The first years of the 21st Century have been bleak for civil liberties in Australia, says barrister and former Victorian Attorney-General, Jim Kennan SC. Our democracy is devalued, and we are the poorer nation for it: we must return to the rule of law, he says.
The Winter of Civil Liberties
Jim Kennan S.C.*
I have called this talk the winter of civil liberties because it seems to me that the first seven or eight years of the 21st century have been a bleak period for civil liberties especially in Australia.
The post war expansion of rights
If you look at the last fifty years of the 20th century there were many important advances for civil liberties. In the years following the Second World War there was the adoption of the International Covenant on Civil and Political Rights in 1948 and the adoption of the European Convention on Human Rights shortly afterwards. The adoption of the Geneva Conventions and the Additional Protocols were similarly important.
The civil rights movements in the 1960s
In many countries, during the 1950s and 1960s, there was a progressive movement to address inequalities in the law. The civil rights movement in the United States in the 1960s stands out as perhaps the leading example of this.
And it should also be remembered that in England in the 1960s there were many important law reforms, including improvements in decriminalization of homosexuality and the abolition of capital punishment.
Australian in the 1970s and 1980s – an expansion of rights
These trends continued in Australia in the 1970s and 1980s with the abolition of capital punishment everywhere in Australia, laws against racial discrimination, equal opportunity laws, privacy legislation, the expansion of legal aid, the establishment of new administrative law procedures and tribunal’s, the introduction of many informal and relatively inexpensive tribunal procedures for small legal disputes, the abolition of the system of lay justices, and the introduction of measures such as community-based corrections orders and suspended sentences of imprisonment as an alternative to prison.
The 1967 referendum on the rights of Aboriginals was perhaps the most significant.
By the 1990s in Australia we lived in a fairer and more tolerant society with a greater respect for diversity and individual rights and less emphasis on vengeful justice than we had experienced, at least in the 1950s and before.
Human rights in Europe
Whilst these progressive steps were occurring in Australia in the 1970s and 1980s, the European Community was moving to continually entrench and develop its system of human rights by the ratification of the European Human Rights Convention on a country by country basis, in the continuing development of an important human rights jurisprudence by European courts, including importantly, the European Court of Justice.
Despite a long period of opposition towards human rights legislation in the United Kingdom, the United Kingdom finally secured a charter of fundamental rights in 1998 in the form of the Human Rights Act to bring it into line with the European Community.
There were attempts made at the Federal level in 1984, and the Victorian level in 1990, but no Australian jurisdiction followed the European lead to seek to entrench human rights legislation in a consolidated statute. In recent years charters of rights have been fortunately introduced in the ACT, and in Victoria, but with a more limited scope of operation than occurs in Europe, and there is no sign of the Australian courts paying any significant attention to the European human rights jurisprudence, which is much more vigorous than the common law of Australia.
The terrorist legislation
What then occurred in the early years of the 21st century in Australia, the United Kingdom and United States was the most significant attack on civil liberties seen for a generation or more. These countries introduced anti-terrorist legislation which was an overreaction to terrorist threats, and which as Lord Hoffmann said in a landmark case, represents the real threat to civil liberties, freedoms and our way life.
The terrorist laws have also been the subject of criticism in many places and I will not repeat all these criticisms here. What Lord Hoffmann said was this:
“The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve”. See A v. Secretary of State for the Home Department  2 AC 68.
In the case of A, the House of Lords rejected the notion of detention of alien terrorists without trial and underlined the value of liberty. Lady Mary Arden has said that this case is:
“a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject to the rule of law. Even the government, and even in times where there is a threat to national security, must act strictly in accordance with the law” See LQR 604
Lord Steyn in A made this fundamental point. If the mindset in troubled times is “that we are all on the same side as the government” then that is a slippery slope which tends to sap the will of the judiciary to stand up to a government guilty of abuse of power. As Lady Arden has pointed out, “the principles which the courts develop in times of emergency will probably outlast the emergency and have to be applied in normal times as well”.
