DATE DOWNLOADED: Tue Apr 30 09:18:03 2024

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Gillian Triggs, Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers, 16 MACQUARIE L.J. 3 (2016).

ALWD 7th ed.

Gillian Triggs, Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers, 16 Macquarie L.J. 3 (2016).

APA 7th ed.

Triggs, Gillian. (2016). Human Rights and the Overreach of Executive Discretion:
Citizenship, Asylum Seekers and Whistleblowers. Macquarie Law Journal, 16, 3-16.

Chicago 17th ed.

Gillian Triggs, "Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers," Macquarie Law Journal 16 (2016): 3-16

McGill Guide 9th ed.

Gillian Triggs, "Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers" (2016) 16 Macquarie LJ 3.

AGLC 4th ed.

Gillian Triggs, 'Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers' (2016) 16 Macquarie Law Journal 3

MLA 9th ed.

Triggs, Gillian. "Human Rights and the Overreach of Executive Discretion:
Citizenship, Asylum Seekers and Whistleblowers." Macquarie Law Journal, 16, 2016, pp.
3-16. HeinOnline.

OSCOLA 4th ed.

Gillian Triggs, 'Human Rights and the Overreach of Executive Discretion: Citizenship,
Asylum Seekers and Whistleblowers' (2016) 16 Macquarie LJ 3 Please
note: citations are provided as a general guideline. Users should consult their
preferred citation format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 HUMAN RIGHTS AND THE OVERREACH OF
EXECUTIVE DISCRETION: CITIZENSHIP,
ASYLUM SEEKERS AND WHISTLEBLOWERS

GILLIAN TRIGGS*

Annual Tony Blackshield Lecture delivered at Macquarie Law School,

Macquarie University, 5 November 2015.

It is a special pleasure for me to speak in honour of Professor Blackshield, who is a long

time colleague of mine in the law. He is a constitutional law scholar of the highest order
and one of the most influential figures in Australian legal education over the last 50
years.

I have two memories of Professor Blackshield that stand out. One is of Professor
Blackshield striding up and down the lecture theatre, being both entertaining and
provocative for the benefit of his students, displaying his superb knowledge of
constitutional law and the common law. He is a lecturer without peer in his ability to
engage and challenge students. Another is from when I was Dean of the Sydney
University law school, proudly showing off Sydney's new law school building to a visitor.
I found Professor Blackshield buried in books in the library, on a general desk with all
the students. He is a modest man who would not have dreamt of asking for his own
office or for any special privileges.

It was typical of Professor Blackshield that when discussing the topic for tonight's lecture
with him, he observed that this 5 November is the 4 1 0 th anniversary of the Gunpowder
Plot in London of 1605. The Gunpowder Plot is so called because of the attempt by the
catholic Guy Fawkes (and others) to blow up the houses of Parliament and kill the
protestant King James I.

While such violent intentions can hardly be condoned, my theme tonight also challenges
Australia's Parliaments by observing that they have, over the last few years, passed laws
that explicitly, or in their effect, breach fundamental human rights. Not only have our
Parliaments failed to exercise their traditional restraint to protect our common law
freedoms and liberties, they also have allowed the executive government to expand its
discretionary powers and, increasingly, to limit the courts' exercise of judicial scrutiny.
The doctrine of the separation of powers is too often ignored by Parliament, and the rule
of law, international law and Australia's obligations under human rights treaties are
often trumped by the government's uncontested assessment of national interest and
security.

* Emeritus Professor of Law and President, Australian Human Rights Commission.

2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

II

For the Australian Human Rights Commission ('the Commission'), this has been a 'year
of living dangerously', as we have drawn attention to the erosion of our human rights
and to the diminution of the checks and balances that preserve our democracy; all in the
th
year in which we also celebrate the 80 0 th anniversary of the Magna Carta and the 7o
anniversaries of both the Charterof the United Nations and creation of the Nuremberg
tribunals. The Magna Carta was, at its heart, an attempt by the feudal barons to
constrain the power of 'bad King John', and to ensure that the sovereign is always
subject to the rule of law, in particular to the common law and to the scrutiny of an
independent judiciary.

