ANZ Society of Criminology Conference

HUMAN RIGHTS AND THE JUDICIARY

AUSTRALIAN AND NEW ZEALAND SOCIETY OF CRIMINOLOGY CONFERENCE FEBRUARY 2006

The Honourable Justice Pierre Slicer

This paper attempts to identify social and economic forces which have, and continue to, shape the political ideas and constructs which, in turn, determine the legislative and judicial responses to those forces. The themes are not peculiar to Australia, but resonate in varying ways in both western democracies and emerging or developing nation states. The paper, replete with footnotes, will not be read and the references are intended to be but a compendium of possible use to those interested in existing material in a specific area.

General Overview

There can be little doubt that economic and human relations are in a state of fundamental change. Technology, centralisation of economic power and information, the lessened impact of historic institutions of church and ideology[1] and the sheer complexity of human and social relations have weakened the power of traditional elected bodies such as Congresses or Parliaments, collective units such as unions, and replaced analysis of public good with perception and immediacy of response.[2] The power of the Executive has supplanted that of the legislature and the need for re-election that of the formulation or retention of good public policy[3]. Issues and their application or response have become more dependent on the community’s perception of an individual leader who, in turn, relies on non-elected advisers and managers for the development and application of their policy or agenda.[4] Concurrently, the course of social issues is identified and/or determined by interest groups, academia or through “human interest” stories, without coherence or consideration of a framework which encompasses the sum of the parts.[5] Competing with those developments are forces reflecting a need for certainty of purpose, often articulated by simplistic fundamentalist analysis[6], decentralisation of information through the internet[7] and a consistent clamour based on “rights” as seen through individual examples of “human interest” as acceptable to, and beloved by, the institutions of the media.[8]

The outcome of these forces and processes has been a movement towards conservation in western democracies evidenced in the rise of “neo cons” in the United States, continuance of Thatcherism in the United Kingdom, changes in government through Europe and the legislative programs, both state and federal, within Australia.

A cynical view, especially advanced in the United States, is that modern government relies on the emotions of fear, both of external forces and of internal differences.[9]

That outcome which impacts both nationally and internationally is both positive and negative in its effects. The themes, both convergent and contradictory, permit consideration of the role of judges and human rights under a number of headings.

(1) What are Human Rights and their Derivation.

(2) Domestic and International application.

(3) Institutions and Tensions.

(4) Defensive Entrenchment.

Human Rights and Derivations

Human Rights are but the consequence of tensions between the individual or small self-identified groups (family, clan, tribe or peoples) and the large collective institutions. They become defined through a philosophical underpinning, religious tenants, compact with governance or treaty[10]. Although often expressed as inherent to the nature of each human, they derive more from the collective aspirations of a culture and the organisational structure within which people live.

Their statement or books of “holy writ” in statutes might give rise to expectation but their application requires the development of a civil society or at least the balance of political and social forces within a nation state or at least a cohesive community.[11]There remains a resonance between Magna Carta, the United States Constitution and the United Nations Declaration of 1948.[12] The United Nations Declaration has its genesis in the Atlantic Charter agreed between Churchill and Roosevelt in August 1941 which reflected Britain’s need for an alliance and America’s desire to give purpose to an international conflict.[13] Recognition of rights can be found in statute, charter or the laws of tort and contrast.[14] They have been extended to affirmative action.[15]

In modern parlance their definition has become problematic. In many instances the state claims that its restrictive legislation is a product of the human right to safety and collective security, while at a community level, interest groups, wronged individuals, academia and the media seek to enhance their cause or story by appeal to “human rights” or their transgression. Thus many transient or peripheral issues, resolvable through ordinary political processes, are elevated to the fundamental. Both left and right contribute to the confusion. The consequence is a “cheapening of the coin”. In equating the transient with the fundamental, we obscure the terminology and allow political correctness or opportunism to define the discourse. Equality does not mean sameness and freedom does not mean licence, nor protection that of total prohibition. In many instances the judicial arm of government is more capable, in part because of its inherent generational conservatism and methodology, of reflection and better able to identify “core values” from the clamour of demand, response and abuse of power by the state.