The English courts have been more vigilant than the Australian courts
I have referred to these English authorities because I think it may be seen that we now have a very considerable divergence in attitude between English courts and the Australian courts on these issues. The English courts in recent years have become extremely robust in terms of protecting civil liberties. They have also been robustly independent in the face of pressure from government advocates and advocates representing the security services in asserting fundamental rights and in not showing deference to government or notions of national security, in a manner that erodes human rights or the rule of law.
In my view this is in marked contrast to the approach of most Australian judges. The attitude of the House of Lords and the High Court on control orders made under the terrorism legislation is an example, as is the continued assertion of the rule of law by the English courts in abuse of process cases.
There is an interesting analysis of judicial activism in the House of Lords in an article by Margit Cohn, entitled a “Judicial Activism in the House of Lords – a composite constitutionalist approach”  Public Law. The author pointed out that in A, the House of Lords did not show the judicial traditional deference in matters of national security and foreign affairs, but rather adopted the approach of looking at the role of the courts in ensuring that the essential values, in this case the essential value of liberty, were not in danger. That is to say that the House of Lords has embraced the role of the judiciary as a protector of these core values.
For a clear example of the robust, rights conscious attitude of the English courts in relation to the terrorism laws, it is instructive to read the recent case of Binyan Mohamed v. Secretary of State for Foreign and Commonwealth Affairs, a decision of the Queens Bench Division, delivered on 18th August 2008.
In that the case the applicant was a Guantanamo detainee who was facing a Military Commission hearing. He sought access to information held by the British secret service about his circumstances of detention and rendition in Pakistan, Afghanistan and Morocco, by the United States. The court granted him access to the material sought. In its judgment the Court referred to what Lord Hoffman had said in A that “the use of torture by a State is dishonourable, corrupting and degrading of the State which uses it and the legal system that accepts it.”
Mention should also be made of the House of Lords decision in Davis, delivered in June 2008. In that case the House of Lords ruled that the Crown cannot rely on evidence from witnesses whose identities were kept secret. The Court said that the common law was that an accused must be able to confront his accusers.
In Australia we have seen the excesses of the use of state authority utilizing terrorism laws in the case of Haneef and Ul Haque. In the latter case, a judge of the New South Wales Supreme Court made scathing findings about the conduct of ASIO and the Federal police but, as in Haneef, no one has been made accountable.
As I am involved in current terrorism litigation I do not want to go into further details about the Australian laws except to say that the widespread criticisms made of them in Australia and elsewhere is undoubtedly correct.
The existing criminal laws should have been used, not special laws
The distinguished American writer Chalmers Johnson (who, in his book, “Blowback”, published before 9/11, predicted dire consequences for the United States as a result of its intervention in the affairs of so many other countries over so many decades), has argued in his later book “Nemesis” that there was no need for special terrorist laws to address the perceived terrorist threat. Rather, acts of terrorism or threatened terrorism should be responded to in the same way that organised crime is dealt with. The ordinary laws can and should apply.
Similarly in a recent article in “Foreign Affairs” May/June 2008, Kenneth Roth – a former federal prosecutor, and now the executive director of Human Rights Watch – has said that existing criminal laws, including the crime of conspiracy, are sufficient to address the terrorist threat.
In Australia the terrorist laws were introduced with bipartisan political support and they remain in force. The breaches of human rights, which have occurred at Abu Ghraib and Guantanamo, were not really the subject of any sustained attack by a major Australian political party. I may be wrong, but I cannot recollect a major Australian political party calling for the closure of Guantanamo Bay even when an Australian citizen was detained there. It is ironic that the two presidential candidates in the United States have each committed to the closure of Guantanamo Bay and each committed to a policy against the torture of prisoners. In this context the Australian political dialogue has been fainthearted.
Part of the decline of the West?
The extent to which there has been a perceived erosion of the commitment by Western countries to the rule of law may be shown by the contents of a notable article, “The case against the West” by the distinguished Singaporean diplomat and academic Kishore Mahbubani in Foreign Affairs, May/June 2008.
He argues in the article that the West sees itself as the source of the solutions to the world’s key problems, when in fact it is also a major source of the problems. He points out that the notion of democracy is based on the premise that each human being in a society is an equal stakeholder in the domestic order. He criticizes the reluctance of many Western countries to work through the United Nations’ agencies. He argues that a fundamental principle, which should underpin the global order, is the rule of law. He goes on to say:
“This hallowed Western principle insists that no person, regardless of his or her status, is above the law. Ironically, while being exemplary in implementing the rule of law at home, the United States is a leading international outlaw in its refusal to recognize the constraints of international law.”
