SMH columnist and former Media Watch host David Marr was apparently once a lawyer, doing his articles with Allens. I say apparently because in “Liberty is left in shaky hands when the High Court no longer defends it”, which one can find in yesterday’s SMH, he shows no sign of this history in attempting, quite unsuccessfully, to emulate stable-mate (and fellow Media Watch alumnus) Richard Ackland.
I’ve been blogging for a while now, and I haven’t yet performed a proper fisking (Wikipedia). This seems like a good debut, because I consider Marr’s column to be slipshod.
I should note that Marr has some form with this. In the heady days of 1980, Marr published a biography of Sir Garfield Barwick (generously eulogised on his passing by the Law Council of Australia, Attorney-General, Prime Minister, and Governor-General), former Commonwealth Attorney-General and Chief Justice of the High Court of Australia. Sir Garfield was none too impressed, and said so in as many words.
So, what prompts my vitriol? Marr starts by inscrutably tarring the Commonwealth Solicitor-General, David Bennett QC:
Perhaps after a hard day in court, David Bennett, QC, goes home and scrubs down with a strong carbolic [droll legal in-joke] soap. Lawyers have to do grim things for their clients at times, and Bennett’s client is the Commonwealth Government.
I don’t know why Marr feels the need to make Mr Bennett the fall guy here, especially since Marr’s beef is with those who instruct him, the Howard–Ruddock axis of evil. The Solicitor-General’s role is regulated by the Law Officers Act 1964 (Cth). He (or she) is the second law officer of the Commonwealth, after the Attorney-General: s 5. He can generally not engage in work other than for the Commonwealth: ss 9, 12. Former U.S. Solicitor General (and top-notch appellate lawyer) Seth P Waxman gave an enlightening lecture on the history of the American office.
And regardless of the history and functions of the Solicitor-General, no reasonable person, and certainly no lawyer, should give credence to the argument that the sins (or attitude) of the client should be visited on their lawyer. It’s disappointing to read Marr alluding to this.
Not, I would have thought, a strong note to start on. But he continues:
As Solicitor-General, he’s had remarkable wins in grubby contests. It was Bennett who persuaded the Federal Court that no one was being “detained” on the Tampa—surrounded by fully armed SAS troops, but not detained.
How could Mr Bennett use his dark arts to argue that black is white? How can you not be detained by fully-armed SAS troops?
It’s worth remembering that at first instance, the Commonwealth failed: Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452; [2001] FCA 1297 (a decision delivered, incidentally, on 11 September 2001). I note that relevant facts were agreed between the parties (at [35]–[37]). The real issue was the legal consequences that flowed from those facts. In North J’s view, the rescuees were amenable to a writ of habeas corpus (or an “order for release”: at [50]).
But the Commonwealth appealed: Ruddock v Vadarlis (2001) 110 FCR 491; [2001] FCA 1329. French J delivered the leading judgment on appeal: Beaumont J generally agreed (at [95]), and Black CJ dissented.
French J says (at [213], my emphasis):
The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention. It was incidental to the objective of preventing a landing and maintaining as well the security of the ship. It also served the humanitarian purpose of providing medicine and food to the rescuees.
This is clearly what Marr hangs his hat on, but I think it’s insufficient. What French J means by “detention” in this passage is “a restraint on liberty which is not authorised by law” (at [210]). It is not a statement of fact; it is a legal conclusion. Indeed, French J expressly recognises that the rescuees had “no where to go” (at [212]). The determinative issue, for French J (and Beaumont J) is that the Commonwealth could determine whom to admit. It was entitled to refuse entry to the rescuees on the MV Tampa. It did so in a manner authorised by law. There was therefore no grounds on which the Court could make an order of habeas corpus or an order in the nature of habeas corpus.
To say that the rescuees were not “detained” is sophistry. Their liberty was clearly restrained. However, the Full Court of the Federal Court held, by majority, that is was a restraint authorised by law.
Clearly, this is correct. Governments detain people for all sorts of reasons, most obviously as punishment for criminal offences. But a prisoner can’t just get habeas corpus and go free—the prisoner’s detention is a proper exercise of the detaining government’s power. And this was the issue before the Full Court in Ruddock v Vadarlis—Beaumont J’s judgment makes this clear, and it was where Black CJ departed company from his bretheren. Because the Commonwealth government was entitled to refuse entry to the rescuees, it was entitled to incidentally detain them to give effect to that decision. That was what the case ultimately turned on, and to what Mr Bennett was ultimately successful in persuading the Court.
But that rhetorical flourish aside, Marr continues:
In another trademark victory, he persuaded the High Court that the great referendum of 1967 gave Canberra almost unlimited power to legislate against the interests of Aborigines.
