Insidiously, fundamental justice cornerstones of our society are being eaten away as government Acts and actions diminish respect for, and operation of, the Rule of Law, Lou Coutts says.
Politics is eating away at Rule of Law
By Louis A. Coutts*
I believe that there is an insidious process under way in our community that either intentionally or stealthily is eroding fundamental jurisprudential assumptions that have formed the basis of our society.
The concept of the Rule of Law as traditionally conceived by A.V. Dicey related to the doctrine of separation of powers although he does discuss the operation of assumptions that attract unviability. However, I believe that our understanding of the concept has developed beyond this limited application to a wider concept of the protection of individual freedoms and rights particularly in the area of procedure. Abrogating the right to a fair trial such as permitting the exclusion of a defendant from hearing evidence in an anti-terrorist trial or indefinite detention such as our government condoned in Guantanamo Bay and still does in places such as Nauru, Cambodia and Papua New Guinea are examples of the suspension of these freedoms.
However, they are the tip of an iceberg. There are many examples. International Treaty insists that people incarcerated after having been charged with a crime but not convicted are entitled to less severe imprisonment conditions than people who have been convicted.
However, the practice in relation to some people such as those charged with terrorist offences or in the case of Queensland, bikies, is to impose oppressive conditions including solitary confinement.
Because of the fact that the High Court refuses to give weight to international treaty unless specifically incorporated in legislation or in cases of ambiguity, prisoners subjected to oppressive imprisonment awaiting trial cannot avail themselves of the protection extended by international treaty.
A provision of the Federal anti-terrorist legislation (fortunately avoided to date) which provides that an accused can only be represented by a lawyer licensed to do so by the government is an affront to a society that claims to be a Rule of Law society. People would be horrified to know that such legislation is on our statute books. Similarly, close and solitary confinement without charge (Dr Haniff) is an option open to our federal police as is the right of fisheries inspectors to detain people and incarcerate them without charge.
Little if any attention has been given to some of the central provisions of the anti-terrorist legislation which identifies a terrorist crime as one committed for religious, political or ideological motives. This confers on the federal police the opportunity to target members of political parties who “commit” crimes.
The refusal to process asylum seekers resulting in indefinite detention is a process that escapes legal redress.
The ability of the executive branch of government to continue the incarceration of serious sex offenders who have completed their term of imprisonment imposed by a properly constituted court is excused as being politically popular but offers no legal redress to the prisoner and challenges the fundamental jurisprudential concept that imprisonment is the prerogative of the judiciary.
The interference with the judiciary, which is now rife, by the legislature in determining penalties and thereby eroding the independence of the judiciary is now commonplace.
The ever-increasing intensification of prosecuting people in relation to drug offences, and overcrowding our prison system with addicts, challenges our concept of a fair and free society.
The abrogation of the rights of an individual to claim damages for negligence is an appalling development in a rich society such as ours and one wonders as to the ability of powerful forces such as the insurance industry to influence governments to adopt policies that disadvantage ordinary individuals.
Even the owner onus laws that enable governments to collect huge amounts of money in fines have now become revenue ordinances rather than traffic management.
The imposition on judges to determine criteria for control orders, despite a flawed decision of the High Court (albeit it with one dissention) is another example of the erosion of the doctrine of the separation of powers.
The acceptance of the role of the Commissioner of Taxation to issue interpretations of the tax code which is his legal obligation to administer has become accepted despite the conflict of interest.
This is not to mention the widespread practice of the legislature to ignore our obligations under international law with the approval of the High Court.
These are but a few examples of the sad direction of our jurisprudence.
If this is not enough to trouble those about where our political system is taking us, we are now seeing the emergence of giant corporations exerting their influence on government policy. The recent issue of whether the price of iron ore is being malevolently driven down to ruin competitors is a troubling example of the power of the giants against the public interest. When a public inquiry was first mooted by the government, there was some encouraging support but after the government had “consulted” with the industry, viz. BHP and RIO, it emerged that there was no need for such an inquiry. This is despite the inquiry into the tax exempt status of certain green organizations because they express political views. The inquiry does not extend to the Minerals Council of Australia.
Many of the intrusions into the operation of the Rule of Law are politically popular without people understanding the seriousness of what we are doing and where this process will end. Other measures are unknown to the public and escape under the radar. We know the end result of nations that continually erode the Rule of Law in that they become one party states. We assume that such a catastrophe could not happen here but to a certain extent it already has. By responding and encouraging popular dissatisfaction, we have been able to breach every canon of international and humanitarian law by “stopping the boats”. This is a policy approved by both major political parties.
The commitment of our country to war risking the lives of Australian soldiers without due process and serious debate but on the basis of creating fear of “terrorists” is an unbelievably cynical exercise of power.
- Lou Coutts is an honorary life member of the International Commission of Jurists (Victorian chapter) and is also a member of Civil Liberties Australia.