2007 Law and Justice Address

Law for All; Justice for Each

Law and Justice Address by
The Hon Sir Gerard Brennan, AC, KBE

2007 Justice Awards
Parliament House, Sydney
31 October 2007

Tonight we gather, as you have gathered over the years, to pay tribute to those who have contributed to the fairness of the justice system – fairness which includes accessibility to justice especially by those who are socially or economically disadvantaged. The very existence and title of the Foundation, as well as the purpose of our gathering, invites us to consider the relationship between law and justice.

We know, of course, that law and justice are not synonymous. Law is a social regulator, justice is a moral value. In the 2nd century A.D., Ulpian defined justice as "the constant and perpetual will to allot to every man his due." When justice is compared with law, we can see that law affects a community; justice and injustice are experienced by individuals. What brings us together tonight is not so much a devotion to law as an abstract conception, but to law as an instrument of achieving justice – a means by which society facilitates the allotment "to every man his due". It is only when the law works no injustice to individuals that we can proclaim our adherence to the rule of law. It was the lawyer’s thirst for justice that led Justice Cardozo to tell the lawyers of New York County that –

"The tradition, the ennobling tradition, though it be myth as well as verity, that surrounds as with an aura the profession of the law, is the bond between its members and one of the great concerns of man, the cause of justice upon earth."

In a diverse and pluralist democracy, however, laws may be promoted which attract majority support though they bear harshly on a minority. Then the will of the majority can be an instrument of tyranny for the minority. Individual interests may, on occasions, be a source of frustration for a majority of the people, but laws which cause injustice to individuals are hard to justify. We, as a community, cannot justify seeking our own advantage if that advantage is to be underwritten by the visiting of injustice on an individual, or on a few, or on a minority. This is the reason why lawyers are essential to a free society. By "lawyers" I mean all those who have an active role in the operation of the law. Their focus is on the individual and the justice of the individual’s position.

Justice is the fundamental value which monitors the scope and content of the law. No law, however beneficial it may be to the majority, should be supported if it works injustice to some. However, we should be clear about what we mean by injustice. In a free society we start with the notion that law’s restrictions on freedom should be kept to a minimum and there has to be some good reason for imposing any limitation. Freedom allows the fullest expression of the human person and the fullest opportunity to achieve the human potential – physical freedom as well as freedom of conscience, freedom of expression, freedom of association, freedom of movement, freedom from the arbitrary exercise of power. That is not to say that freedom is unlimited. To allow uncontrolled freedom to the powerful and the rich is to prejudice the freedom of the weak and the poor. A law which imposes duties or liabilities restrictive of freedom must be justified by the need to protect or advance the common good. Those duties or liabilities must be precisely targeted to protect the common good, they must be proportionate to the damage that would be reasonably apprehended if there were no such law and they must refrain from inflicting individual injustice. It is not unjust to limit an individual’s freedom in order to protect the common good but only if, by reason of some attribute of, or conduct by, an individual, his freedom poses a threat to or has been used to offend the common good. That is why a law which imposes a duty or liability should be precisely drawn, defining objectively the attribute of, or the conduct by, an individual which justifiably attracts the law’s operation. Thus is the rule of law maintained. Unjust laws undermine the rule of law, for injustice even to the few ultimately foments resentment in the many and erosion of the law’s authority. These elementary considerations have significance for both the content of the law and for the role of lawyers.

In recent times, there has been much debate about the content of particular laws. We are in the midst of an election campaign when the parties are locked in dispute about the Industrial Relations laws. Are the Work Choices provisions protective of the economy in the interests of the common good? Do they impose unjust burdens on vulnerable workers to the benefit of the rest of the community? These are issues for others to debate, but they are the relevant issues for determining the justice of those laws. Consider the laws providing for intervention in the Aboriginal communities of the Northern Territory. All are agreed that sexual abuse of children must be prohibited, but the question is whether the intervention is targeted on that evil and whether the new laws unnecessarily impose discriminatory disadvantages on Northern Territory Aboriginal families. Again, these are questions material to the determination of the justice of the laws.

