Allan, James --- "Do the Right Thing Judging - The High Court of Australia in Al-Kateb" [2005] UQLawJl 1; (2005) 24(1) University of Queensland Law Journal 1
‘Do The Right Thing’
Judging?
The High Court of Australia in
Al-Kateb
JAMES ALLAN[*]
In the recent case of Al-Kateb v Godwin,[1] the High Court of Australia decided by a narrow 4-3 majority[2] to reject the appellant’s argument that he should be released from detention because sections 189, 196 and 198 of the Migration Act 1958 (Cth), properly construed, no longer authorised that detention. There were two live issues in the case. Firstly, do the above-mentioned sections, when properly construed, purport to authorise what could turn out to be indefinite detention? Secondly, are these sections within the legislative power of the Commonwealth?
All three of the minority judges wrote separate judgments but each rested his judgment on answering ‘no’ to the first issue while, to varying extents, making obiter comments about the second issue. (That said, in Justice Kirby’s case, the second issue, or at least that part of it tied to the influence of international human rights law and norms, so pervades the first issue that it may in fact be unwise to describe these as obiter comments.)
As for the majority judges, three of the four of them also wrote separate judgments, meaning the case is a lengthy 304 paragraphs, and that is without counting the footnotes. Justice Heydon is the exception, concurring with Justice Hayne in two short paragraphs, though explicitly leaving open the question of whether the relevant sections should be interpreted in a manner consistent with unincorporated treaties to which Australia is a party. (In other words, Justice Heydon reserves the question of the influence of international law on statutory interpretation.)
For the majority judges, the second issue is not obiter. They must answer the first and second issues in the affirmative; they must hold both that the three sections do purport to authorise what could turn out to be indefinite detention and that these statutory provisions doing so are within the legislative power of the Commonwealth parliament. The second issue does not become obiter with a ‘yes’ answer to the first issue, the way it does with a ‘no’ answer. So the majority judges need to answer both issues in the affirmative, and, of course, that is precisely what they do do.
In my opinion, the majority judgments are by far the more convincing. They are better in terms of how properly to interpret statutes; they are better too in terms of how properly to interpret constitutional provisions. Most importantly, the majority judgments are better than the minority ones in terms of democratic theory and legitimacy, of understanding the proper role of an unelected judiciary in a jurisdiction, like Australia, that does not hand massive social policy-making powers over to the judiciary under the aegis of a Bill of Rights that sets out a catalogue of vague, amorphous — but emotively appealing — rights guarantees.
In short, the majority judges did precisely what they should have done in this case; the minority ones did not.
The rest of this article will be divided into four parts. In Part I, I will give a basic overview of their Honours’ reasons for judgment. Then, in Part II, I will comment on the desirability of using international law and norms to interpret domestic law. The normal assumption seems to be that the influence of international law, and particularly international human rights standards, is wholly benign and a force for good. In my view that is a dubious assumption. When one realises what is actually relied upon, the sorts of reasoning used to support it, and who is making these decisions, my opinion is that a successful democracy like Australia — one seen as a desirable place to live by virtually everyone on the planet — should not be rushing to use (or asserting it is obliged to use) the decisions of a small group of unaccountable, international law decision-makers as a prism through which to interpret domestic statutes and the Constitution. To be blunt, the effect of letting international law and norms influence interpretation is just as likely to be malign as anything else. And it hardly needs pointing out that filtering interpretation through an international law prism is anything but democratic (at least where that term retains any semblance of connection to rule by the people, as opposed to rule for the people, by those who happen to think they know better).
In Part III, I want to contest the explicit assumption in Justice McHugh’s judgment, and an implicit one in Justice Kirby’s, that Australia would be better off with an entrenched, or even a statutory, Bill of Rights. I think this assumption is simply wrong on moral and normative grounds. It is likewise wrong on purely empirical grounds as to who better delivers the goods when it comes to individual freedom and well-being, the unelected judges or the elected legislature and executive. Personally, any day of the week I would rather cast my lot in with secretaries, plumbers, teachers and the voters generally and find it remarkable that so many people, not just in the law schools and law societies, prefer to trust an aristocratic judiciary.
In Part IV, I will finish with some concluding remarks.
I. A General Overview of the Reasons for Judgment
Let us begin with a bare account of the facts and then turn, firstly, to the reasons given in the dissenting judgments and after that to those in the majority judgments.
The appellant arrived in Australia in December 2000, by vessel, without an Australian visa permitting him to enter or to remain and indeed without a passport. The appellant submitted, and it was not contested, that he is a stateless person. He was taken into immigration detention. He applied for a protection visa. That application failed, as did his further application for review of the initial refusal. The appellant then wrote to the Minister requesting to be removed from Australia. However, despite the efforts of the Australian authorities, the appellant has not been removed because no other country has yet been found that will take him.
So in 2003 the appellant sought, inter alia, a declaration in the Federal Court of Australia that his continued detention was unlawful. That application was dismissed. The appellant then gave notice of appeal to the Full Court of the Federal Court but the appeal was removed into the High Court by order made under s 40 of the Judiciary Act 1903 (Cth).
The respondents did not challenge the Federal Court’s finding that removal of the appellant ‘from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future’.[3]
That, then, is a bare account of the appellant’s plight. He was a stateless person who could not establish any entitlement to refugee status. He entered Australia illegally and now no other state is presently willing to receive him. The prospect of that changing seems to lie somewhere between uncertain and bleak. So the appellant finds himself facing the prospect of what could turn out to be indefinite detention as a result of attempting to enter Australia illegally.
Given the facts, the two issues confronting the High Court are both issues of interpretation. The first issue is one of statutory interpretation. Do the aforementioned three sections of the Migration Act 1958 (Cth) purport to authorise what could turn out to be the indefinite detention of this unlawful non-citizen appellant? That is to ask, what do the Justices take the words of the statutory provisions to mean? Properly construed, do ss 189, 196 and 198 authorise this appellant’s continued detention or do they not? That, as I said, is a question of statutory interpretation.
The second issue confronting the Court is also an issue of interpretation, but this time an issue of constitutional interpretation rather than of statutory interpretation. Now the question is whether or not it is within or beyond the legislative power of the Commonwealth Parliament to enact these statutory provisions, if indeed they do purport to authorise the appellant’s continued detention. This second issue does not concern the meaning of some statute, but rather the meaning of the Australian Constitution. Does Parliament have the power to enact laws resulting in this appellant’s detention where that detention could turn out to be indefinite? The answer to that question will depend on what the Constitution’s words mean, or are taken to mean, by the Justices.
So both issues, then, are at core issues of interpretation, of what meaning to give to words. Admittedly, all sorts of factors and considerations might justifiably come to bear in the course of faithfully attempting to give these words their most plausible meaning in relation to this set of facts, especially if there is indeterminacy and uncertainty as to that meaning and as a consequence one finds himself or herself in the ‘penumbra of doubt’.[4] That conceded, it is nevertheless worth explicitly stating that the meaning of the words (either in the statute or in the Constitution) cannot depend upon the degree of sympathy one happens to feel or not feel for the appellant’s plight. If the law is indeterminate, and the words used leave open either outcome, then sympathy for a party may be a legitimate influence on the exercise of judicial discretion. First, though, the law — the words of the statute or Constitution — must be found to be otherwise indeterminate.
As mentioned above, all three of the minority judges disposed of this case on the basis of what meaning to give the statutory provisions. They said the words, properly construed, did not authorise continued detention. Accordingly, there was no need for them to decide on the second issue, the meaning to give to the words of the Constitution. To the extent they did so comment on the second issue, it was obiter.
Chief Justice Gleeson starts by explaining that the Migration Act 1958 (Cth) provides for administrative detention of unlawful non-citizens and that that detention is mandatory, not discretionary. He notes that the critical statutory provisions are ss 189, 196 and 198. Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. Section 196(1) deals with the period of detention, providing that s 189 detainees must be kept detained until they are (a) removed from Australia or (b) deported or (c) granted a visa. Section 196(3) then states:
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
Section 198 then provides that an officer must remove as soon as reasonably practicable an unlawful non-citizen if (1) he asks the Minister, in writing, to be so removed or … if (6) the valid application for a grant of a visa has been refused and finally determined and no other valid application has been made. Both subsections (1) and (6) applied in the case of the appellant.
Accordingly, and as the Chief Justice says, ‘it is the meaning of subs (1) [of s 196], understood in its constitutional and statutory context, that is in question’.[5] The limitation in s 196(3) on release from ‘detention’ even by a court, comments the Chief Justice, must be taken to mean ‘lawful detention’ or it ‘would constitute an unconstitutional interference with judicial power’.[6]
The Chief Justice then argues that the ‘Act does not in terms provide for a person to be kept in administrative detention permanently, or indefinitely’.[7] Rather, it says that:
he is to be kept in administrative detention until he is removed, and that he is to be removed as soon as reasonably practicable. That could mean that the appellant is to be kept in administrative detention for as long as it takes to remove him, and that, if it never becomes practicable to remove him, he must spend the rest of his life in detention … [Alternatively, on the appellant’s contention,] [i]t may mean that the appellant, who is being kept in detention for the purpose of removal, which must take place as soon as reasonably practicable, is to be detained if, and so long as, removal is a practical possibility, but that if, making due allowance for changes in circumstances, removal is not a practical possibility, then the detention is to come to an end, at least for so long as that situation continues.[8]
The Chief Justice opts for the second meaning. That, in his view, is what the three provisions, including s 196(3), mean. He arrives at that latter meaning, rather than the former, after arguing a) that the statutory provisions assume that removal is a possibility;[9] b) that those provisions make no express provision for indefinite detention where removal is not reasonably practicable;[10] c) that an intention by the legislature to abrogate or curtail human rights or freedoms must be ‘clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment’;[11] d) that this presumption about not abrogating fundamental rights is (somehow, but we are not told how) tied to the concept of the rule of law;[12] e) that the detention is mandatory not discretionary;[13] and hence f) that purporting to authorise what could turn out to be indefinite detention requires more explicit statutory language than is present in ss 189, 196 and 198.[14]
The Chief Justice then finishes by arguing that though the Migration Act 1958 (Cth) is silent on the point, the Court can nevertheless impose ‘conditions designed to ensure an unlawful non-citizen’s availability for removal if and when that becomes reasonably practicable’.[15] What the Court would, or should, do if the detainee were regarded as a dangerous person, or someone likely to abscond, or someone whose perceived dangerousness was the reason other countries would not receive him, were all matters the Chief Justice felt raised more difficult questions but nevertheless could wait for another case to answer.[16] The Chief Justice did not mention that these ‘more difficult question[s]’,[17] and indeed the need for the minority in its orders to create its own imposed conditions on the appellant’s release, do not arise on the majority interpretation of ss 189, 196 and 198, the interpretation the Chief Justice rejects for being insufficiently explicitly stated.