Let us fast forward from 1215 to a few weeks ago, when a number of government
agencies planned to implement Operation Fortitude. Operation Fortitude provides a
powerful example of executive overreach in civilian affairs. You will recall that the
recently merged Australian Border Force ('ABF') announced Operation Fortitude under
which a 'coalition of the willing' (including Victoria Police, Yarra Trams, Metro Trains,
the Sherriff's Office, Taxi Services Commission and the ABF) agreed to target crimes
ranging from 'anti-social behaviour' to outstanding warrants of arrest.' The now
notorious media release states that the intention was to position ABF officers, 'at various
locations around the Melbourne CBD speaking with any individual we cross paths with.'2
The focus of this strategy was revealed by the warning that 'if you commit visa fraud, you
should know it's only a matter of time before you are caught.'3

It is true that there are people in the Australian community who do not have a valid visa
or who have overstayed their visa. It is also true that a nation has the sovereign right to
arrest and deport those who are in Australia unlawfully. Indeed, officials require
evidence of lawful status from non-citizens regularly, if quietly under s 188 of the
Migration Act 1958 (Cth) ('Migration Act'), which requires an officer to know or
reasonably suspect that the person is not a citizen. But never before have we had ABF
officers planning to stop people in shopping malls for questioning, apparently at
random. Quite apart from the legal fact that the ABF do not have the power to do so, it is
a reasonable assumption that those chosen for questioning will be those that fit a racial
profile, contrary to the Racial DiscriminationAct 1975 (Cth) ('Racial Discrimination
Act').

Melbournians reacted to the media release by demonstrating on the steps of Flinders

Street Station, blocking traffic. Within hours, Operation Fortitude had been cancelled
and all concerned have since run for cover, blaming low-level officials for making the
statement on the operation.4

Operation Fortitude raises many questions. My question is: how it is that public officials
within the ABF, the Victoria Police and all the other agencies, whether senior or not, did
not ask whether such an operation was consistent with Australian liberties? Are we as a

1Australian Border Force, 'ABF Joining Inter-Agency Outfit to Target Crime in Melbourne CBD'
(Media Release, 28 August 2015).
2 Ibid.
3 Ibid.
4 Australian Border Force, 'Statement by ABF Commissioner Roman Quaedvlieg on the ABF's Role in
Operation Fortitude' (Media Release, 28 August 2015).
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH 5

nation and are our government officials so ill informed about human rights under the
Constitution, the common law and international law that no one thought to question so
obvious a violation of our freedom to walk the streets without fear of being stopped and
questioned by border protection officers?

Operation Fortitude is but one example of the tendency to increase executive power and
to criminalise behaviour that, in the past, might have attracted a civil fine. Australian
governments have introduced, and Parliaments have passed, scores of laws that infringe
our common law freedoms of speech, of association and movement, the right to a fair
trial and the prohibition on arbitrary detention. These new laws undermine a healthy,
robust democracy, especially when they grant discretionary powers to executive
governments in the absence of meaningful judicial scrutiny.

What explains Australia's move to restrictive approaches to our fundamental freedoms

and human rights over the last few years? I suggest that there is a conflation in the public
mind of the events of 2001 - the Tampa Crisis on 26 August, the 'children overboard'
affair on 7 October and a month following Tampa, the 9/11 terrorist attacks on the
United States. Since these events 14 years ago, governments and political leaders have
played on community fears of terrorism and the unauthorised entry of refugees to
concentrate power in the hands of the executive to the detriment of Australian liberty.

III

I would like to discuss the overreach of executive discretion in the dozens of new federal,
state and territory laws introduced by recent governments and passed by compliant and
complicit Parliaments. These laws have the effect of restricting the powers of our
judiciary and threatening the core democratic principles of the separation of powers and
the independence of the courts.

Particularly troubling has been the phenomenon of the major political parties agreeing
with each other to pass laws that threaten fundamental rights and freedoms that we have
inherited from our common law tradition. Indeed, respective governments have been
remarkably successful in persuading Parliaments to pass laws that are contrary, even
explicitly contrary, to common law rights and to the international human rights regime
to which Australia is a party. Compounding the concentration of power in the hands of
the executive is the recent phenomenon of criminalisation of behavior that has not
hitherto been the subject of criminal penalties. Let me give you some examples:

1. Counter-terrorism laws, including laws that mandate the retention of metadata

and access to that data by law enforcement agencies, without a warrant or
independent or judicial authorisation and oversight;5

2. The criminalisation of Australians who enter 'declared areas' in Syria and Iran
through provisions that place the burden of providing a legitimate reason for
presence in those areas on the accused; 6

3. The cancellation of visas and mandatory detention of those who become unlawful
non-citizens by, for example, failing the new character test 7 - a test that depends

5 Telecommunications (InterceptionandAccess) Amendment (DataRetention) Act 2015 (Cth).

6 Counter-TerrorismLegislationAmendment (ForeignFighters)Act 2014 (Cth).
 MACQUARIE LAW JOURNAL [Vol 16

on the Minister's suspicion that even minor criminal offences have occurred - all
this coupled by a power of the Minister to overturn the decisions of the
Administrative Appeals Tribunal; 8

4. Lengthy administrative detention of the mentally ill or unfit to plead without

trial;9

5. Operation Sovereign Borders and secrecy of 'on water activities';

6. Secrecy provisions under the Australian Border Force Act 2015 (Cth) ('Border
Force Act') that allow for the prosecution of immigration workers who disclose
'protected information', an offence that attracts a penalty of two years
imprisonment; 10 and

7. Legislative exclusion from the Administrative Decisions(AdministrativeReview)

Act 1977 (Cth) of decisions made under national security" and migration laws.12

The legislation I have briefly described has been assented to by Parliaments. This is an
obvious but vital point, for it leads us to the question: what are the proper limits on the
power of Parliament? This question remains a live one for contemporary Australian
democracy.

