Overland Address - delivered
29 November 2006
…
the common values that bind us together as one people – respect for the freedom
and dignity of the individual, a commitment to the rule of law, the equality of
men and women and a spirit of egalitarianism that embraces tolerance, fair play
and compassion for those in need.
-
the Hon John Howard MP,
Prime Minister of Australia, in his Australia Day address to the National Press
Club, 25 January 2006
Some years ago I appeared in a complex
extradition case that lasted months, during which time I represented Mexico.
Throughout that time I regularly conferred with two young lawyers from the
Mexican prosecution authority. The more junior of these men, Marcelo, was
shortish, bespectacled, and seemed to have a permanent smile. He was someone I
was always pleased to see, and when we decided on a course of action his usual
cheerful statement was: “Perfect!” I got to know them well. Marcelo was away
from his family through this time, and valued social contact. We went with my
children to the Healesville Sanctuary and other tourist haunts. Later, after he
returned to Mexico, Marcelo proudly emailed me photos of his newborn baby
daughter.
Recently I opened my emails to receive some
news from Mexico – made more raw by the broken English:
I am sorry, really sorry
about writing you this lines. It is not a bad new, it is a terrible new.
Marcelo has been shooting and he is dead.
He has fought again the drugdealers you know, and yesterday (Monday night) he seize a fire guns and drogs.
Today at 20:45 he was shoot and died instantly. The shoots were in his nape.
He was in a gallery exhibition with his wife, Alejandra, and his elder daughter, Alejandrita.
He
was a good man, a man of integrity, and I am left hoping that those he left
behind will be inspired by his memory to rise above the inevitable bitterness
generated by his vicious death.
Latin
America has experienced the breakdown of the rule of law. In 1988 I lived in
Guatemala, the country which borders Mexico. This friendly land had experienced
brutal repression, and people were still being kidnapped and killed when I was
there. Guatemala is the country where the term “desaparecido” (“disappeared
one”) was first used about these victims of institutional terror.
Those
kidnapped and killed were generally political dissenters who were perceived to
be a threat to the government of the day. One of the features of the
kidnappings in Guatemala was the use of white vans of a certain make. While I
was there, one of these vans was seen and identified by police as having been
involved in a kidnapping, and they tried to intercept it. A gun battle ensued,
and in the end police arrested the occupants – all members of the “Guardia” -
or security forces. The Guardia officers were placed on trial.
Their
lawyers sought adjournments, but the judge would not grant them, and was taking
a tough line on the case. Then – a national scandal - the judge, and his
associate, disappeared.
In
a grim warning, the associate’s bullet-ridden body was found dumped in Guatemala
City the next day.
Twelve
days later, after a nation-wide manhunt, the judge turned up. Almost more
chillingly, he was unhurt, and said he was fine, and would continue with the
case. Fortunately, the chief justice appointed another judge to take over.
We
live in a world where damaged human beings can and do cause great harm and
suffering. It is not enough to say we should all just be friends. We have to
have laws and to have ways to enforce them.
In
Latin America, politically powerful interests too often control police,
security services or the courts, removing the rule of law. The result has been
tragic mayhem.
The
Prime Minister speaks of “a commitment to the rule of law” as one of our
values. I think it should be, but I would argue that not everyone in Australia shares that commitment.
Take, for example, “The Australian” newspaper.
That newspaper’s attitude to the rule of law can be seen from its comments on
the Jack Thomas case.
At
his trial, Jack Thomas faced four charges. The jury acquitted him last February
of the two most serious counts, which alleged training for and participation in
planning for terrorism offences. He was convicted of two lesser offences. He
was jailed for 5 years for receiving funds from a terrorist organization. The crown
case was that he received an airfare and $1500. This offence does not require
that you intend to commit a terrorist act with the money. It merely requires
that you receive the money either knowing it is from a terrorist organization
or reckless as to whether it is from a terrorist organization. The jury clearly
did not accept that he intended to do any terrorist act. They acquitted him of
the two charges that required such an intention.
Jack
Thomas was arrested in Pakistan on 4th January 2002. He was held for
five months before being allowed to return to Australia.
