JUDGES AND NATIONAL SECURITY ISSUES The Hon Justice Kenneth Hayne AC High Court of Australia

An address at the Bingham Centre for the Rule of Law, London, 7 April 2014 www.binghamcentre.biicl.org

The address on 7 April 2014 was given at the Bingham Centre for the Rule of Law and open to a public audience. The event was chaired by Lord Reed of the Supreme Court of the United Kingdom. The speech is available on the Centre’s website with the kind permission of Justice Hayne. The Bingham Centre for the Rule of Law was launched in December 2010 and is an independent research institute devoted to the study and promotion of the rule of law worldwide. It is part of the British Institute for International and Comparative Law (BIICL), Registered Charity No 209425. Email: [email protected]

JUDGES AND NATIONAL SECURITY ISSUES An Address at the Bingham Centre for the Rule of Law, London 7 April 2014 I must begin by exposing two distinctively Australian premises which underpin the views which are proffered in this paper. They are premises which are required by the Australian Constitution and can be sufficiently identified by reference to decisions of the High Court of Australia which have stood for more than 50 years. The first of these premises concerns the role of the judicature, especially the federal judicature, under the Australian Constitution. Because Australia has a federal system of government, "a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme" 1. There are two different, albeit related, reasons why that is so. First, "[a] federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them." 2 Second, "[t]he conception of _____________________ 1 R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers Case") (1956) 94 CLR 254 at 267; [1956] HCA 10. 2

Boilermakers Case (1956) 94 CLR 254 at 267.

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independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature." 3 Because the federal judicature must decide the limits of the respective powers of the national and State governments, no Australian lawyer (and no well-informed Australian citizen) is in the least surprised when an Australian court holds that some or all of an Act (whether of the national Parliament or a State Parliament) is beyond power and invalid. The second premise which lies behind the views I offer in this paper also relates to the role of the federal judicature. It centres upon the concept of "judicial power", particularly the "judicial power of the Commonwealth". Section 71 of the Constitution provides that "[t]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the [national] Parliament creates, and in such other courts as it invests with federal jurisdiction." Long-established Australian constitutional doctrine provides that the judicial power of the Commonwealth cannot be conferred on _____________________ 3 Boilermakers Case (1956) 94 CLR 254 at 267-268.

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any body other than a court and that a federal court cannot exercise any power other than judicial power. There has been, and there continues to be, much litigation about whether particular legislation infringes these principles. Close attention has been and continues to be paid, therefore, to what is and what is not "judicial power". Of course, I do not propose to explore the finer points of these debates in this paper. But to understand the second of the premises which lies behind what I do want to say, it is necessary to make two further points about the Australian conception of "judicial power". Treating "judicial power" as distinct from executive power and legislative power reflects a separation of powers. But it has rightly been observed 4 that the framers of the Australian Constitution, "in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed". It is, therefore, misleading to begin any consideration of what is the exercise of "judicial power", as distinct from the performance of some executive function, by searching for a single and exhaustive definition of "judicial power". Rather, when the Australian Constitution is read as "requiring a distinction to be maintained between powers described as legislative, executive and _____________________ 4 R v Davison (1954) 90 CLR 353 at 380-381 per Kitto J; [1954] HCA 46.

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judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise" 5. The reference to "skills and professional habits" is very important because, in the case of judicial power, it invites close attention to what we understand by judicial method and judicial procedure. And it invites close attention to whether there are defining characteristics of either judicial method or judicial procedure. I hope that you may begin to see why I devote so much time to exposing the two premises which underpin the views which I will offer for your consideration. I begin from premises which allow me to challenge whether a law requiring the courts to undertake certain tasks is valid and to decide that question by reference to some developed understanding of judicial power, judicial method, judicial procedure and what may be the defining characteristics of each. These are premises which I believe would be seen in this country to be at least novel, even heretical to a fundamental degree. A V Dicey's views of parliamentary supremacy appear still to inform so much of what is said and written about the constitutional arrangements of the United Kingdom. Perhaps the recent decision in _____________________ 5 Davison (1954) 90 CLR 353 at 381-382 per Kitto J.

