Detention and the Anti-Terrorism Legislation

Article excerpt

This special edition of the University of Western Sydney Law Review on detention without trial has proven timely. As we entered the final stages of production, the Australian federal, state and territory governments were in the process of pushing through their respective parliaments far-reaching Anti-Terrorism Bills that introduce two unprecedented forms of detention without trial: 'preventative detention' and 'control orders'. Once again, the 'war on terrorism' declared by US President George W Bush and his allies after the September 11, 2001 attacks in the United States is being used to justify previously unthinkable measures. (1)

This edition features two presentations made to a highly successful public forum convened by the UWS Law School in March 2005 on 'Detention Without Trial: What are the Limits?' The first is an address delivered by Justice Michael Kirby of the High Court, entitled 'Liberty, Terrorism and the Courts'. It is a wide-ranging and international review of the extent to which courts have protected liberty against the extension of executive power in the 'war on terror'. The second is a response by myself, 'Detention without trial-a threat to democratic rights', examining the implications of the High Court rulings in Al-Kateb, Al Khafaji and Behrooz, which sanctioned indefinite immigration detention. (2)

Also contained in this edition are two articles by senior legal academics, one by Lynda Crowley-Cyr and the other by Greta Bird, exploring the issues raised by the High Court rulings, particularly in the light of the mistreatment experienced by Cornelia Rau and Vivien Alvarez. Crowley-Cyr argues that the Rau and Alvarez cases illustrate the brutalisation and oppression that can flow from the unfettered discretion exercised by a host of actors pursuant to the Migration Act 1958 (Cth), including Commonwealth and State ministers and officials, private and public health care professionals, and corporate agencies that provide the day-to-day running of detention centres. In her article, Bird draws on theorists such as Derrida, Levinas, Agamben, Lacan and Kristeva to explore the concept of detaining 'unlawful non citizens'.

In addition, we are pleased to publish two documents arising out of the debate over the Anti-Terrorism Bill 2005. They are the Opinion given by Stephen Gageler SC to the Australian Capital Territory government on the Constitutional issues concerning preventative detention, and the Memorandum of Advice given by Lex Lasry QC and Kate Eastman to the ACT government on the human rights questions raised by the legislation.

In their Advice, Lasry and Eastman conclude that many aspects of the Bill would be inconsistent with the Human Rights Act 2004 (ACT), which draws on a range of international human rights treaties. Control orders would infringe sections of the Act dealing with freedom of movement, arbitrary detention, privacy, freedom of expression, freedom of assembly and association, freedom to take part in public life, rights of minorities, freedom of religion and fair trial and access to lawyers.

In his Opinion, Gageler points to three constitutional grounds on which the Bill could be challenged. The first is the principle, affirmed in the 1992 Chu Kheng Lim case (3), that citizens enjoy a 'constitutional immunity' from involuntary detention except by an order of a court exercising the 'judicial power of the Commonwealth'. Secondly, the High Court reiterated in the 2004 Fardon case (4) that the federal government could not confer on a court any detention power that was preventative and not punitive. In the words of Gummow J, 'detention by reason of apprehended conduct' is 'at odds with the central constitutional conception' of detention occurring after 'judicial determination of criminal guilt'. (5) Thirdly, by asking courts or individual judges to issue secret detention and control orders, the government was breaking another rule emphasised in Fardon: courts cannot be 'called upon to act . …