CRISPIN HULL: Border Force Act has little to do with national security

By Crispin Hull

Published Tuesday 5 January 2016

AN ASSERTION of judicial power to protect rights in Australia would not go amiss after a decade of onslaught by the legislature and executive against ordinary liberal-democratic principles.

An analysis by constitutional lawyer George Williams tallies 350 Australian laws that now infringe those basic democratic standards. The laws cover not just anti-terror and defence, but also general crime, discrimination, consumer law, migration, industrial relations, intellectual property, evidence, shipping, environment, education and health.

One of these laws is the Border Force Act which has wide secrecy provisions that prevent “entrusted persons” -- virtually anyone who has anything to do with immigration detention -- revealing any of a broad spectrum of “protected information” on pain of two years’ imprisonment.

As a result, lawyers in a class action of asylum seekers are finding gathering evidence very difficult.

The Border Force Act has little or nothing to do with national security. It is there to conceal the government’s morally repugnant policy on imprisonment of refugees.

It was waved through the Parliament last February by a spineless Opposition too scared of being painted soft on national security.

Hitherto, much concern has been expressed about the executive having too much power over the individual. Now, we should be concerned that the legislative branch is abusing its powers. The only hope against abuse by the legislative and executive arms is the judicial arm.

One case might bring this to a head. A class action in the Victorian Supreme Court claiming lack of medical care on Christmas Island seeks damages from the Commonwealth and the contractors who are paid to imprison the asylum seekers and look after their health.

But with the spectre of Border Force Act, some potential witnesses fear coming forward. Other potential witnesses are using the Act as an excuse for not giving interviews to lawyers.

Fortunately, Justice Jack Forrest has worked a way through this. He has applied an exemption in the Act in cases where a court or tribunal “requires” a witness to answer. Essentially, Justice Forrest will accept sworn evidence by a lawyer that the material is essential to the case to then “require” the person be subjected to an interview the by the lawyers.

But it is an awkward process.

It is just one example of the 350 laws identified by Williams that trample on ordinary legal processes and rights that have hitherto been regarded as basic and obvious.

Maybe we need another legal-constitutional approach here -- along the lines of the constitutional defence for political communication.

Recall that before 1994, state defamation laws made a mockery of any idea that there was free speech in Australia. Politicians sued media outlets for the slightest slight, often obtaining richly undeserved damages and chilling media investigation into political malfeasance.

Then the High Court held that the Constitution envisaged a system of representative democracy which, to work properly, required freedom of political communication so that the voters could be properly informed before voting.

It meant that media organisations were protected if they behaved reasonably, even if they ultimately could not prove the truth of their allegations.

Now let us take the Williams expose of a raft of laws that offend basic democratic rights. Surely, the system of government envisaged by the Constitution should restrict any legislative attempt to take away those rights.

Williams has argued for a Bill of Rights to ensure they are not taken away. I agree. But the referendum process to create a Bill of Rights is a long and difficult one. So, what follows is another approach.

Just as the Constitution provides for representative democracy and therefore does not permit undue restriction on political communication, it also provides for a system of government in which the powers are separated into the legislative, executive and judicial.

The legislative power is vested in the Parliament (Section 1). The judicial power is vested in the High Court, and if Parliament provides (as it has) other federal courts and State Supreme Courts (Section 71).

But the Constitution is silent as to precisely what is meant by “legislative power” and “judicial power”.

However, there have been a few cases about how the legislative power cannot impinge on the judicial power.

Justice Toohey in the majority in Kable v NSW said that the Constitution “vests the judicial power of the Commonwealth exclusively in the courts which it identifies and in clear terms recognises the separation of the judicial power of the Commonwealth from legislative and executive powers. It is a consequence of that division that the Parliament of the Commonwealth may not interfere with the judicial process itself.”

So when the legislature purports to silence people in such a broad way that it impinges on due process, it is in fact unconstitutionally exercising judicial power, or at least unconstitutionally interfering with the judicial process itself.

We might find that a lot of the 350 laws that Williams has found to offend liberal-democratic principles also offend constitutional principle -- precisely because our Constitution is the founding bedrock of our liberal democracy.

Many black-letter lawyers will be quick to pooh-pooh this as idealistic twaddle – just as they did before the constitutional free-speech cases. And they will be equally quick to condemn any new jurisprudence along these lines as undemocratic judicial activism. But our democracy would be the better if the judges got active in that way.