Those advocating or defending human rights ought ground their analysis on the historic bases of:

(1) freedom of philosophical belief and expression of those beliefs in a manner which does not preclude (not offends!) a differing construct;

(2) freedom from arbitrary arrest or detention by the state without a proper examination of relevant facts and the application of a uniform (special or general) and publicly stated law;

(3) a right to participate in the processes and institutions of governance;

(4) recognition of rights held or accrued before replacement by a new political and cultural model.[16]

Whilst the statements and terminologies concerning human rights have become more international, their interpretations and implementation remain the provenance of the nation state, and dependent on the integrity of the judicial infrastructure.[17]

 

Australia

Australia has a mixed record in the area of political and human rights. Trial by jury was an early demand readily granted[18] and rights of franchise robustly advocated and obtained through the 19th century. Thereafter, its development has been problematic. The Constitution excluded Aborigines from the census because of fear of Chinese immigration which made colour a complicating factor and the maintenance of “protective” state legislation.[19] The adoption of a Bill of Rights into the Constitution was rejected during the Convention Debates because its terms would negate state laws which were specifically discriminatory in their effect.[20]

The outbreak of World War I led to the enactment of legislation permitting the detention, without trial, of aliens.[21] Similar provisions were applied at the commencement of World War II.

In 1929 and 1959, successive Commonwealth inquiries rejected proposals to include a Bill of Rights in the Constitution. In 1944, a referendum to provide rights of freedom of speech and expression and to extend the right of freedom of religion so as to bind the states, was defeated[22] and in 1988 a similar referendum providing for the right to trial by jury and freedom of religion was supported by only 31% of the Australian population.[23]

Despite ratification of the United Nations Declaration on Human Rights in 1948, it was not until 1991 that Australia accepted the optional protocol permitting the referral of Australian decisions for, non-binding, consideration of the United Nations Human Rights Committee[24].

Australia has historically relied on the courts through the common law to develop and protect the rights and interests of its citizens.

If Australia can be said to have a coherent ideology since 1939 it can be described as one of parliamentary controlled social engineering. Its people were regarded as subjects of the Crown.[25] Those engaged in governance, parliamentary or bureaucratic, were concerned in the development of models of social and economic engineering. Rights, protections or interests were obtained or defended through political engagement or struggle. Certain rights were inviolate[26] and some subject to a balancing act between competing principles;[27] but primarily the issues were determined by the political, rather than the judicial, process. Subject to the complications of federalism, Australia remained a British model. The model began to be influenced by the developments in the United States and the status of the people resembled, despite the defeat of the republic referendum, that of a citizen, rather than a subject[28]. From that changed self-perception, people began to regard personal or social interests as ones of right. Parliaments, both state and federal, responded to reformist demands but the enactment of general “rights based” legislation, rather than ones issue specific or particular to a matter internal to the relevant enactment and the establishment of tribunals to give effect to the general legislation[29], in part dependent for validity on the inclusion into domestic law of international covenants,[30] a methodology upheld by the High Court in the Dams Case.[31] Combined with general enactments for judicial review, the process directly involved the judicial arm of government in a “value based” consideration and application of competing principles and interests. Citizens began to use the courts, rather than the historic political process, to protect and enforce those “rights”[32]. Inevitably the process created tensions between the judiciary and the Executive. Those tensions have been exacerbated by state Attorneys-General in the areas of criminal and administrative law, often in the context of sentencing, and significantly in the application of migration law, especially since the arrival of the good ship Tampa, matters which will be separately considered. Enactment by the state and Commonwealth of new security laws[33] with bipartisan support in December 2005, and the expansion of the crime of sedition, reflect the increased power of the Executive, rather than considered public discourse. Even if the grant of power is defensible, the prolonged recourse to fear, xenophobia and racial difference leading to that grant of power has produced, as an inevitable consequence, the events at Cronulla and their retaliation[34]. To paraphrase the Chinese proverb, Australia will live in interesting times over the next 5 – 10 years.