Perhaps the most tendentious laws in force at present – though they are not the subject of political campaigns – are the anti-terrorism laws for they trespass upon the basic notion of natural justice. That is a notion that is dear to the heart of all those concerned with justice, so it is worthwhile trying to determine whether these important laws give us both security and justice. Nobody doubts the need for laws conferring special powers enabling authorities to identify terrorists and potential terrorists and to neutralize any terrorist activity. But do they work injustice to individuals? Legislation empowering ASIO or the Federal Police to carry out surveillance, or to search and to seize property can be justified when there are reasonable grounds shown, provided such powers are precisely targeted on the detection and prevention of terror and the apprehension of terrorists. But what of the power to compel submission to interrogation or the power to detain and interrogate without charge, or the power to charge, detain and submit to interrogation or the power of preventative detention?

Clearly, an exercise of these powers constitutes a remarkable invasion of common law rights, especially if the person is not a suspect and may not be even a sympathizer of terror. Fifty years ago, Fullagar J spoke Trobridge v Hardy (1955) 94 CLR 147, 152 of an interference with an individual’s person and liberty as "prima facie a grave infringement of the most elementary and important of all common law rights". There should be an effective mechanism to safeguard personal liberty, but the anti-terrorism laws vest the power to interfere with a person’s liberty in the Executive branch of Government which controls the procedure and those laws deny natural justice to the person who is the subject of the power.

A warrant to compel a person to submit to interrogation or a warrant to detain and question a person is issued on the application of the Director General of ASIO who has the Minister’s consent to apply. The warrant may be issued once the issuing authority is satisfied ASIO Act 1979, ss 34E(1)(b), 34G(1)(b) "that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence". A semblance of legality is provided by limiting the issuing authorities to Federal Magistrates and Judges who consent to being appointed by the Minister. They do not act in a judicial capacity but as personae designatae exercising executive authority. The procedure for obtaining a warrant does not resemble standard judicial procedure. The ASIO application is made ex parte and the subject is not informed of the grounds advanced for the warrant. If the subject should want to challenge the sufficiency of the grounds on which the warrant is issued, his or her legal adviser is not entitled to see any document other than the warrant itself ASIO Act 1979, s 34ZQ(4)(b). In any event, contact with that legal adviser, if permitted at all, is monitored by a person exercising authority under the warrant ASIO Act 1979, s34ZQ(1). Unless the warrant allows a person who is being detained, either by the warrant or by a "prescribed authority" ASIO Act 1979, s34K(1)(d) to contact somebody, he or she can be prevented from contacting anyone ASIO Act 1979, s 34K(10). In summary, a person may be detained in custody, virtually incommunicado, without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention. When statute exempts a repository of power from the obligation to observe natural justice, an exercise of the power is attended with the risk of injustice – injustice which is not curable by judicial intervention and which may not even be revealed if the repository of the power does not have to disclose the material on which he or she acted. It was John Locke who pithily observed: "Where-ever law ends, tyranny begins" John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University Press, 1988), quoted by Lord Bingham in The Rule of Law, the Sixth Sir David Williams Lecture, Cambridge, 16 November 2006..