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the HS2 Case 6 may indicate a desire to examine more closely the content which now can be given to Dicey's views. To ask, as two members of the Court did 7, whether there are principles fundamental to the rule of law and whether there may be a need to distinguish between legislation which must engage with European law and constitutional instruments is to ask very deep constitutional questions. The High Court of Australia has had to deal directly with issues of national security only once since the events of September 11, and that was in relation to the validity of "control orders" as an anti-terrorism measure 8. I dissented in the result and it follows, I fear, that my views are to be regarded with deep suspicion. The majority of the Court held that the laws were valid. I held that the provision which required a court to make an interim control order where the court is satisfied that making the order was "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public" from a terrorist act was invalid. _____________________ 6 R (Buckinghamshire County Council) v Transport Secretary [2014] 1 WLR 324; [2014] UKSC 3. 7

[2014] 1 WLR 324 at 382 [207] per Lord Neuberger of Abbotsbury PSC and Lord Mance JSC. See also Thoburn v Sunderland City Council [2003] QB 151 at 184-190 [58]-[70] per Laws LJ; [2002] EWHC 195 (Admin).

8

Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33.

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In my view, the impugned provisions required the court to exercise a power which was not judicial power. The decision to grant or withhold the grant of an interim control order required no "decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation" 9. It required the court determining an application for an interim control order to apply a criterion – "for the purpose of protecting the public from a terrorist act" – of indeterminate content. The criterion stated in the statute did not call 10 for the judicial formulation of standards of conduct or behaviour; it did not call for the application of any familiar judicial measure (such as "reasonable", "just and equitable", "oppressive, unreasonable or unjust"). Rather, it required a court to decide how a particular order made against a named person would contribute to whatever steps (past, present and future) that had been, were being, or would be taken by the Executive to protect the public from a terrorist act. How would that be judged? At the most practical level, why would the court deciding the application gainsay the view propounded by the Executive that making a control order would help prevent a terrorist act? How could the court, how could an _____________________ 9 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J; [1970] HCA 8; Thomas v Mowbray (2007) 233 CLR 307 at 464-465 [465]. 10

Thomas v Mowbray (2007) 233 CLR 307 at 468 [476].

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opposing party, test the assertions made by the police and intelligence agencies about threats and responses? I mention this decision and the questions which I think it presented not for the purpose of debating the correctness of the conclusions reached in the case but for the more limited purpose of providing a concrete example of some difficulties which are presented by enlisting the courts to decide questions bearing upon issues of national security. This outsider sees national security cases decided in the United Kingdom through the prism I have described. It is a prism which breaks the single shaft of light cast only on "What does Parliament provide and require?" into separate parts. One very important part is to ask: "What exactly is the controversy which is to be resolved by the application of judicial power?" When I look at the national security cases which have been decided in the United Kingdom since 2001, I see three, possibly four, threads of principle. They are, first, notions of judicial "deference" to "political" judgments; second, principles of judicial review; and third, notions of fair hearing. The possible fourth candidate would be notions of relative institutional competence, if those notions engage different principles from what is described as judicial "deference". All of these threads come together in understanding what is judicial power. And their relationship, one to

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the other, can best be understood by pausing to ask the question I have identified: "What exactly is the controversy which is to be resolved by the application of judicial power?" Before trying to explain how I think that this question can be asked and answered, I should stay for a moment and say why I see three or four threads of principle in the national security cases. Deference and relative institutional competence can be seen to have informed the House of Lords decision in the Belmarsh Case (A v Home Office 11) to reject the challenge to the Government's conclusion that there was a "public emergency threatening the life of the nation" within the meaning of Art 15(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. And the decision to quash the derogation order 12 was made applying principles of judicial review and, in particular, familiar principles of proportionality (strictly so called). The House held that dealing only with non-UK nationals in a way which could apply to individuals who presented no threat did not rationally address the threat to security, was a disproportionate response and was not strictly required by the exigencies of the situation.

_____________________ 11 [2005] 2 AC 68; [2004] UKHL 56. 12

Human Rights Act 1998 (Derogation Order) 2001.

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Subsequent cases, like Home Secretary v AF (No 3) 13 and later, Tariq v Home Office 14 and its companion case, Al Rawi v Security Service 15, have wrestled with questions of fair hearing and closed material procedures. And alongside those cases lie other decisions in control order cases (including the decision of the House of Lords in Home Secretary v MB 16 and several Court of Appeal decisions) which have also looked to questions of fair procedures and fair hearing. All of these cases presented the issues which they did because of the very nature of the tasks which the judicial system must undertake and supervise. I say "must undertake and supervise" because performance of these tasks is a necessary part of the rule of law. Let me amplify that proposition by reference, once more, to Australian experience. More than 60 years ago, communism was seen, at least in Australia, as presenting serious threats (even existential threats) to the safety of the nation. The Australian federal Government responded by enacting the Communist Party Dissolution Act 1950 (Cth). As its name suggested, the Act provided for the dissolution _____________________ 13 [2010] 2 AC 269; [2009] UKHL 28. 14

[2012] 1 AC 452; [2011] UKSC 35.