Justice Gummow writes the longest of the dissenting judgments. Here, though, I will simply indicate where his reasoning and emphasis differs from the Chief Justice’s.
After reciting the facts and discussing the concept of statelessness, Justice Gummow turns to the history of the relevant legislation. He then sets out the appellant’s case, which he there says should be accepted.[18] At the heart of that submission is the contention that the statutory provisions need to be construed as ‘indicated by authorities such as Calwell’.[19] Again, that ‘construction should allow for what was said in Calwell concerning the duration of purposive powers such as those involved here’.[20] And not just the Calwell case is said to bear on the first issue of statutory interpretation, how properly to construe the statutory provisions ‘also should allow for what was decided in Lim’.[21]
Justice Gummow argues a) that in both Lim and Calwell it was assumed that ‘expulsion or deportation would be a practicable course’, that detainees had it in their own power to bring an end to their detention by requesting removal, but that in this case that assumption does not hold;[22] b) that Lim is authority for reading the s 196(3) provision, the one preventing release from detention even by a court, as only applying to those in lawful detention;[23] c) that the statutory amendments commencing before the hearing of this appeal and adding subsections (4) – (7) to s 196, which state in terms that detention in some circumstances is to continue ‘whether or not there is a real likelihood of the person detained being removed … in the reasonably foreseeable future’,[24] do not apply to the appellant’s situation;[25] and d) that in interpreting these statutory provisions ‘it is important to eschew, if a construction doing so is reasonably open, a reading of the legislation which recognises a power to keep a detainee in custody for an unlimited time’.[26]
None of this is markedly different from the Chief Justice’s reasoning, though what supports that reasoning varies somewhat. Justice Gummow relies on this foundation to support his ratio, which is that the s 198 ‘removal as soon as reasonably practicable’ requirement is spent to the extent that s 196(1) removal cannot (as a matter of reasonable practicability) be performed.[27]
In my terms, the claim here is that the ability to detain flows from the purpose of that detention, which is removal, and where that purpose no longer has any real likelihood of fulfillment, detention stops being lawful. That allows one to avoid the otherwise seemingly clear words of s 196(3).
A few further comments about how the appellant ‘may be’ liable to renewed detention in the future, if the real prospect of removal revives,[28] and Justice Gummow is finished with the first issue, the matter of statutory interpretation, and so with any need to say more. Unlike the Chief Justice’s brief and oblique further comments,[29] however, Justice Gummow proceeds to write eighteen paragraphs of obiter on the second issue, the one relating to constitutional interpretation.
Justice Gummow’s obiter answer to this second issue is also ‘no’, that it is not within the legislative power of the Commonwealth Parliament to enact these provisions. Leaving behind any full-blooded notion of parliamentary sovereignty (insofar as a federal parliament with enumerated powers and no bill of rights can enjoy parliamentary sovereignty), Gummow J appears to link the Commonwealth’s legislative power (say, as regards immigration or aliens) to its use being exercised for a proper purpose. Hence, a power administratively to detain, so goes the claim, will only be a constitutionally valid use of that power if it is exercised within parameters of what is reasonably necessary for the purpose of that detention.
Now immediately all readers will ask themselves ‘Who gets to decide what the purpose of detention is?’ Is it the legislature? Can Parliament preface a statute by saying, ‘The purpose of this detention is not just removal, but also deterrence of queue jumpers and bogus refugee claimants and indeed, in these days of mass terrorism, protection of all citizens against possible infiltration by terrorists’? (After all, any and all of those purposes can quite plausibly be effected by seeking to detain those not granted a visa, and they would not become otiose if removal were proving impossible to arrange.)
Gummow J, however, seems to assume that the only purpose of detention is removal. In answering the second issue in the negative — saying that the Commonwealth Parliament cannot pass legislation purporting to authorise what could turn out to be indefinite detention — it appears Gummow J is vulnerable to the criticism that his view amounts to elevating form over substance. Is his position that if Parliament spells out all sorts of other purposes (or, perhaps, if it does so in sufficiently clear language), then it has, or regains, the power to so legislate? This would be the sort of form triumphing over substance position that Justice McHugh disparages (though McHugh J makes the same point by asking if it would be acceptable to achieve the exact same outcome by passing, instead, a criminal statute making it an offence to be in Australia as a prohibited immigrant).[30] Justice Gummow offers up some sort of reply to McHugh J’s query,[31] but I have trouble following it. He seems to say both that this “is not to the point” and also that ‘That which the Constitution may require is an expression of supreme authority in the Australian system of government’.[32] Frankly, and with respect, I think Justice Gummow is simply wrong on his first rejoinder, and I have no clear idea of what he means by the second one.
There are other problems here. Linking the Commonwealth Parliament’s legislative power to a purposive test, and thereby arguing that there are limitations required by the Chapter III judicial power sections, may have some sort of plausibility as regards administrative detention by the executive. But noting that judicial power is given by the Constitution to the judiciary is not much of a basis for saying Parliament’s legislative powers are limited in other, non-detention, areas. Can Parliament validly (i.e. legally validly) legislate to close completely the borders and prevent all immigration? Can it legislate to require aliens to carry identity cards or prevent them from receiving welfare benefits? To say the Chapter III judicial power sections limit legislative power in these areas would be implausible in the extreme; it would be analogous to saying that because these actions are now being contested in courtrooms, therefore the judges can second-guess them.[33]
Another potential problem relates back to the question of who determines what the purpose of a statutory provision is — say a provision to detain unlawful non-citizens not entitled to visas. Above I imagined it might be the legislature, by stating what its purpose was in some sort of preamble. But this, as we all know, would not bind the judges. They, as point-of-application interpreters of the statutory provisions, would have the last word. If the Chief Justice can say that Parliament’s intentions in s 196(3) were not clear enough, that they lacked ‘an intention [that was] clearly manifested by unambiguous language’,[34] then the same can be said about any imaginable preamble stating the legislature’s purpose as regards the statutory provisions. Indeed, the ease with which judges can manipulate purposive interpretation is so notorious that none other than Lon Fuller, himself a supporter of the approach, mocked it back in 1949 in his famous article, ‘The Case of the Speluncean Explorers’. He put the following into the mouth of his hypothetical judge Keen J:
I am personally so familiar with the process [of purposive interpretation] that in the event of [Foster J’s] incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms of the statute as applied to the case before him.
The process of judicial reform requires three steps. The first of these is to divine some single ‘purpose’ which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called ‘the legislator’, in pursuit of this imagined ‘purpose’, overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill in the blank thus created. Quod erat faciendum.[35]
Personally, I think the second issue in this case, of what is and is not within the legislative power of the Commonwealth, is far more convincingly analysed (to use Gummow J’s own words in describing Gaudron J’s judgment in Lim) ‘not in terms of the limitations on legislative power imposed by Ch III, but rather as an issue of characterisation and the scope of that legislative power’.[36] And having said that, I go further and say that the dissenting judges have a weak argument as regards this second issue and whether the Commonwealth Parliament has the power to legislate to authorise what could turn out to be indefinite detention.[37] On the first issue, the meaning of the statute issue, they are on firmer ground, though in my view still not firm enough.
That leaves the dissenting judgment of Justice Kirby, before moving to the majority opinions.
Justice Kirby tells us right at the start of his judgment ‘that this case … is to be decided primarily on the basis of the construction of the applicable legislation’.[38] It is the first issue, the statutory interpretation issue, that disposes of the case, though ‘of necessity, in giving meaning to the Act, certain constitutional fundamentals must be kept in mind’.[39]
That said, he proceeds in his second paragraph to give his ratio which is that the relevant provisions of ‘the Act do not apply, in terms, to the appellant’s case as it now stands’.[40] This, he there asserts, puts him in agreement with the ratio of Gummow J.[41]
Kirby J then writes 49 further paragraphs, all strictly obiter. These range across a variety of subjects. For instance, he asserts that ‘[t]his Court should be no less vigilant in defending [Australia’s constitutional] arrangements – and their consequences for the meaning of legislation and the ambit of the judicial power – than the United States Supreme Court has been’.[42] He considers case law from the United States, Israel, the United Kingdom and the Privy Council for Hong Kong.[43] He responds to Justice McHugh’s judgment, and goes into more length on interpreting Australian law to accord with international law (from para. [152] until the end of his judgment, and on which more will be said in Part II of this article). He argues that ‘[t]oday, legislation is construed by this Court to give effect, so far as its language permits, to its purpose’,[44] though putting it this way seems to imply that Kirby J thinks this ‘objective[ly] construct[ed]’ purpose[45] is a creature of something other than the statutory language used, which is odder still given that he also rejects originalism — that meaning flows from the intentions of the enactors and the founding fathers — in the statutory[46] and constitutional[47] contexts.