A similar problem arises in relation to preventative detention orders under Division 105 of the Criminal Code. These orders are issued on application by a member of the Australian Federal Police to a judicial or quasi-judicial or former judicial officer who has consented to being appointed by the Minister as an issuing authority Criminal Code Act 1995, s 105.2. The order may be issued if the issuing authority is satisfied that it is necessary to detain the subject either to assist in preventing the occurrence of an imminent terrorist act in which the subject is suspected on reasonable grounds of being involved or to preserve evidence of a terrorist act occurring within the previous 28 days Criminal Code Act 1995, s 105.4. The detainee may also be subject to a prohibited contact order, including contact with specified lawyers, similar to the situation of detainees under the ASIO Act. Effective judicial review is impossible. So long as the detention order is in force, resort to any Court is denied Criminal Code Act 1995, s105.51, 105.52(5)(b) although, presumably, the jurisdiction of the High Court under s 75(v) of the Constitution cannot be excluded. After the detention order has expired, the detainee can apply for review, but only to the Security Appeals Division of the Administrative Appeals Tribunal which can award compensation if it would have held the order to be void Criminal Code Act 1995, s 105.51. If a detention order has been made under a State law as well as under the Criminal Code, State Courts can review both after the warrants have expired, but the Australian Federal Police are not required to disclose any information that "is likely to prejudice national security" Criminal Code Act 1995, s 105.52(4). The meaning of that term is extremely wide – it covers, inter alia, not only prejudice to physical security, but also prejudice to Australian political, military and economic relations with foreign governments and international organisations and our interest in avoiding disruption to national and international efforts relating to law enforcement or criminal intelligence and in protecting informants Criminal Code Act 1995, s 105.53(4) and (6), National Security Information (Criminal and Civil Proceedings) Act 2004, ss 8, 10, 11, 17. In other words, effective judicial review is excluded.

Granted the desirability of confidentiality in dealing with many issues of security, can it be just to repose these powers in agencies of the Executive without judicial supervision exercised in accordance with natural justice? Courts certainly value publicity as a safeguard against the adventitious use of power, but they are not antipathetic to national security, nor are they incapable of preserving confidentiality of information when confidentiality is essential for national security. If effective access to the courts were available to those against whom warrants are issued, there would be an assurance that the powers conferred on ASIO and on the Federal Police are exercised reasonably and for the purpose for which they were conferred. The sad experience of the Haneef case has eroded public confidence in the agencies entrusted to safeguard public security. The misinformed attack on Stephen Keim SC for releasing a transcript of the interview with Haneef after extracts prejudicial to Haneef had been leaked suggested a fear that an incompetent or arrogant misuse of power would be exposed.

To exclude access to the courts and to restrict a court’s access to the material on which to determine the validity of an exercise of power is to deny the rule of law. Experience has shown that, whenever unexaminable power is conferred, there is a tendency – no, more, a likelihood – that the power will be abused. As United States Justice Stevens said in Rumsfeld vPadilla 542 US (2004):

"Unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting citizens from official mistakes and mistreatment is the hallmark of due process."

The courts and their processes are the only sure protection of individuals – and ultimately the only sure protection of a community – against illegal injustice. In the struggle against terror, we must be careful not to expose ourselves to the risk of oppression by those with unaccountable power. Some may be prepared to accept the risk of injustice to others, believing themselves to be immune from the risk of suffering injustice at the hands of executive agencies. Perhaps they might reflect on Pastor Niemoller’s lament in Hitler’s Germany:

"… they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."

Democracy is our prized possession, but we must not be blind to the reality that democracy by itself does not assure justice to all members of the community. Passivity by a majority in the face of injustice may be destructive of freedom. Five years passed before David Hicks was brought home – and even then under a bargain which does not bear comparison with the situation of the British detainees who were released to freedom years before. In the absence of effective judicial remedies or timely popular protest, it was the passion for justice of Michael Mori, Stephen Kenny and others, including Lex Lasry, which ultimately secured for Hicks some relief from the injustices of Guantanamo Bay.

Experience of the anti-terrorism laws and their operation, like the experience of Mamdouh Habib and David Hicks in Guantanamo Bay, starkly illustrate the injustices that can occur when power is exercised without effective judicial review. Judicial review is not designed to frustrate the reasonable exercise of legitimate powers – it is but the means by which the rule of law is maintained. You who have given so much of your time and energy to justice and the law know only too well that the absence of law walks hand in hand with injustice to the detriment of individual liberty, individual rights and, importantly, public confidence in the rule of law. Yet, in Australia in recent times, we have witnessed a series of erosions of the jurisdiction of the courts to apply the rule of law.