He goes on to refer to the decision of the Bush administration to exempt the United States from the provisions of international law on human rights.
Asylum seekers – a stain for a generation
It is not just in the field of international law, and in the terrorism legislation, that the incursion on civil liberties has taken place in Australia. At the same time that this was happening, we had the disgraceful performance of the Australian government in relation to asylum seekers and refugees. Similarly the Australian court system was found wanting in its responsibility to uphold fundamental notions of liberty and fairness in the face of the repressive actions of the government and the executive in this regard.
This issue has been well ventilated by many people, especially by Julian Burnside QC, and I won’t go into detail about it here except to say that it will be seen for a generation or more as a very dark episode in the Australian national culture.
The abolition of the rights of the injured
At the same time that we were engaged in a repression of human rights against an international backdrop, governments around Australia at the behest of the insurance industry implemented laws to wind back the rights of persons who were injured by the fault of others, including in medical negligence cases.
Personally I have no starry eyed admiration for the common law system as a means of addressing the needs of injured persons. I think there is a lot to be said for a properly funded, no-fault scheme or a scheme that combines elements of common law and no fault, such as the Victorian transport accidents scheme. However there can be no justification in terms of fairness or balance to simply wind back the rights of injured people without any counter-balancing no fault system. Again this is an area where the injustices brought on by the harshness of this legislation have been spelt out in much detail by lawyers and I will not repeat them here.
The growing prison population – a new gulag?
The final area that I would mention in terms of the cold winds blowing in the direction of human rights is in relation to Australia’s burgeoning prison population.
In this regard Victoria has always tended to have, at least in the last generation, a prison population lower than the other states, but in the last 10 or 15 years the prison population has been expanding very rapidly. It is interesting to note, in the Victorian context, that between 1971 and 1981 the number of people in prison in Victoria fell from 2500 to 1500. This coincided with a liberal (small “L”) Victorian government and a judiciary which was skeptical about the value of imprisonment or at least well aware of the horrors of imprisonment and the fact that a person subject to imprisonment was more likely to come out worse than then they went in.
At the turn of the century, in 1900, Victoria had an imprisonment rate of about 100 per 100,000 – having fallen from a rate of about 200 in 1870. By 1920 the rate was around 50 per 100,000 and it fluctuated until the late 1970s when it fell under 50 and remained around 50 until 1990. It has been climbing since 1993 and has now reached a rate of approximately 106. In other words, we now have a higher imprisonment rate than we did 100 years ago, and the imprisonment rate is almost double what we had 20 years ago.
I do not believe for a minute that we are a safer society than we were 20 years ago. The prison building industry goes on at some speed. In 2007 Professor Paul Mullen, the Clinical Director at Forensicare, observed that the prison populations are climbing, not just in Australia, but throughout many Western countries. He said that this had nothing to do with rising crime rates and everything to do with a political agenda. He said this:
“Governments increasingly regard their citizens as divided between the vast majority who are potential victims, and a small minority who are at risk of becoming perpetrators. Creating a fear of crime in the majority, and feeding those anxieties on a diet of “hard on criminals” is a virtual guarantee of political success”.
He went on to say that the price of escalating prison numbers was that those at the margins of society, including the seriously mentally ill, were imprisoned without adequate resources to treat them. He argues that this has led to ignoring prevention in terms of directing funding towards the groups who need support and treatment before they enter the prison system.
The cause of the rise in the imprisonment rate is the product of both legislative change with tougher penalties and a tougher attitude by the judiciary. The judiciary feel under pressure from what they perceive is the public appetite for tougher sentences. However this perception tends to be based on perceptions generated by the media, which is a dangerous basis on which to deprive someone of their liberty.
In this context is important to note that a study done at Melbourne University a year or so ago, showed that community representatives who were briefed on the full facts of a particular case, both in terms of the nature of the offence and the circumstances of the offender, tended to give significantly lower sentences than the sentences handed down by judges.