15

[2012] 1 AC 531; [2011] UKSC 34.

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[2008] AC 440; [2007] UKHL 46.

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of the Australian Communist Party. The Act declared 17 the party to be an unlawful association and provided 18 for the vesting of its property in a receiver. It provided for affiliated associations to be declared 19 unlawful by executive act and for their property to be vested 20 in a receiver. For present purposes, it is important to notice that the Act set out, in its recitals, the basis for the legislation. The Act recited that the Australian Communist Party engaged "in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices". The Act recited that "the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King's dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature". And the Act also recited that "it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth", that the party and its affiliated associations be dissolved and their property forfeited. _____________________ 17 s 4(1). 18

s 4(3).

19

s 5(2).

20

s 8(2).

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The High Court of Australia held 21 the Act invalid. Two points may be made about the decision. First, the statements in the Act's recitals of legislative satisfaction of certain facts were not taken by the High Court as conclusive of the matters recited. In particular, they were not taken as determinative of whether the Act was properly characterised as a law with respect to defence (a head of legislative power which the Commonwealth asserted supported the Act). Second, it is important to notice the analysis which Dixon J made of the operation of the Act and the connection which he then drew between that operation and the rule of law. Dixon J described 22 the Act as "not addressed to suppressing violence or disorder or to some ascertained and existing condition of disturbance and yet [not taking] the course of forbidding descriptions of conduct or of establishing objective standards or tests of liability upon the subject". Instead, it proceeded directly against particular bodies of persons by name or classification or characterisation. And it did so in a way which made the conclusion of the legislature "final and so the measure of the operation its own power" 23 without any "factual tests of liability" 24 or "objective standard of _____________________ 21 Australian Communist Party v The Commonwealth (1951) 83 CLR 1; [1951] HCA 5. 22

(1951) 83 CLR 1 at 192.

23

(1951) 83 CLR 1 at 193.

24

(1951) 83 CLR 1 at 193.

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responsibility" 25. Dixon J regarded 26 this as not consistent with a Constitution and system of government framed in accordance with the rule of law. Now I am not to be taken as suggesting that the anti-terrorism laws which have been enacted in the United Kingdom betray the same weaknesses which Dixon J identified in the Communist Party Dissolution Act. But I do suggest that consideration of their construction and application may usefully be informed by lessons learned long ago and far away in connection with earlier perceptions of existential threats to the safety of a nation and its government. In particular, the application of legislation which is not addressed to some ascertained and existing condition of disturbance, which does not forbid identified descriptions of conduct, and which does not establish factual tests of liability or objective standards of responsibility presents special challenges to the rule of law. One form of challenge stems from the undeniable need to keep intelligence and similar material secret. There can be no doubt that the need to keep intelligence and similar material secret presents difficult procedural issues but may I leave aside from further consideration the particular solutions which have been adopted. _____________________ 25 (1951) 83 CLR 1 at 194. 26

(1951) 83 CLR 1 at 193.

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Instead, may I direct attention to characteristics of intelligence material other than the need to keep secret at least some of that material and the methods by which it was obtained. The Executive government of any country must make decisions about national security that take account of, sometimes are wholly based upon, material which would not be admissible evidence in a court. By its very nature, intelligence material will often depend upon evaluative judgments made about the weight to be given to diffuse, fragmentary and often conflicting pieces of information. And often the information is itself no more than the product of interpreting some glimpses, reported at second or third-hand, of what may or may not be fact, may or may not be mere blowhard polemic, may or may not be fevered imaginings of a desired Armageddon. Judgments about material of this kind, which the Executive must make and act upon, are very different from those ordinarily made by courts. In addition, in at least some of the cases I have mentioned, the ultimate issues have hinged about the risk that one or more persons may engage in dangerous and unlawful conduct in the future and may do so either within or outside the jurisdiction. And the decision made by the Executive to act against an individual, on the basis that this person presents a real risk, will ordinarily have been informed by all of the material the Executive has at its disposal, including evaluative material of the kind I have just mentioned.