It was a denial of access to the courts and of effective judicial review that allowed injustices to be visited on many asylum seekers held in detention. Port Headland and Baxter, Tampa and the Pacific solution were designed to preclude effective access to the courts. And the full scope of judicial review has been denied by Part 8 of the Migration Act 1958 Migration Act 1958, ss. 475, 476. When courts are stripped of their jurisdiction over a particular subject matter, to that extent the subject matter is without legal control – an area of unbridled power. Then it is foolish to place complete trust in the integrity of executive agencies to act justly in all circumstances. Of course we must place trust in those agencies – we trust them to fulfil the very purpose of their existence, whether it be to protect us against terrorism or to administer the Migration Act or to perform some other function which, in a modern complex state, must be performed by a skilled and committed bureaucracy. But it is the very devotion to their allotted task that carries the risk of individual injustice – injustice that may follow sometimes from an excess of enthusiasm to achieve their purpose, sometimes from incompetence or human error. The Council of Europe, in a preface to its Guidelines on Human Rights and the Fight Against Terrorism Adopted by the Committee of Ministers, 11 July 2002, at the 804th Meeting of the Ministers’ Deputies at pg 5, cited by Hon Arthur Chaskalson, sometime Chief Justice of South Africa and President of the Constitutional Court in his Seventh Sir David Williamson Lecture: The Widening Gyre: Counter-terrorism, human rights and the rule of law., said this:

"The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law".

Sometimes injustice consists in the infliction of punishment for crime that is either disproportionate to the circumstances of the offence or does not accord with what we accept as reasonable. Thus we provide for appeals against sentences imposed by Australian courts. But we have no juridical means of reviewing sentences imposed by foreign courts. In recent years, we have become acutely conscious of the imposition of the death penalty by courts in our region. Many of you are too young to remember the last execution in Australia. It was 8 o’clock on the morning of 3 February 1967 when Ronald Ryan was hanged from the gallows in the Melbourne gaol. Most Australians shuddered at that moment. Just as most of us were distressed by the hanging of Barlow and Chambers in Pudu Prison in Malaysia in July 1986 and by the hanging of Van Nguyen in Changi Gaol in December 2005. These events were each described as "barbaric" by leading political figures of the day: Bob Hawke in relation to the hanging of 1986 Damien Murphy in Sydney Morning Herald, 30 November 2005, Philip Ruddock in 2005 ABC News, 28 November 2005. Coming from Queensland, where the death penalty was abolished in 1922, I was largely shielded from involvement in the terrible process of pronouncing the death penalty but I was present as a minor court officer at the last of the Japanese War Crimes trials in Manus Island in 1950 when I heard that dread sentence pronounced. I sensed the horror of the sentence but not as much as did the members of the Court Martial who imposed it – tough men, good men who had lived through some of the terrors of the war; they exhibited distress and mental anguish in the days that followed. Such a reaction is the inevitable and widespread accompaniment of taking any part in a judicial killing, however awful the crime. Capital punishment brutalises the society that tolerates it and may destroy not only the person killed but also those involved or associated with the gruesome event.

Australia long ago decided that capital punishment is not to be practised. We joined 132 other nations See the Amnesty report of October 2007: http://web.amnesty.org/pages/deathpenalty-facts-eng in that resolve. In 1991, we acceded to the Second Optional Protocol to the International Convention on Civil and Political Rights which not only binds Australia not to execute anyone within the jurisdiction Article 1 but also recites that the Parties to the Protocol are –

Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,

and the Parties are –

Desirous to undertake …. an international commitment to abolish the death penalty

One of the latest nations to endorse the policy was Rwanda. In July this year, Louise Arbour, the United Nations Commissioner for Human Rights lauded the Rwandan decision, saying:

"A country that has suffered the ultimate crime and whose people's thirst for justice is still far from quenched has decided to forego a sanction that should have no place in any society that claims to value human rights and the inviolability of the person".