What are the safeguards of democratic liberties if Parliament itself is compliant and
complicit in expanding executive power to the detriment of the judiciary and ultimately
of all Australian citizens? What are the options for democracy when both major parties,
in government and opposition, agree upon laws that explicitly violate fundamental
freedoms under the common law and breach Australia's obligations under international
treaties?

Iv
Over the last 15 years or so, Australia has become increasingly isolationist and
exceptional in its approach to the protection of human rights.

The Constitution protects freedom of religion, the right to compensation for the
acquisition of property, 13 the right to vote, 14 to trial by jury5 and an implied right of
political communication, 16 but very little more. As is well known, unlike every other

7MigrationAmendment (Characterand General Visa Cancellation)Act 2014 (Cth); MigrationAct

1958
8
(Cth) s 501.
MigrationAct 1958 (Cth) ss 133A, 133C, 5o1BA.
9 See Australian Human Rights Commission, Submission No 6 to Senate Community Affairs
References Committee, Inquiry into the Indefinite Detention ofPeople with Cognitive and
PsychiatricImpairmentin Australia, 31 March 2o16.
10 AustralianBorder ForceAct 2015 (Cth) s 42.
11 See Australian Security Intelligence OrganisationAct 1979 (Cth); CriminalCode (Cth) s 104.2, div
5.
12 See, eg, Maritime PowersAct 2013 (Cth) ss 75D, 75F, 75H.
13 Constitution s 51 (xxxi).
14 Ibid s 40.
15 Ibid s 80.
16 Lange v AustralianBroadcastingCorporation(1997) 189 CLR 520, 560.
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

common law country and most civil law countries in the world, Australia has no Charter
or Bill of Rights. This means that we do not have the core benchmarks against which to
measure or challenge laws that breach fundamental freedoms. It is notable, for example,
that the United States Supreme Court can employ the jurisprudence of the 14
Amendment on equality before the law to decide that marriage is available to all people
including those of the same sex.17

Despite what I have said about the lack of domestic Constitutional or legislative
protections for human rights, it remains true that, in the past, Australia has been a good
international citizen, playing an active role in negotiating the human rights treaties that
form the international monitoring regime. However, it is vital for Australians to
understand that these treaties have typically not been introduced into Australian law by
Parliament. The lamentable consequence is that key instruments such as the
International Covenant on Civil and Political Rights ('ICCPR'),18 the International
Covenant on Economic and Social Rights ('ICESCR')19 and the Convention on the Rights
of the Child ('CROC)20 are not directly applicable by our courts. There are three
important exceptions, being the conventions on discrimination on the grounds of race,
sex and disability, where implementing legislation underpins the work of the
Commission.

Not only are core human rights instruments not part of Australian law but also, over
recent months, we have taken a major step backwards in stripping international laws
from our domestic laws. The MaritimePowersAct 2014 (Cth) removed references to the
Convention relating to the Status of Refugees ('Refugee Convention')21from s 36 of the
MigrationAct, which sets out the criteria for grant of a protection visa. 'Refugee' is now
defined in legislation itself, but not by reference to the international agreement. Section
197C of the MigrationAct sets out that Australia's nonrefoulement obligations are now
irrelevant to removal of unlawful non-citizens under s 198 of the Migration Act. It is
especially worrying that the Border Force Act provides that an officer's duty to remove
as soon as reasonably practicable an unlawful non-citizen under s 198 arises irrespective
of whether there has been an assessment, according to law, of Australia's
nonrefoulement obligations in respect of the non-citizen.

It is notable that the Border Force Act slipped through the federal House of
Representatives in March 2015 without a single opposition party member speaking
against it.

Compounding our isolation from international human rights jurisprudence, the Asia
Pacific has no regional human rights treaty and no regional court to develop human
rights law or to build a regional consensus, unlike Europe, North America, Africa, Latin
America and the Arab states.

17Obergefell v Hodges 576 U.S. ___ (2015).