My knowledge of recent High Court cases isn’t great, so I’m welcome to being corrected on this. But I understand this to be a reference to Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22. If so, it was a particularly impressive “trademark [Bennett] victory”, because he didn’t even appear! The Commonwealth was represented by Dr Gavan Griffiths QC, Mr Bennett’s predecessor as Solicitor-General (and no particular friend of the Howard Government). (Law geek trivia: of the seven lead counsel in that case, five—Spigelman, Selway, Katz, Jackson, and McColl—are now, or were, judges.)
But, putting that to one side, I should also add that Marr’s characterisation of Kartinyeri—if, in fact, that was the case to which he referred—is dubious. The argument that won the day was that if Parliament has powers to make laws with respect to a subject matter, they can later repeal those laws (at [13]–[19] per Brennan CJ and McHugh J, at [47]–[49] per Gaudron J, but see at [57], [66]–[70] per Gummow and Hayne JJ).
Also, though you may not realise it just from Marr’s flippant description, before “the great referendum of 1967”, s 51(xxvi) of the Constitution read:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … [t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws …
Section 2 of the Constitution Alteration (Aboriginals) 1967 (Cth) deleted the words “, other than the aboriginal race of any State,” from that placitum. What is immediately apparent is that there is no for–against or benefit–detriment dichotomy expressed in the Constitution. It is, on its face, a neutral power to make laws “with respect to” a subject-matter, if it is “deemed necessary” to make “special laws”.
Of the majority judges, Brennan CJ and McHugh J declined to determine whether s 51(xxvi) allowed the Commonwealth Parliament to pass laws to the detriment of aboriginals because it was unnecessary in their reasoning (at [20]). Gaudron J held that whether the law was beneficial was the wrong question, but it was difficult to envisage circumstances when legislation detrimental to a race would be Constitutionally valid (at [44]–[45]). (In particular, Gaudron J reversed her earlier view that “for” in s 51(xxvi) means “for the benefit of”, as that construction cannot be sustained: at [36].) Gummow and Hayne JJ simply noted that there was no basis for limiting the Constitutional power to legislation for the benefit of a racial group (at [90]–[94]).
By this stage, my thought that the only thing “shaky” so far was Marr’s characterisations, but he continues onto the principal substance of his column:
Last year he won a crucial little victory for Canberra by persuading the High Court that failed asylum seekers who for some reason cannot be deported may be left to rot in immigration detention forever.
This result, in what’s known as Al-Kateb’s case, is exactly what the Government wanted and hired Bennett to achieve. But things have changed in 2005.
…
But what a rebuff for the hard men of the High Court and in particular Justice Ken Hayne, who led a majority of the judges to the conclusion that people in Al-Kateb’s position—stateless and unable to leave Australia—could be left in detention, if need be forever.
That Howard has now backed away from the High Court’s decision changes nothing that matters here. The result remains law and remains part of the Immigration Department’s extensive armoury.
…
This is a court of technically brilliant judges. Kenneth Madison Hayne is one. He brought all his brilliance to bear on reassuring Al-Kateb that even a lifetime spent behind the wire in, say, Baxter detention centre, could not be called punishment.
…
Soft-hearted civilians might argue innocence is the best reason to let the poor man out—at least after he’s been trapped inside for three or four years waiting for some country to take him away.
Putting to one side whether it is accurate to say that the government “hired Bennett” to achieve this result, the general argument—nakedly using one’s political preferences to divine a correct (or, at least, preferred outcome)—may not be unfamiliar to you. It’s an old favourite of Janet Albrechtsen, with whom Marr is somewhat acquainted. It’s from the opposite end of the political spectrum, but it doesn’t make it any more palatable.
When the High Court delivered its decision in Al-Kateb v Godwin (2004) 208 ALR 124; 78 ALJR 1099; [2004] HCA 37 (and the parallel cases of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271; 78 ALJR 1056; [2004] HCA 36 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201; 78 ALJR 1156; [2004] HCA 38), it was highly newsworthy. Ken Parish (among others, I’m sure) blogged about it at the time.
The issue was a legally nice one. The mandatory detention scheme is based on the assumption that, if a non-citizen is not allowed to reside Australia, they can be deported to another country (probably the country of which they are a national). The circumstances of Messrs Al-Kateb and Al Khafaji were such that they had no other place to go. The question before the Court was, essentially, whether the Migration Act 1958 (Cth) authorised indefinite detention in those circumstances. The issue was, essentially, one of statutory construction. A finely balanced Court decided that, as a matter of statutory construction, the Migration Act did have that effect. (See the High Court’s media release for an accessible summary.)
