Attorney-General Philip Ruddock is asking the states and territories to do his dirty work.
The Commonwealth has already passed laws allowing for the detention of terrorism suspects and witnesses for up to 48 hours. Now Ruddock wants detention for up to 14 days without charge as a means of “stopping further terrorism” or “the destruction of evidence” – a form of preventative detention.
He will put the plan to the Council of Australian Government meeting on September 27.
He says he needs the cooperation of the states because the Commonwealth might not have the power to legislate for detention beyond 48 hours.
The admission demands answers to quite a few questions.
Ruddock told ABC radio, “Under the Constitution, the judiciary is the only body that can impose penalties. And if you are going beyond about 48 hours there is a suggestion, on the advice we have, that that would be seen as a punitive step and a period beyond 48 hours would be likely to be struck down by the High Court as imposing upon the Chapter 3 powers of the Constitution, that is the judiciary. Those limitations do not exist in relation to the states and that is why on September 27 at the COAG meeting the states and territories will be asked to consider the longer period of detention [14 days].”
Maybe this is just a ruse to get the Labor states to concur in draconian measures. Ruddock may as well have said, “We have to take away your liberty in order to preserve it.”
But if the constitutional concerns are genuine, every small l liberal’s heart should be gladdened.
In effect Ruddock is saying that the Constitution would prohibit legislation providing for detention without charge for any longer than about 48 hours. This is because the Constitution vests the judicial power of the Commonwealth exclusively with the judges. Imposing penalties on individuals is a judicial power. Detention for more than 48 hours is the equivalent of a penalty and therefore an exercise of the judicial power. Only judges, not the Parliament or the Executive Ministers, can do this.
This interpretation of the Constitution, if correct, is an enormous breakthrough for human rights in Australia. It is the equivalent of the United States due-process clause in their Bill of Rights. Indeed, it is part way to Australia having a Bill of Rights of its own.
It puts Ruddock on the spot a bit. And it demands the close attention of the two Territory Chief Ministers, Jon Stanhope of the ACT and Clare Martin of the Northern Territory.
It might be legally all very sound for Ruddock to whistle up the states to pass legislation to lock people up for 14 days because the Commonwealth is constitutionally unable to do so. But where does this leave the territories?
If Ruddock is right in saying the Commonwealth cannot legislate for 14 days’ detention without trial, it follows that neither can the territories. The source of the territories’ legislative power is the Commonwealth’s legislative power; it cannot go higher than the source of that stream.
If the separation of powers under the Constitution means that only a federal judge can order the detention of someone beyond 48 days under Commonwealth law and only after a charge, then the Constitution must also say that only a federal judge can order the similar detention of someone under territory law.
The two territories and their legislative powers were created by the legislative power of the Commonwealth and must be subject to the same limits. In short, the ACT Legislative Assembly does not have the power to legislate for detention without charge beyond about 48 hours. Such a law, in Ruddock’s words, would be “struck down by the High Court as imposing upon the Chapter 3 powers of the Constitution”.
So under the Ruddock plan we would be left with the absurd situation that people connected with terrorism could be held without trial for 14 days in all the six states, but not in the territories.
Surely, if it is good enough for human rights under the Constitution to be respected in the two territories, it must be good enough for the whole of Australia.
We really need an explicit Bill of Rights in Australia to protect us against the paranoia that has arisen since the attack on the World Trade Centre. It is heartening that Ruddock’s advisers now suggest there is at least an implied right against detention without charge.
Stanhope and Martin should demand to see that advice and make it public.
If Ruddock really thinks he has a case for detention without charge – denial of liberty to protect liberty – he should have the courage to put it to referendum and not make the states do his dirty work.
The result of having two territories of liberty in a continent of detention without charge highlights the practical, constitutional and moral absurdity of Ruddock’s positions