The High Court and the search for a Labor leader

Dec 1, 2023
Australian forces in Afghanistan during the 20-year occupation. Image: Wikimedia Commons

It is more than 20 years since Labor Leader Simon Crean addressed Australian troops leaving to fight in the Bush-Blair-Howard war on Iraq.

“I don’t believe that you should be going,” he said, absent a United Nations determination. “But that’s a political decision, that’s an argument that the prime minister [John Howard] and I will have, no doubt, over coming weeks and months.”

And so they did.

Crean’s defiant opposition was high on the long list of his achievements recalled when he died suddenly in June this year.

Was it the last time a Labor leader actually stood against the jingoistic fear-mongering of the Coalition on all matters defence and national security?

After the September 11 attacks, Howard’s Government not only committed to that unsanctioned war, based on a false premise, but also ratcheted up anti-terror laws – including a raft of preventive-detention measures – without discernible opposition from Labor.

Crean departed the leadership inside a year of his speech to the troops. Labor leaders since have sought to ensure, it seems, that there is not a cigarette paper between themselves and the Coalition on these matters.

How delighted must Howard be to see Labor – now in government – being led by his old agenda, particularly with the release of immigration detainees?

Howard’s successor, Peter Dutton, is driving government policy to legislate to re-lock up those the High Court has said only the courts should detain, with some exceptions.

Home Affairs Minister Clare O’Neil said on radio on Wednesday morning that she personally would like to see every one of the released detainees returned to custody.

Minister, let’s get fair dinkum. Why not go the whole hog and dismantle the separation of powers entirely? Introduce mandatory life sentences with no prospect of parole for various categories of offender, and make sure to include anyone here on any visa class who ever committed any crime.

The fear driving both parties is the same fear that brings calls for certain Australian offenders, particularly those convicted of child sex crimes, to never be released, even after the completion of lengthy sentences.

The landmark High Court case involved such a man. He had pleaded guilty to a sex offence against a child and was sentenced by the NSW District Court to five years’ jail with a non-parole period of three years and four months.

While in criminal custody he applied for a protection visa and was found by ministerial delegate to have a well-founded fear of persecution in the country of his birth. But his conviction led to a finding that he was a danger to the Australian community and so should be removed as soon as practicable.

The High Court judgment noted, “No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children.” None have ever been returned to a country other than one which recognised the person as a citizen.

The High Court found that the man’s continuing detention contravened the Constitution and he should be immediately released. This overturned a Howard-era case, Al-Kateb, the Court going back to an even earlier case, Lim, one principle of which has been held again and again post-Al-Kateb to be good law. That was that the effect of Chapter III of the Constitution is that “the involuntary detention of a citizen in custody by the state is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”

There was a time when attorneys-general and governments generally would wait, absorb and digest High Court judgments. Of course, parliamentary supremacy means they can legislate away what the Court does – but the bipartisan rush to do so here is unseemly in the extreme, and it’s orchestrated by Dutton, the former Queensland policeman thumping his tub about the “hardened criminals” soon to be taking over our streets.

That is the “hardened criminals” who have completed the sentences imposed by Australian courts. They have done their time, but then been held indefinitely in detention because there is nowhere we can practically send them.

Of course, there are potential risks with their release – risks that are only exacerbated by the many years added to the sentences our respected courts found proportionate to their crimes.
The High Court judgment makes plain that the plaintiff could be returned to detention “on some other applicable basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of re-offending if released from custody.”

The use of “unacceptable risk” mirrors the operative test in NSW’s bail law. It is reasonable there because bail deals with community safety ahead of the determination, by a court, of criminal responsibility. In my view, such a test is unreasonable when applied to those whose criminal responsibility has been not only decided – but their sentences fully served.

Legislating to lock them all up again is not the answer: why not try legislating instead for some form of Good Behaviour Order? Something that might allow for reasonable supervision and comprehensive rehabilitation? That is where the community’s best protection lies. But even this proposal (which I admit is a form of mandatory extra sentencing) seems a step too far for the Government.

Labor might look to the example of its former federal attorney-general, the late Kep Enderby, for 10 years a judge of the NSW Supreme Court and later the head of the NSW Serious Offenders Review Council.

When The Daily Telegraph some years ago bemoaned on its front page the release of a serial sex offender, a chorus of people told the paper that they would harass the offender (and worse) until he left their suburb.

Enderby was asked how he’d like to have the person living next door. His gentle answer was that he hoped and trusted he would treat him like a neighbour: someone who had done his time and who, hopefully, would have a better life in front of him, and, rehabilitated, would be a contributing member of a safer community.

If Crean had been in government and Australian troops had not been sent to Iraq, and maybe not to Afghanistan either, there would have been no Brereton report with all its shocking revelations of dozens of alleged war crimes, only one of which is so far being prosecuted.

But one out of one whistleblowers, David McBride, has been prosecuted, battered into pleading guilty by the inevitable interpretation by a black-letter judge of the Howard-era terror legislation with which he was charged.

Where was our first law officer? As far as I could see, Mark Dreyfus exhibited his trademark masterly inactivity, as unworthy a successor to Enderby as attorney-general as O’Neil et al are to Crean as Labor ministers.

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