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If the Executive makes a decision based on material of this kind, the decision may be challenged in a court. If it is, several different issues may be thought to arise. It is important to distinguish between them because not all are issues which can be resolved by the courts (or at least by the courts exercising judicial power). First, there may well be an issue about whether the impugned decision is one which could lawfully be based on material of the kind that the decision maker took into account, including intelligence judgments of the kind which have been described. If the decision can be based on that kind of material, what exactly is a court then asked to do? Is it asked to review only the lawfulness of the procedures followed? Or is it asked to review the correctness of the judgment formed and reflected in the decision? The former inquiry, about the lawfulness of procedures, is familiar and unremarkable. Or at least it seems familiar and unremarkable until questions of procedural fairness arise. Was the person affected by the decision to be given any opportunity to be heard before the Executive formed the judgment it did? How much must the person affected be told about the issue? This has been resolved 27 by adopting the practice of so-called "gisting" and I say no more about this practice.

_____________________ 27 Home Secretary v AF (No 3) [2010] 2 AC 269. See also Tariq v Home Office [2012] 1 AC 452.

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But any inquiry into the correctness of the judgment which was made by the intelligence services (or some other agency of the Executive) presents radically different issues. What is a court to do if the decision has lawfully been made by reference to material of a kind which is nothing like evidence of a kind receivable at trial? How can a court, how can a special advocate, test judgments made by the intelligence services about what should be kept secret, what risks seemingly innocent contacts between individuals reveal, what restrictions on an individual will keep the country safe? How can a court test the evaluation made by the intelligence service of who is or is not a risk and why? The difficulties which are presented certainly give rise to questions about how to accommodate the courts' procedures to the determination of the issues that are presented. Those questions are very difficult and may be acute when there are claims to public interest immunity. Judges charged with tasks related to national security issues undertake those tasks faithfully and as best they can. But what are we to make of the caveats which the courts have felt compelled to enter about the power to conduct closed material procedures? What are we to make of the protracted litigation in the Binyam Mohamed case 28 about claims to public interest immunity where the then _____________________ 28 Including R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2009] 1 WLR 2579; [2008] Footnote continues

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Master of the Rolls expressed 29 himself to be "strongly sceptical" about a notion which underpinned the claims? What are we to make of the very claim in that litigation that part of the reasons of the Divisional Court should be redacted? Do these difficulties require us to direct our attention to what exactly is the controversy which the courts are being asked to determine? Let me approach the matter by returning to the Belmarsh Case 30. As is well known, one of the issues raised in that case was whether there was a "public emergency threatening the life of the nation" within the meaning of Art 15(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. And as is also well known, the House of Lords decided that there was no warrant, in an appeal on a question of law, for displacing the conclusion that there was a public emergency of the kind described.

_____________________ EWHC 2048 (Admin); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 WLR 2653; [2009] EWHC 152 (Admin); [2009] EWHC 2549 (Admin); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218; [2010] EWCA Civ 65; [2010] EWCA Civ 158. 29

R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218 at 276 [172] per Lord Neuberger of Abbotsbury MR.

30

[2005] 2 AC 68.

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Lord Bingham of Cornhill said 31 that "great weight should be given to the judgment" of the Executive and the Parliament on this issue and referred to resolving the issue by reference to "demarcation of functions" or "relative institutional competence" rather than "deference" by the judiciary to the political branches of government. Though the language may be different, an analysis in these terms is not unfamiliar to an Australian lawyer used to dealing with notions of judicial power. But in Australia, we would, I think, have begun the inquiry by looking closely at the kind of proceeding which lay at the root of the litigation: an appeal against orders made by the Special Immigration Appeals Commission on a question of law 32. An appeal against a decision on a question of law is very familiar judicial territory. It invites the immediate inquiry: "What is the error of law which those challenging the decision allege?" Do those challenging the decision assert that the applicable statutory provisions were misconstrued? Do they seek to make some argument based on taking account of irrelevant considerations or failing to take account of relevant considerations? On none of those bases would an Australian court willingly be drawn into deciding whether the decision was right or _____________________ 31 [2005] 2 AC 68 at 102 [29]. 32

Special Immigration Appeals Commission Act 1997 (UK), s 7. See also A v Home Secretary [2004] QB 335 at 383 [136] per Chadwick LJ; [2002] EWCA Civ 1502.

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wrong. And behind that reluctance would lie concepts of what is and what is not an exercise of judicial power. Yet it seems that, both in the Court of Appeal and in the House of Lords, those challenging the conclusion that there was an emergency of the requisite kind sought to have the courts test the correctness of the conclusion actually reached. And reference to either a notion of deference or to questions about relative institutional competence necessarily assumes that the courts are required to consider the correctness of the conclusion reached. If the questions for the court are confined to the traditional grounds of review, and the inquiry is whether the applicable statutory requirements have been misconstrued, or there is some question about the considerations which were or were not taken into account in arriving at the conclusion, there is no occasion for the court to decide whether the conclusion actually reached was right or wrong. But how far do tests of heightened scrutiny 33 now take the matter?

