The message from the High Court in the K Generation case was that it is perfectly acceptable for a government to bring secret documents to court, have the judge look at them, bar the affected party from seeing them and then rely on the judge’s sense of fair play to ensure a fair trial.
Since the High Court spoke in early February, courts elsewhere have added their sixpenn’th worth.
The European Court of Human Rights on February 19, 2009 brought down its decision in A and Others v The United Kingdom, which had a sniff at the problem of infringing the European Convention’s requirements for a fair hearing.
A glance was taken at the then latest English decision, that of the Court of Appeal in Secretary of State for the Home Department v AF in 2008, but a nine member bench of the House of Lords has now unanimously overturned the acceptance by the Court of Appeal of unfairness in anti-terrorism “control order” cases: see Secretary of State for the Home Department v AF, decided on June 10.
This latest effort from their Lordships has convinced Procrustes of the error of his ways, and at my age, not too many errors are admitted.
This effort from their Lordships is a last ditch affair.
Later this year the whole Ruritanian circus is to be wound up, the Judicial Committee of the House of Lords to be declared dead and a new Supreme Court set up, away from the pernicious influence of the moat-enhancing Commons at the Palace of Westminster.
But what a finale. Lord Sheep of Badgerworry Magna, Lord Tadger of Much-Binding-in-the-Marsh and the whole crew, bleating about a restriction in the mobility available to some wretched Islamist, intent, no doubt, on wreaking death and destruction.
Here’s Lord Phillips of Worth Matravers (wherever that is):
“The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents… In some circumstances, however, [civil and criminal processes] run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for parliament and for government, subject to the law laid down by parliament. That law now includes the [European] Convention [on Human Rights], as applied by the Human Rights Act. That Act requires the courts to act compatibly with Convention rights, in so far as parliament permits, and to take into account the Strasbourg jurisprudence.”
It’s striking how complete is the overthrow of British sovereignty in matters of the most intense public interest involving national security.
Take Lord Hope of Craighead (snap):
“The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”
There it is, naked and unadorned. Better a massacre here or there than a deflection from some vast and unwieldy scheme, designed by bureaucrats in well secured offices in Brussels to provide an illusion of fairness.
Our High Court took a much sterner view of realities as it avoided a charge of creeping complacently and surged in rather more Gadarene fashion for a recognition that judges were all top chaps and could be relied on to see to the general fairness of trials, even where the affected party had no idea of the case against him.
The ready acceptance of police and similar evidence might seem brave when measured against Justice J.R.T. Wood’s public apology at the end of his marathon investigation of the NSW Police in 1995.
Wood (pic) said that he had always believed police evidence in court over the defendant’s, but now felt such an assumption to be wrong.
However, the High Court in K Generation leaves us free to mould our trial procedure as legislatures see fit. If some fringe dwellers receive less than a three course dinner of procedural fairness, so be it.
Warming to this theme, while adjusting a gouty foot, Procrustes has come to the view that attempts to impose a one-size-fits-all sense of fairness, most pressingly at present in the Bill of Rights debate, is utterly unsuitable for the Australian character.
Bills of Rights exist to provide a brake on the excessive use of government power, particularly where it is sooled on by a frothing populace.
The sort of people who are adversely affected are outsiders, those on the margins.
Yet, we have always understood in this country that Blacks, Green activists, towel-heads, serious crims and other riff-raff have no real place.
If the going gets tough, then they’d better get going. They simply do not fit into our society, which has evolved over two centuries.
I hear a charge of xenophobia, and with his Greek ancestry, Procrustes is your man.
It’s not about Australians being mean spirited or selfish, it’s about recognising the impact of geography.
This is not the lush green paradise of the Brits, the North Americans or even the Sheepshaggers across the Ditch.
This is a hard country, and it has strong bonds of collective support for community, but it is inevitably very picky about who constitutes the “us” of community.
The beauty of this country is that status is not what matters, it’s belonging.
Dr Mohamed Haneef (pic) could be all the doctor he liked, but that wouldn’t prevent him getting a flogging from the forces of the federal government.
Australian “belongers” can take their chances with government, but outsiders should expect no quarter, and the problem with a Bill of Rights is that it will slow the savage but necessary hand of government.
The first major use of a Bill would be for some awful Middle Eastern criminal. You can see the headlines: “Public flaying halted by lawyers: Bill of Rights Scum” etc. and then the op-ed commentary on the Rapists’ Charter … natter … natter.
Janet Albrechtsen, James Allan and Bob Carr (seen here) would have a collective conniption as their prediction of a judge enforcing “rights”, which, curiously, is what judges have been doing for the last 800 years, was borne out.
Procrustes hastens to add that he has nothing against people of Middle Eastern origin. Many of his best friends … etc. etc. – but they haven’t yet earned their stripes.
In due course they will (as the first wave of Lebanese in the late nineteenth century did) and then they can engage in door slamming as performed by every migrant group before them e.g. Greeks and Italians not wanting Vietnamese in here.
Until then, they’re outsiders.
Never mind the use of secret documents and our necessary acceptance of judicial pantomime fairness, what really attracts Procrustes’ eye is the use in both the UK and Australia of status determinations to get outsiders corralled where they belong – outside.
That was what was going on in K Generation (no liquor licence for the Chinese-Russian Genergi Krasnov) and in AF in Britain it was a “control order” under which the controlee could step out for only six hours a day under supervision.
This really is the way to a technocratically managed future. No more messy criminal trials with proof beyond reasonable doubt. Just a civil standard proceeding with secret police documents about god knows what.
The news out of Adelaide is that the secret evidence about Krasnov was that he was related by marriage to a leading bikie and, hey presto, he’s an outcast.
No livelihood, no reputation, no nothing.
In his dotage, Procrustes rather likes this well manicured approach to society, which will ensure an unruffled supply of good vintage port and the peace and quiet to enjoy it.
He suffered only a momentary pause over the Croft 49 at the thought of what his police file would look like on the basis of some of his sister’s misalliances disguised as marriages.
But that’s the beauty of it.
Procrustes is on the inside, undisturbed by the necessary snuffling of the police gathering evidence on Krasnov and those like him, who are on the outside.