During
the five months he was detained by Pakistani authorities, Jack was never
brought before a judge or a magistrate, and was never charged with any offence.
He was repeatedly told “You’re outside the law now. No one can hear you
scream.”
This
type of detention, without any oversight by the courts, and without charge, is
universally regarded as illegal. It is also illegal in Pakistan, violating
section 10 of the Constitution.
The
reason is obvious. If you detain a person without oversight by the courts, you
are no better than a kidnapper. You have the power to consign those you regard
as undesirable to gulags or concentration camps, and you impose a reign of
terror, not the rule of law.
Australia
had the right, under the Vienna Convention on Consular Relations, to insist
that Jack Thomas be provided with a lawyer. Despite the fact that he was being
held in violation of the basic legal protections understood by every civilized
country, representations were merely made to the very Pakistani officials
engaged in this conduct. At no stage did Australia exert even the minimal
pressure of sending a diplomatic note.
Whilst
he was in custody, Jack Thomas was told that he could be held indefinitely. An
official attempted to strangle him by the collar. He was told that he would be
sent to Afghanistan where the latest interrogation technique involved crushing
the testicles. He was told (by an American) that agents would visit his wife
and rape her. In the presence of Australian officials he was threatened with
consignment to Guantanamo Bay.
Instead
of robust action to prevent this illegal treatment of one of our citizens,
Australian authorities took advantage of it. They liaised closely with Pakistani
security authorities to arrange interrogation of Jack Thomas while he was in
this predicament.
ASIO
and the AFP, along with Pakistani security authorities, grilled Jack Thomas for
six sessions covering 20 hours. This is on top of extensive earlier interrogations
by the Pakistani authorities and by US authorities. The Australians engaged in
emotional manipulation of Mr Thomas, showing him photographs of his wife and
children, whom they knew he was desperate to see, and then withholding the
photo as an obvious spur to co-operation.
They
then interviewed him for the purpose of prosecution in Australia. He knew that
his very future depended on the Australians telling his captors that he had
co-operated and could be returned to Australia. The police knew he wanted a
lawyer and they knew his family had appointed one, but they told him that the
right to a lawyer – which the Parliament of Australia has said is his right as
an Australian citizen – would not be available to him.
The
resulting interview was, as the Court of Appeal held, involuntary. It is quite
wrong to assert that it was only because he was not allowed a lawyer that the
interview was rejected. He was forced to confess by appalling pressure
involving the entire future course of his life. Once you allow involuntary
confessions, you license law enforcement authorities to break the law, which it
is their duty to uphold. You open the door to all manner of mistreatment,
including torture. Instead of the law being founded on respect for the dignity
of the human person, the law becomes an instrument to degrade humanity.
Not
surprisingly in view of his cruel treatment at the hands of authorities, Jack
Thomas has suffered serious psychiatric damage.
Yet in a front page piece the day after Mr
Thomas’s release, Chris Merritt, no less than the legal affairs editor for The Australian, wrote:
When the legal system allows a mate of Osama bin Laden to walk free in
Melbourne, something is terribly wrong.
Australians should
rightly be outraged at this decision. Allowing Jack Thomas to re-enter
civilised society - even temporarily - is ludicrous.
This man has chosen
his side in a war. And it's the wrong side. He has aligned himself with Islamic fascists who want to
destroy democracy.
The sooner the legal
system adjusts to that reality, the sooner we are likely to prevail.
There might be all
sorts of nice legal arguments that favour yesterday's decision. But try
explaining those to the families of those who died in Bali.
The problem is that
there is still a massive disconnection between the law and reality.
Some responsibility
must rest with the judges. Why could they not find a reason to protect society
from this man?
But the law is most
clearly at fault. There is an urgent need for some rapid amendments to ensure that
no judge can make the same mistake.
Instead of freeing the enemy, the law should be doing
more in the real fight for liberty.
According to The Australian, then, the law should not be applied to Jack Thomas.
