| David Hicks’ Confinement in Australia – A Punter’s Perspective on ANZAC Day |
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KURT ESSER People often ask ‘What practical difference will a charter of rights make?’ This is not an easy question in the abstract, but much easier if we use a hypothetical example. The treatment of David Hicks provides an excellent case study. Along with other lawyers and organizations concerned with international law in Australia, The Justice Project (TJP) is alarmed by the government’s treatment of David Hicks. The situation has not been remedied by David’s plea of guilty and the ‘deal’ he was obliged to do, as a condition of being repatriated. Very little could be done in the Australian courts to force the US authorities either to charge David, or else to release him. For the most part, jurisdiction of Australian courts depends on the party concerned physically being in Australia. When David returns to Australia, it will be interesting to observe whether his lawyers challenge his detention here, and, if so, on what basis. The mechanics of how David will be removed from Guantanamo Bay, transported to Australia and placed in detention on arrival, are not publicly known at this stage. There will no doubt be an agreement signed by both countries, probably not in the form of a treaty, but something less formal. Whatever the form and content of that agreement, unless David has given up all his rights at some earlier date, that agreement, itself, could not validly extend to stripping David of his rights to challenge the legality of his detention once he sets foot in Australia. More likely, once an agreement has been concluded, the Australian government will use its numbers in parliament to pass legislation or else, regulations, in which the terms and conditions of David’s detention will be statutorily defined. No doubt the instrument, whatever form it takes, will contain the kind of limitation that human rights lawyers in the federal sphere, are tired of reading: the so-called ‘privative clause’. It usually involves words to the following effect: The terms of this instrument cannot be challenged in any way in any court. At this stage, and as a betting man, based on the government’s form to date, I would wager that the government will deploy a privative clause in the case of David Hicks. By enacting these simple words, and in one stroke, the government will drive yet another familiar nail into the coffin of the rule of law in Australia. Perhaps a timely thought on ANZAC day. While the government claims it stands for the rule of law, its actions are very different. The rule of law means, at the very least, that all citizens are equal before the law, citizens cannot be imprisoned without being convicted of a crime, the trial of an accused must be attended by due process and the accused must be convicted in a duly constituted court. Finally, the accused must have a right of appeal - to a court empowered to release the prisoner if an appeal is successful. If I am correct, David Hicks will singled out for special treatment, he will not be treated equally with other citizens, he will confined against his will and he will serve time in prison without conviction in a duly constituted court - either here or in the US. Most repugnant of all, by virtue of the privative clause, David will be unable to challenge these violations of his basic civil rights in any Australian court. So much for the most persistent argument made by opponents of charters of rights – there are enough guarantees in the system already. What guarantees can David Hicks point to and enforce? One of the most important weapons in the armory in Victoria’s Charter of Human Rights and Responsibilities is the so-called ‘reading down clause’. In matters involving the Charter and in an appropriate case, a judge is empowered to ‘read down’ a clause such as a privative clause. The court has the opportunity to consider the merits of a claim a citizen has brought, without the government first slamming the door of the court in the citizen’s face. If there were a federal charter of rights that mirrored the terms of the Victorian Charter the government could not ‘get away’ with this wholesale and grotesque breach of David’s human rights. Relying on a reading down clause, David could argue at the Federal Court for a declaration of inconsistent interpretation. If the court made the order, Parliament would be forced to reconsider how this law came to be passed and would be forced to justify this law’s continued existence. On ANZAC day we celebrate the courageous deeds of our armed forces and our national ethos, which is meant to include giving blokes a fair go. Let’s see whether the government has the courage to give David Hicks a fair go by allowing his confinement in Australia to be challenged in court. Whichever the government decides, one thing is absolutely clear. The government can please itself. There are no guarantees at federal law a citizen can point to, to enforce the rule of law. Melbourne ANZAC DAY 2007 |
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