Personally, it seems to me that once ‘purpose’ is severed from the actual intentions of real life enactors and founders, and then is impliedly made subtly distinct from the plain meaning of the words used, there is nothing left of the concept save as a vehicle to allow the point-of-application judges to rewrite legislation and constitutional provisions as they happen to think fit. After all, when one does no more than concede that the judicial task of constructing some objective purpose (to impute to statutory provisions) is constrained by what the language permits, one is not saying that those same statutory words themselves dictate the outcome in the vast preponderance of cases, or indeed in many cases at all. And as for the process of constructing some ‘objective’ notion of statutory purpose, be aware that strictly speaking only people can have purposes, so at the very least talk of a ‘purposive approach’[48] as some sort of an ‘objective construct’,[49] ‘upholding compliance with international law’[50] is a serious misnomer. More apt would be to call it the ‘judicial oversight approach’ or the ‘judges know best, providing they are attuned to international developments approach’ or perhaps just the ‘do the right thing approach’.
Anyway, Justice Kirby finishes with a few more obiter claims. Not least, he opines that the ‘understanding of the Constitution in this Court is constantly evolving’.[51] This is ambiguous, of course. It leaves it open whether it is the Constitution’s meaning itself which evolves and changes (though the words themselves do not) or whether the meaning is fixed (but not, remember, fixed by the intentions of the enactors and founders or even, apparently, by the words used) and it is the judges’ ability to ascertain that fixed meaning that changes over time. In either event, Justice Kirby clearly sees his own interpretive views as resting on the right side of history. He accepts that a ‘majority of this Court may not yet have accepted the interpretive principle that I favour’.[52] But then he points to other changes in the Court’s views over time[53] and comments that the ‘interpretive principle that I have expressed is but another step in the process of evolution’.[54] Being unduly timorous or full of self-doubt is not a criticism one can fairly level at Justice Kirby.
That suffices to finish with the dissents and so we turn now to the reasons given by the majority judges.
Justice McHugh writes the first of the majority judgments. As I made clear above, both the first and second issues are live ones for the majority judges and both must be answered in the affirmative.
On the first issue, how to interpret the provisions of the Migration Act 1958 (Cth), Justice McHugh is succinct and blunt. He says that for the reasons given by Hayne J, ‘[t]he words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr. Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights’.[55] In other words, there is no uncertainty or indeterminacy here — no finding oneself in the ‘penumbra of doubt’[56] — and so no basis to justify resort to techniques that might allow the judge to reach an outcome more favourable to a sympathetic appellant.
As long as removal of an unlawful non-citizen is not reasonably practicable, ss 196 and 198 require that person’s detention to continue until it is reasonably practicable or that person is given a visa … The unambiguous language of s 196 — particularly subs (3) — indicates that Parliament intends detention to continue until one of the conditions expressly identified therein — removal, deportation or granting of a visa — is satisfied.[57]
All the rest of McHugh J’s judgment concerns itself with the second issue, whether such statutory provisions are within the legislative power of the Commonwealth Parliament. Here is Justice McHugh’s response to the Chapter III judicial powers argument:
I cannot accept that the words ‘[t]he judicial power of the Commonwealth shall be vested in … the High Court of Australia, and in such other federal courts as Parliament creates, and in such other courts as it invests with federal jurisdiction’ in s 71 of the Constitution prohibit the Parliament from legislating to require that unlawful non-citizens be detained until they can be deported … [T]o enact legislation that requires the detention of a person who unlawfully enters Australia until he or she is deported from Australia is not an exercise by the Parliament of the judicial power of the Commonwealth. It is no more an exercise of judicial power than is a law requiring enemy prisoners-of-war to be detained in custody until they are deported from Australia.[58]
Justice McHugh continues by noting that ‘[n]othing in ss 189, 196 or 198 purports to prevent courts … from examining any condition precedent to the detention of unlawful non-citizens’.[59] Meanwhile, if the goal is to ‘effectuat[e] the purpose of preventing [unlawful non-citizens] from entering Australia or entering or remaining in the Australian community … [then] detention is the surest way of achieving that object’.[60]
In short, McHugh J does not think much of the argument which seeks to limit legislative power here on the basis that the Constitution says judicial power is vested in the courts. I agree. ‘[T]he power to detain aliens is not a power incidental to the s 51(xix) head of power. It is a law with respect to the subject matter of that power’.[61]
And Justice McHugh is also prepared to spell out what none of the three dissenting Justices cares to mention — that their view opens up a backdoor way into Australia.
To hold that Parliament cannot do so would mean that any person who unlawfully entered Australia and could not be deported to another country could thwart the operation of the Migration Act. It would mean that such persons, by their illegal and unwanted entry, could become de facto Australian citizens…[62]
Most of the rest of McHugh J’s judgment is concerned with responding to Justice Kirby. McHugh J gives his interpretation of the case law relied upon by Kirby J.[63] He details the Australian history of indefinite detention during wartime.[64] And he stoutly rejects Kirby J’s wish to use international law as a prism through which to interpret the Constitution (see paras. [62] – [72], though I will return to this issue in Part II of this article).
Justice McHugh finishes with a thinly disguised call for the adoption of a Bill of Rights.[65] He conveys the sense that all those who have studied the matter, or at least all ‘[e]minent lawyers’ who have done so, believe a Bill of Rights should be incorporated into the Constitution.[66] He even manages to imply that the absence of such an instrument opens Australia up to criticism on the basis of justice, that it is somehow unjust not to have one.
I think this second claim is bunk and the first is simply factually incorrect. Indeed I so strongly disagree with Justice McHugh’s apparent sentiments on this matter that I will return to it at greater length in Part III below. Here, I simply state that in my view Australia is exceedingly lucky not to have a bill of rights (the Bill of Rights in the Australian Capital Territory[67] really is too insignificant to count). The level of social policy-making such instruments and statutes hand over to an aristocratic, unelected judiciary is truly astonishing and depressing[68] (though these bills of rights no doubt elevate the role and importance not just of the unelected judiciary but also of ‘eminent lawyers’, which may in some small way help to explain the enthusiasm Justice McHugh claims such lawyers feel for them).
Justice Hayne’s is the longest of the majority judgments, about the same length as Justice Gummow’s. Recall that Justice Heydon agrees with Hayne J’s reasons for judgment, though explicitly leaving open the question of the influence of international law on statutory interpretation.
Hayne J begins with a brief recital of the facts and then provides a short history of Australian immigration laws.[69] He then raises the first issue,[70] interpreting the relevant provisions of the statute, then the second issue,[71] interpreting the Constitution, before making a few more preliminary points. For instance, he raises the application of the criminal law, then Lim’s Case,[72] and then he notes that the alternative to continued detention is not suggested to be freedom — that the minority position is that limits on freedom of movement, and possibly on the ability to work and receive social security benefits, can be put on the appellant (though Hayne J later queries the basis for such limits).
That brings him to the first issue, of how to interpret the statute.[73] Justice Hayne notes that the provisions ‘do not expressly refer to the purpose of detention’.[74] Nevertheless, because of Calwell’s Case,[75] he does think the purpose of detention is removal.[76] The question for Justice Hayne boils down to ‘when that purpose is spent’.[77] And the gist of his answer is found in paragraphs [229], [230] and [231]. We cannot say removal will never happen, all we can say is that it cannot now be effected. Hence ‘it cannot be said that the purpose of detention (the purpose of removal) is shown to be spent by showing that efforts made to achieve removal have not so far been successful. And even if, as in this case, it is found that “there is no real likelihood or prospect of [the non-citizen’s] removal in the reasonably foreseeable future”, that does not mean that continued detention is not for the purpose of subsequent removal’.[78] The statute authorizes detention ‘until the first point at which removal is reasonably practicable’,[79] not on the basis of ‘some narrower limitation’.[80]
Justice Hayne then gives what he calls an ‘additional set of reasons’[81] for deciding the first issue against the appellant, reasons which I find more persuasive than what preceded them. The central claim here involves the artificiality of pretending there are any solid criteria for the judges to use if they were impliedly to limit detention on the basis of there being ‘a real likelihood of removal’.[82] So he rejects[83] the reasoning of the Full Court of the Federal Court in Al Masri;[84] he points out practical difficulties with such a test;[85] he argues this would transform the s 198 ‘as soon as reasonably practicable’ command into one that read simply ‘soon’, or ‘for so long as it appears likely to be possible of proximate performance’, and that this transformed command would apply not just to s 198 (as in the legislation) but also to ss 196 and 189.[86] In other words, this implied limitation would be a device for rewriting the legislation. ‘Reading the three sections together, however, what is clear is that detention is mandatory and must continue until removal, or deportation, or the grant of a visa. … No other, more stringent, time limit can be implied into the legislation’.[87]
Justice Hayne also asks on what basis a conditional release, of the sort the dissenters propose, can be justified.[88] How, he wonders, might the requirement to detain revive itself at some future time? Worse, ‘[t]here is no statutory or other basis for making any such order’.[89]
That brings Hayne J to the second issue, whether the statutory provisions authorizing what could turn out to be indefinite detention are within the legislative power of the Commonwealth Parliament. Justice Hayne says they are. Earlier he had framed the issue as being whether there is ‘a point at which detention of an unlawful non-citizen could validly be required only in the exercise of the judicial power’.[90] Here, he breaks that in two. Firstly, he asks: ‘If, after final resolution of a non-citizen’s application for a visa, it appears either immediately, or after some time has elapsed, that removal cannot be effected promptly, and it cannot be said when removal might be effected, would the provisions requiring detention no longer be laws with respect to aliens or immigration?’.[91]
Justice Hayne says these would still be laws with respect to the aliens and immigration heads of power. The question then is ‘whether the legislation requiring detention would be at odds with the constitutional requirement that no part of the judicial power of the Commonwealth be conferred otherwise than in accordance with the provisions of Ch III’.[92]
In the twenty odd paragraphs that remain of his judgment Justice Hayne argues that it would not be at odds with the provisions of Chapter III. He examines Lim’s Case,[93] and even finds its test too confining.[94] He observes that since the detention is mandatory, ‘[n]o judgment is called for … nothing … which bespeaks an exercise of the judicial power’.[95] He thinks questions of appropriateness and reasonable necessity should be focused on the heads of power, not on Chapter III.[96] He returns to Lim and argues that if Chapter III were not contravened there, it is not contravened here.[97] And he argues that detention here cannot be characterised as punitive, setting the provisions outside the aegis of Chapter III.[98]
As with McHugh J, Justice Hayne does what the dissenting Justices will not; he too tells us what the consequences will be of reading in a temporal limitation to the period of detention. It will mean unlawful non-citizens ‘will gain … entry to the Australian community’,[99] through the backdoor, as it were.