18 InternationalCovenant on Civil and PoliticalRights, opened for signature 19 December 1966, 999
UNTS 171 (entered into force 23 March 1976).
19 InternationalCovenant on Economic and SocialRights, opened for signature 19 December 1966,
999 UNTS 3 (entered into force 3 January 1976).
20 Convention on the Rights of the Child, opened for signature 2o November 1989, 1577 UNTS 3
(entered into force 2 September 199o).
21 Convention Relating to the Status ofRefugees, opened for signature 28 July 1951, 189 UNTS 137
(entered into force 22 April 1954).
 MACQUARIE LAW JOURNAL [Vol 16

It might be thought that we can rely on our courts to protect common law liberties.
Judges have employed the principle of legality to adopt a restrictive interpretation of
legislation to protect common law freedoms. Laws passed by Parliament are not to be
construed as abrogating fundamental common law rights, privileges and immunities in
the absence of clear words or 'unmistakable and unambiguous language.'22 It is also
presumed that Parliament intends to act in conformity with international law and the
treaties to which it is party. 23

In practice, the principle of legality and the presumption of international law consistency
have not provided as effective protection as hoped. There is a palpable reluctance by
courts to refer to an international source of law where the international obligation or
principle has not been implemented into domestic law by Parliament. Moreover, the
principle of legality applies only if there is an ambiguity in the words of the legislation;
the rationale being, of course, that Parliament is the law maker and the task of the courts
is to interpret and to implement such laws.

As Kiefel J said in Plaintiff M7o/2o11 v Minister for Immigration and Citizenship

('MalaysianDeclarationCase'):24

[A] statute is to be interpreted and applied.., so that it is in conformity, and not in

conflict, with established rules of international law... However, if it is not possible
to construe a statute conformably with international law rules, the provisions of
the statute must be enforced even if they amount to a contravention of accepted
principles of international law.

But, as our laws today are drafted with such precision, or are so constantly amended,
ambiguities are increasingly hard for the courts to find.

In the Malaysian DeclarationCase, for example, the High Court found that, under s
98A of the MigrationAct, the Minister could not send asylum seekers to Malaysia as that
nation had not ratified the Refugee Convention and they would be at risk of return to the
country of persecution and discrimination. The government immediately returned to
Parliament to delete the offending clause, leaving open the possibility of further offshore
processing arrangements with the Asian region, where so many states are not party to
the relevant human rights treaties.

VI
The Malaysian DeclarationCase illustrates the phenomenon that time and again the
High Court has limited executive discretion by reference to statutory principles of
interpretation and the principle of legality. It also demonstrates that time and again, the
government has been successful in requesting Parliament to tighten up legislation to
permit what was hitherto illegal.

22 Coco v The Queen (1994) 179 CLR 427, 436.

23Jumbunna Coal Mine NL v Victorian CoalMiners'Association (1908) 6 CLR 309, 363.
24 PlaintiffM7o/2oll v Ministerfor Immigration and Citizenship [2011] HCA 2 (31 August 2011)
[247].
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

In short, respective Parliaments over the last few years have failed to exercise their
traditional self-restraint in protecting democratic rights. Historically, Parliament has
been the bulwark against sovereign or executive power. Professor George Williams
estimates that there are currently over 35o Australian laws that infringe fundamental
freedoms.25 He suggests that prioritising governmental power has become a 'routine part
of the legislative process', with new laws stimulating little community or media
response.26 This assessment is supported by the interim report of the Australian Law
Reform Commission in its inquiry into Commonwealth laws and traditional rights and
freedoms, which provides evidence of an extensive body of federal laws that infringe
rights and freedoms.27

Despite the disappointing failure of Parliaments to protect human rights, it can be

observed that Australia's historical and current preference has been to rely on its
Parliaments rather than the courts to determine the balance between individual rights
and national security and public safety.

One of the most important mechanisms to ensure that Australian laws are consistent
with fundamental rights and freedoms is that of scrutiny through Parliamentary
Committees, such as the Parliamentary Joint Committee on Intelligence and Security
and the Senate Committee on Legal and Constitutional Affairs. These Committees
regularly review proposed and existing laws for their impact on migration, counter-
terrorism and national security.

A welcome addition to these Committees has been Parliamentary Joint Committee on

Human Rights established in 2011 ('the Committee').28 The Committee has the primary
mandate to examine current and proposed laws for compatibility with human rights and
to report accordingly to Parliament. Human rights are specifically defined by reference
to international human rights law as the rights and freedoms accepted by Australia in
the treaties dealing with civil and political rights, economic, social and cultural rights,
discrimination on the basis of sex, race, disability and torture and children's rights. In
this way, Parliament has made a clear commitment to international human rights law.
Indeed, as French CJ has pointed out:

It does not take a great stretch of the imagination to visualise intersections

between these fundamental rights and freedoms, long recognised by the common
law, and the fundamental rights and freedoms which are the subject of the
Universal Declaration of Human Rights and subsequent international
conventions to which Australia is a party.2 9

The Committee has in its early years produced consensus reports; no mean feat given
that all political parties are represented. More recently, however, the Committee has split
down political party lines to produce both majority and minority reports.

