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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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If a b o a t p e r s o n t r a n s p o r t e d to ( s a y ) N a u r u p r o v e s t o have been in f a c t motivated purely by a desire for economic or social benefit, it will be clear that there has been no breach of the Convention. If however, he or she is determined to be a refugee, the question then does become whether A u s t r a l i a h a s acted in breach of the Convention. That will depend on whether the Convention requires t h a t when a person claiming to be a refugee is apprehended in A u s t r a l i a n t e r r i t o r i a l w a t e r s o r on a n A u s t r a l i a n s h i p, the f o r m a l d e t e r m i n a t i o n of t h e s t a t u s of t h a t person m u s t be made in A u s t r a l i a. The Convention does not expressly so require; whether it implicitly does so is an arguable question.

Two things are however clear. One is that the “Pacific Solution”, although it may serve as a deterrent, cannot forever protect Australia from unauthorised entry; considerations of cost and practicality mean that the policy is unlikely to be continued indefinitely. The second is that the Convention needs to be rewritten or entirely abrogated. The Convention is ill s u i t e d t o the conditions of t o d a y, when thousands of people are moving across s t a t e boundaries in search of a better life.

The p l i g h t of the boat people may evoke sympathy, but the i m m i g r a t i o n policies of a government m u s t b e determined by the n a t i o n a l interest, r a t h e r than by sympathy for individuals.

Another matter which raises serious questions for consideration is the war a g a i n s t t e r r o r i s m. T e r r o r i s m t o achieve a p o l i t i c a l r e s u l t w i t h i n a p a r t i c u l a r society is not uncommon, but what is new is the use of terrorism to damage or destroy a foreign society for ideological reasons. After the eleventh of September, [2001] i t was argued by some t h a t the United S t a t e s was not justified in going to war; it was said that the proper response to the criminal actions committed on that day was to seek the extradition of the criminals and p u t t h e m on t r i a l. The i m p r a c t i c a b i l i t y of seeking to e x t r a d i t e O s a m a Bin Laden has been made clear by subsequent events. The atrocities of the eleventh of September made it clear that American society was threatened by men ruthless and capable enough to inflict immeasurable damage if they could obtain nuclear or biological weapons, as it appears they planned to do. The United States was entirely justified in taking extreme measures to counter this threat, and it was prudent for A u s t r a l i a, which sorely needs the United S t a t e s a s an ally, t o support t h e U n i t e d S t a t e s, whether or not the t e r r o r i s t s directly t h r e a t e n e d Australia.

In the emergency s i t u a t i o n created by war, governments tend to a d o p t d r a s t i c measures in the m i s t a k e n belief t h a t they contribute to n a t i o n a l security. For example, in t h e e a r l y d a y s o f World War II in A u s t r a l i a, persons were interned simply because they h a d I t a l i a n n a m e s. S i m i l a r l y, in t h e U n i t e d States, American citizens of Japanese descent were unnecessarily incarcerated. It is not s u r p r i s i n g t h a t the security services now are seeking to be given extraordinary powers to arrest persons on suspicion and to hold them for some days incommunicado for questioning. Powers of that kind are quite unnecessary, and we would undermine, rather than strengthen, our free society by resorting to such absolutist measures.

I n sp ite of the tribulations of 2 0 0 1, life ha s c ont inue d on it s c om m on wa y for most Australians, and we have escaped t h e s o c i a l d i s r u p t i o n a n d economic uncertainties that have affected many other parts of the world.

Australia Day Message, 26 January, 2003

During the year the Society held another successful conference, which w a s notable for the fact that the opening speech was delivered by the Chief Justice of Australia, the Honourable Murray Gleeson, AC. Appropriately, the vote of thanks was proposed by the Honourable M r Justice Dyson Heydon, who,we were very pleased to learn, h a s been appointed to t h e H i g h C o u r t. A s one expected, h i s appointment provoked expressions of regret that a woman was n o t a p p o i n t e d, since Mr Justice Heydon will take the place of Justice Mary Gaudron.

There are a number of reasons why a p p o i n t m e n t s to j u d i c i a l office, particularly to the High Court, should be made on merit – i.e., on learning and proved ability in the working of the courts – and, subject of course to character, on no other consideration. The High Court decides questions of g r e a t m o m e n t, and not infrequently does so by a majority of one, so that there is no room on the Court for any except those who are best qualified.

F u r t h e r, t h e C o u r t i s n o t a r e p r e s e n t a t i v e b o d y – i t s d u t y i s to apply t h e law, and not to favour sectional interests – and indeed it would be impossible for the Court to represent all sections of society. It is true that there are some very able women in the legal profession, but it is no disrespect to t h e m t o say that none has the learning, ability and experience of Mr Justice Heydon.