Rather, the judges had to “find a reason” to protect society from this man
(presumably, even if that reason did not arise from the case before them). The Australian calls for judges to form
their own views about who should be locked up, regardless of the law or the
facts. This is to advocate a lynch mob mentality. If, as the Prime Minister
asserts, commitment to the rule of law is one of our shared values, then it is
a value The Australian does not
embrace.
My
legal career started out in country Victoria, often handling cases where
driving licences were at risk – a grave problem for country people. I’d like to
say that I always won my court cases, but that’s not true. Some found the
experience of confronting court overwhelming. Sometimes magistrates could
almost sniff out personal weakness, and humiliated those who were already
abject. Sometimes magistrates conducted themselves with gracious respect for
the people coming before them. These were the best magistrates.
One
elderly farmer came to see me, a man who had been a stalwart in the community,
shire president at one stage, a meticulous, rigid - even fussy - person, who
liked to be in control and who was proud of his reputation as an honoured
figure in the community. He was charged with failing to stop at a children’s
crossing. There had been no accident, and there was a real issue as to whether
he had been driving – the car was being serviced that day and he had been
identified from the number plate.
The
offence was a minor one, but I suggested to him that, since he was over 80, he
should get a doctor’s certificate to say that he was fit to drive. “The
magistrate won’t take your licence, but it’s just to make sure,” I told him.
He
appeared shocked at my request. “If I can’t drive, I may as well be dead,” he
murmured quietly. I reassured him further. He agreed to get the certificate,
and in due course it came. Everything was in order.
When
the day of the hearing arrived, my client was nowhere to be seen. He did not
come to my office before the case as arranged and when I went over to court,
thinking there may have been a mix up, there was still no sign of him. Attempts
to telephone him were fruitless. I raised the issue with the police. Eventually
the case was called on. I asked for it to be adjourned in the absence of my
client, who needed to give evidence. The application was refused.
The
witnesses were called. In a haze of growing dread, I asked the usual questions
to challenge identity. The crossing attendant did not know him and could not
identify him. I continued to go through all the motions of a court case. I
thought there was a reasonable doubt and asked the magistrate to dismiss the
charge. The magistrate thought otherwise, and found the case proven. There
being no prior convictions, he simply adjourned the charge for a few months
without a penalty of any kind.
The
urgency of my anxiety prompted the police to visit my client’s farm. They found
him lying in a pool of blood, dead from a self-inflicted shotgun wound.
How
could the prospect of appearing in court on such a charge be so calamitous?
We
all bring many things to court which complicate and add to the burden of what
takes place there. For some the prospect of being publicly found wrong is more
than they can bear.
The
word “trial” is an apt term to describe what many endure during a court
hearing. Witnesses, accused persons, and their families, endure enormous strain
during the long uncertainty of court process.
The
law has an essential role in our community. But there are many things the law
is expected to do which it does not do particularly well, and some which it
cannot do at all.
Before
considering why we need the law, it is worth examining these things – they are
often the product of unrealistic expectations of any legal system.
One
thing the law and lawyers often pride themselves on is their ability to
discover the truth. There are times when forensically piecing together the
evidence, or cross-examining a witness well, does uncover the truth. But the
legal system is a human system with all the frailties of human beings. Where
there is a good deal of evidence on a particular issue, it can usually be
determined with some certainty. But when it is oath against oath – as with many
criminal cases and a number of civil claims – the impression created by the
witness is all too often the measure used to determine the truthfulness of the
account. I don’t offer any alternative to this, but all lawyers have seen
situations where a truthful witness nevertheless creates a poor impression, and
is disbelieved.
Often
the truth cannot be known with certainty, and often the guides we take are
quite misleading. There are many times when these techniques obscure the truth.
The witness who is nervous is often thought to lack credibility, even when this
merely reflects lack of experience in the court environment. A witness may be
telling a truthful story, but when challenged in cross-examination, becomes
more emphatic in order to induce acceptance of his or her account. They may
even give embellishments hoping to satisfy this perplexing lawyer who won’t
believe them. And then they are disbelieved for these embellishments, when an
accomplished liar can plausibly spin a tale without falling into such traps.