25 George Williams, 'The Legal Assault on Australian Democracy' (Paper presented at Sir Richard
Blackburn Lecture, Pilgrim House Conference Centre, 12 May 2015) 350.
26 Ibid.
27 Australian Law Reform Commission, TraditionalRights and Freedoms-Encroachmentsby
Commonwealth Laws, Interim Report No 127(2015).
28 Human Rights (ParliamentaryScrutiny) Act 2011 (Cth).
29 Chief Justice Robert French, 'Oil and Water? International Law and Domestic Law in Australia'
(Speech delivered at the Brennan Lecture, Bond University, 26 June 2009) 21.
 MACQUARIE LAW JOURNAL [Vol 16

It is not easy to determine the impact of the Committee in protecting and promoting
human rights. It is clear that most Committee recommendations are not accepted by
government and do not lead to significant amendments to the original Bill. Indeed,
governments, unsurprisingly, remain reluctant to accept that a Bill it has introduced to
Parliament fails to comply with human rights.

For example, in respect of amendments to the MigrationAct regarding 'Unauthorised

Maritime Arrivals' in 2012,30 the Minister for Immigration and Citizenship concluded
that the rights to freedom of movement and to family, the right not to be detained
arbitrarily and the rights of the child were not engaged because the asylum seekers were
'unlawfully' in Australia.31 The Committee in its 7 th report of 2012 ('the Report') stated
that:

... as a matter of international law persons who are not 'lawfully' present in
Australian territory nonetheless enjoy a range of rights under the ICCPR and
other relevant human rights treaties while they are ... under Australian
jurisdiction.... The committee considers that this Bill on its face give rise to issues
of compatibility with human rights, [especially the holding of children in
detention and their transfer to regional processing]. The Committee also
considers that there may be issues of compatibility with the right not to be
detained under Article 9 of the ICCPR... .32

The Report, among most others, has not persuaded the government to amend the Bill to
achieve compatibility with human rights.

Despite this and other disappointing responses by governments to its work, the
Committee arguably improves the understanding of human rights among
Parliamentarians. It can provide valuable advice to those drafting legislation and
encourage a culture of human rights among public servants. The reports of the
Committee may also inform the views of courts when interpreting the new laws.

VII

Additional to Parliament, the Commission plays a central role in protecting human

rights. The Commission was established in 1986, and is now coming up to its 30 th
anniversary. The constituting statute, the Australian Human Rights Commission Act
1986 (Cth) creates an agency of government with corporate legal status. It is one of 110
national human rights institutions in the world and is accredited with 'A' status under
the United Nations Paris Principles.33 Its most important characteristic is the

30 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth).
31 Explanatory Memorandum, Migration Amendment (Unauthorised Maritime Arrivals and Other
Measures) Bill 2012, Attachment A: Statement of Compatibility with Human Rights, 2-3.
32 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Seventh Report of 2o12:
Bills Introduced29 October - 1 November 2012; Legislative Instruments Registered with the Federal
Register of LegislativeInstruments 17 October - 16 November 2012 (2012) 20-21.
33 ICC Sub-Committee on Accreditation, Chartof the Status ofNationalInstitutions (23 May 2014)
International Coordinating Committee of National Institutions for the Protection and Promotion of
Human Rights
<http://nhri.ohehr.org/EN/AboutUs/ICCAereditation/Documents/Chart%2O0f%2othe%2oStatus%
20of%2oNHRIs%20%282%2oMaV%202014%2Q.pdf>.
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

independence of its President and seven Commissioners from government influence.

The Commission has many functions including:

1. Investigating and conciliating complaints of violations of human rights and anti-

discrimination laws;
2. Inquiring into acts or practices that may be inconsistent with human rights;
3. Promoting an understanding of human rights through education;
4. Reporting to the Minister on laws that Parliament should be made to comply with
human rights; and
5. Intervening, with leave of the court, in judicial proceedings where a human rights
perspective is relevant.

The statutory definition of human rights, as contained in the ICCPR or other relevant
treaties, is critical to the role of the Commission. As you will understand from my earlier
remarks about Australian exceptionalism, the ICCPR, the ICESCR and the CROC are not
directly part of Australian law. This places the Commission in a delicate position with the
government of the day, because while we give our advice on the basis of international
law, government officials and the courts apply Australian domestic law. In the absence of
domestic laws protecting human rights, where Parliament fails to exercise its traditional
restraint to protect fundamental freedoms and where the courts have a limited
opportunity to apply the principle of legality, the Commission has a greater role in our
democratic system than its founders may have intended.

In summary, Australia has not developed the legal or Parliamentary tools for protection
of human rights that are available in comparable legal systems. It is for this reason that
the executive government, with the support of Parliament, is able to pass laws that
threaten our democratic freedoms with apparent impunity.

VIII

Expanded counter-terrorism laws stand as an example of this executive overreach.

Counter-terrorism laws have been significantly extended over recent years to modernise
our existing laws. The strength of the rule of law is more truly tested when security is
threatened than in times of peace. When Australia is threatened by terrorism, the need
to protect our traditional liberties assumes an even greater urgency.