For A u s t r a l i a the year ended unhappily, w i t h the nation threatened by terrorism and by war. Those threats require difficult decisions to be made. We now know that the terrorist gangs, which e x i s t i n various p a r t s of t h e w o r l d, and are united at least by a fanatical adherence to the more extreme doctrines of Muslim ideology, are capable of patient and skilful planning to achieve their murderous purposes, and a r e w i l l i n g t o include among t h e i r innocent v i c t i m s Australians, or indeed any others they regard as infidels, even if their preferred targets are Americans and Israelis. What we do not know is how likely it is that these zealots will attempt to commit an atrocity on Australian soil.

N o t w i t h s t a n d i n g t h a t u n c e r t a i n t y, t h e G o v e r n m e n t m u s t ( a s i t h a s done) take steps to avert a possible c a t a s t r o p h e of the t e r r o r i s t s ’ making. I t i s obvious that in peacetime it is impossible to guard every vital installation and every place where people congregate. Great reliance must therefore be placed on our intelligence services to discover i n a d v a n c e t h e t e r r o r i s t s ’ p l a n s s o t h a t t h e y may be aborted.

The intelligence bodies must accordingly be given the powers necessary t o p e r f o r m t h e i r v i t a l f u n c t i o n s. T h i s m u s t, however, be d o n e w i t h t h e m i n i m u m d e t r a c t i o n from the freedoms which we value. This is p a r t i c u l a r l y so since experience has shown that some members of the intelligence services (like other people) may a c t w i t h excessive zeal – remember, for example, the many harmless citizens who were interned for no sufficient reason in t h e t w o World Wars.

The proper balance is not easy to achieve – among the controversial questions a s to the extent of the proposed powers are three t h a t may be mentioned. Should ASIO or the police be given the power to require persons who are suspected of having knowledge of t e r r o r i s t a c t i v i t i e s to answer questions, and to d e t a i n t h e m f o r q u e s t i o n i n g ? I t m i g h t be t h o u g h t t h a t such a power would justifiably be conferred in t h e i n t e r e s t s o f society as a whole, provided that the power is hedged about with safeguards sufficient to prevent its abuse.

Should a person so detained be held incommunicado? Many would t h i n k t h a t a l t h o u g h t e r r o r i s t s l u r k i n t h e s h a d o w s, t h e a g e n t s o f government should work in the open, to make them more readily accountable.

Should children be detained for the purpose of questioning? Unfortunately it is notorious that evil persons do not scruple to use children as t h e i r a g e n t s.

Questions such as these will have to be considered carefully by Parliament, and perhaps ultimately by the Courts.

The decision whether Iraq will be invaded will not be made by A u s t r a l i a.

The only j u s t i f i c a t i o n for an invasion, which would result in w h a t i s euphemistically called “collateral damage” to many innocent citizens, as well as the inevitable m i l i t a r y c a s u a l t i e s, and which would be likely dangerously t o inflame opinion in t h e M u s l i m world, would be t h a t w a r was necessary a s a reasonable measure of defence.

Since it is highly improbable t h a t I r a q would a t t a c k a n y of the Western powers except in its own defence, an invasion of Iraq could be j u s t i f i e d a s a defensive measure only if Iraq has chemical, biological or nuclear weapons and is likely to provide them to terrorists. No doubt if it has weapons of this kind, it would n o t h e s i t a t e to allow t e r r o r i s t s to use them, but many r e m a i n to be convinced that Iraq has these devastating weapons. The report of the weapons inspectors is due, I think, tomorrow ( 2 7 J a n u a r y ) a n d may make t h e p o s i t i o n clearer.

It is to be hoped that a wish to remove Saddam Hussein from power, or a mere suspicion t h a t he h a s destructive weapons, will not be regarded a s a sufficient cause for war. If a war is commenced, and the Australian Government is convinced that its commencement was justified, one question will be whether the United Nations h a s given sanction to i t, and another whether i t is in Australia’s interests to take part. In considering the latter question, it would be relevant to take into account the fact that there are good reasons for acting in support of so valuable an ally a s t h e U n i t e d S t a t e s, and the possibility t h a t destructive weapons if supplied to terrorists might be used against Australian interests, or even within Australia.

One wonders whether North Korea is as threatening to peace as Iraq.

Let us hope that Australia Day will be the commencement of a time which is safer and happier than the omens would at present indicate.

However that may be, I offer best wishes to you all, and I hope to see you at our next Conference, to commence in Adelaide on 23 May, 2003.

