Spencer Zifcak. Co-opting the Judiciary: Counter-Terrorism Laws at Work22/12/2015
Regrettably, one matter that has drifted to the sidelines in Australian debates about the operation of counter-terrorism laws is that these laws consistently marginalise and undermine the role of the judiciary. Judicial power, and hence the rule of law, is being incrementally distorted and diminished.
Counter-terrorism law continues to burst from the executive and the legislature. Just a few months ago, three enormous tranches of such law swept through the parliament. These were the National Security Legislation (Amendment) Act protecting and preventing disclosure of information about special intelligence operations; the Foreign Fighters Act; and the metadata legislation. (See my chapter on Counter-terrorism and human rights in this blog on 28/05/2015.)
Now, only months later, three more counter-terrorism laws have passed or are imminent. These are a law to strip dual-nationals involved in terrorist activity of their citizenship; one to imprison people convicted of terrorist offences indefinitely; and another to extend the application of control orders to children as young as 14. In each of these instances, the proper exercise of judicial power is, to a greater or lesser extent, being compromised.
Take first the citizenship-stripping law. What this does is remove Australian citizenship from any dual-national suspected of engagement with terrorism. Whether or not a suspected individual will have their citizenship revoked is made a matter for executive government. This is so, even though revocation is plainly punitive.
Traditionally, a person suspected of engaging in criminal activity would be charged and tried. If found guilty, it would be for a court of law to determine an appropriate penalty. Under the rather remarkable new scheme created by the citizenship law, however, the judiciary is cast aside. Revocation is to occur automatically once it is determined that the prohibited behaviour has occurred.
The scheme is remarkable because this legislation is silent upon the question of who is to decide that terrorist activity has occurred. In a previous draft, the Minister was given a role. But that would have breached the separation of powers by empowering a Minister rather than a judge to decide matters of fact and law and to impose a punishment.
So, the automaticity mechanism was created instead. A person’s citizenship will be revoked automatically upon engaging in conduct defined with reference to enumerated terrorism offences in the Criminal Code.
The legislation applies only to cases where the person concerned engages in the relevant conduct outside Australia or where the person has left Australia before (s)he has been tried for the offences alleged. The mechanism is not to be used against a person in Australia and, therefore, available for trial. This narrowing of the legislation’s scope is welcome.
From thereon, however, the process is a mess. Revocation is said to occur instantly upon a determination that the terrorist activity has been engaged in. But there is no one identified to make that determination.
Instead, it appears that the law will apply itself. This is a constitutional novelty. How it could work in practice is anyone’s guess. The High Court will have something to say about it.
If a fair and considered decision is to be made as to whether a person has engaged in a prohibited activity and is to be punished for it, in our system of government that is a decision that should be in the sole province of the judiciary. It is not to be left to some uncertain, mysterious and secretive intra-governmental process.
At the recent meeting of the Council of Australian Governments, the Prime Minister and the State Premiers agreed to introduce uniform State laws to provide for the indefinite detention of people convicted of terrorist activities. Indefinite detention may be authorised where it is determined that a relevant person is due for release after serving a term of imprisonment but remains a potential threat to national security.
There is precedent for the establishment of a regime of indefinite detention. Several States have laws providing for the continuing detention of serious sexual offenders and others convicted of serious acts of violence. Somewhat surprisingly, the High Court has decided that such laws are constitutional.
The problem with indefinite detention laws, however, is that they require State Supreme Courts to engage in deliberations that are not traditionally regarded as part of the proper exercise of judicial power. Judicial power is the power that courts have to decide upon controversies between contesting parties on the basis of pre-existing law. The existence of some pre-existing law as the basis upon which legal disputes are to be resolved is normally regarded as essential.
In laws providing for indefinite detention, however, legal criteria for decision are absent. Instead, what the court is asked to do is make no more than an educated guess as to whether past criminal behavior is likely to be repeated at some time in the future. How is a rigorous judgment to be made that a person convicted of a single terrorist offence, say a decade ago, remains a threat to national security after the effluxion of that time?
Psychiatric and psychological research has demonstrated consistently that predictions as to dangerousness are notoriously unreliable. And that is even where the people making those predictions are experts in the field. Judges are not.
That is why Justice Michael Kirby dissented in the constitutional case. He said that courts should apply punishments only in relation to criminal acts committed in the past. Judges, he said, should not be co-opted into imposing penalties “for crimes that are feared, anticipated or predicated to occur in the future on evidence that is notoriously unreliable and otherwise would be inadmissible, and by people who do not have the gift of prophecy.”
If prisoners have committed a crime while imprisoned, whether of incitement to violence, conspiracy, threat, intimidation, the infliction of actual physical harm or some other similar offence – charge and try them. If guilty, impose a new sentence.
If not, they should be released upon the completion of their prescribed term of imprisonment, under surveillance and subject to notification requirements if necessary. And that way, the judiciary will not be required by law to perform functions that are alien to it.
Finally, there are control orders for children. In Australia, control orders have been part of the counter-terrorism mosaic for several years. They have almost never been used. The former Independent National Security Legislation Monitor, Brett Walker SC, has cast doubt on their effectiveness. Britain recently dispensed with them.
Control orders may be imposed upon a person where it is anticipated that the person affected may engage in terrorist activity. The controls imposed may include a prohibition on the use of electronic communications, a ban on meeting certain people or doing certain things, restrictions upon movement, and even house arrest.
The problem here, again, is that the judicial procedures associated with the imposition of control orders are unusual and unfair. A court may issue a control order in a secret hearing and in the absence of the person subject to it. The person will know nothing about it until he or she is arrested and served with the order. Neither the subject of the order nor their legal representative is provided with a full brief of the evidence against them. Without access to the evidence, the prospects for a successful appeal are minuscule. The judge hears only one side.
The application of such a draconian process and penalty to a 14 year old child is hardly to be contemplated. It may reasonably be anticipated that such a partial procedure is as likely to alienate and radicalise a young person as it is to rehabilitate them.
Speaking of this expansion of the control order regime, the former Independent National Security Legislation Monitor said recently that ‘I have a well-known opposition to control orders as, I think, a distraction from what is the fundamental task of the criminal law of investigation, prosecution and, if there’s a conviction after trial, sentencing.”
There is a better solution to the problems these new laws attempt to address. It can be summarized in three words: ‘charge or release’. We give investigation, prosecution, trial and conviction away at our peril.
Spencer Zifcak is Allan Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University. He is immediate past president of Liberty Victoria.