Many counter-terrorism laws, introduced with unseemly haste before last Christmas, go
well beyond what might be deemed to be proportionate, creating a chilling effect on
freedom of speech and the press and breaching the right of individuals to privacy.

Three tranches of new counter-terrorism laws have been passed:

1. National Security Legislation Amendment Act (No. 1) 2014 (Cth) creates new
Australian Security Intelligence Organisation ('ASIO') powers for intelligence
gathering;

2. The Counter-TerrorismLegislationAmendment (ForeignFights)Act 2014 (Cth)

establishes 'declared areas' in Iraq and Syria and creates an offence for
 MACQUARIE LAW JOURNAL [Vol 16

Australians to enter these areas or to fight abroad. Problematically, the

evidentiary burden is placed on the accused to provide a legitimate reason; 34 and

3. The mandatory data retention scheme enacted by the Telecommunications

(Interceptionand Access) Amendment (DataRetention) Act 2015 (Cth) requires
telecom providers to retain data of all Australians for two years. Data is available
to security agencies without a prior warrant, or judicial or independent
supervision and authorisation. 35 A similar law of the European Union has
recently been ruled invalid by the European Court of Justice as disproportionate
interference with privacy and freedom of expression.36

A fourth tranche of legislation has been introduced but is yet to be passed. The
Australian Citizenship (Allegiance to Australia) Bill 2015 (Cth) ('the Bill') has recently
been introduced to ensure that Australian citizens who engage in specific terrorist
related conduct, even in the absence of any conviction, fight in the service of a declared
terrorist organisation, or are convicted of a specified terrorism offence, will lose their
citizenship automatically if they are a dual national.37 The loss of citizenship for dual
nationals, including those who have spent most (if not all) of their lives in Australia,
strikes at the heart of Australia's successful migrant and multi-cultural nation and
threatens our social cohesion.

Under current law, the power of the Minister to revoke citizenship arises in limited
circumstances, such as a conviction for specified offences related to false information in
connection with their citizenship application.38

It is now proposed that the revocation should arise by operation of law rather than the
initially proposed subjective Ministerial discretion. In short, no decision is required by
the Minister, though it is implicit that an official somewhere will make the decision. But
it is also proposed that the Minister be granted a non compellable discretion to exempt
the citizen from the automaticity of the loss of citizenship, if he considers it in the public
interest to do s0. 39 The Minister does not have a duty to consider whether he will
exercise this discretion and if he makes any mistakes is not bound by the rules of natural
justice.40

The Magna Carta provides that no man is to be exiled except by the lawful judgment of
his equals or the law of the land. This ancient principle raises the question whether it is
consistent with the rule of law for Parliament to pass legislation to withdraw citizenship
automatically, subject to the discretion of the Minister. I suggest that to strip a person of
their citizenship in these circumstances is likely to be contrary to Article 12(4) of the
ICCPR, which protects the right to enter and remain in one's own country. In effect,
Parliament has elevated the subjective views of a Minister above an evidence based
determination by a judge.

34 Counter-TerrorismLegislationAmendment (ForeignFighters)Act 2014 (Cth).

35 Telecommunications (Interceptionand Access) Amendment (DataRetention) Act 2015 (Cth).
36 Maximillian Schrems v Data Protection Commissioner (C-362/14) [2015] ECR 351.
37 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) cls 33AA, 35, 35A.
38 Australian CitizenshipAct 2007 (Cth) Pt 2 Div 3.
39 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) cl 33AA(7).
40 Ibid els 33AA(8), 35(7), 35A(7), 33AA(lo), 35(9), 35A(9).
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

The government argues that the right to a fair trial over loss of citizenship is not
threatened by the Bill, because there can be judicial review of any decision made by the
Minister not to exempt a person from the automatic loss of citizenship.41 This is true. A
court could review whether the power under the Australian Citizenship Act 2007 (Cth)
has been exercised according to the law. But if all the law requires is that the Minister
can exercise his discretion as he considers appropriate, in practice, the courts have
nothing to review, rendering the exercise futile. The Bill, I suggest, diminishes the
judicial power to make determinations, and will be, if passed, an arbitrary overreach of
executive discretion facilitated by a compliant Parliament.

While there are few details yet available, a fifth tranche of laws is expected to be
introduced shortly,42 and will:

1. Create a new offence of inciting genocide, which already exists as a crime against
humanity under our war crimes legislation;43
2. The control order regime will be extended to lower the age at which a person can
be subject to a control order from 16 to 14 years. Currently a control order applies
to 16-18 year olds for up to 3 months subject to some safeguards;44
3. Monitoring of individuals subject to control orders will also be facilitated by the
proposed law by relaxing controls over searches, telecommunications
interception and surveillance devices;45 and
4. Make it more difficult for the subject to understand the reasons for the order or to
6
challenge it in the courts.4

Ix
A second example of the overreach of executive discretion and power lies in the
expansion of executive powers to order the arbitrary and indefinite detention of
individuals. The enduring words of the Magna Carta are, 'no freeman is to be
imprisoned except by the lawful judgment of his equals or by the law of the land.'