He then finishes with two apposite quotations from Judge Learned Hand, the latter one bearing on the proper role of an unelected judge in a democracy.[100]
That brings us finally to the judgment of Justice Callinan, in some ways the most straightforward and direct of them all. It is also one of the two shortest, at 32 paragraphs about the same length as the Chief Justice’s.
Callinan J starts with the facts,[101] including the fact that the appellant was actually released from detention pursuant to an interlocutory order of Mansfield J back on 17 April, 2003.[102] It is nowhere made clear what has happened to the appellant since this judgment was released, though presumably he is back in detention.
Justice Callinan leaves the issue of statutory interpretation, what I have termed the first issue, until the last third of his judgment. But his view is clear. ‘On their proper construction the sections do not give rise to a kind of implied temporal limitation or qualification, or provide a licence to rewrite the statutory language’.[103] Again, ‘[t]he statutory language is clear and unambiguous. It leaves no room for any implications of the kind found [in two overseas cases]. It requires the detention of aliens until such time as they are granted a visa or removed from Australia. There is certainly no basis, in my view, for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a “reasonable” period’.[104] I agree.
As for the second issue, that too is dealt with curtly. In paragraph [290] Callinan J rejects the Chapter III argument; he says its presence in the Constitution does not produce a result whereby a court ‘must or may examine … what the chances are of the removal of the alien concerned, and if they are not likely to be realised, and realised within some arbitrary period effectively legislatively fixed by the court, the alien cannot be detained’.[105] Echoing Justice Hayne, he also there says that ‘unlikely to be achievable within a foreseeable period’ is distinct from ‘cannot be … implemented at some time’.[106] He also comments, in obiter, that detention for the purpose of removal may not be the only constitutionally acceptable purpose.[107] For example, ‘[i]t may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable’.[108]
The most biting part of this judgment comes near the start, where Callinan J discusses the United States Supreme Court case of Zadvydas v Davis,[109] not least one suspects because Justice Kirby relied on it quite heavily (‘Zadvydas is highly relevant to the decision in this case’[110]). Justice Callinan first distinguishes this 5-4 American precedent (on the basis that the Americans have a Bill of Rights, in particular the Fifth Amendment), then says that in any event he ‘prefer[red] the opinions of the minority Justices’ in that case.[111] Callinan J then reproduces rather extensive passages from those minority judgments in Zadvydas, all of which were powerful and telling in my view.[112]
Perhaps best of all in Justice Callinan’s judgment, to my mind at any rate, are his comments on the proper role of an unelected judiciary:
It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated…[113]
Whether statelessness calls for a different treatment, as it may well do for practical and humanitarian reasons, is a matter for the legislature and not for the courts.[114]
That ends the overview of their Honours’ reasons for judgment. I finish Part I of this article by repeating what I said above. On the two issues of how properly to interpret these statutory provisions and how properly to interpret the Australian Constitution, the majority judgments are by far the more convincing.
II. The Desirability or Otherwise of Using International Law to Interpret Domestic Law
To suggest that domestic law be interpreted so as to be ‘consistent with the principles of the international law of human rights and fundamental freedoms that illuminate our understanding’[115] of whatever statutory or constitutional provisions are applicable in a particular case may be seen by many as a wholly benign and desirable injunction. In my opinion, however, that assumption — however widespread it may or may not be — is unfounded. Using these ‘principles of the international law of human rights’ as a prism through which to interpret domestic statutes and the Australian Constitution is on the whole a bad idea. Here is an outline of why.
A. Indeterminacy and Ambiguity
The language of human rights is an amorphous, vague and indeterminate, but admittedly emotively appealing, language. Up in the Olympian heights of moral abstractions this language commands widespread, at times even near universal, consensus. For instance, hands up all those in favour of the right to free speech.
However, cases on the general issue of being for or against the right to free speech do not come up. (And if they did somehow come up on such an abstract question commanding near universal assent, what possible benefit would there be for Australians in looking at such an issue through the prism of international norms?) No, we all know that when it comes to rights, it is down in the quagmire of detail that real life disputes arise. Down here people argue about campaign finance rules, about the extent of hate speech provisions, about the desired coverage of defamation laws, and much more. They do not argue about being for or against the right to free speech in the abstract.
Down here we are talking about drawing debateable social policy lines. Down here reasonable, sincere, even nice, people can and inevitably do disagree about where to draw those lines and yet both parties can still be, in fact usually are, committed to rights. As Jeremy Waldron, arguably the leading rights scholar in the world today, has put it:
No one now believes that the truth about rights is self-evident or that, if two people disagree about rights, one of them at least must be either corrupt or morally blind.[116]
Unless you believe that there is some morally right answer to how these vague, amorphous rights guarantees should play out down in the quagmire of detail, and you also believe, mirabile dictu, that you happen to have access to that answer but those who disagree do not (possibly because they are corrupt, or weak, or stupid, or just not in agreement with you), you need a way to resolve that moral disagreement about the scope, application and weighting of rights.
And here is the first problem with what I will call the ‘Kirby doctrine’ in favour of using international norms to interpret domestic law. It amounts to a presumption on the side of drawing a debateable line the same way it has been drawn elsewhere, either by some overseas court or by some international body of experts. If they say that commercial advertising should be strongly protected,[117] then the presumption is that we in Australia should too. If they say parental spanking amounts to physical abuse, then the default position in Australia needs to be that we should too, absent extremely clear language to the contrary.
Take this last example in more detail, for it is not far-fetched. Pursuant to the Convention on the Rights of the Child the United Nations Committee on the Rights of the Child has been established. This body is constituted under Article 43 of that Convention to monitor states’ progress in implementing the treaty’s obligations. Now this Committee takes the view that article 19(1), which talks of a right to be protected from physical abuse, means that parental corporal punishment is in violation of the Convention. But why, precisely, should their view of how to apply an indeterminate, amorphous concept[118] down in the quagmire of detail — of whether to make spanking one’s own children amount to assault — be the presumptively correct moral position? Drawing this line, and the vast preponderance of other lines that have to be drawn when it comes to giving life to rights, is a task with no clear answers and much reasonable disagreement.
The undeniable effect of the ‘Kirby doctrine’, however, is to put in place a presumption that Australia should draw its lines at the same point as where a group of international law experts appointed to various United Nations bodies would draw theirs. Why? Why, precisely, is it believed that when it comes to moral issues — not issues of law and of what the body of international law contains as a matter of fact but rather of moral issues — these experts have superior moral perspicacity to any of us?
Personally, I do not think that question can be answered in any remotely plausible way, either on behalf of appointees to international legal bodies or on behalf of overseas judges. That, of course, may be why the question is rarely raised.
My point here is that when one descends from the heights of abstract rights guarantees down into the quagmire of drawing debateable lines on the basis of these amorphous entitlements, one should expect a great deal of disagreement about where to draw these lines. How to resolve these disagreements is a big question. There needs to be an authoritative decision-making rule. Majority voting would be one such procedural rule. It is the one I strongly favour, and unashamedly so. Letting a group of unelected judges decide is another procedural rule.[119] And so is a rule that says ‘the default position on all these rights disputes is whatever is “consistent with the principles of the international law of human rights”, or more accurately stated, whatever has been decided by a small group of people appointed to various international bodies’.
I concede that the vague, amorphous language of human rights may prove to be very useful in getting countries not noted for benevolence towards their own citizens to sign up to human rights treaties, not least because such language finesses disagreement down in the quagmire of detail. However, that indeterminacy and ambiguity of language is not also a reason for thinking others offshore are more morally worthy than the average Australian voter.
B. Who are these International Human Rights Law Decision Makers?
Related to everything just outlined in sub-part A above, there is the question of how these international law experts come to hold the positions they do. Is the appointment process transparent? What are the trade-offs between talent and ability on the one hand and geo-political horse trading and compromise on the other? To what extent are these bodies, say the United Nations Committee on the Rights of the Child or the Human Rights Committee, self-perpetuating bodies, insulated from competing views? To what extent do they become dominated by those holding particular political views, perhaps small ‘l’ liberal or internationalist views? Do these international human rights law experts look to be, on the whole, more or less able (legally, politically or morally) than a country like Australia’s highest officials (including judges)?
All these queries, and more, need to be answered, and answered in favourable terms, before the ‘Kirby doctrine’ begins to look remotely desirable. Otherwise, why would we want to make Australia’s default position (barring ‘clearly manifested … unambiguous language’[120] to the contrary) that our statutes and constitutional provisions must be interpreted to stay in keeping with the lines drawn by overseas experts, experts accountable to no one in Australia?
I leave it to the reader to decide for himself or herself if all the above questions can in fact be answered in terms favourable to the assumptions implicitly underlying the ‘Kirby doctrine’.
C. How Good is the Reasoning?
There is another empirical question that bears on whether domestic Australian law should be interpreted by reference to the provisions of international law, in particular international human rights law. Here the question to ask is: How good is the reasoning in the international law precedents that give flesh to the various amorphous rights guarantees? Is the reasoning worthy of presumptive deference?
There is no space here to do other than raise this issue, indicate my own personal scepticism, illustrate that scepticism with an appropriate case, and leave this, too, for the reader to ponder and decide for himself or herself.