International and Domestic Application

This arena is a cause for optimism. The nation state is reluctant to openly oppose international conventions, often expressed in general terms. As such, their formulation is outside the control of the Executive of each nation state and often international pressure, and the desired self-image produces real protection and change. Additionally, the right to make complaint to the Human Rights Committee, the United Nations body which administers the International covenant on Civil and Political Rights in accordance with the First Optional Protocol ratified by Australia in September 1991, and which permitted a Tasmanian activist to challenge the domestic law proscribing the conduct of homosexuals enhanced the role of international jurisprudence. Although any decision is non-enforceable, absent domestic law, the referral of complaint can operate as a persuasive force on a nation state.[35] Civil law has likewise developed an international flavour with the requirement that court systems throughout the world adopt more transparent and acceptable processes and methodologies.[36]

International Law has long provided for issues of commerce and trade, sea and air communication, boundaries and the like. Globalisation, the needs and movement of modern capital are now creating enforceable rights through conditions attached to grants, loans and services provided by agencies such as the International Monetary Fund and the World Bank. Those conditions attach to conditions of employment, public regulations, minimum wages, and the like. The requirements for uniformity and enforceability of commercial law have, as a concomitant, the need for a fair judicial system and the recognition of civil and political rights. Internationalisation of one part of the judicial process cannot be achieved without affecting the domestic system as a whole. The use of practitioners through agencies or non-government organisations results in commonality of methods, models, and standards. People use similar language, ideas and criteria inherent to the discipline or profession of law which, over time, govern the workings of the domestic institutions.[37] Despite problems associated with the system of law adopted and the use of foreign advisers, the experience of Timor in adapting its judicial system to a United Nations based approach in its pursuit of war crime offenders, the reconstruction of the legal system in Timor may prove to be a positive development.[38] The negative aspects of this development might be governance by a new professional elite.[39]

Perhaps the most significant advance has been the rejection of the claims of sovereign immunity in cases of criminal conduct committed during and at the behest of the leadership of countries during periods of dictatorship or oppressive regimes.[40] The post-Nuremberg trials conducted following events in Cambodia, Argentina, Bosnia, Croatia, Rwanda, South Africa, Chile, Liberia, and the international trials in the Hague, Sierra Leone and elsewhere, no longer recognise sovereign immunity or acts permitted by the laws of the relevant regime. Personal deterrence and accountability operate as a specific deterrent to the conduct of the leadership.[41] The establishment of the International Criminal Court is a product of a new and enforceable judicial method of the protection of human rights.[42]

Europe has developed the concept of transnational citizenship with uniform collective rights supervised by a judicial institution responsible to the Union rather than the component states.[43] The United States has, in part, accepted the provenance of the International Criminal Court.

Extension by Treaty

There is less cause for optimism in this area. Commercial treaties are enforceable, ones based on human rights rarely. Governments are less likely to incorporate them into domestic legislation or resist external enforcement.[44] Incorporation of treaty law into domestic law by the courts in areas where the Parliament has been silent remains a matter of controversy.[45]

Tensions Between Executive and Judiciary

There is inevitable tension between the judiciary and the Executive and the judiciary and the community. Most of the tensions with the community are raised by issues of sentencing and the outcome of specific criminal trials. Judges are perceived as giving undue weight to the interests of offenders; and to a victim understandably requiring retribution, no punishment is sufficiently severe.[46] These tensions are increased during periods of politicised “law and order” campaigns and exacerbated by the drama of “high profile” cases. In many instances, especially in sexual cases or ones involving morality, there is a convergence between “left” and “right” in the critique. Those tensions are an appropriate method of ensuring judicial accountability to the community as a whole. The requirement for a judicial officer is to be responsive to a general community attitude without allowing specific and emotionally charged attacks to govern a particular outcome.[47] There is an increased tendency for members of government to institute or exacerbate the critique and ensuing discourse.[48] In turn, judicial officers should recognise that failure to accommodate legitimate community concerns can result in the political solution, often advantageous to the Executive, of mandatory sentencing.[49]Whether expressions of community concern or “outrage” in the course of a response to political strategy remains an issue outside of the parameters of this paper.[50]

The tensions between the Executive and the judiciary are of greater concern. There is legitimate tension between judicial determinations without regard to economic consequence and executive responsibility to allocate the resources for compliance with that determination.[51]

The damaging tension arises from the political methodology inherent to the workings of the Executive, especially in the areas of human rights and human experience. The tensions are raised in three ways:

1 Executive proposals, enacted by compliant legislative bodies are often drafted in “general”, but contradictory, terms. A statute requiring “environmental protection, sustainable development and the preservation of employment”, is electorally attractive, but its application a judicial conundrum. The Executive, which knows its real agenda, is outraged by an unwanted interpretation. Judicial activism or adventurism is the articulated response.[52]

2 Parliaments or elected representatives, aware of public response, consciously avoid resolution of a divisive issue or leave the outcome to be determined elsewhere,[53] or for reasons of history have ignored the issue completely.[54] The response is not to the issue or the principles involved, but the allegation that the unelected has engaged in creativity and social engineering.

