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Court in the Act
24 July, 2008  
Reflections on rights protections - a tale of three cases

What are the Charter of Rights naysayers on about? Existing legislative and entrenched rights haven’t managed to derail society. Yet these protections have proved more miss than hit. Stephen Keim surveys three recent decisions from the full Federal Court

Discussions about a Charter of Rights used to involve the suggestion that the common law provided all the protection that was needed from the depredations of government.

imageThe last two decades of experience, and specially the actions of governments in the fake war on terror, have convinced even great common lawyers (e.g. Sir Gerard Brennan, pic) that a Human Rights Act of some kind is now needed in Australia.

Those who fear a Charter of Rights should remember that we already benefit from a number of mini Bills of Rights, both entrenched and legislative, in our existing legal system.

The Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 all apply to governments as well as members of the community and operate as much appreciated mini-rights protectors.

Entrenched mini Bills of Rights are found in the Commonwealth Constitution.

Freedom to discuss matters relating to government and politics has been held to arise from a number of provisions of the Constitution. The cases are discussed in APLA Ltd v Legal Services Commissioner of NSW.

Chapter III of the Constitution has ensured that government decision making, even in the politicians’ vexed area of immigration, is subject to a minimum of judicial scrutiny in that the grant of constitutional writs for jurisdictional error cannot be legislated out of existence. See Bodruddaza v Minister for Immigration and Multicultural Affairs.

Chapter III also operates to prevent courts that exercise the judicial power of the Commonwealth (which includes most State courts as well as Commonwealth courts) from engaging in activities which may cause them to lose the independence on which the rule of law depends. See Wilson v Minister for Aboriginal and Torres Straight Islander Affairs.

Notwithstanding the crucial part that these provisions have played over the last 11 decades, the protections found in the Constitution sometimes appear accidental and their effectiveness has a hit or miss quality.

While issues concerning protection of our rights may be debated from first principles, descent into empiricism is sometimes helpful.

In the week ending last Friday (July 18), three important decisions were handed down by the Full Court of the Federal Court of Australia.

The decisions emphasised the love that governments have for removing rights arbitrarily and under a veil of secrecy.

imageAlthough it has been a good week for the common law, its ability to protect basic human rights ran out of steam on one occasion and the protections provided by Chapter III of the Constitution were more miss than hit.

In Evans v New South Wales, a full bench of the Federal Court consisting of Justices French (pic), Branson and Stone ruled that clause 7 of the World Youth Day Regulations 2008, so far as they empowered police and SES officers to direct persons to stop being annoying, were invalid as not being supported by a proper reading of the legislation under which they were made.

They also read the regulations down so that restrictions on the sale of various specified objects, including religious items and giftware, did not apply to the pamphlets and condoms that protesters were hoping to shower upon the devout young visitors.

How did the court manage to do this?

It did not rely on the implied right to freedom of expression in the Constitution. It didn’t need to.

The judges said:

“There is little scope, even in contemporary society for disputing that … freedom of speech is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society.”

The common law said, according to the court, that in authorising the executive to make regulations to achieve the purposes of the World Youth Day Act 2006, the parliament could not have intended that people would be prevented from exercising their rights of free speech just because other people might find it annoying.

Well done, common law.

imageIn O’Sullivan v Parkin a Full Federal Court consisting of Justices Ryan, North (pic) and Jessup gave victory to United States rights activist, Scott Parkin and two asylum seekers, Mohammed Yussef Sagar and Muhammed Faisal, who has been stranded on Nauru for a very long time.

This was the latest round in their respective battles to overturn the Catch 22 adverse security assessments imposed by ASIO.

Each of the applicants alleged that the security assessments must involve jurisdictional error because no facts exist to justify an adverse security assessment.

In order to advance their case, they want ASIO to tell them what documents exist relevant to the proceedings.

ASIO has a great argument against this. You don’t know why you are a security risk because we will not tell you, so your whole case must be speculative. Therefore, you should not get a list of our documents.

They also argued that the purpose of the Australian Security Organisation Act 1979 is such that ASIO never has to tell anybody anything if it doesn’t want to.

By a careful analysis of the rules, which relate to discovery and the case law relating to public interest immunity, the full court said that the judge at first instance (Justice Sundberg) had got it right and ASIO should produce a list of relevant documents as they were ordered to do.

imageThe common law coped again although this is just one more step in the battle for openness and justice by these three plaintiffs.

In the third case, Hussain v Minister for Foreign Affairs, a young Australian citizen, Syed Mustapha Hussain, won a scholarship to study in Medina in Saudi Arabia, but on a holiday back to Australia he had his Australian passport cancelled and was unable to return overseas.

The cancellation was on the basis of, you guessed it, an adverse security assessment by ASIO.

Mr. Hussain sought to review the cancellation in the Administrative Appeals Tribunal.

The former attorney general Philip Ruddock issued certificates that prevented Hussain or his lawyers having access to the material on which the adverse security assessment was made.

Not knowing the case against him, for reasons he is still unaware of, it is hardly surprising that he lost his case in the AAT.

The issue in the Federal Court concerned the fact that the President of the Administrative Appeals Tribunal (who sat on the case) is a Federal Court judge, one who exercises the judicial power of the Commonwealth.

imageThe full court, Justices Weinberg (pic), Bennett and Edmonds asked themselves these questions:

  • Whether it was incompatible for a judicial officer to sit in a tribunal where one side did not get to see the other side’s evidence;
  • Whether such a process involved acting on the “advice, wish or instruction” of the executive; and
  • Whether the task in the tribunal really involved independence from the executive.

    Perhaps surprisingly, they said: “No problem: we do this sort of thing every day.”

    Neither the common law nor Chapter III of the Constitution was able to ensure a right to a fair go in this case.

    In an era when the Munich Beer Festival is constitutionally unable to start without a generous sprinkling of Australian yobbos in attendance, one might think that the right to know why one has lost the right to travel overseas (and contest that reason) is pretty fundamental.

    A Charter of Rights may not stop, in every case, the latest version of Philip Ruddock taking away a few more fundamental rights, specially, those of powerless minority groups or demonstrators like Scott Parkin.

    It will ensure, however, that we have a decent debate about such proposals.

    (See Sir Gerard Brennan’s paper, The Constitution, Good Government and Human Rights.)

    It will also ensure that parliament, if it really wants the executive to take such steps, thinks long and hard before authorising the government of the day to confiscate more rights.

    Stephen Keim SC