Interesting.:
Judge says terror power 'too broad'
August 02, 2007
The AUSTRALIAN
HIGH Court judge Michael Kirby has used a minority judgement today to lament that his colleagues are allowing governments too free a rein and allowing laws that might be misused in the future.
A five to two majority of the the High Court today upheld the constitutional validity of an interim control order under the anti-terrorism laws made last year against Joseph Terence Thomas, also known as Jack Thomas.
The court found the use of the defence power under the constitution was not limited to external threats or to war between nations but extends to protecting the public from terrorist acts.
Justice Kirby - who dissented along with Kenneth Hayne - believes the use of the Constitution's defence powers to combat terrorism was too broad and invited the danger that the military could one day intrude in civilian affairs.
The outspoken liberal has questioned whether the present terrorism threat is exceptional and while political "rhetoric'' may invoke a state of war, the courts have to make an objective judgement.
Justice Kirby also laments that the tide of judicial opinion had turned so far in the past fifty years that laws banning the Communist Party which were quashed by the High Court in 1951 might be found to be valid today.
"It is another instance of the constitutional era of laissez faire through which the Court is presently passing,'' he says.
The High Court was being asked to decide whether judge could place an interim order limiting an individual's liberty at the request of authorities before a full hearing on the facts could take place.
Chief Justice Murray Gleeson argued that the fact there would be an eventual hearing should allay concerns.
"There is nothing to suggest that the issuing court is to act as a mere instrument of government policy,'' he said.
"On the contrary, the evident purpose of conferring this function on a court is to submit control orders to the judicial process, with its essential commitment to impartiality and its focus on the justice of the individual case.''
Justice Gleeson said the level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances.
But assuming there is a sufficient connection between the order and the protection of the public "the legislation is supported by the defence power supplemented, where necessary, by the external affairs power''.
Justice Kirby argued that State police powers were sufficient to deal with combatting criminal acts by terrorists.
Any expansion of powers should be by means of a reference from the States to the Commonwealth.
Justice Kirby said terrorism was not a new phenomena and "conduct sharing features now associated with "terrorism" has occurred for centuries
"It should reject legal and constitutional exceptionalism,'' he said.
"Unless this court does so, it abdicates the vital role assigned to it by the constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia.''
Some acts which might have been done with intention of "intimidating the public or a section of the public", and be therefore be defined as a terrorist act, might not involve endangering life, he suggested.
"Moreover, drawing a line between acts designed to coerce or intimidate an Australian government for a political, religious or ideological cause (thus falling within the definition) and pure advocacy, protest, dissent or industrial action (falling outside of the definition) could be difficult,'' he says.
Justice Kirby says courts had carefully guarded against properly defining threats and limiting the scope for military to interfere in civilian affairs.
"This Court should maintain and uphold that historical approach. It should do nothing to undermine it. Any departure invites great danger, as the constitutional history of less fortunate lands, including some that once shared our tradition, has repeatedly demonstrated.'' ... <cont>
http://www.theaustralian.news.com.au/story/0,25197,22178133-601,00.html