3 The Executive, for reasons both good and bad, seeks to implement policy, but dares not advocate unfairness or victimisation in its application. Proper judicial review inhibits the effectiveness of that policy and in the course of examination, exposes the abuse or extent of the exercise of power manifest in specific cases. It is this tension which goes to the “heart of the matter”.[55] The tensions occur at the “fault lines” of economic, social and moral questions which are the province of the political, legislative and judicial institutions. In times of fear, uncertainty, change, and external threat, real or perceived, the tensions are stark and often brutal.

Courts are concerned with due process, equality of treatment[56] and consistency of outcome. In Australia there has never been greater tension between the Executives, state and federal, and judicial officers (irrespective of their personal politics) which is a consequence of the clash between policy and judicial duty. The tension is not confined to Australia as the current or proposed appointments to the United States Supreme Court attest.[57] It has been immigration, standing of refugees and their mandatory detention which have occupied the arenas of conflict between the Federal and High Courts and the Howard government. Those currents within Australian society, with disparate themes, some understandable, some racist and xenophobic, eclectically called Hansonism, even if attractive to 15% of persons polled, could have been accommodated by the body politic and fought out within traditional political discourse. The arrival of the good ship Tampa, the dehumanisation of boat people prepared to sacrifice their children, their countries of origin[58] and the events in New York in September, permitted the adoption of “H” into mainstream politics and translation into legislative policy. Implementation of policy required observable outcome. The volume of affected persons and their recourse to the judicial system was expensive and time consuming. It was existing legislation and the original jurisdiction of the High Court based on the Constitution which permitted, nay, required judicial review. Attempted restriction of those rights to review were, and remain, at the core of the hostility of government to the judiciary. Australia could not withdraw from its treaties without losing international standing, or what was left of it, and the Howard government could not openly state its real agenda by repealing legislation which clearly states principles of open justice, procedural fairness or determination on the merits. Thus questions of the detention of children[59], the validity of the Pacific solution[60] and the dilemma of the stateless person[61], were resolved by the courts, despite the spiteful and oft expressed hostility of the Executive[62]

The process and the damage, both to the body politic will, not might, be repeated as we respond to the threats, both real and perceived, of the cancer of international terrorism. The Executive with a valid and understandable concern for the safety of citizens, will be driven by political immediacy and opportunism to establish institutions, grant wide discretionary powers and look to electoral success. The process is inexorable and failure to be seen to act, politically dangerous. Articulation of danger itself engenders fear which, in turn, enhances fear. The judicial system remains as a check to discretionary exercises and an inhibiting factor in the abuse of power. That is not to clothe it with a romantic notion of “bulwarks of liberty”. Judges, irrespective of personal ideology remain instruments of the state. The involvement of judicial officers in control orders, review of interrogation procedures, bail, search and seizure and the interception of communications provide both safeguard and legitimacy to the legislation itself. Those tensions both internal to the judiciary and as between it and the Executive, will increase.[63] Nevertheless the nature of the judicial system permits reflection, application of reason and protection of abuse of power. But it remains a defensive, albeit weak in political power, instrumentality, rather than positive or enabling.[64] Absent trust by society it will become ineffectual. In the medium term, it can preserve rights already gained. In the longer term, society must decide the outcome. While the Executive, rather than the Courts, might be better situated to determine the existence and nature of an emergency,[65] the absence of parliamentary or congressional review[66] makes an effective opposition and ultimately electoral response essential to prevent emergency legislation becoming a permanent condition.[67]

Trust in Institutions

The state can adopt as number of methodologies in its enactment of laws. One is to pass general provisions of wide range and rely on “common sense” discretionary recourse to their application by the institutions responsible for their operation. A second, more restrictive approach, is to make the enactment specific to an identified problem. In the area of criminal law, grants of power and the range of proscribed conduct, the former method is usually employed.[68] Trust in institutions is problematic. The history of ASIO in the 1960s and 1970s, the advice of security agencies on Timor, the existence of weapons of mass destruction in Iraq and the exposure of the institutional culture within the Department of Immigration,[69] are but examples of the interrelationship of policy imperatives and implementation. In the real world one cannot complain if a public officer clothed with power does not use it. In Tasmania, many cases of minor assault, traditionally dealt with by a magistrate during a lock-up court on a complaint under the Police Offences Act, are now initiated under the Criminal Code, requiring trial by jury or sentencing by the Supreme Court because police budgets, dependent upon Performance Indicators, derive greater return for Code based prosecutions. The increased cost of implementation comes from the budget of different agencies or departments of the state.