Marr compares Al-Kateb unfavourably with Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] HCA 5:
What’s more, [the decision in Al-Kateb] shines a powerful light on the quality of thinking and values of the court. As an institution it has come a long way from the heroic 1950s, when it declared unlawful Bob Menzies’ vast security apparatus for combating the scourge of communism.
The Communist Party Case was a different case. There, the question before the Court was whether the Communist Party Dissolution Act 1950 (Cth) was beyond the Commonwealth’s Constitutional powers to enact. A strong majority of the Court (Dixon, McTiernan, Williams, Webb, Fullagar, and Kitto JJ; Latham CJ dissenting) found that it was.
It transpires that the Constitutionality of mandatory immigration detention has been upheld by the Court before. In Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64, the entire Mason Court upheld the validity of the legislation. (The Mason Court, by the way, was that pinko activist court that gave us Mabo and found an implied freedom of political communication in the Constitution. The Court where it is said that frequent dissenter Justice Kirby would feel much more at home.)
I should say that, personally, I’m somewhat unimpressed by the Government’s policy of mandatory detention, especially since we charge the detainees for the privilege (a practice recently upheld in in Qureshi v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 11). See also Greg and Simon.
But that wasn’t at issue in Al-Kateb. Each of Marr’s “hard men of the High Court” limited themselves to a strict construction of the statute in its Constitutional context. They were hardly engaging in boosterism. McHugh J called the result “tragic” (Al-Kateb at [31], Al Khafaji at [4]).
Marr divines:
The Al-Kateb case sees a new split appearing on the court: the liberty divide. On one side are the majority judges—Hayne, Michael McHugh, Ian Callinan and the new boy, Dyson Heydon. For them, saving Australia from boat people counts for more than Al-Kateb’s raw liberty.
If there is a “new split appearing” in the Justices—a so-called “liberty divide”—then we can expect to see evidence of it in more than just Al-Kateb and the companion case of Al Khafaji. In Coleman v Power (2004) 209 ALR 182; 78 ALJR 1166; [2004] HCA 39, the issue was whether Coleman could be found guilty of the offence of using “insulting language”. One would expect the “liberty divide” to be evident here—freedom of speech is an important “liberty” that may well “divide” the Court. The High Court held by majority (McHugh, Gummow, Kirby, and Hayne JJ; Gleeson CJ, Callinan, and Heydon JJ dissenting) that the conviction should be set aside. The “liberty divide” was nowhere to be seen.
Okay, well, what about another “raw liberty” case. What about a case about the Constitutionality of a law that kept someone in gaol for a crime they committed, after their original sentence has passed, because of something they might do in the future? That’s Fardon v Attorney-General (Queensland) (2004) 210 ALR 50; 78 ALJR 1519; [2004] HCA 46. In that case the High Court by a strong majority (Gleeson CJ, McHugh, Gummow, Hayne, Callinan, and Heydon JJ; Kirby J dissenting) upheld the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). (I blogged about this case before.)
Hmm. What about a couple of cases about when a person can seek judicial review of a quasi-governmental body? Judicial review is one of the most important ways to stop the excesses of Government. Federal judicial review is enshrined in s 75(v) of the Constitution. Well, in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 and Griffith University v Tang [2005] HCA 7, the High Court (with only Kirby J dissenting) placed significant limits on the scope of judicial review. The “liberty divide” missing in action again.
After bemoaning the “los[ses]” of the “liberty judges”, Marr continues:
The High Court in John Howard’s Australia is travelling in the opposite direction to the US Supreme Court and the judges of the British House of Lords. Over the past eight months, they have been telling their governments that it’s not lawful to detain at will and indefinitely—even when those being thrown behind bars are suspected terrorists.
This puts the cart before the horse. The High Court in “John Howard’s Australia” interprets the laws and Constitution of Australia. That is significantly different—as even the “liberty judges” recognised—to the situation in the United States and the United Kingdom. Most notably, Australia has no Bill of Rights like the U.S. It is not a party to the European Convention on Human Rights (and its courts subject to the oversight of the European Court of Human Rights) like the United Kingdom. It is specious to say that the result is wrong in Australia because other courts, considering different (but similar) questions in different (but similar) contexts, reached different conclusions.
So, what is Marr’s conclusion, the denouement to which his entire article builds?
But it suggests a future where the disquiet of decent Liberal voters and a few fractious backbenchers are a better safeguard of fundamental liberty than the High Court.
Excuse me for being naïve, but isn’t that the way it’s meant to be? If laws lead to a conclusion that you don’t like (especially in a country like Australia without many entrenched Constitutional rights), the solution is political redress. Convince the public—and thus the politicians who, after all, are elected representatives of the public—that the laws are wrong and should be changed or repealed. That tragic outcomes prompt a political change in the system isn’t a failing of the system—it’s a feature of it.