In Madafferi[121] the Human Rights Committee was considering a communication or complaint against Australia under the Optional Protocol to the International Covenant on Civil and Political Rights (‘ICCPR’). The authors of the communication were a husband (and Italian national), his Australian wife and their four Australian children. Australia intended to detain and deport back to Italy, the husband, Mr. Madafferi. The first eighteen pages — that is, the first 73 paragraphs — of the decision amount to recounting the submissions of the parties. The reader is told ‘the facts as submitted by the authors’, ‘the complaint’, ‘the state party’s submission on admissibility and merits’ (for 22 paragraphs in fact), ‘the author’s [i.e. complainant’s] comments on the State party’s submission’ (14 more paragraphs), ‘the State party’s supplementary comments’ and more. Only on page 19, four pages from the end, does the reader come to what is entitled ‘consideration of merits’. This is covered in twelve paragraphs.
The gist of the Human Rights Committee’s view is that to send Mr. Madafferi back to Italy (to Italy mind you, not to some third world, wretched country) would constitute arbitrary interference with the family thereby —we are told — contravening article 17, paragraph 1 of the ICCPR. The ratio appears to be that ‘the Committee considers that a decision by the State party to deport the father of a family with four minor children and to compel the family to choose whether they should accompany him or stay in the State party is to be considered “interference” with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case’.[122]
My point, for our purposes here, is simply that the reasoning used to reach this conclusion strikes the common law reader — or this common law reader at any rate — as exiguous, at best. It seems to amount to little more than the Committee’s judgment that Australia’s immigration concerns are outweighed, ‘are not pressing enough’,[123] when balanced against the fact that Mr. Madafferi’s wife and children, if they ‘were to decide to emigrate to Italy in order to avoid separation of the family … would not only have to live in a country they do not know and whose language the children … do not speak, but would also have to take care … of a husband and father whose mental health has been seriously troubled [by the detention and the threat of imminent deportation]’.[124]
That would be that were it not for the fact that one of the Committee members, the American Professor Ruth Wedgwood, dissents from the above view. She tells the reader in her dissent what was nowhere else made clear. Mr Madafferi’s criminal record in Italy, the criminal record he failed to disclose and which made him an unlawful non-citizen in Australia, was a ‘substantial criminal record’. Mr Madafferi had taken ‘part as a “bag man” in a violent extortion scheme [involving exploding bombs in a home]’; he had later ‘inflicted multiple stab wounds to the back and abdomen of a victim’; in the same incident he had been found to possess heroin, cocaine and other drugs; and he had other convictions for assault and receipt of stolen property.[125]
Professor Wedgwood continues by noting that
Article 17 forbids ‘arbitrary or unlawful interference’ with family life. But the state party’s ultimate decision in regard to Mr. Madafferi is neither arbitrary or [sic] unlawful. The human sympathy that may be felt for a visa applicant and his family does not create a license to disregard reasonable criteria for the grant or denial of visas. … The Committee has no evident warrant to assign its own chosen weight to the relative importance of protecting against recidivist criminal conduct versus minimizing family burdens … we are not entitled to ‘reverse’ state governments simply because we might weigh the balance differently.[126]
But of course that is just what the other 14 members of the Committee do (with one other member of the 16 person Committee saying he is not opposed to the majority view, but not prepared to participate in it either).
In my view, if this Madafferi case is at all typical of the reasoning to be found in international human rights law precedents then there is little, if any, reason to grant them presumptive deference. The ‘Kirby doctrine’ needs to establish why it is that the reasoning about rights found in the decisions of international bodies (and indeed in overseas case law) merits copying, or at least presumptive deference. I know of nowhere where this difficult task has been attempted. As I said above, I am sceptical about the possibility of doing so convincingly if it were attempted.
D. The ‘Ratchet-Up’ Effect
Another reason to doubt the wisdom of using ‘the principles of the international law of human rights’[127] as a prism through which to interpret domestic Australian law is that there are few, if any, incentives on such international decision-makers to withstand the inflation of the ambit of rights. In other words, over time there is sure to be — there has been and is — a ‘ratchet-up’ effect. The direction of movement is virtually all one way, towards recognising more and more instances in which rights guarantees apply. There is hardly any movement the other way, towards paring back the scope and ambit of situations that these rights guarantees are held to protect.
And recall this: all these rights guarantees are expressed in abstract, broad, indeterminate and amorphous terms. That is part of the appeal of rights talk. It also makes it likely that there will be this ‘ratchet-up’ effect which I am claiming exists because little is ruled out by the words themselves.
The fact that those who sit on international human rights law bodies will bear none of the consequences of their decisions makes the likelihood of this effect greater still. Elected politicians in Australia bear the consequences of their decisions about rights. So too, though to a much lesser extent, do Australia’s top judges. The members of the United Nations Human Rights Committee bear none, as far as I can see. It affects them not one iota if unlawful non-citizens allowed to remain in Australia later commit another serious criminal offence or if all sorts of bogus refugees find a backdoor way into Australia.
Having said that, I also recognise that there is room for reasonable disagreement on the philosophical issue of whether it is desirable that those making rights decisions be completely insulated from the consequences of their decisions. My guess is that most natural law adherents and those who lean towards deontological moral theories will favour insulation, and those of a utilitarian or moral scepticism bent will not.[128] Here, however, I need only point out that this ‘ratchet-up’ effect is likely to exist and so interpreting domestic law through the prism of international law will involve an ever expanding understanding of the aegis of rights.
E. How Would Judges be Constrained Under the ‘Kirby Doctrine’?
Another flaw in the ‘Kirby doctrine’s’ call to interpret domestic law through an international human rights law prism, a very grave flaw in my opinion, is that it allows the judiciary — and only the judiciary — to do what would amount to amending the Australian Constitution without the bother of having to use the s 128 amending process. It would allow the unelected judiciary to bypass the people and their elected representatives, to bring about constitutional changes they, the unelected, unaccountable judges, happen to think are in keeping with changing social values or international mores or what have you. Justice McHugh puts the criticism thusly:
Most of the rules now recognised as rules of international law are of recent origin. If Australian courts interpreted the Constitution by reference to the rules of international law now in force, they would be amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended only by legislation that is approved by a majority of the States and ‘a majority of all the electors voting’. Attempts to suggest that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if it is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case. The point is so obvious that it hardly needs demonstration.[129]
Justice Kirby’s rejoinder to this is wholly unconvincing.
Nor, contrary to the opinion of McHugh J, is the interpretive principle that I favour inconsistent with the provisions of s 128 of the Constitution governing its formal amendment. If this argument were valid, it would apply equally to other decisions of this Court in which the Court has given new meaning to the constitutional text and expounded new rights and duties.[130]
To defend one’s own improprieties by pointing to those of others is not an overly persuasive rebuttal to the claim that unelected judges using the ‘Kirby doctrine’ are thereby empowered to change the Constitution, to give it new meaning,[131] when they happen to think this is warranted.
If other judges have done this in the past, if Justice McHugh himself has done this in the past (as Justice Kirby can be read as implying),[132] that in itself is no argument for why it should continue to be done or even why it was properly done in the past. To my mind application of the ‘Kirby doctrine’ amounts to affording judges a licence, to use when they see fit, for creating (not ‘finding’ as Kirby J would put it,[133] but ‘creating’ or ‘making up’) new rights and inserting them into a Constitution whose founding fathers explicitly, and after much deliberation, decided was better off without them inserted. It is to avoid s 128 and fashion a backdoor Bill of Rights, albeit possibly not ‘a comprehensive Bill of Rights’[134] (on which more will be said in Part III below).
Worse, there are no apparent constraints on what judges can and cannot do when operating under the ‘Kirby doctrine’. They can, we learn, ‘[adapt] the Constitution to changing times where that [is] proper’.[135] But who gets to decide when and what change is or is not proper? Under the ‘Kirby doctrine’ it is the judges themselves who get to decide. They are to be trusted to constrain themselves. We the voting public are to leave it to them not to get too carried away with imposing their own personal views of what is proper or of what they feel international law has indicated is proper. And that transfer to the judiciary is no less abundantly clear even if Justice Kirby does go on perfunctorily to qualify that ‘where proper’ test with ‘and compatible with the constitutional text and legal principle’.[136]
So a fifth reason why the ‘Kirby doctrine’ is to my mind a bad idea is that it implicitly calls for at least some decisions about what is and what is not proper to be taken out of the hands of the elected representatives of the people and given over to (or perhaps more accurately put, surreptiously taken by) the unelected judiciary.
Justice Kirby may or may not be correct when he prophesies that ‘opinions that seek to cut off contemporary Australian law (including constitutional law) from the persuasive force of international law are doomed to fail’.[137] I do not presume here to predict the future. I simply argue that as a matter of ‘ought’ or of ‘should’, Australia should resist this ‘Kirby doctrine’ (while noting that many a prophecy of future inevitabilities has proven to be mistaken).
This point about distinguishing the ‘ought’ from the ‘is’[138] can be broadened here before concluding this Part II of the article. On the ‘ought’ level, my criticisms apply almost as fully to statutory interpretation as to constitutional interpretation.[139] As for the latter, in the Australian context and as a matter of what ‘is’ the case, Justice McHugh tells us the ‘Kirby doctrine’ still today ‘must be regarded as heretical’.[140] But in the statutory interpretation context, despite damning and powerful attacks[141] on the fiction that ‘when the parliament now legislates, it has in mind or is even aware of all the rules of international law’,[142] Justice McHugh feels resigned to this rule of construction. ‘It is too well established to be repealed now by judicial decision’.[143] And this despite the fact it is ‘obvious that the rationale for the rule that a statute contains an implication that it should be construed to conform with international law bears no relationship to the reality of the modern legislative process’.[144]
I take Justice Heydon’s caveat in his two paragraph judgment concurring with Hayne J, his explicit ‘reserving [of] any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment’,[145] to be a signal that he, at least, is prepared to consider jettisoning the ‘Kirby doctrine’ even in the statutory interpretation realm.
That ends my outline of why I believe it is neither benign nor desirable to interpret domestic law through the prism of the principles of the international law of human rights.
III. A Bill of Rights for Australia?
‘Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments.’ That is what Justice McHugh boldly proclaims,[146] citing as authority for this a single book by someone known to favour bills of rights.