This is a strong indication that the judges are astray when they seek to interpret community opinion. This is because there is a vast difference between the so-called community reaction of those who react to snippets of headline information about a particular crime, and the reaction of the same people if they are given the full facts and required to properly deliberate on it.
We see this with juries in criminal trials who, by and large, get issues of guilt or innocence correct. This is acknowledged by defence lawyers. The reason is that ordinary people, when they are given all the facts of the case, reach reasonable conclusions in the great majority of cases. So it is, in my view, with sentencing.
The role of the courts
The role of the courts is to exercise independent judgment. That is why judges, by community standards, are given generous tenure, and permanent tenure to the age of 70. This is so they can resist day-to-day media or political pressure and stand back and give cool and calibrated decisions. It is not the role of judges to react to the political flavour of the moment. As Lord Steyn said, once judges feel co-opted by a political trend, then that is the start of a slippery slope towards a loss of independence and a loss of the true role of the judiciary.
In the law and order debate it is very important to remember that the majority of deaths and injuries in our community, occur as the result of illegal driving, that is motorcar accidents caused by a breach of the road rules, whether it be excessive drinking, excessive speed, or inattention.
It has been demonstrated in the last 15 years in Australia that this form of death and injury caused by illegal behaviour can be dramatically reduced not by imprisoning people, but by programs targeted towards prevention in the form of booze buses, speed cameras and media advertising. In Victoria for instance we are killing some 400 people fewer per year now than we were in the late 1980s and even fewer than we were in the 1970s.
Those groups in the community who are dedicated to reducing death and injury as a result of illegal behaviour, but do so in the form of calling for longer and longer prison sentences, would be well advised to direct some of their energies to urging governments to step up and further their campaigns on the road toll. This can be done by the use of more speed cameras, more booze buses and a greater police presence on the roads. It is undeniable that there is a direct link between this sort of activity and prevention. Resources spent in this way have a direct and measureable result.
The link between a higher imprisonment rate and lower crime is not demonstrated
However the link between higher imprisonment rates and a reduction in crime is not demonstrated, just as it is not demonstrated that there is a link between the death penalty and a reduction in the homicide rate.
The treatment of crime is a measure of a civilisation
I have mentioned at some length here the question of imprisonment, because the loss of liberty in the form of sending someone to prison where they are subject to not simply deprivation of liberty, but the brutalisation on a daily basis and in a small minority of cases death in the form of homicide, neglect or suicide, is an indication or a measure of a community’s attitude to civil liberties.
Winston Churchill, in the Liberal phase of his career as a young Home Secretary in 1910, adopted penal policies based on his skepticism about the value of prison either as a deterrent to crime or as a reforming influence on prisoners. As Roy Jenkins points out in his wonderful biography of Churchill, the main thrust of Churchill’s penal policy was directed to keeping people out of jail. In 1910, Churchill told the House of Commons that:
“the mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilisation of the country”.
The rule of law – what does it mean?
This brings me to the importance of rights and the rule of law. One may ask why it matters that rights have been diminished. Most of us go about our business without being personally affected by the diminution of rights, we are not charged with terrorism offences, we’re not asylum seekers, we do not commit criminal offences, and we remain largely free from being injured through the fault of others.
My response to this is that we do not live as separate silos or islands in a community. The loss of anyone’s rights in a community diminishes us all. As John Donne said “No man is an island”.
To paraphrase Churchill, our form of civilisation is diminished by the loss of civil liberties. In addition the losses that we have seen, in my view, are part of the start of a slippery slope. Once the rule of law is eroded in one area it may easily be eroded in another area. Once the proper role of the judiciary is devalued in one jurisdiction, it may be devalued in other jurisdictions.
Much of this discussion comes down to the importance of the rule of law itself. Some commentators have described the rule of law as a shorthand version of the positive aspects of any given political system. Indeed the former United States Attorney General Ramsey Clark has described the rule of law as not just a lawyer’s phrase but a way of life.
The rule of law must protect fundamental rights
In its narrowest sense the rule of law is that all persons in authority, within the state, should be bound by the law transparently administered by courts on an impartial and fearless basis.
