Dr Rebecca Ananian-Welsh
In the absence of a national bill or charter of rights, Chapter III of the Constitution has come to be appreciated as a key protection for the rights and liberties of the Australian people. As we reflect on the history and importance of the Magna Carta, it is time to seriously consider whether clearer, stronger protections for civil liberties and fair process are called for.
The spirit of the Magna Carta
As Lord Irvine recognised, ‘In many respects Magna Carta has transcended the distinction between law and politics and its legacy represents a joint commitment by monarchs, parliamentarians and the courts to the rule of law’. As this statement reflects, the Magna Carta’s importance greatly surpasses its legal weight, or even its immediate historical impact (after all, Pope Innocent III declared the 1215 charter null and void well before the year was out). Rather, the Magna Carta endures as a part of the constitutional framework, and in the minds of citizens it is a crucial and emblematic proclamation of the rule of law.
Perhaps the most famous chapters of the Magna Carta (chapters 39 and 40 in the 1215 edition) provide that:
‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
‘To no one will we sell, to no one deny or delay right or justice’
These chapters emphasise that any deprivation of liberty shall only occur according to law, and that the law will be administered to all equally. In this way, these chapters embody the core sentiment of the rule of law.
The spirit of the Magna Carta is most clearly reflected in human rights documents. After all, the Magna Carta presents itself unambiguously as a charter of liberties, designed to grant and ensure ‘To all free men … all the liberties written out below’ (chapter 1).
Australia, however, remains the only liberal democratic nation without a national bill or charter of rights. Here we rely on representative and responsible government and the common law to protect liberty from undue incursion by the executive government. But there is another avenue that has evolved to play a vital role in the protection of liberty in Australia: Chapter III of the Constitution.
Chapter III of the Constitution deals with the judicial branch of government. Over the last century, the High Court has interpreted Chapter III to provide for a robust separation of powers, whereby the independence and institutional integrity of the judiciary is entitled to constitutional protection. These principles are bolstered by robust protections for judicial tenure and remuneration across Australia.
Judicial independence has been described as a ‘pre-requisite to the rule of law’. After all, it is well and good to require that laws be objective, equal and accessible, but that is for nought if those laws are applied by courts that are subjective, arbitrary or inaccessible. Judicial independence preserves courts’ capacities to apply the law equally and objectively, and it is particularly important in ensuring that courts acting as a check and balance on government power – a sentiment at the very core of the Magna Carta.
Chapter III and civil liberties
By placing judicial independence on constitutional footing, Chapter III has been heralded as giving rise to an implied bill of rights and, in particular, an implied fair process principle.
There are a number of cases that support this view. First, in a finding that echoes the Magna Carta, the High Court in Chu Kheng Lim v Minister for Immigration identified punitive detention as lying outside the accepted bounds of executive power. The Court held that this kind of order can only be made by a properly constituted court following a criminal trial.
Secondly, in Al-Kateb v Godwin the Court held that administrative detention of non-citizens could only occur for a legitimate purpose, and thereby ruled-out the prospect of arbitrary detention. Thirdly, in a series of cases the Court has recognised that procedural fairness is a defining and essential characteristic of courts, and therefore cannot be compromised without risking constitutional invalidity. Finally, the Court has interpreted Chapter III to protect a person’s right to seek judicial review of an administrative decision, thereby preserving judicial oversight of the legality of executive action.
It can be seen that Chapter III is indeed fertile ground for basic rule of law protections. But is it truly a ‘guarantee of freedom under the law’? In the absence of a bill or charter of rights, is Chapter III Australia’s answer to the spirit of the Magna Carta. The answer, sadly, is ‘no’.
In recent cases, the High Court has made clear that the focus of Chapter III rests squarely on the courts. Considerations of rights, liberties, fairness to parties, and even proportionate outcomes are not necessarily relevant to Chapter III validity.
Last year, in Kuczborski v Qld, four justices of the High Court said that ‘to demonstrate that a law may lead to harsh outcomes, even disproportionately harsh outcomes, is not, of itself, to demonstrate constitutional invalidity’. This statement aligned with the Court’s findings in earlier cases. For example, in Magaming v R the Court upheld harsh mandatory sentences. In Attorney-General (NT) v Emmerson, the Court upheld provisions that obliged a court to issue a far-reaching asset forfeiture notice, provided merely that the Director of Public Prosecutions could prove that the person had been subject to three drug-related prosecutions in 10-years.
Then, in Kuczborski, the High Court upheld a range of severe ‘anti-bikie’ laws. By way of example, one of these laws created an offence of participants in certain organisations (as identified by the Attorney-General) meeting in a group of three or more in public. It was enough that the person was wearing a logo or had ever sought membership of the organisation to establish they he or she was a ‘participant’. This mere act of meeting in public attracted between six-months and three-years in gaol, coupled with a presumption against bail.
These kinds of laws don’t sit comfortably alongside the Magna Carta’s provisions for proportionate punishment (chapter 20), or the spirit of equality, fairness or limited government embodied by that charter.
A protection for fair process?
The High Court rested these decisions on the fact that orders were imposed in accordance with ‘judicial process’, despite accepting that the impact on liberty was severe and not necessarily proportionate to what the person had done. This seems to align with the spirit of the Magna Carta, requiring that deprivations on liberty are only ordered according to the law of the land.
However, in other cases the Court has upheld laws that undermine basic elements of judicial process. Ex parte proceedings, secret evidence, reversals of the onus of proof, and decisions based on information that may avoid the rules of evidence have all withstood Chapter III challenge – even where the power has resulted in severe incursions on liberty. Decisions of this nature led Heydon J to observe that the due process implications of Chapter III were ‘apparently dormant’.
A need for clearer protections
The High Court has sent a clear message that Chapter III does not give rise to an implied bill or rights or fair process clause. By enshrining judicial independence Chapter III has a crucial role to play in upholding the rule of law in Australia – but it cannot be the whole story. Ultimately, Chapter III has proved to be a weak shield for citizens from unduly harsh incursions on liberty in the absence of procedural fairness.
Against this backdrop it becomes clear something more is needed if citizens expect the spirit of the Magna Carta to thrive in today’s Australia. The separation of powers provided for in Chapter III is simply insufficient to adequately protect fair process, or to ensure that deprivations of liberty are necessary, proportionate, or ‘fit the crime’.
In 1215, and countless times since, certain citizens recognised the need to take a new step and impose clearer constraints on government power. Australia has avoided enacting a bill or charter of rights at the federal level, but experience in the ACT and Victoria demonstrates that more and more Australians are acknowledging the value of these charters. The ACT and Victorian charters of human rights, like the Magna Carta, demonstrate the power that a statement of rule of law values can have: in the minds of the people, as a guide to parliamentary process, in shaping executive power, and in giving the courts a clearly defined weapon in the protection of fair process and the rule of law.
The time has passed for Australians to make do with complex and vague protections implied from Chapter III of the Constitution. The enactment of clear protections for fair process, proportionate punishment, and basic human rights in the states, territories or at federal level, is a necessary and appropriate step in the ongoing evolution of a common law system grounded in the rule of law. Chapter III and the separation of powers are important, but they’re not enough to do justice to the spirit of the Magna Carta that underpins our legal system.