I think on the empirical level, the ‘is’ level of whether there is unanimous or even near unanimous agreement that adoption of a Bill of Rights is desirable, Justice McHugh is simply wrong. I say this, admittedly, as someone who is himself strongly opposed to Bills of Rights in well functioning democracies.[147] But I am hardly alone. If Justice McHugh means his empirical claim to cover legal academics, and after all the only person he cites for the claim he makes is a legal academic, then I could list many legal academics who — to varying degrees and on diverging bases — are opposed to them. There is most obviously Professor Jeremy Waldron of Columbia Law School, who studied under Ronald Dworkin, is a New Zealander by birth, and who is in the view of many, many people the leading rights scholar in the world today. Waldron has argued strongly against the desirability of Bills of Rights and he has done so, not least, on the basis that they undermine the right to participate in social policy-making, the ‘right of rights’ for all those inclined to make human autonomy and dignity pre-eminent.[148]
Here in Australia there is Professor Tom Campbell[149] and Professor Jeffrey Goldsworthy.[150] There is Professor Mark Tushnet[151] from Georgetown Law School and Professors John Griffith[152] and Jonathan Morgan[153] and Adam Tomkins[154] from the United Kingdom. Then there is Richard Ekins[155] from New Zealand. And Professor Grant Huscroft in Canada grows ever more sceptical.[156] Even the prolific and supremely well-known Richard Posner, himself one of the top federal appeals judges in the United States as well as being a former and continuing legal academic, is no more than ambivalent and undecided about Bills of Rights saying ‘[t]he skeptics of judicial review have not “proved” that it is on balance a bad thing’.[157]
I name these sceptics of the desirability of having bills of rights and of strong judicial review to show that on the ‘is’ level there is dissensus out there and opposition, opposition that comes from both the political left and the political right. I could name others, not only legal scholars but political scientists. Justice McHugh is simply wrong if he meant to imply that all who have studied the matter think Bills of Rights desirable. However, there is no denying that the majority of legal academics favour them. I would say a sizeable preponderance. The same sort of split may be true of practicing lawyers and judges, though again there is nothing like unanimity here either.
I concede, then, that on the level of fact a majority of those involved with the law like Bills of Rights. This is hardly surprising if you believe such instruments elevate the importance of judges, lawyers and law professors by letting them decide, argue about and critique where to draw fundamental social policy lines down in the quagmire of reasonable disagreement over tough moral choices. It gives them a say that non-lawyers are denied; it even allows them to travel the world to conferences to meet with other judges, lawyers and legal academics who are drawing the same sort of lines. The real surprise is that there is not more support from these camps.
On the ‘ought’ level, however, about whether we should adopt or retain a bill of rights, my view is that the doubters have a much stronger case than proponents. In the Australian context I have already attempted to make that anti-Bill of Rights case.[158] Here, let me simply repeat in summary fashion the main points that tell against the adoption of bills of rights in established democracies like Australia.
1. Bills of Rights diminish democracy. Put in place a Bill of Rights and what the judges end up deciding are controversial questions of social policy over which sincere, intelligent, well-meaning people disagree. In short, Bills of Rights transfer too much power to unelected judges.
2. Resolving disagreement about rights is in no way analogous to resolving disputes about what is happening in the external causal world, the world of science if you like. In the latter there is an imposed, external reality, however much it may be filtered and interpreted by humans. In the former there is nothing remotely similar. Therefore, rights ‘right answers’ must be understood quite differently from right answers in the world of medicine, aviation or engineering. The implications for Bills of Rights are obvious.
3. Most supporters of rights these days reject utilitarianism and support rights on non-consequentialist bases, say on the basis that humans are autonomous, self-governing beings. Why, then, disenfranchise all but judges on a significant number of social policy questions, indeed on basic rights questions? If your answer is the utilitarian one — that unelected judges deliver better outcomes than the elected branches — this is highly ironic. You are arguing to diminish the right to participate and to put all other rights in the ‘safe keeping’ of judges on a purely utilitarian, non-rights basis.
4. In fact, judges do not deliver noticeably better rights outcomes as a matter of fact.
5. Most people miss the fact that bills of rights establish a purely procedural dispute resolution system, indeed the same one used in the elected legislature. When there is disagreement, vote. There is no substantive ‘best answer’ wins system under a bill of rights regime. In the event of disagreement the judges vote, and 4 votes beat 3, full stop. That is the case however well written, filled with moral philosophy or better reasoned any of the losing judgments might be.
6. Bills of Rights bring with them the danger of an excessively politicised judiciary.
7. Bills of Rights exacerbate the problem of interpretive techniques that leave the unelected judges free to do pretty much as they please. Such instruments are extremely likely to be viewed as ‘living trees’, under which unelected judges get to pay heed to what they think are contemporary values.
In addition to Justice McHugh’s thinly disguised call for the adoption of a Bill of Rights in this case,[159] this is what Justice Kirby has said in another recent case:
Unlike the basic laws of most nations, the Australian Constitution does not contain an express guarantee of freedom of expression, such as that included in the Constitution of the United States and now in the Canadian Charter of Rights and Freedoms. Nor has legislation providing such a guarantee been enacted at a federal or state level in Australia, as it has in New Zealand and more recently in the United Kingdom. In this respect, Australia’s constitutional arrangements are peculiar and now virtually unique.[160]
Justice Kirby’s footnote to the last word of that paragraph then says this:
See, for example, The Constitution of Japan 1946, Art 21; The Constitution of the Italian Republic 1947, Art 21; Constitution of the Federative Republic of Brazil 1988, Art 5; Constitution of the Republic of Lithuania 1992, Art 25; Constitution of the Republic of South Africa 1996, s 16; Constitution of the Federal Republic of Nigeria 1999, s 39; Constitution of the Democratic Republic of East Timor 2002, s 40.[161]
The implication here appears to be that countries with bills of rights (be they statutory or constitutionally entrenched) do a better job protecting rights, or at least the right to free speech, than countries without them. So Australia, if we carry forward the implication, is a country that does a worse job protecting the right to free speech than does Brazil or Lithuania or South Africa, or even Nigeria or East Timor. What else can be the point of Justice Kirby’s paragraph and footnote if it is not that? Yet having made the implication explicit, does anyone reading this article really believe, for one instant, that because East Timor or Nigeria or even Japan or South Africa happen to have adopted a bill of rights with the right to free speech included that it therefore follows that these places do a better job protecting free speech than Australia? To think that would be to subscribe to form over substance to the nth degree. After all, the ex-Soviet Union had a magnificently emotive Bill of Rights full of guarantees. Was free speech better protected there too? For a Justice of the High Court of Australia to imply that free speech is better protected in East Timor or Nigeria (or any of those other countries) than it is in Australia is frankly astounding. It is palpably false, full stop.
I go further, however. I would be prepared to argue that the debatable social policy lines drawn around the issue of free speech are no less liberal in Australia than they are in Canada, a country where the comparison is at least a sensible one and the answer not immediately obvious. Recall that Canada has an entrenched Charter of Rights whose judges are arguably even more activist — more inclined to second guess the elected legislature — than American judges.[162] Judges there fully embrace the sort of ‘living tree’ method of interpretation that Justice Kirby advocates. Does it follow that the unelected Canadian judges use the Charter of Rights to ensure that these contested lines are drawn so as to enable citizens to speak their minds with as few constraints as possible? Do the Canadian judges roll back the legislature’s hate speech limitations, defamation rules or campaign finance limits? No. In these instances the unelected Canadian judges happen to agree with the lines drawn by the legislature.[163]
Compare Australia to Canada on who more liberally protects free speech, therefore, and the existence or otherwise of a bill of rights seems irrelevant. Certainly there is no evidence to support those who suppose that only an unelected judiciary really cares about rights or is more likely to protect unpopular or minority views, that Australia — by definition — is a rights offender unless and until it adopts one.
So I disagree with Justices McHugh and Kirby as regards what they see as the benefits of bills of rights. And let me be clear about my disagreement. Firstly, I disagree on the purely consequentialist plane of outcomes. When you look at how judges decide morally tough cases over time in a Bill of Rights regime (balancing, say, your Brown v Board of Education[164] against your Korematsu[165]) and at how elected politicians decide them when there is no Bill of Rights in place, I see no strong evidence favouring the former. I have lived and worked in New Zealand for eleven years. There, with no bill of rights,[166] and not even a written constitution, women were granted the vote before anywhere else in the world, indigenous Maori men were granted the vote in 1876 and had four seats reserved for them in Parliament, and social welfare rights were protected before anywhere else in the world. In more modern times, sexual orientation was added to the prohibited grounds of discrimination by Parliament.
More to the point, if times really do get so fraught with danger and panic that the elected politicians will consider measures we now (when times are good and things are safe) consider ill-judged or even wicked, is it really to be supposed that the unelected judges will not be infected too?[167] And if, by some miracle, the judges can withstand what no other citizens can, is it really to be supposed that the judges will prevail in these circumstances?
In my view it is in normal times that Bills of Rights have their effect, not in times of danger. And in those normal times the lines drawn by judges — say the lines around the right to free speech or around freedom of religion — are not consistently better than those drawn by elected politicians. Judges may think so. I do not.
Moreover, it is not just on the plane of raw outcomes that I disagree. I also believe that the stereotype of the judiciary being a place of calm, reasoned and elevated debate while the legislature is a place of self-interested horse trading whose members have scant regard to any views but their own is a gross caricature. As Jeremy Waldron says:
Legislatures are adept to deliberation — by which I mean actually listening to and taking seriously insights and criticisms of pre-existing positions that arise out of opposing views. Anyone who doubts this would be well-advised to read both the array of opinions presented in the U.S. Supreme Court in the case of Roe v Wade[168] (which settled the issue of abortion in the United States) and, say, the Second Reading debate on the Medical Termination of Pregnancy Bill which took place a few years earlier in the British House of Commons, on a legislative measure which settled the law in favour of abortion rights in Britain. I think the latter debate is as fine an example of serious dialogue and deliberation as you could hope to find on an issue of rights. It was a sustained debate — about 100 pages in Hansard[169] — and it involved pro-life Labour people and pro-choice Labour people, pro-life Conservatives and pro-choice Conservatives, talking through and focusing on all of the issues that need to be addressed when abortion is being debated. … They debated the question passionately but also thoroughly and honourably, with attention to all of the relevant questions of rights on both sides and all the matters of principle on both sides, not to mention all the pragmatic issues on both sides. … [Then it was] followed by a long committee stage of the whole House and then a Third Reading debate, and after that a similar course of debates and votes in the House of Lords. … Compared to this legislative debate, the ‘debate’ such as it was among the justices of the Supreme court in Roe v Wade was impoverished and sophomoric.[170]
I repeat, yet again, that in my opinion Australia is far better off without a Bill of Rights, be it constitutionally entrenched or statutory.