But I think also, as others have argued, that the rule of law implies equality of treatment, non-discrimination between people and, above all, adequate protection of fundamental human rights.
This is so because a non-democratic legal system is based on the denial of human rights and on discrimination.
What distinguishes our system, in a democracy, is a legal system which will recognize rights. Indeed the preamble to the Universal Declaration of Human Rights 1948 recites:
“It is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
The European Commission has also treated the rule of law as involving respect for human rights and good governance, and treated these three pillars as being inextricably linked.
I therefore regard the erosion of human rights that occurred in Australia in the early part of the 21st century as a devaluing of the democracy in which we live. Our society is poorer for it.
Some hopeful signs?
There have been, it should be said, some hopeful signs. In the Ul Haque decision in New South Wales, and in the ruling of Justice Bongiorno in relation to the conditions of detention in a major terrorist trial in Melbourne in 2008, the courts showed a refreshing assertion of the rights of the individual, and the latter case provided a positive development in the common law in this regard.
In addition the adoption of a charter of rights in the ACT and in Victoria have been important steps forward. These charters do nothing to unwind the incursions that have previously occurred, nor do they help themselves do anything to protect against specific legislation that may be implemented in the future to wind back rights. But they do, at least, introduce the topic of rights into our community discourse and open up the way for lawyers and courts to reference the European jurisprudence which is so much more advanced in these areas than the Australian common law.
There is little prospect of an Australian Human Rights Act, although it is needed. The common law has not served the community at all well in the protection of fundamental human rights.
Although the High Court has at various times over the last 30 years referred to the fact that the courts may have regard to the international treaties to which Australia is a signatory, such as the International Covenant on Civil and Political Rights as an expression of community values, the Australian courts have not expressed the same vigorous assertion of human rights that has characterized the judgment of the English and European courts in recent years.
In A  2 A.C.221, Lord Bingham said that where the development of the common law is called for, such development should be in harmony with the United Kingdom’s international obligations. The judgments of the House of Lords show a keen grasp of the force of international law, in terms of both treaties and customary international law.
Lord Bingham in A , noted that international legal norms, by force of the Vienna Convention on the Law of Treaties, for instance in relation to the prohibition of torture, are norms from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.
The Australian common law, would benefit by a development by the courts of the common law with greater reference to human rights, international treaties, customary international law, and the decisions on these issues made in the United Kingdom and Europe. The Australian courts should no longer be an island in the sea of international human rights law.
What can individual lawyers do?
What can individuals do about this? I think the answer is twofold.
Firstly when you get the opportunity to speak to an audience or publicly about rights you should emphasize the importance of the rule of law in the way in which I have described it.
Secondly I think it is the duty of us as lawyers practising in the courts to be fearless in asserting rights and working to draw the attention of courts to developments, especially in Europe, in human rights jurisprudence and to persist with those arguments even in the face of rejection from time to time. It may be said the judges are to a large extent only as good as the arguments put to them.
ENDS ENDS ENDS
Jim Kennan SC is a barrister who holds an LLB (Hons) and a Master of Laws (by major thesis) from Melbourne University. He has published articles in the Australian Law Journal on constitutional law and the law and science. He was appointed a Queens Counsel in 1987, is an Adjunct Professor of Law at Deakin University, and has been the Chair of the Victorian Institute of Forensic Mental Health (Forensicare) since 2002.
Parliamentary career and other interests: He first practised at the Victorian Bar between 1971 and 1982, before entering the Victorian Parliament in 1982. He was a Minister in the Victorian Government between 1983 and 1992, and held a number of portfolios including Attorney General, Minister of Corrections, Planning and Environment, Aboriginal Affairs, Transport, Major Projects and the Arts. He was Deputy Premier between 1990 and 1992, and was Leader of the Opposition at the time of his retirement from Parliament in 1993. He is a regular presenter at continuing legal education programs on a topics including tort law, VCAT, appellate law, confiscation legislation, DNA and the coronial jurisdiction.
This address, The Winter of Civil Liberties : The Erosion of Civil Liberties in the 21st Century, was delivered on 11 September 2008 at TressCox Lawyers, 469 La Trobe Street
Melbourne VIC 3000 with proceeds raising funds for 3CR community radio 855am.