The problem is not the right of the state to defend its people from murderous attacks by fanatics or those who seek to pursue political or religious goals. The headlines of today are not dissimilar to those of Europe in the 1920s, especially in Spain, during a violent and sometimes indiscriminate campaign by anarchists.[70] It is the application of that response by institutions which rely on the power afforded to justify conduct involving the general community. Legislation might be justified which provides a shield to public officers who err in their judgment in intervening in particular instances. History shows that permissive legislation, coupled with a broad definition of proscribed conduct, is all too often used as a sword.

Some modern examples will suffice:

1 The arrest, detention and expulsion of the American activist, Seth Perkin, at the request of ASIO. He was not informed of the reason, nor charged and his expulsion not the subject of judicial review. Disclosure was prohibited because of security implications.[71]

2 The removal and detention of Walter Wolfgang from the British Labor Party Conference in October 2005 for interjecting the word “nonsense” during Foreign Secretary Straw’s speech, powers effected under the Prevention of Terrorism Act.[72]

3 The arrest and detention of Sally Cameron whilst walking in a prohibited area, a path restricted to cyclists, along the harbour area of Dundee. She was warned, by megaphone in the hands of the Harbour Master, and her disobedience was followed by a number of police vehicles with armed occupants who, in the ensuing dialogue, ordered her to “stop laughing”. The intervention by authority was in accordance with security legislation.[73]

4 The criminal trial in the United States of a youth, aged 15, who had attached to his personal website a number of “links” one of which was the address of a suspect terrorist organisation masquerading as a charity.

5 The interception of buses carrying intending protestors to an air force base in the English midlands used for military operations in Iraq, their forced return and arbitrary release in London, all conduct justified by security legislation.[74]

6 The arrest of “peace activists” outside an international arms fair in London pursuant to powers afforded by legislation designed to prevent the use of such weapons.

7 The report of the United States Department of Homeland Security made pursuant to its 11 September powers, identified animal liberationists as the main domestic threat to domestic peace.

Some of these examples are, as Ms Cameron displayed, but worthy of laughter. We tend, as ones living in a civil society, to regard them as aberrations of the foolish or misguided, as collateral damage in a serious conflict. It is true that we have no Stasi or NKVD. But incremental processes induce, over an extended time, acceptance of the unthinkable.

Complacency is belied by the report of Justice Wood following the New South Wales Inquiry. Included in his findings were ones concerning the activities of the New South Wales Special Branch, an institution not subject to legislative sanction or judicial review. As at the date of the report in June 1998, the Branch had complied files on 26,800 individuals or organisations, 6,930 of which were classified as “terrorist”.[75]

Trust is ephemeral and its betrayal recognised only long after the event. In 1989, President Gorbachev of the Soviet Union stated that he intended to introduce trial by jury as a means of providing trust and legitimacy to the judicial system. His advocacy survived the fall of a discredited regime and in 2004 its successor, Russia, introduced the jury system into its criminal justice system. Still in its infancy, the system was “trialled” with cases involving the rape of civilians by serving soldiers. It makes sense – who would trust an acquittal of a soldier tried by officers of the state. Conversely, who would trust a conviction of a civilian dissident convicted by an agency of the state.[76]

Trust in outcome is of long term import and of little concern to the Executive. I suspect that trust in the application of law is greater when the exercise is by members of the community through a jury rather than by single professionals such as a judge. It is more readily lost when exercised in the absence of scrutiny.