IV. Concluding Remarks
One of the themes running through this case might be described as ‘Do the Right Thing’ judging. In their approaches to interpretation it is not unfair to say that the dissenting Justices in Al-Kateb v Godwin opt for some version of this sort of judging. In the cases of the Chief Justice and of Justice Gummow it is implicit – do everything you can to read into otherwise clear statutory words a limitation in favour of an outcome you consider morally superior and do that even if it means having to impose judicially drafted limits on release from detention, indeed even if it means opening up a backdoor route into Australia for would-be immigrants. Justice Kirby, the third of the dissenters, makes his preference for this sort of judging more explicit, clear and far-reaching. Judges are to some unspecified extent free to read rights into the Constitution and to interpret statutes and constitutional provisions on the basis of how rights are being understood — that is, on the basis of where debatable and hotly disputed social policy lines are being drawn — internationally and overseas.
I have argued in this article that that sort of judging is a bad idea. Australians have no grounds to wish to give presumptive deference to where lines on hotly debated rights questions have been drawn abroad.
I have also argued that the Justice McHugh-type lament for a domestic Bill of Rights (which would of course, if heeded, largely formalise and greatly encourage this sort of judging) is misplaced. Australia is an immensely successful democracy where the protection of rights, freedoms and other crucial individual interests stands up well to comparison with Canada, New Zealand, the United States, the United Kingdom or any other jurisdiction that has opted to entrench or enact a Bill of Rights. Australia is better off without such an instrument. If the rest of the democratic world wishes to have one, if their citizens wish to hand much power over to an unelected judiciary to make what are in effect moral decisions for them about the ambit, scope, application and range of vague, amorphous rights guarantees, that is their loss. Australia should withstand this trend. The voters, through their elected representatives, should draw their own lines on these debateable and often hotly contested issues. Putting one’s faith in one’s fellow citizens rather than in an unelected, unaccountable, aristocratic judiciary is nothing to be ashamed of. In that sense I am an unashamed majoritarian democrat. I think a rule that says eight million citizens’ votes beat seven million, or 80 MPs’ votes beat 70, is a better one than a rule which says that four High Court judges’ votes beat three.
Perhaps a fitting way to finish this article is to spell out in explicit terms what the implications of ‘Do the Right Thing’ judging are. Justice Antonin Scalia of the United States Supreme Court does this in the American context when speaking about divining rights from the due process clause:
It seems to me that a sensible way of approaching this question is to ask oneself whether the framers and ratifiers of the Constitution … would conceivably have approved a provision that read as follows:
In addition to the restrictions upon governmental power imposed by the Bill of Rights, the States and the federal government shall be subject to such additional restrictions as are deemed appropriate, from time to time, by a majority of the Judges of the Supreme Court.
To pose the question is to answer it. And if it is absurd as an express provision, why is it not doubly absurd as a supposed implication …[171]
Change the hypothetical provision slightly to include restrictions flowing from international human rights law which a majority of top judges from time to time deem appropriate and such an express provision is still absurd. No one would agree to it, or at least no one outside the legal academy, law societies and bench. The absurdity does not disappear by resorting to implication.
In my opinion the majority justices did precisely what they should have done in this case. The minority ones did not.
EDITOR’S NOTE
Since accepting this article for publication, and even since sending it to press, the elected government of Australia has moved to allow stateless persons to be released from mandatory detention in some circumstances. Relatedly, the whole issue of reforming the mandatory detention laws has been raised through the political process and there is some possibility of changes to the system in place at the time of writing this article.
[*] Garrick Professor of Law, University of Queensland. The author wishes to thank all the following people for their helpful comments, suggestions and criticisms: Tom Campbell, Richard Ekins, Joanna Harrington, Grant Huscroft, Andrew Geddis, Jeff Goldsworthy and Charles Rickett.
[1] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124; (2004) 78 ALJR 1099 (‘Al-Kateb’).
[2] McHugh, Hayne, Callinan and Heydon JJ in the majority, Gleeson CJ and Gummow and Kirby JJ in the minority.
[3] SHDB v Goodwin [sic] [2003] FCA 300, [9] (von Doussa J).
[4] See H.L.A. Hart, The Concept of Law (1961), 119, inter alia. Hart also calls this the ‘penumbra of uncertainty’ (at 131).
[5] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [10].
[6] Ibid [10].
[7] Ibid [14] (emphasis added).
[8] Ibid [14].
[9] Ibid [17].
[10] Ibid [18].
[11] Ibid [19]
[12] Ibid [20].
[13] Ibid [22].
[14] Ibid [21].
[15] Ibid [28]. Gleeson CJ traces that power to s 22 of the Federal Court of Australia Act 1976 (Cth).
[16] Ibid [29].
[17] Ibid [29].
[18] Ibid [98].
[19] Ibid [98], referring to Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533.
[20] Ibid [108].
[21] Ibid [108], referring to Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
[22] Ibid [109].
[23] Ibid [113].
[24] Migration Act 1958 (Cth) s 196(5)(a).
[25] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [115].
[26] Ibid [117].
[27] Ibid [122].
[28] Ibid [124].
[29] Ibid [4], [10].
[30] Ibid [46].
[31] Ibid [134].
[32] Ibid [134].
[33] This sort of argument has adherents in the statutory Bill of Rights context. Some in New Zealand and the UK, for example, are prepared to say with a straight face that because the Bill of Rights applies to the judiciary, it follows that this instrument applies to all disputes that get to court (horizontally, in the jargon) and not just to those between citizens and government or bodies and people acting in the performance of a public function (vertically, in the jargon).
[34] Ibid [19].
[35] Lon Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616, 634. Query the extent to which the dissenting judges’ reasoning resembles Keen J’s.
[36] Ibid [130].
[37] On the general question of the sovereignty of parliament, and for an excellent refutation of those who suggest that the unelected judges — through the common law — can themselves legitimately limit what parliament can legally do (because they happen to think it morally wrong), see Jeffrey Goldsworthy, The Sovereignty of Parliament (Clarendon Press, 1999).
[38] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [144].
[39] Ibid [144].
[40] Ibid [145] (emphasis added).
[41] See ibid [122].
[42] Ibid [147].
[43] Ibid [149], [156]-[161], [163]-[164], inter alia.
[44] Ibid [167] (emphasis added).
[45] Ibid [167].
[46] See, for example, paragraph [167].
[47] See, for example, Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1. But see too the reply to this by Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677.
[48] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [167]-[168].
[49] Ibid [167].
[50] Ibid [168].
[51] Ibid [170].
[52] Ibid [169].
[53] See ibid [169].
[54] Ibid [170].
[55] Ibid [33].
[56] Hart, above n 4.
[57] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [34]-[35].
[58] Ibid [47].
[59] Ibid [48].
[60] Ibid [48].
[61] Ibid [42].
[62] Ibid [46].
[63] Ibid [50]-[54].
[64] Ibid [55]-[61].
[65] Ibid [73]-[74].
[66] Ibid [73].
[67] Human Rights Act 2004 (ACT).
[68] I have made this argument extensively elsewhere. See, for instance, James Allan, ‘Bills of Rights and Judicial Power – A Liberal’s Quandary’ (1996) 16 Oxford Journal of Legal Studies 337; James Allan and Richard Cullen, ‘A Bill of Rights Odyssey for Australia: The Sirens are Calling’ [1997] UQLawJl 1; (1997) 19 University of Queensland Law Journal 171; James Allan, ‘Turning Clark into Superman: The New Zealand Bill of Rights Act 1990’ [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613; James Allan, ‘Oh That I Were Made Judge in the Land’ (2002) 30 Federal Law Review 561; James Allan, ‘Paying for the Comfort of Dogma’ [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63; and James Allan, ‘A Defence of the Status Quo’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 175.
[69] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [201]-[209].
[70] Ibid [210].
[71] Ibid [212].
[72] See Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
[73] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [221]-[237], and arguably to [244].
[74] Ibid [224].
[75] See Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533.
[76] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [225].
[77] Ibid [225].
[78] Ibid [231].
[79] Ibid [231].
[80] Ibid [231].
[81] Ibid [233].
[82] Ibid [233], inter alia.
[83] Ibid [234]-[237].
[84] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54.
[85] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [235].
[86] Ibid [237].
[87] Ibid [241].
[88] Ibid [242]-[243].
[89] Ibid [243].
[90] Ibid [212].
[91] Ibid [246].
[92] Ibid [247].
[93] Ibid [248].
[94] Ibid [255].
[95] Ibid [254].
[96] Ibid [256].
[97] Ibid [258].
[98] Ibid [261]-[268].
[99] Ibid [262].
[100] Ibid [269].
[101] Ibid [272]-[282].
[102] Ibid [280].
[103] Ibid [292].
[104] Ibid [298].
[105] Ibid [290] (emphasis added).
[106] Ibid [290].
[107] Ibid [289].
[108] Ibid [289].
[109] [2001] USSC 64; (2001) 533 US 678.
[110] Al-Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, [159] (Kirby J).
[111] Ibid [284].
[112] Ibid [284]-[285].
[113] Ibid [298].