Often witnesses with a complex account to give can become confused, forgetting
key elements of their evidence under cross-examination. Sometimes the very
events the subject of the proceeding have given rise to post traumatic stress
disorder, and a shell-shocked witness has trouble giving a composed account. I
have seen cases where merely because the barrister adopted a disbelieving
manner a witness became flustered and was seen as having something to hide.
And
sometimes a witness cannot communicate because they do not transmit in the kind
of cultural dialect understood by courts. When I called farmers to give
character evidence, this was often brought home to me. I would have some young
local lad who had made a mistake, and in the hope of achieving a lighter
sentence, I would call a local farmer to give evidence as to his good
character. The typical scenario involved a farmer, suspiciously clutching his
hat, stolidly peering around the courtroom. When I asked “And what is young
Johnny’s reputation in the community?” there would be a long pause as the
witness eyed an invisible horizon and weighed his words. Finally the reply
would come, spoken with sobre care: “I’ve never heard anything against him.” To
the farmer, from a culture where understatement was valued, this was high
praise indeed. To a court, used to flowing rhetoric, it was heard as the witness
damning the client’s character with faint praise. The problems of
misunderstanding multiply further as cultural differences increase.
Courts
are not infallible arbiters of truth. They merely represent our best effort at
this in an imperfect, human world.
Sometimes
those who have suffered as a result of crime say they want “closure” from the
courts. By this I think they mean some finality to their grief and suffering.
It is important that there be finality in legal proceedings, and that delay be
minimised because it prolongs the suffering of all involved. And there may be
some healing from finding out what has happened and having perpetrators dealt
with.
But
expecting “closure” might be expecting more than any legal system can give. A
just punishment for a crime does not right the wrong. It does not balance out
what has happened. It cannot return a lost child to a grieving parent. In this
sense, it cannot give “closure”.
And
if we seek something from the legal system that it cannot give, we will distort
it. If we demand “closure” this may be used to justify atavistic urges for
revenge, enmeshing us in a cycle of suffering, and distracting the law from its
true role.
Few
politicians will openly talk about making the perpetrators suffer the same kind
of horror that they imposed on victims (surprisingly, some do) but when they
talk about “closure” this is often code for just that.
The
role of victims in the legal system is important. They are deeply affected by
what it does. But while the law may seek to brush away their tears, it should
not pretend it can remove the source of their suffering, or even act as the
agent for their revenge.
It
has often been wisely said that it is not a good thing to hold on to
victimhood. But it is one thing for a victim to realise that and another for
someone outside that suffering to tell them to “move on”.
Properly
administered, the law will have a role in curbing crime, but will not prevent
it altogether. It is worth remembering this, because too often today there is a
paradigm of total prevention which is unrealistic about human nature. Our
criminal law generally punishes after the event. We might deter crime, but have
not found a way to pre-empt criminal activity before it occurs. We do not
generally punish someone for what they might do. Trying to pre-empt wrongdoing
is hazardous. That was the justification for going into Iraq, and what a
disaster it has proved. It is also the justification for the ever-harsher
terror laws, as if we can stop crime by continually increasing the penalties
and widening the ambit of what we say is criminal. Once you say you are going
to increase penalties until there is no crime of a particular kind, you are on
a slippery slope for which there is no real end.
The
law serves several important purposes. The most important is to vindicate the
values we uphold as a society.
But
it also imposes order. This of course is of great value, although we must also
recognise that order can be a negative force.
The
rule of law is not so much about having laws – even tyrants have laws - as
having checks on the exercise of power. Nazi Germany had laws – and a lot of
them - but no one would argue that it was a society subject to the rule of law.
A central feature of the rule of law is that it allows the courts to stand
between the citizen and the government and determine disputes between them.
Courts provide a check on the exercise of governmental power that protects the
citizen from arbitrary abuse of power.
We
have a choice in governing our society – a choice between some having unbridled
power – the rule of the despot, the rule of whim - and a society with clear
laws which provide checks to the exercise of power - the rule of law. It is, at
heart, the choice between tyranny and democracy.
The
rule of law is not about ever harsher laws to reinforce power, but the
independent oversight of the exercise of power.
The
law should be powerful so that it may curb the abuse of power. But the law is
all too often about reinforcing power rather than controlling it. When that
happens, there is something drastically wrong.