_____________________ 33 R v Ministry of Defence; Ex parte Smith [1996] QB 517 at 554 per Sir Thomas Bingham MR. See also R (Daly) v Home Secretary [2001] 2 AC 532 at 546 [26] per Lord Steyn; [2001] UKHL 26.

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If it is accepted, as it must be, that "the intensity of review is somewhat greater under the proportionality approach" 34 when Convention rights are at stake, how far can a court go in reviewing decisions about national security? That question cannot be answered without knowing the factual basis on which a court is being asked to review the decision. Either the court will have all of the information which was before the decision maker or it will not. (Let me leave unanswered a question about how any court can be given all of the material before a decision maker when the decision has been made on the basis of a judgment about what weight is to be given to the few pieces of an extraordinarily complicated jigsaw puzzle which the decision maker has available for consideration.) If the court has all of the information, may the court make a different assessment of what that material reveals? May the court permit the party seeking review to challenge some or all of the conclusions (not just of fact but of opinion) on which the decision maker acted? That is, is the review one which permits some challenge to the substratum on which the decision rests? If it is, is the court to make its own decision on these matters? If those are

_____________________ 34 R (Daly) v Home Secretary [2001] 2 AC 532 at 547 [27] per Lord Steyn.

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matters of evaluation and opinion, is the court somehow to step into the shoes of the original decision maker? If it is right to say that the court should not be given all of the material upon which a decision was based, how can that court say whether the decision is reasonable or unreasonable, right or wrong? The court might say that "on what the court has been shown, the decision is not shown to be unreasonable or wrong". But is that what is meant by intensive review or heightened scrutiny? Much of the argument advanced in the Belmarsh Case, at least in the Court of Appeal, appears to have proceeded on the footing that intensive review means more than saying that the decision is not shown to be wrong. But, as reported 35, much of the weight of the argument appears to have been placed on the proposition that there had been "an insufficiently intensive standard of review". That negative proposition is one whose content and application depend entirely on what is meant by "intensive". It is, if I may say so, a phrase which hides more than it reveals. Whether or not there is some category of closed material, to which a court is not given access, what exactly is the question which that court is deciding? _____________________ 35 [2004] QB 335 at 384 [140] per Chadwick LJ.

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Lord Hoffmann examined some of these issues in Home Secretary v Rehman 36 by reference to considerations of separation of powers. As his Lordship said 37, what is meant by a statute when it uses a phrase like "national security" is a question of law. It is a question of law which does not present any difficulty. It means the security of the nation and its people. By contrast, whether something is or is not "in the interests of" national security is a matter for judgment and policy. And both that judgment and the associated development and application of policy are matters for the Executive, not the judiciary. And it follows that whether supporting certain foreign organisations or activities is contrary to the interests of national security is a matter for the Executive, subject to review only on the basis that the decision was one which no reasonable Minister could reasonably hold. To say that the courts defer to the Executive on one or more of these issues frames the relevant question in a way which assumes that the courts can pass judgment on whether the decision reached by one of the political branches of government is right. But I venture to suggest that this is no part of the role of the courts. The courts must apply the law; the courts do not make national security policy (or in these kinds of case, the foreign policy of the _____________________ 36 [2003] 1 AC 153 at 192-193 [50]-[54]; [2001] UKHL 47. 37

[2003] 1 AC 153 at 192 [50].

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nation.) It is the Executive, not the judiciary, which is responsible for ensuring the safety of the nation. The lawyer's desire for system and order suggests that issues which arise in connection with national security might be divided between the "political" and the "legal", or between the "executive" and the "judicial". Perhaps some division of that kind might be adopted as a convenient description of the result of more specific decisions made along the rather troubled path of development of the law in this area. But neither form of division can be taken as a premise for argument to a conclusion in a specific case. Neither division can provide a premise for argument because everything depends upon what content is given to the terms which are used. And as I said at the start of this paper, the separation of powers with which Australian lawyers are familiar is not founded upon any a priori definition of functions. It is founded upon the observation that the authorities entrusted with the exercise of certain powers require different skills and professional habits from those needed for the exercise of other powers. And it is against this understanding of the separation of powers that it is necessary to identify what task the courts are being asked to undertake. Many forms of modern anti-terrorism law present the difficulties they do for the judicature because they seek to mark out a new middle ground for their operation. That is, they seek to operate in a middle ground between war time measures of executive