[114] Ibid [301]. For an indication of what can happen to immigration procedures when they are determined by an unelected judiciary operating under an entrenched Bill of Rights, consider the case of Canada. In a 1985 case, Singh v Canada (Minister of Employment and Immigration) [1985] 1 SCR 177, the Supreme Court of Canada used the Charter of Rights (and revived the Bill of Rights 1960) to decide that each and every refugee claimant to Canada has the right to an oral hearing. This ruling, still in effect today, has cost the Canadian taxpayer hundreds of millions of dollars, in fact commonly said to be billions of dollars, much of it going to lawyers funded by legal aid. It has restricted the government’s ability to cut the timeline on applications and created a significant backlog of cases. The court driven procedures for refugee claimants can now take — on the Canadian government’s own figures — up to five years or more for an individual to work through. It has made Canada a severe security concern to the US, given that the Canadian system is widely seen to be considerably more relaxed than Europe’s. Even the former head of the Canadian Immigration Service, James Bissett, has said that ‘Canada has got a choice to make here. We’ve got to get serious about security or there will be a catastrophic event here or in the US with a strong Canadian connection and we will have a closed border.’ (And note that 85% of Canada’s exports go to the US.) See John Ivison, ‘The Weakest Security Link: Our Refugee System’, National Post (early September, 2004) RB3.
I raise this to dispel the simplistic notion that moral rightness points only in one direction, namely that laxer beats tougher, that laxer immigration procedures are, by definition, somehow morally superior. On the contrary, what to do about refugee applicants, stateless or otherwise, is a morally fraught question. Talk of a right not to be detained does not exhaust the entirety of what is at stake morally. The need to balance generosity, security, the spending of billions of dollars on something other than lawyers, the prevention of queue jumping, and much else raises issues over which people will and do disagree, people who are all intelligent, reasonable and sympathetic. Nor are court driven outcomes obviously morally preferable to those that come from an elected Parliament.
[115] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [193] (Kirby J).
[116] Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 29.
[117] See RJR MacDonald v Canada (Attorney General) [1995] 3 SCR 199.
[118] A concept, by the way, that many states signing up to this treaty clearly intended not to cover parental spanking. For more on this see, Rex Ahdar and James Allan, ‘Taking Smacking Seriously: The Case for Retaining the Legality of Parental Smacking in New Zealand’ [2001] New Zealand Law Review 1. Of course states choose freely to ratify treaties, even treaties like this one that sets up a committee with the power to make recommendations. But it is a non-binding, recommendatory power only that was consented to, nothing more. So in a sense one might say here that the criticism is not of international law per se, but of lawyers and judges who cite international law as though it were an unlimited panacea for perceived social ills.
[119] I call giving this power to the judges a procedural rule deliberately. As Jeremy Waldron has made clear, when top judges disagree about the ambit, reach, scope or extent of some rights guarantee, they vote. Four votes beat three, full stop. The winning side is not the one that produces the most morally beautiful or moving judgment. The rule is purely procedural. You count hands. This may be ironic, of course, but it is indisputable.
[120] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [19] (Gleeson CJ).
[121] Madafferi v Australia CCPR/C/81/D/1011/2001 [2004] UNHRC 47 (26 August 2004). This is an ICCPR case decided by the UN Human Rights Committee, July 26, 2004. The Human Rights Committee gives non-binding views; it does not issue judgments. But under the ‘Kirby doctrine’ the distinction is finessed, if not blurred.
[122] Ibid [9.8].
[123] Ibid.
[124] Ibid.
[125] Madafferi v Australia CCPR/C/81/D/1011/2001 [2004] UNHRC 47 (26 August 2004), Individual opinion of Committee member, Mrs Ruth Wedgwood.
[126] Ibid.
[127] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [193] (Kirby J).
[128] Of course having said that it is also true that natural lawyers like Finnis would obviously want to exclude bias, partiality, etc. and would think rights decisions require detailed knowledge of the particular facts. On the relation of moral scepticism and rights see my A Sceptical Theory of Morality and Law (1998). However, as Jeremy Waldron makes clear (see Jeremy Waldron, ‘The Irrelevance of Moral Objectivity’ in Robert P George (ed), Natural Law Theory (1992) 158), the moral objectivist or moral realist has just as much reason to favour ‘letting the numbers count’ as does the moral sceptic. Nothing in this article turns on accepting, or rejecting, the truth of moral scepticism.
[129] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [68] (emphasis in original, footnote omitted).
[130] Ibid [177] (emphasis added).
[131] As opposed to filling in gaps in the ‘penumbra of doubt’. See Goldsworthy, above n 47.
[132] And, frankly, I have difficulty following Justice McHugh’s argument in paragraph [69], given the views expressed in the preceding paragraphs.
[133] See Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [180].
[134] Ibid [179] (Kirby J).
[135] Ibid [178] (Kirby J).
[136] Ibid [178].
[137] Ibid [190].
[138] The distinction was most famously emphasised by David Hume in A Treatise of Human Nature, LA Selby-Bigge (ed), 2nd ed, rev. by PH Nidditch (1978), the last paragraph of Book III i 1, 469-470. For a full discussion of Hume’s is/ought dichotomy see V C Chappell (ed), Hume (1966), particularly AC MacIntyre, ‘Hume on “Is” and “Ought”’, from 240.
[139] For more on the distinction see my article ‘Constitutional Interpretation v Statutory Interpretation: Understanding the Attractions of “Original Intent”’ (2000) 6 Legal Theory 109.
[140] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [63].
[141] See paragraphs [63] – [65]. Let me say here that, even as regards statutory interpretation, I personally am not convinced that the ‘Kirby doctrine’ is so fully entrenched that it cannot be removed by the judges. As Richard Ekins pointed out to me in correspondence, ‘that would be the case had Parliament started to rely on it so that enactments were formulated, and thus legislative intentions formed, in expectation that there was a default rule of compliance with international law. Of course nothing like that is the case and instead there is only ground for a mild presumption in favour of compliance (and even then that depends massively on the treaty in question and the scope of the statute)’. For more on the problem of transforming a mild presumption into a default rule see Jim Evans, ‘Questioning the Dogmas of Realism’ [2001] New Zealand Law Review 145.
[142] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [65].
[143] Ibid [65].
[144] Ibid [65].
[145] Ibid [303].
[146] Ibid [73].
[147] See above n 68.
[148] See, for a small sample, Jeremy Waldron, Law and Disagreement (1999); Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18; Jeremy Waldron, ‘Freeman’s Defense of Judicial Review’ (1994) 13 Law and Philosophy 27; Jeremy Waldron, The Dignity of Legislation (1999); and much more.
[149] See Tom Campbell, ‘Democracy, Human Rights and Positive Law’ [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195; Tom Campbell, ‘Judicial Activism – Justice or Treason?’ [2003] OtaLawRw 2; (2003) 10 Otago Law Review 307; and Tom Campbell, ‘Incorporation through Interpretation’ in Tom Campbell, K D Ewing and Adam Tomkins (ed), Sceptical Essays on Human Rights (2001) 79.
[150] See Jeffrey Goldsworthy, The Sovereignty of Parliament (1999) and Jeffrey Goldsworthy, ‘Legislative Sovereignty and the Rule of Law’ in Tom Campbell, K D Ewing and Adam Tomkins (ed), Sceptical Essays on Human Rights (2001) 61.
[151] See Mark Tushnet, ‘Scepticism about Judicial Review: A Perspective from the United States’ in Tom Campbell, KD Ewing and Adam Tomkins (ed), Sceptical Essays on Human Rights (2001) 359.
[152] See John Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 Modern Law Review 159.
[153] See Jonathan Morgan, ‘Law’s British Empire’ (2002) 22 Oxford Journal of Legal Studies 729.
[154] See Adam Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 Oxford Journal of Legal Studies 157.
[155] See Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ [2003] Law Quarterly Review 127.
[156] See Grant Huscroft, ‘“Thank God We’re Here”: Judicial Exclusivity in Charter Interpretation and its Consequences’ (2004) 25 Supreme Court Law Review 241.
[157] Richard Posner, The Frontiers of Legal Theory (2001) 27.
[158] See my ‘A Defence of the Status Quo’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 175. See too James Allan, ‘Oh that I Were Made Judge in the Land’ (2002) 30 Federal Law Review 561 and James Allan, ‘Paying for the Comfort of Dogma’ [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63.
[159] Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [73].
[160] Coleman v Power (2004) [2004] HCA 39; (2004) 209 ALR 182; 78 ALJR 1166 para. [208] (Kirby J) (internal footnotes omitted, emphasis in original).
[161] Ibid n 169.
[162] See my ‘The Author Doth Protest Too Much, Methinks’ (2003) 20 New Zealand Universities Law Review 519.
[163] See, for example, R v Butler [1992] 1 SCR 452 (upholding the constitutionality of legislation criminalizing obscenity); R v Keegstra [1990] INSC 224; [1990] 3 SCR 697 (upholding the constitutionality of legislation criminalising racist expression); Hill v Church of Scientology [1995] 2 SCR 1130 and R v Lucas [1998] 1 SCR 439 (upholding the constitutionality of civil and criminal sanctions for defamation); and Harper v Canada [2004] 1 SCR 827 (upholding the constitutionality of federal legislation that limits third party spending during election campaigns). And be clear about this. On the Justice Kirby view, free speech rights would presumably get the more enervated international law treatment, not the US treatment.
[164] [1954] USSC 42; (1954) 347 US 483.
[165] Korematsu v United States [1945] USSC 43; (1944) 323 US 214.
[166] New Zealand enacted a statutory bill of rights, but not until 1990. See generally Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (2003).
[167] Consider Korematsu v United States [1945] USSC 43; (1944) 323 US 214 in this light.
[168] [1973] USSC 43; (1973) 410 US 113.
[169] UK, HL, Parliamentary Debates, 5th ser., vol. 732, at 1067-1166 (1966).
[170] Jeremy Waldron, ‘Some Models of Dialogue Between Judges and Legislators’ in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (2004) 28-29 (emphasis in original).
[171] Justice Antonin Scalia, ‘Romancing the Constitution: Interpretation as Invention’ in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (2004) 337, 341 (emphasis in original).