Academic journal article University of Western Sydney Law Review

Liberty, Terrorism and the Courts

Academic journal article University of Western Sydney Law Review

Liberty, Terrorism and the Courts

Article excerpt

An address delivered at the University of Western Sydney, Campbelltown Campus, 15 March 2005

Return to the University of Western Sydney

Thank you Professor Sappideen (Head, UWS School of Law) and thank you Deputy Chancellor (Mr Geoffrey Roberson) for coming to welcome me to the UWS. This is not my first visit here. I came about four years ago, when we had an audience of this size. There were, I recall, wonderful questions, which I am sure we will have at the end of this session. We live in a free country, defended by its Constitution and the rule of law. We are citizens together. It is our entitlement to come out on a beautiful autumn evening to this lovely campus and to exchange thoughts as free people. By exchanging thoughts we learn from each other and rekindle our shared commitment to constitutional fundamentals.

I want to thank Professor Sappideen for starting this evening, in her introduction of me, with the ringing words of Justice Aharon Barak, the President of the Israeli Supreme Court. (1) Justice Aharon Barak was born in Lithuania. As a babe in arms he was smuggled in a hessian bag from Lithuania, then under Nazi rule. Fortunately, the smuggling succeeded. Ultimately, he found himself in Israel where he now presides with great wisdom over the Supreme Court. In the course of these remarks I am going to tell you what he and other great judges in the world have said about the issue that I am are going to deal with. This is the issue of liberty under law. There are few issues more important or urgent.

It is essential that we should have our minds open to the judges of other countries. They speak with great care upon matters that are of universal concern. The issue that I am going to explore is one that is no means confined to Australia. Indeed, for us it is not one of the major questions affecting large numbers of people in our country. However, it is a question that concerns values and standards. Therefore, it is a question that we are well advised to consider and reflect upon.

The Deputy Chancellor mentioned the long time during which I have held various offices. I want to take you back through the decades to an even earlier time when I first heard of the great court on which I now have the honour to serve. I take you back in your minds--and it has to be in the imaginations of most of you--to the middle of last century--to Australia in 1950.

On first encountering the Australian Constitution

In 1950 the Parliament of Australia enacted the Communist Party Dissolution Act. As it happened, the Act had particular significance for my family. This came about because my grandmother had remarried and her new husband was a communist. He was a man who had fought at Gallipoli, where he won the Military Medal. It was conferred on him at Buckingham Palace by King George V. My new 'uncle' was a very fine man. In my youth, I experienced the discordance of knowing him as a human being and as an idealistic man with a strong commitment to social justice--and knowing the hatred that existed in our community at the time toward communists and anyone who supported them.

That hatred was expressed, in part, in the law that was enacted by the Federal Parliament with, it should be said, the full support of a mandate from the people given to Mr R. G. Menzies, the Prime Minister, and to the government that he led. The Menzies Government produced a law that would deal eo nomine--by that name--with the Communist Party and its members. Members of the Communist Party were to suffer very significant personal loss of civic freedoms in Australia.

Two events then happened.

The first was a challenge in the High Court of Australia to the Communist Party Dissolution Act. That challenge was mounted by the Communist Party itself and by various trade unions. As a consequence, the High Court had to rule on the validity of the Act. In the result, as we all know, by six justices to one, the High Court of Australia held that the Act was constitutionally invalid. …

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