Nevertheless, on 16 February 2003 the Australian Prime Minister said that the Bali bombers "should be dealt with in accordance with Indonesian law. …and if [the death penalty] is what the law of Indonesia provides, well, that is how things should proceed." But Ronald Ryan and Barlow and Chambers and Van Nguyen were hanged as the law provided. When Mr McClelland pointed out that death sentences were pronounced on Van Nguyen and Amrozi, one of the Bali bombers, at the same time, and proposed that Australia would join Asian countries to persuade others in the region to abolish capital punishment, his statement was repudiated by both the main political parties. It was repudiated not merely on the ground that it was made insensitively in the week of the anniversary of the Bali bombings but on the ground that Australia’s interventions on behalf of those sentenced to death should be limited to Australian prisoners. This elicited a comment from Mr Malcolm Fraser: "The Death Penalty: Where is the moral leadership" in Australians All: www.australiansall.com.au

"It is sad to see principle being thrown overboard and an expedient argument, which politicians believe will be the popular argument, pursued. So often matters of principle need to be explained and supported by those in positions of authority – and then, more often than not, those principles will find general support.

If the Bali 9 should be spared the firing squad, why do we repudiate a proposal to persuade those South East Asian nations who still carry out executions to change? The effectiveness of intervention on behalf of Australians under the death sentence is surely problematic. We decline extradition unless the country seeking extradition undertakes that the prisoner will not be executed, yet our policy for co-operation with Indonesian police allowed, perhaps required, that the Australian Federal Police facilitate the arrest and possible execution in Indonesia of Australians who were employed to bring drugs to Australia. When the Bali 9 were arrested, the then political leaders of both major parties supported the policy. Scott Rush’s parents had asked that he be warned off becoming a drug mule but he was allowed to go lest the police operation be compromised. Mr Keelty, the Commissioner, said: "We’d do the same thing again and we’re doing it each and every day." Sydney Morning Herald, 15 February 2006. We can only hope that Australia can effectively intervene to save the lives of those condemned, including 21 year old Scott Rush after exposing him to the very risk of execution.

The political responses to the capital sentences imposed by Indonesian courts on some of the Bali 9 and on some of those involved in the Bali bombing raise acutely the distinction between law and justice. All of us would support laws which are effective to suppress the trade in destructive drugs and to punish those involved in the horrible murder of the bombing. But if we espouse the equal application of law as the essential characteristic of the rule of law, how can nationality be the ground of distinction? We cannot declare the execution of Australians to be barbaric and the execution of Indonesians to be acceptable. Yet that now seems to be bipartisan policy. Principle is sacrificed for political advantage. A country which speaks about such an important issue with a forked tongue can hardly lay claim to the rule of law and forfeits its credibility in the international forum.

It is, I suppose, inevitable that an election campaign should be pitched at the majority, and that the protection of the few against injustices would not be an election issue. We have not been moved by the case of David Hicks to press for the restoration of the rule of law by the United States in its treatment of so-called "enemy combatants"; nor has the case of Mohamed Haneef elicited a call to revisit the provisions of the anti-terrorism laws to provide detainees with effective access to justice. The injustices that have marked both the provisions and the administration of the Migration Act have stimulated only partial reforms and apparently have no resonance today in the political sphere. And even our international commitments to the ideals of the Second Optional Protocol are sacrificed on the altar of political expediency.

But, on nights like this, when men and women devoted to the cause of justice gather to celebrate their commitment and to validate the rights of the outcast and the underprivileged, there are grounds for optimism. It is their work which employs the law in its most important role – the equal application of the law to all, irrespective of class, creed, ethnic origin, popularity or lack of it, status or wealth. Ultimately, political rhetoric about the rule of law may be exposed to be as genuine as the electoral kissing of babies, but there is a brave core of Australians, including many in the legal profession, who are truly devoted to the rule of law and the securing of justice for all. They are the ones who see the law as a way to justice, who give real meaning to the notion of a fair go. They represent the values of a free and confident nation. We greet you, we thank you and we wish you well in your noble endeavours.