Laws should be enacted, not on the expectations that the institutions will properly give effect to their import or design, but on the assumption, even if invalid, that the institutions will become dysfunctional or develop a culture inimical to the original designed purpose. It is here that exists the fault line between the Executive and the Judiciary. Opposition to trial by Military Commissions in the United States is based on doubts as to outcome.[77] Can an agency of the Executive be trusted to determine the guilt or otherwise and the appropriate disposition of “enemy combatants” or those “hostile” to the state. It is not an issue of the subjective integrity of members of the Commission, but trust in the nature of the institution. A civil society, based on democratic elections, can survive loss of trust in outcome in the short to medium term, but eventually will be significantly harmed.[78]

A second fault line is located when emergency legislation is incorporated into general law. The United Kingdom government was reluctant to establish rules of engagement governing conduct separate from the existing criminal law. It relied on the doctrines of “Aid to the Civil Power” since, for pre-trial reasons, it could or would not afford belligerent status to the IRA. The criminal law was required to accommodate special cases in matters of evidence procedures and substance. In doing so, the general criminal law was significantly altered.[79]

 

Judges and the System

Many years ago, Professor Roebuck, a former professor of law at the University of Tasmania and I, as a legal practitioner and state secretary of the Communist Party of Australia in Tasmania, engaged in a personal discourse, amidst a party devoid of humour,[80]as to whether we were class traitors or enemies and whether a notional, but perfect, Marxist regime as per Dubcek’s Czechoslovakia during the Prague Spring should establish a ministry of dissent. On reflection, I will settle for the doctrine of separation of powers and a judicial system separate from Executive and legislative power. But judicial independence has become more complex. It is more than indifference to the power of the Executive (remuneration, re-appointment or the hint of preferment) self-interest (shares, involvement in causes) or the interests of others (status, class, gender and the like) but of identity in a world which has changed. It is without power except that held by trust[81], and the need of any society, large or small, simple or complex, to have an arbiter of disputation and enforce the sanctions against proscribed conduct[82]; a judge is an instrumentality of the state. The Executive, correctly in my view, ought to retain the right to appoint and shape this institution, provided it recognises the need for continuity and balance. It is doing so less and less in areas of ideology, but in fairness is more responsive to attributes of gender, race and culture.

The complexities of modern society arising through globalisation, culture, technology and forms of governance have created ambivalence, both internal and external, to the nature and role of the judiciary, the weakest arm.[83] There are differing expectations which view the role as:

(1) Social engineers responsible for the delivery of outcomes which accord with the desired goals, often transient, of the state and the general community. Lack of trust in the “fairness” of the application of law engenders a cynicism or trust.

(2) An institution upon which more administrative and quasi-judicial functions are reposed, subject to the implementation of cost efficiency and modern “management” principles. Some of those functions are transferred as a means of lessening the political impact of particular decisions.

(3) Adjudication: a function for which judges are chosen and which the community expects. The coinage of “judgment” has become debased and in many cases judges are seen as “service providers” or a highly paid “elite” with a self-serving agenda.[84]

The impact of adjudication can be significant.[85] In the arena of Human Rights, recourse to the judicial arm has become more common, either through Constitutional challenges, as in the United States[86] or by the application of fundamental legislation enshrining a “Bill of Rights” as in Canada[87], New Zealand and the Australian Capital Territory. Changes in a court’s approach can alter the parameters of political discourse.[88]

Skirmishing has commenced in Australia over the application of terrorism laws and the response to Cronulla, at this stage confined to bail.

Western democracies can be distinguished roughly among three primary societal models, namely where:

(1) The state is perceived as a force that threatens the individual and his or her freedom, rather than as a sovereign power that protects the individual and that freedom.[89]

(2) The state is viewed as a realisation of national aspirations and the attitude one of respect and admiration, rather than one of suspicion.[90]

(3) The state is perceived both as a source of good and evil, feared as a source of harm to the individual, but supported as a source of protection. In this model,[91] the rights of the individual include not just the negative right against state intervention, but also the positive right to protection of essential freedoms and provision of vital services.[92]

The models create differing tensions between the three “arms” of governance. The role of a judicial officer is activated less by choice but rather by the controversy chosen by the state or the citizen. It often involves choice or reconciliation between different values or principles which are often contradictory.