The
courts have achieved some remarkable justice – look at Mabo, Wik, and even the
basic wage case a century ago.
On
the other hand, often the courts are trapped in paradigms that make them reinforce
wrongs.
Last August the Blue Wedges coalition
approached the Victorian Supreme Court to challenge the legality of the State
Government’s “trial” dredging of Port Phillip Bay. Blue Wedges alleged that the
dredging would be in breach of the government’s own laws, particularly because
it was being conducted without any environment effects statement. The Minister
had called for an EES and was awaiting its provision. Section 6(2) of the Environment Effects Act requires that
“no works” be carried until the EES has been considered by the Minister. These
trial works involved 4 to 5 % of the overall works, and moving 1.7 million
cubic metres (a “large” dredging project is regarded as 500,000 cubic metres)
enough earth to make a pile stretching from Melbourne to Sydney. 1.2 million
cubic metres was to be dumped in the new South East Dredged Material Ground, as
to which the EES panel report had expressed serious reservations. There was a
possibility that the trial works might affect tide levels and have permanent
consequences in itself. The claim by Blue Wedges had, at the very least, real
prospects of success.
A challenge like this takes months to be given
a full hearing by the Supreme Court. By then the trial dredging would be
finished, and there would be no point in the Court ruling on the controversy.
For this reason, the Blue Wedges coalition
asked the court for an interlocutory injunction to prevent works until the
issue could be fully argued.
In such cases it is usual for the party who
seeks an injunction to give the court an undertaking to pay any damages caused
by the delay in works if the court ultimately rules against the legal
challenge. If you want a court to stop something so you can bring a case, you
must be prepared to cover the loss caused if you fail.
In this case, the prospective damages from a
delay in the dredging was said to be some $32 million, accumulating at over
$300,000 a day. There was no prospect of a community group honestly giving an
undertaking to pay such a vast sum, and they sought to be excused from the
requirement.
Justice Mandie, relying on the conventional
legal approach to these matters, would not excuse them from this requirement,
and accordingly would not grant the injunction.
Whatever you think of the merits of dredging
Port Phillip Bay, the Blue Wedges case highlights an important gap in our rule
of law. If the government is acting unlawfully in this trial dredging, surely
the rule of law requires that it be held to account. But how?
The
common law assumes that private persons – including community groups - only
take court action to protect their private interests. The common law also
assumes that the only party who approaches the courts to uphold the public
interest is the Attorney-General.
Both
these assumptions are now outdated and wrong.
The
common law model does not take account of community groups approaching the
courts not for any financial interest, but for the public good. It is not
unusual for community groups to be in stark conflict with the Attorney-General
of the day in doing so.
It
is true that the Attorney-General can give his fiat to a community group or
individual to take an action if the Attorney deems it to be in the public
interest.
But
in this case the Planning Minister – the one who was awaiting the EES, and
whose approval of the dredging was under attack, was Rob Hulls – who was also
the Attorney-General. There was no way he was going to give his fiat.
The
protection of the rule of law requires that public interest litigation be
facilitated in the courts so that genuine and non-frivolous questions can be
determined without the crippling financial burdens that normally accompany
private litigation.
When
it comes to corporate power, and economic matters, our political leaders are
libertarian. They want small government. For example, we have entered into a
so-called “Free Trade Agreement” with the United States which gives
considerable primacy to the interests of trade over decisions of government.
Similarly, rhe principle of economic efficiency is often cited as the most
important reason for a political decision.
But
when it comes to the rights of citizens, our political leaders are
authoritarian. They want big government. On issues like sentencing, no regard
appears to be had to economic efficiency at all.
My
own view is that government is a good thing – it is the great achievement which
marks civilization as distinct from anarchy. But at the same time common human
experience tells us that those who are given power will abuse it. That is why our
system values checks and balances.
