Victoria because the Wall Street Journal is not published there. However, the Wall Street Journal and its investment advisory magazine, Barrons, is published on the internet — some free and some by subscription.

Mr Gutnick argued that the availability of the publication on the internet meant it that it was published in Victoria and so he could sue in the Victorian Supreme Court and avail himself of at the Victorian defamation law.

The publisher of the Wall Street Journal, Dow Jones and Company, argued that it did not publish in Victoria but that its publication was made in New Jersey where its web server was situated. To the extent there was any publication in Victoria that was an act of publication by the people who downloaded the material via the internet the Web server, Dow argued.
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