Over recent years, respective Parliaments have granted governments the power to
lawfully detain indefinitely various classes of persons, including most notably refugees
and asylum seekers, along with those less well known who have infectious diseases, or
who are mentally ill and unfit to plead to criminal charges, or who are subject to
mandatory admission to drug and alcohol rehabilitation facilities or indefinite detention
of serious sex offenders. Few of those detained under such laws have meaningful access
to legal advice or regular independent judicial or administrative review.

The Commission is particularly concerned by the growing instances of detention in

prisons of those with cognitive disabilities for lengthy periods without releasing them
into more appropriate facilities and in the absence of regular review by an independent

41 Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

(Cth), Attachment A: Statement of Compatibility with Human Rights, 31.
42 Commonwealth, ParliamentaryDebates, Senate, 13 October 2015, 7434 (George Brandis, Attorney-
General).
43 Ibid.
44 Ibid.
45 Ibid.
46 Ibid.
 MACQUARIE LAW JOURNAL [Vol 16

tribunal.47 In a recent complaint, the Commission found that four Aboriginal men with
intellectual and cognitive disabilities had been held for many years in a maximum
security prison in the Northern Territory.48 Each complainant had been found unfit to
stand trial or found not guilty by reason of insanity. In respect of two of these men, they
would have received a maximum sentence of 12 months had they been duly convicted.
Instead, they were imprisoned for four and a half years and six years, respectively. The
Commission found that the failure by the Commonwealth was a violation of the right not
to be detained arbitrarily under Article 9 of the ICCPR, a provision in the spirit of the
Magna Carta.

Detention powers of the executive have also been expanded to detain asylum seekers and
refugees indefinitely; powers that were found to be valid by the High Court in Al Kateb v
Godwin49 in 2007. Most egregiously, those with adverse security assessments issued by
the ASIO are detained indefinitely. Many, including children, are detained for some
years without meaningful access to legal advice or independent review. About 2044
people, including 113 children, remain in closed detention in Australia and 934 males
remain on Manus Island and 631 refugees on Nauru, including 92 children.50 Many have
been held for well over a year in conditions that have been criticised by the United
Nations as breaching the Convention againstTorture.51

The mandatory detention provisions of the MigrationAct have also been activated by s
501 the MigrationsAmendment (Characterand General Visa Cancellation)Act 2014
(Cth) which allows the Minister to cancel visas on character grounds, on the basis of his
reasonable suspicion that the person does not pass the character test, where the person
is not able to satisfy the Minister that they pass the character test. 52 That is any possible
risk of committing certain offences including disruptive activities or inciting discord in
the community. While earlier law required a criminal conviction by a court of law, the
new provisions give the Minister personal, non-delegable, non-compellable and non-
merits reviewable powers to cancel a visa.53

The Commission has expressed concerns that these powers increase the likelihood of
arbitrary detention and unjustified interference with families and the rights of

47 See Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Social Justice and Native
Title Report 2012' (Report, Australian Human Rights Commission, 26 October 2012) 62-70;
Australian Human Rights Commission, 'Preventing Crime and Promoting Rights for Indigenous
Young People with Cognitive Disabilities and Mental Health Issues' (Report, Australian Human
Rights Commission, 2008); Australian Human Rights Commission, 'Equal before the Law: Towards
Disability Justice Strategies' (Report, February 2014) 26.
48 Australian Human Rights Commission, 'KA, KB, KC and KD v Commonwealth of Australia' (Report
No 80, 2014).
49 (2004) 219 CLR 562.
50 Department of Immigration and Border Protection, Immigration Detention Statisticsfor 30
September 2015 (September 2015) <http://www.border.gov.au/about/reports-publications/research-
statisties/statisties/live-in-australia/immigration-detention>.
51 Juan E Mendez, Report of the SpecialRapporteuron Torture and Other Cruel,Inhuman or
DegradingTreatment or Punishment,UN Doe A/HRC/28/68 and Add.1 (6 March 2015) [19], [26];
Convention againstTorture and Other Cruel, Inhuman and Degrading Treatmentor Punishment,
opened for signature lo December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
52 MigrationAct 1958 (Cth) s 501(2).
53 Australian Human Rights Commission, Submission No 8 to Senate Legal and Constitutional Affairs
Committee, Inquiry into the MigrationAmendment (Characterand General Visa Cancellation)Bill
2014, 28 October 2014, [4].
2016] HUMAN RIGHTS AND EXECUTIVE OVERREACH