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detention and the otherwise established principle that, subject only to very limited exceptions 38, the involuntary detention (or other confinement of the liberty) of a person is authorised only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt 39. War time measures for executive detention were supported by the necessity of preserving the state and its vital interests. In the face of an existential threat, the Executive could be, and was, given very wide, even "unlimited power over the person and property of the subject" 40. Even then, as Latham CJ said in Gratwick v Johnson 41, "[t]he view that salus populi [suprema lex] can abrogate all law belongs to the world of war and revolution, not to that of law." War time powers to detain pursuant to executive order were expressed very widely. The limits to judicial supervision of the lawfulness of war time executive detention were revealed by _____________________ 38 Detention pending hearing of a criminal charge; detention in cases of mental or infectious disease; detention for the purposes of exclusion and deportation of aliens; detention of service personnel in aid of military discipline; and detention as punishment for contempt of Parliament. 39

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27; [1992] HCA 64.

40

Liversidge v Anderson [1942] AC 206 at 239 per Lord Atkin.

41

(1945) 70 CLR 1 at 12; [1945] HCA 7.

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Liversidge v Anderson 42 and, in Australia, by the 1915 decision of Lloyd v Wallach 43. Modern anti-terrorism measures were introduced in response to threats of serious criminal conduct which, if carried out, would cause great loss of life, injure many people and cause very serious disruption and property damage. The threats were not made by States or by overtly state-sponsored actors. The anticipated conduct did not threaten the continued existence of the state or its government. The measures which were taken sought to respond to these threats by providing means of preventing those who would, or might, participate in threatened conduct from engaging in it. In important respects, they were, and are, measures which hinge about questions of risk of future conduct rather than proof of past or present conduct or even (as the war time detention provisions did) adherence to a cause or belief, or disaffection from the nation's struggle to survive. These are decisions which some may think fall outside the skills and professional habits which are associated with the common _____________________ 42 [1942] AC 206. 43

(1915) 20 CLR 299; [1915] HCA 60; see also Little v The Commonwealth (1947) 75 CLR 94; [1947] HCA 24.

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law judicial method directed, as that method is, to the adjudication of controversies joined between parties by the application of previously stated norms of general application to the particular facts and circumstances established by evidence adduced by those parties. It may very well be concluded that it is better that judges take on these tasks than that they be left to the Executive. That is a debate about which I offer no view. But if judges are to take on these tasks, it is, I think, important to recognise that the legislation is requiring the courts to enter a new and different middle ground. And because that is so, it is not surprising that the courts must look carefully at how the tasks are best undertaken. If A V Dicey's view of parliamentary supremacy still has the influence in the United Kingdom which I think it may, judges required by statute to perform a function will focus much more upon the faithful performance of that function than upon questions of separation of powers. Yet in the end, some notion of the separation of powers must inform all that a judge does. A judge is sworn to do right to all manner of people, according to law, without fear or favour, affection or ill will. The reference to "according to law" is more than a rhetorical flourish. Chief Justice Marshall of the United States captured a critical element of the rule of law when he said 44 _____________________ 44 Marbury v Madison 5 US 137 at 177 (1803).

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that "[i]t is emphatically the province and duty of the judicial department to say what the law is." In national security cases, the courts are called upon to review the decisions of the Executive. Often those decisions have the most profound effect on the liberty and lives not only of individuals but also of the whole society. The courts can and must say whether those decisions are made and applied lawfully. But it would not be right for the Executive to seek to use the courts to cloak executive action with the independence and impartiality of the courts. And if the courts are seen to sit (in effect) on appeal from executive decision making, the Executive can and will say that its decisions have been approved and endorsed by the judiciary. For my own part, I am much persuaded by the postscript which Lord Hoffman added to his speech in the Rehman Case. You will remember that he said 45 there: "I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred _____________________ 45 [2003] 1 AC 153 at 195 [62].

27. only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove." (emphasis added) I began by pointing out the premises which underpinned the views I would express. Those views are the views of a keen observer of recent events but they are the views of an outsider and you may discount, even discard, them on that account. All I would say, in my defence, is that, in Australia, we routinely look to the decisions of courts of final appeal in this country, the United States, Canada, New Zealand, South Africa and elsewhere. Our law develops along its own distinctive path. But, just as we learn much from the views of those who stand apart from our judicial system, I hope that the views which I have offered may provide the basis for some further consideration of issues which necessarily are very difficult.