An excellent analysis of the role and functions of a judge in a democracy is that undertaken by Aharon Barak, the President of the Supreme court of Israel.[93] His work is too comprehensive and complex to adequately summarise, but if you read nothing else in the footnotes, read this and the paper of Professor Kennedy, already referred to.[94] His experience suggest that the Israel Supreme Court is at the cutting edge of the dilemma of a state and its institutions under pressure. Cases referred to the court include:

(1) Validating or voiding a decision of the Knesset to revoke the immunity of a member of the Knesset.[95]

(2) Invalidating the decision of the President of the Senate from preventing the tabling of a racist draft bill[96] but establishing a rule that only a member of a multimember party could propose a vote of no confidence in the government.[97]

(3) Invalidating the decision of the Defence Minister to grant religious seminary students from the military draft.[98]

(4) Validation of a “coalition agreement” whereby any decision of the Supreme Court which changed the status quo in matters of religion and state would be returned to the status quo by vote in the Knesset.

(5) Validation of the President’s pre-trial pardon of the Head of the General Security Service and other members of that service[99] (Barak dissented).

(6) Ordering the dismissal of a cabinet minister against the decision of the Prime Minister[100].

(7) Invalidating the decision of the Attorney-General not to indict management of banking institutions[101]and the Chief Police Commissioner[102] and specifically in the areas of human rights and attacks on the nation state.

(8) Intervention against a military commander who had distributed gas masks unequally during the scud missile attacks during the 1991 Iraqi war.[103]

(9) Ordering the supply of food to the besieged Palestinians in the Church of the Nativity in Bethlehem.[104]

(10) Preventing the deportation of 400 suspected terrorists to Lebanon.[105]

(11) Prohibition of collective punishment by the destruction of homes of suspected terrorists.[106]

(12) Prohibition of torture of suspects.[107]

(13) Declining to intervene, except in minor ways, in the erection of the “security wall”.[108]

(14) Validation of the “Oslo Accord” conducted without legislative authority which provided for the release of persons convicted and sentenced under Israeli law.[109]

Judges in Australia, the Untied States, the United Kingdom, have it easy by comparison. However, the questions of justiciability and review of administrative action in a nation state believing, correctly or otherwise, itself and its citizens to be under threat, are present and will remain so in the near future.[110]

Decisions by government to excise geographical areas of Australia from the migration zone, the use of extra-territoriality used in the employment of Guantanamo Bay and rendition are but examples of attempts by the legislative and executive arms of governance to avoid the complexities associated with judicial review.[111] How judges and juries will respond to trials of suspects when the substantive matters of evidence, grants of discretionary power and the interpretation of “liability” enactments remain for future assessment.[112]

Bill of Rights

There has been a movement towards the provision of enshrined constitutional provisions or at least general legislative enactments governing the application of statutes generally.[113] Australian governments, both state and federal, are reluctant to introduce the latter.[114] My initial indifference to that movement was that the judiciary was ill-equipped to decide matters affecting public policy or the balancing of competing values and social interests. My view was, and remains, that judges do not have the resources to properly consider long term affects of economic and social consequences of policy decisions. A particular case might raise specific issues and be determined “on its merits” but have unanticipated consequences. Composition of courts, even when admired, varies according to the politics of appointment and generational change. “Rights” cases have an immediacy which might work themselves out over time and through appellate review, but they are a “potent broth”. My view has altered. General legislation can set the parameters of how a society views itself and establishes accepted norms and values. Parliaments can allow these bases if prepared to undergo the political exercises necessary to alter the terms of the social compact. It is for the Executive to persuade the legislature to alter the terms or, if it controls that legislature, to accept the political consequences of its decision. Courts ought not extend the import of “general rights enactments” through unthinking accretion. To that extent, courts ought remain responsible for their decisions and use the general legislation as a defensive, rather than a proactive, mechanism, except where the legislature has declined to engage in the issue.[115] Attempts at the development of a doctrine of “implied rights” derived from the Constitution have been limited[116] and unlikely to be further developed. Despite critique[117], the future of general laws protecting civil and political rights is a cause of optimism. The state has given extensive powers to its agencies for reasons of safety. It is entitled to so do, even if the extent of power is subject to criticism and discourse. But the grant of extensive power must be balanced by protective mechanisms since the exercise of those powers must inexorably result in their use for purposes wider than the original justification.[118]

Questions of proportionality, reasonableness of belief, arbitrary detention, reasonableness of search, seizure, detention, interception of communications, will need, through the processes of judicial review, legislative framework as a counterbalance.[119]

The tide of history might ebb and flow, but the qualities of humanness and civility will survive. They can be preserved and enhanced. In the long term, they depend on the collective will and aspirations of the particular society within an international framework. Guardians of those values an aspirations include the “weakest” arm of governance.