Australians All

A Virus in the Body Politic

Malcolm Fraser

An extract from a speech to the University of Melbourne’s Asian Pacific Centre for Military Law delivered on 25 October 2007

In the name of national security in the last seven years, there has been increasing disregard for the Rule of Law. The forfeiture of rights of individual citizens can be seen by the growing number of individuals whose circumstances have meant nothing to the government, which has shown no decency, no concern.

There is no reference in the Australian Constitution to the protection of basic rights. What protections may exist, derive from the common Law, but the Common Law can be over-ridden by an Act of Parliament as has occurred on more than one occasion.

This lack of a human rights provision is discussed and debated on a regular basis. But there is another protection missing, one that ought to be mentioned. We need substantially stronger restraints against the use of military forces in civil situations.

I know of more than one occasion when ministers or prime ministers have improperly sought to use Defence assets in civil situations. As one example, F111s, with their highly sophisticated equipment, were used to take photographs to provide evidence for a High Court case. This involves a very significant military intrusion into the judicial processes of Australia.

In 1969, in response to a crisis in Bougainville, without consultation with the Defence minister, the Defence Committee or Cabinet, the prime minister sought to call out the Pacific Island Regiment. Luckily, because of the legal restraints then existing, it was possible to force a proper consideration of the issue.

The suggestion that the military might need to be used urgently to counter a terrorist incident does not provide sufficient reason for the removal of the constraints in the use of military power.

The Defence Act of 1903 could be modified so that if a Premier of a state notified the Prime Minister that a terrorist incident had or might occur, counter terrorism forces could be made immediately available.

We should never forget however, that there are very strong practical and philosophical grounds for preventing a government from using the armed forces to intervene in civilian affairs.

In the name of national security in the last seven years, there has been increasing disregard for the Rule of Law. The forfeiture of rights of individual citizens can be seen by the growing number of individuals whose circumstances have meant nothing to the government, which has shown no decency, no concern. People sent to Nauru, to prisons overseas, children kept in detention centres, Australian citizens illegally deported or in Immigration Department jails.

In these cases, regard for the Rule of Law and Due Process has been set aside. To them we must add Mamdouh Habib, David Hicks and Mohamed Haneef.

How do Rule of Law countries so demean themselves that they allow these processes to occur? How is it that even more people have not been enraged? Does it rest on the age-old but narrow proposition that the people against whom these acts are directed are not like us? “They belong to them, not to us.” Haven’t we learnt time and time again that, if we stand aside and allow somebody’s rights to be pushed aside, if we allow arbitrary, injudicious acts of government to destroy the life of one person, don’t we understand that that creates a virus that spreads through the body politic? Even now, because of laws preventing publication, we do not know how many people may have been affected by the recent run of amendments to Australia’s security legislation.

While the relative silence of the Labor Party on these issues may be good politics, it leaves a void. If there isn’t a debate on important issues between major political parties, it is difficult to sustain a debate amongst the Australian public more generally. Those who support basic rights, the Rule of Law, due process, carry the banner. We need to move against all of those who have exhibited no protest on these issues and hope that the next government will have a greater concern. I have only contempt for somebody who says to me they fight these issues but privately, they are not prepared to speak out.

What does one do about all of this? How do we buttress our constitutional processes? How do we move back to strict adherence to the Rule of Law, not only in relations between citizens but in relations between citizens and government? How do we make sure that future Australian governments will stand up for the basic rights of Australians, wherever they may be? How do we make sure they will not throw aside the presumption of innocence, the right to a fair trial, the right to be heard in a properly constituted court of justice. How do we re-establish strong support for the Security Council and a law-based world? Again I ask, how do we find security in terrorism’s shadow – where our rights, the rule of law and due process have been lost in the dark?

There are a number of steps that we can and, ultimately, must take.

1) We seriously need a Bill of Rights, following the practice of all European Union countries, New Zealand, Canada and the United States. The States in Australia are starting to move in this direction, led by the ACT and Victoria but this legislation only applies to State law. We need a Federal Bill of Rights to act as a restraint on governments, to provide some benchmarks for our judicial processes.

2) We need new measures to support the independence of the High Court. Perhaps we should establish a judicial council which would suggest names suitable for appointment to the High Court and for the Federal Courts.

3) We could reinforce the independence of the judicial system by ending promotions from one court to another. There is a suggestion in some quarters that judicial decisions can be influenced by the expectation of promotion. This principle as an objective was current in the United Kingdom in earlier times.

4) We must find ways in which the power of Parliament can be reasserted. While the Executive is in and of the Parliament, the power of Party machines in both major political parties is now so great that the independence that used to be exercised in the Senate in particular, hardly exists. It is rarely exercised in the House of Representatives and then only with great courage and considerable risk.

5) We should seek a constitutional change so the approval of the Senate and House of Representatives would be required before an executive government can take Australia to war.

6) We should seek a further change, probably by legislation, that makes it impossible for any part of the intelligence and security machinery to censor a Parliamentary report critical of its activities.

These changes would go a long way to strengthen the supervisory processes so essential in today’s world.

We also need to give more thought to ways of keeping the Government itself within the Rule of Law?

7) How do we require the Government to provide the protections that ought to be available to Australian citizens, both here and abroad? In the Abbasi case the Law Lords placed that obligation on the British Government. How do we make sure that Due Process prevails? Is there some way in which we can make the Government, or people within the Government, liable or responsible and subject to judicial processes? This was attempted in the case of David Hicks, where the Federal Court was asked to review the conduct of the Howard Government with respect to his detention and treatment. That litigation terminated following David Hicks’ guilty plea in Guantanamo Bay and his subsequent repatriation to Australia.

8) Would it be possible to establish a set of basic obligations where the fate of individuals is concerned, whether they are people in Immigration Department detention centres, or under restraint by other institutions of government, to make those involved responsible and liable for what happens? Abuse has gone so far that such steps need to be considered.

9) Beyond Australia we should re-establish strong support for the United Nations and its structures. Reform of the Security Council must be undertaken. Its capacity must be used in the resolution of disputes and its decisions respected. Only through the Security Council will we be able to establish rules for the conduct of affairs between nations. We should use our status as an ally of the United States to persuade the United States that these major issues are of critical importance to a peaceful world. Rather than going along with America, we should be seeking the support of the United States once again to adopt the far-reaching approaches so evident in much of the work they did in post-war decades.

10) There is a real role for a middle-ranking country such as Australia acting in concert with others, such as Canada, Sweden or India and many more, in strengthening the international system. Despite the regression of President Bush’s time, over the past sixty years there has been progress and we should not be discouraged. The debate about the legality of the Iraq war is a major sign of that progress. We can strengthen those moves and do much to create a more peaceful world.