children.54 Even more worryingly, the Minister has the power to overturn a decision of
the Administrative Appeals Tribunal that revokes a decision to cancel a visa under s 501
(3A) of the MigrationAct, without any need to satisfy the principles of natural justice.55

x
Some recent cases shine rays of legal light on the unconstrained right of Parliaments to
give the executive the power to detain. In 2014, in Plaintiff S4/2014 v Minister for
Immigration and Border Protection,5 6 the High Court decided unanimously that the
executive discretion to detain was limited to three purposes - deportation, determining
a visa application, or determining whether to allow the plaintiff to apply for a visa.57 The
Court qualified the executive's power to detain, holding that the MigrationAct does not
authorise the detention of an asylum seeker 'at the unconstrained discretion' of the
Minister.58 It found that an alien is not an 'outlaw' and that the Minister must make a
decision, one way or the other, as soon as is practicable.'59

This decision was followed by a High Court writ of peremptory mandamus against the
Minister for Immigration and Border Protection - a rare phenomenon under our law.
Earlier this year in Plaintiff S297/2013 v Minister for Immigration and Border
Protection,60 the Court considered a matter in which it had previously issued a writ of
mandamus ordering the Minister to decide to either grant or refuse a protection visa
application made by an asylum seeker held in closed detention for three years. 61 On
return to the court, having determined that the Minister had failed to make the required
decision in accordance with law, the Court unanimously issued a peremptory writ of
mandamus, requiring the Minister to make a decision to grant a permanent protection
visa to the plaintiff asylum seeker refugee held in closed detention for three years. 62

As punitive detention is for the courts alone, I suggest that the prolonged and indefinite
administrative detention by the executive risks becoming punitive. If so, it violates the
principle of separation of powers.

An aspect of enforcing international human rights law is the United Nations monitoring
system through the Human Rights Council and the Human Rights Committee. Both
institutions have been clear in voicing their concerns about policies of immigration
detention and offshore processing, as have the United Nations High Commissioner for
Human Rights and the United Nations High Commissioner for Refugees. Additionally,
the United Nations Subcommittee on Prevention of Torture raised concerns that
conditions on Nauru raised a pressing need for increased monitoring of compliance with
the Convention against Torture,6 3 and the Special Rapporteur on Migration cancelled a

54 Ibid.
55 Migration Amendment (Character and General Visa Cancellation) Bill 2014 cl 133A.
56 [2014] HCA 34 (11 September 2014).
57 Ibid [26].
58 Ibid [22].
59 Ibid [24], [9].
6o [2015] HCA 3 (11 February 2015).
61 [2014] HCA 24 (20 June 2014) [69].
62 [2015] HCA 3 (11 February 2015) [48].
63Office of the High Commissioner for Human Rights, 'UN Torture Prevention Body Urges Nauru to
Set Up Detention Monitoring Mechanism' (Media Release, 6 May 2015).
 MACQUARIE LAW JOURNAL [Vol 16

visit to Nauru because of secrecy laws. 64 Finally, concerns have been raised by civil
society including Amnesty International, Human Rights Watch, the Human Rights
Council of Australia, the Refugee Advice and Casework Service and the Andrew & Renata
Kaldor Centre for International Refugee Law.

I will shortly leave for Geneva to be present at Australia's Universal Periodic Review
before the United Nations Human Rights Council. Concerns of the international
community in respect of the mandatory detention and offshore processing policies will
almost certainly be expressed at the Review next week. The outcome may well affect the
strength and credibility of Australia's bid for a seat on the Human Rights Council in
2018-20.

Xl

One of many lessons I have learned over my three years as President of the Commission
is that one of the most effective safeguards of human rights is the cultural expectation of
Australians that our freedoms will be protected. While most Australians are unlikely to
be able to describe the doctrine of the separation of powers, they are quick to assert their
liberties under the rubric of a 'fair go' - a phrase that is as close to a Bill of Rights in this
country as we are likely to get. This cultural expectation is what keeps our freedoms alive
today, as was illustrated by the overwhelming community response to Operation
Fortitude and to preserve s 18C of the Racial DiscriminationAct.

The scores of laws passed recently that infringe our rights has confirmed my view that
Australia needs a legislated charter of rights. If such a law were to fail or be defective, it
can easily be repealed or amended. We must prioritise the education of young
Australians, so they better understand and value our Constitutional protections for
democracy and the rule of law. We also need to invest in Parliament as a vital institution
to protect the rights and freedoms of citizens, through stronger powers for the Joint
Parliamentary Committee on Human Rights.

I hope that, despite challenging the power of the executive and Parliament, as an English
migrant and a dual citizen, I can keep my Australian passport and eventually retire to
smell the roses in peace.

64 Office of the High Commissioner for Human Rights, 'Migrants/Human Rights: Official Visit to
Australia Postponed Due to Protection Concerns' (Media Release, 25 September 2015).