Australia Day Message, 26 January, 2004

You will have received the proceedings of our Conference held l a s t year in A d e l a i d e w h i c h d i s c u s s e d, a m o n g s t o t h e r m a t t e r s, s o m e o f the proposals t h a t were to be p u t to the South A u s t r a l i a n C o n s t i t u t i o n a l Convention l a t e r t h a t year. One of those proposals, which is of p a r t i c u l a r interest, namely for t h e introduction of citizens’ initiated referenda, is due to be considered by the South Australian Parliament. Another matter discussed, about which I wish to say a few words, concerns the need for, and the role of, Upper Houses in our c o n s t i t u t i o n a l s y s t e m s. T h i s i s p a r t i c u l a r l y relevant, because a C o m m o n w e a l t h Committee has been examining the power of the Senate to o b s t r u c t l e g i s l a t i o n passed by the House of Representatives, and in particular, whether there can be devised a n a c c e p t a b l e a l t e r n a t i v e to the provisions contained in s.128 of t h e Constitution for a double dissolution.

Under our system, unlike those of the United States and France, except in t h e m o s t e x c e p t i o n a l c i r c u m s t a n c e s, t h e p a r t y, or coalition of p a r t i e s, which h a s a m a j o r i t y i n the House of Representatives, chooses the members of t h e executive government. The will of the Executive usually dominates the House of Representatives, so t h a t, unless there is a p a r t y revolt, the legislation introduced by the Executive will be passed by t h e H o u s e. T h i s c o m b i n a t i o n o f legislative and executive power would, particularly if a radical Government held office, be likely to result in the passage of p a r t i s a n l e g i s l a t i o n, a n d to pose a threat to the rights and liberties, not only of minorities, but also of sections of society not in favour with the Government, unless the power was s u b j e c t t o a n effective check. One such check is a t present provided by the Senate. The judiciary provides another, but its powers are limited.

Of course, an Upper House t h a t can review, but not u l t i m a t e l y reject, legislation serves a useful purpose. But a C h a m b e r w i t h such l i m i t e d powers could not prevent the passage of extreme or ill considered legislation. The House of Lords in the United Kingdom now is no more than a house of review, and has been unable to prevent the passage of legislation which i t considered undesirable, including legislation radically affecting the composition of t h e House of Lords itself. In Queensland, where the Legislative Council was abolished in the 1920s, there have been occasions in the p a s t where h a s t i l y conceived legislation has been rushed through the Legislative Assembly, on occasion under cover of darkness.

For the Senate to operate a s an effective check on the combined power of the Executive and the House of Representatives, it must be able to do more than delay or review legislation. It must be able (and it is at present able) to reject legislation without the House of Representatives having power to over-ride the rejection. Of course, it may choose not to do so when the party which controls the House of Representatives also has a majority in the Senate.

The power of the Senate can be abused. The Senate may s o m e t i m e s r e j e c t legislation that is desirable or even necessary, simply for political reasons or out of a stubborn desire to obstruct the Government. Is there a way, other t h a n b y the procedure of s.128, of resolving a deadlock caused when the Senate obstructs legislation, without depriving the Senate of i t s e s s e n t i a l p o w e r ? C e r t a i n l y t h i s could not be done by enabling the House of Representatives to over-ride t h e S e n a t e w i t h i n o n e s i t t i n g o f t h e P a r l i a m e n t. I t will not be easy to suggest a procedure, alternative to s.128, which preserves the power of the Senate, but in a n y c a s e, t h e h i s t o r y o f r e f e r e n d a s u g g e s t s t h a t a n a m e n d m e n t t o s. 1 2 8 w i l l be difficult to procure, and impossible if it lacks bi-partisan support. Changes to t h e e l e c t o r a l l a w s m i g h t m a k e i t more likely that a Government would h a v e a majority in the Senate, if that is considered desirable.

The war in Iraq has had little or no effect on the lives of most Australians, a l t h o u g h i t h a s s t i r r e d the emotions of some. Whatever views are held concerning the reasons for the w a r in Iraq, or the planning for t h e a d m i n i s t r a t i o n of Iraq when the w a r was concluded, i t is too soon to know w h e t h e r t h e U n i t e d S t a t e s ’ a p p a r e n t s t r a t e g y w i l l eventually succeed. However, t h e r e i s certainly reason to be proud of the skill and discipline displayed by Australian service men and women not only in I r a q, b u t also in the Solomons, and before that in Bougainville and Timor.

T h e r e r e m a i n s t h e t h r e a t o f t e r r o r i s t a c t i v i t i e s. There is no doubt of t h e ruthless d e t e r m i n a t i o n o f t e r r o r i s t s in various p a r t s of the world, including South East Asia. We simply cannot tell how high is the risk of serious terrorist activity on Australian soil, but prudence requires that steps be taken to guard against the possibility. Such steps have been taken, and the considerable expense and inconvenience caused by those measures means t h a t the t e r r o r i s t s have already caused damage to Australia.

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