An
example of the “big government” approach to the rights of citizens is the spate
of terror laws which have been enacted by Federal, State and Territory
governments over the past five years. These laws:
· create many new criminal
offences, covering things most people would not regard as “terrorist”;
· give wide powers to security
organizations;
· are expressed in such
sweeping terms that they give great scope to the subjective views of police and
others as to whether or not cases should be brought;
· are shrouded in a pall of
secrecy, such that conduct of the authorities is almost completely shielded
from proper oversight;
· cast aside the right to free
expression;
· depart from centuries of
hard-won democratic tradition under which deprivation of liberty can only
follow an accusation of crime, with a trial in which guilt would have to be
proved beyond reasonable doubt.
To
accompany these new measures, Australian governments have spent more than five
billion dollars on anti-terrorism security.
It
is worth pausing to reflect on the forces at work to squander our freedoms.
Governments have a natural tendency to oppose human rights – human rights make
the job of government more complex. They curb power. It takes a higher view –
the view of the statesman - to appreciate the importance of human rights
principles for the long term survival of our political traditions.
Our
fondness for the binary simplicity of a two party political system has also
left us without adequate alternatives. Rather like match race sailors, the two
parties shadow each other, each trying to take the other’s wind rather than
determining the best way to complete the course – and often without any moral
compass. At the Federal level, the Labor Party has largely lost the sense of
principle that once gave it purpose.
The
party which fought so hard, on sound principle, to prevent the banning of the
communist party fifty years ago has now meekly acquiesced in handing to the
Attorney-General the power to ban organizations, a power he should not have and
which he has misused. Faced with issues like Tampa, SIEV-X, Guantanamo Bay,
Scott Parkin, and the hasty scrapping of the centuries’ old right to liberty
without criminal charge, Labor has not taken a stand.
After the bombings in London in July 2005, one
of the least edifying comments came from the opposition leader, Kim Beazley. He
described the perpetrators as “sub-human filth who must be captured and
eliminated”.
Why did he describe them in this way? What they
did was evil – but are the rest of us in the human race so incapable of evil
that anyone who commits this kind of crime is “sub-human”? The divide between
good and evil passes through each one of us. When we consider one group of
people as “evil” and ourselves as “good” we commence on the road to disaster.
It was just this kind of rhetoric which justified the elimination of the Jews
in the 1940s.
And then we have the subsequent phrase in Mr
Beazley’s statement – they must be captured and “eliminated”. What did he mean
by that? Did he mean that the risk they posed should be eliminated? He didn’t
say that. He said that the perpetrators should be eliminated. Did he mean
convicted and punished in a court of law? Courts in Britain and Australia do
not pass a sentence of “elimination”. To eliminate someone is to kill them.
That was what Mr Beazley was saying. And to kill would mean doing so illegally.
The leader of the opposition in this country was advocating extra judicial
killing, or murder.
The astonishing thing is that the press did not
challenge him in relation to this incitement to violence. This was seen as a
mere flourish, in which he was trying to out-bid the ersatz Churchillian
rhetoric of Blair, Bush and Howard.
Words like this matter. If our leaders can
utter this kind of nonsense they expose people in our society – and
particularly those who are voiceless and who may be associated with the
perpetrators – to grave risk. They inflame resentments in our community and
legitimize attacks on others.
And so we have plain clothes police chasing an
innocent Brazilian electrician in the London subway, catching him, holding him
down, and pumping his head with seven shots. The police apologize, but ask for
understanding.
At the State level, the confusion between
politics and mere administration has also limited the articulation of the
importance of human rights. In Victoria the 2002 anti-terror laws were subject
to a sunset clause. The legislation was to expire in 2006 following a public
review. During the Commonwealth Games the Victorian Parliament quietly repealed
the requirement for both the review and the sunset clause.
Our politicians are tempted to use legal power
against political opponents. In December last year, four untrained, unfunded
Christian pacifists broke into Pine Gap to engage in a “citizens’ inspection”.
Despite this being a top secret base, there was
no difficulty gaining entry.
Having made their point, they were arrested and
charged with trespass
and malicious damage (cutting a fence). Fair enough.
