Human Rights vs the Power of Parliament in Australia

Sunday , 5, August 2018 Leave a comment


COULD THE AUSTRALIAN PARLIAMENT PASS A CONSTITUTIONALLY VALID LAW CAUSING CITIZENS TO BE DETAINED ON CENSUS NIGHT?

He is supposed to be home to fill in the form on Census night

Justice Gummow pointed out in the High Court case of Al-Kateb v Godwin [2004] HCA 37 that:

… it could not seriously be doubted that a law providing for the administrative detention of bankrupts in order to protect the community would be a law with respect to bankruptcy and insolvency[1] … or that a law providing for the involuntary detention of all persons within their homes on census night would be a law with respect to census and statistics.[2]

The fact that Parliament under section 51 of the Constitution has power to make legislation on these subjects does not by itself make such laws valid.[3]

You might argue Human Rights,   that this would amount to arbitrary detention, a breach of Article 9 of the International Covenant on Civil and Political Rights which states :

Article 9

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

You might argue :

“that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia’s “international obligations”: that is, Parliament should be assumed to have intended that any provisions for detention in the Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against “arbitrary detention”.[4]

However the High Court has held:

These submissions cannot be accepted. [IF the] statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council. 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.

Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament.

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.[5]

In conclusion the answer to the question

COULD THE AUSTRALIAN PARLIAMENT PASS A CONSTITUTIONALLY VALID LAW CAUSING CITIZENS TO BE DETAINED ON CENSUS NIGHT?

Is Yes.

First they came for the communists, and I did not speak out – because I was not a communist;

Then they came for the socialists, and I did not speak out – because I was not a socialist;

Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist;

Then they came for the Jews, and I did not speak out – because I was not a Jew;

Then they came for the boat people, refugees, asylum seekers and I did not speak out – because I was an Australian.

Then they came for me – and there was no one left to speak out for me.

~ Martin Niemoller with the addition of one lines by the author.

 

Foot Notes

 

[1] Section 51(17) Constitution.

[2] Section 51(11) Constitution, Al-Kateb v Godwin [2004] HCA 37 at 133.

[3] Ibid.

[4] Ibid at 297.

[5] Ibid at 298.



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