Justice William Charles Crockett AO - Victorian Bar

Gummow and Kirby JJ held that forsuch a power to be exercised by theexecutive was unconstitutional.Gummow J said at [140]:[I]t cannot be for the executive governmentto determine the placing from time to timeof that boundary line which marks off acategory of deprivation of liberty from thereach of Ch III. The location of that boundaryline itself is a question arising under theconstitution or involving its interpretation,… Nor can there be sustained laws forthe segregation by incarceration of alienswithout the commission of any offencerequiring adjudication, and for a purposeunconnected with the entry, investigation,admission or deportation of aliens.Kirby J expressed himself somewhatmore succinctly at [146]:Indefinite detention at the will of the executive,and according to its opinions, actionsand judgments, is alien to Australia’s constitutionalarrangements.As already stated, the majority of theHigh Court held that the executive couldorder such indefinite detention withouttrial.But it is not only in this case that wesee evidence of a movement back towardsthe dark ages of the Star Chamber anddetention without trial. The legislatureof the Commonwealth of Australia haspassed legislation which permits detentionwithout trial and which inhibitsthe victim of such detention in takingany steps to attack the legality of suchdetention. See sections 34D to 34X of theAustralian Security and IntelligenceOrganisation Act 1974.The effect of these sections is that individualsmay be arrested and questionedby ASIO but may not reveal to their legaladvisers, in many circumstances, the factswhich would support an allegation thatASIO had exceeded its powers, had actedimproperly or otherwise in its dealingswith them or had acted contrary to law.They may not tell their lawyers everythingthat happened during detention or whilebeing taken into detention until at leasttwo years later because it may reveal“operational information”. The Ministermay prohibit their lawyers from havingaccess to information which may be vitalto the question of whether the detentionwas legal or illegal.Our Attorney-General, the Chief LegalOfficer of the Commonwealth, the headof the legal profession, has indicated thatalthough he would not condone the use oftorture to obtain a confession, the fact thatsome milder form of coercion has beenexercised should not prevent a confessionfrom being admitted into evidence.In the “fight against terrorism”, weseem to have abandoned many commonlaw principles, and much of the moral codewhich we have developed over centuries.We are abrogating the very rights whichthat fight purports to be protecting.Topically, this abandonment of principleappears very clearly in the caseof David Hicks to whom the AustralianGovernment has failed to extend theprotection to which, as an Australian citizen,he is entitled. The duty of allegiancecarries as its concomitant the Sovereign’sobligation of protection. See Joyce v DPP[1946] AC 347 where Lord Jowitt LC saidat 368:The principle which runs through feudal lawand what I may perhaps call constitutionallaw requires on the one hand protection, onthe other fidelity: a duty of the Sovereignto protect, a duty of the liege or subject tobe faithful.This principle, fundamental to the conceptof allegiance, appears to be one ofwhich the executive of the Commonwealthis unaware. Obligation begets obligation.Loyalty is a two-way street.HICKS: A QUESTION OF JURISDICTIONHistorically the criminal law of Englandwas seen as extending to all those withinthe realm and to all those who owed allegianceto the Sovereign, wherever theymight be. It did not extend to aliens (orforeigners) outside the King’s dominions.Kenny Outlines of Criminal Law,Cambridge University Press, 1902 atpp.411-412 says:According to International Law a Stateought only to exercise jurisdiction oversuch persons and property as are withinits territory. And in criminal matters itcannot always exercise jurisdiction over anoffender even though he actually be withinits territory. For it is forbidden by InternationalLaw to try foreigners for any offenceswhich they committed outside its territorialjurisdiction ...International Law, although forbiddingStates to exercise criminal jurisdiction overany foreigner for an offence committed byhim outside their territorial jurisdiction,nevertheless leaves unlimited their powerto punish their own subjects.A general exception to this principlewas to be found in the crime of piracy.Piracy appears to have its origins in internationallaw rather than in the commonlaw: see Anonymous (1604) Moore KB756. There was no common law offenceof piracy; but the courts of all nationsexercised jurisdiction to punish piracyjure gentium. A pirate was said to behostis humani generis: see R v Marsh(1615) 3 Bulst 27. As Pickford J expressedit in somewhat less pretentious terms, inBolivia Republic v Indemnity MutualMarine Assurance Co. Ltd. [1909] 1 KB785 at 791, a pirate is “the enemy of thehuman race”.The United States of America derivesits common law from 17th and 18th centuryEngland. Yet, contrary to the commonlaw tradition, it has purported to extendits criminal jurisdiction to non-citizensoutside the United States. Paradoxically,the United States District Court has heldthat it has no jurisdiction to examineor to police the legality of the trial ofsuch persons in the custody of the USmilitary.It may be argued that internationalterrorists, or those alleged to be terrorists,may be seen as akin to pirates inthat they are “the enemy of the humanrace”. But the United States does not callon international law to justify its claim totry and to punish a person such as DavidHicks. Rather it relies on its own domesticlegislation. It appears that Hicks has nowbeen charged with the offence of givingmaterial support to terrorism, on the basisof US legislation passed long after he wasdetained in Guantanamo Bay. A remarkableextension of domestic criminal jurisdiction— in relation to which the establishedcourts of the United States have no jurisdiction!In its treatment of alleged terrorists theUnited States has ignored the principlesof international law. There appears tobe no question that its treatment of theGuantanamo Bay prisoners has violatedthe principles of the Geneva Conventionand of the International Covenant on Civiland Political Rights.Hicks has now, after five years of illegalconfinement in inhumane conditions,pleaded “guilty” before a kangaroo (orperhaps jack rabbit?) court. That plea maywell be seen as no more than a plea forfreedom. If so, the Australian Government,and we as the electors, have much ofwhich to be ashamed.The Editors6