Were
they showing disrespect for the rule of law when they disobeyed the law? I
don’t think so. Generally respect for the rule of law means obeying the law –
but not always. As Martin Luther King Jr said:
An individual
who breaks a law that conscience tells him is unjust, and who willingly accepts
the penalty of imprisonment in order to arouse the conscience of the community
over its injustice, is in reality expressing the highest respect for the law
These
Christian pacifists acted in accordance with that principle. But then in April
it suddenly became more serious.
They
were notified that they were now charged under the Defence (Special Undertakings) Act, which carries a penalty of
seven years in prison for entering a prohibited area, as well as two years for
taking photos in a prohibited area. Only the Federal Attorney-General, (then Philip Ruddock), may authorise such charges.
It
could not seriously be argued that these pacifists represented any threat to
Australia’s interests or to the integrity of the Pine Gap base. Yet by making
the security arrangements look silly they do represent a threat to the
political interests of the Attorney-General. And that’s why it is inappropriate
for the Attorney-General of the day, a politician, to make the decision that these
peaceful protesters will be subjected to a trial under the Defence (Special Undertakings) Act.
When
courts overturn the decisions of politicians as being unlawful, some of our
political leaders have been known to bleat about democracy and unelected judges.
This
trend flared up in June 2002 when the Federal Court was in the process of
hearing a number of immigration test cases. Mr Ruddock, then Federal
Immigration Minister, openly attacked the Federal Court for “deliberately
undermining the government’s tough stance on asylum seekers” and for “taking a
proactive position to undermine the efforts that this Parliament supported as
recently as the end of last year”.
Mr
Ruddock was required to explain himself before the Full Federal Court, the
judges being concerned that his remarks might be seen as an attempt to put
pressure on the Court and affect its deliberations. The Solicitor-General,
David Bennett QC, told the Court that Mr Ruddock regretted that his comments
had been misinterpreted, and did not intend to put pressure on the Court. Later
that day, Mr Ruddock continued to express irritation at the record of judges in
immigration cases. The next day, the coalition party room applauded Mr Ruddock
for his attack on judges.
Attacks
by government on the judiciary are particularly unfortunate – not because this
is discourteous, and not because judges should be above criticism, but because
such attacks inevitably corrode public acceptance of the judicial check on
executive power – and undermine respect for the rule of law. Judges cannot
enter the public arena in defending their judgments, other than by giving their
formal reasons for decision.
Later,
of course, this same man, who arguably has the worst record of any Federal
Minister in Australian history for his attacks on the judiciary, was appointed
Attorney-General, with responsibility, traditionally, to support judges. Not
surprisingly, he continued to undermine the independence of the judiciary, and
in particular judicial oversight of executive power. In so doing he undermined
the rule of law.
On
10th September 2005, Scott Parkin, a non-violent peace activist
visiting from the United States, was hauled off Sydney Road Brunswick by
Australia’s finest, taken to jail, held incommunicado, and then flown out of
Australia. He had to pay for his custody and his flight, as well as that of the
two security officials who accompanied him. He had caused embarrassment to
Halliburton because of his non-violent street theatre, and to the US, but there
was no suggestion of any offence being committed or any breach of the terms of
his visa. Other than that there was an adverse security assessment made about
him we simply do not know on what grounds he was silenced. Nor does he.
He
has challenged the decision to treat him this way in the Federal Court. But Mr
Parkin and his lawyers are not allowed to see the evidence against him. They
are not allowed to be in court when the government makes its submissions. This
is all permitted under the NationalSecurity Information (Criminal and Civil Proceedings) Act, a certificate
having been signed by the Attorney-General, Mr Ruddock, who sponsored the
passage of this legislation through Parliament.
Once
we reach this stage, where political repression can go unreviewed because a
politician says so, we no longer have the rule of law, but the unbridled,
unfettered exercise of power – the rule of the despot.
This
is not upholding our rights and security. This is destroying our democracy in
the name of defending it.
Latin
Americans are not so different from us. We would do well to learn from some of
the mistakes they have made. And one of these has been disregard for the rule
of law.
I
agree with John Howard that respect for the rule of law is one of the values
that binds Australian society. More than that, the rule of law is one of the
means by which we vindicate and uphold our values as a society. It is essential
to democracy. It is a value I encourage all Australians to share.
Brian
Walters
