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8 March, 2010  
Zombies arise

The Bill of Rights war … Proscrustes, zombie-like, fights back … More bunk from Prof Allan in Queensland … Unchecked executive power is having a lovely time in Australia … Whereas the Poms are applying restraints on over-the-top coppers and spooks

imageI was chuffed to find Prof James Allan of the fashionably right wing University of Queensland law school in fine fettle as Witch-Hunter-in-General.

Fearing that a Bill of Rights might, “zombie-like”, rise from the political grave, Jim waxed eloquent in The Australian last month on “Rudd’s good job” in opposing the Brennan committee’s rights recommendations.

While he was on a roll Prof Allan came up with this idea:

“As things stand, I would not appoint anyone to the High Court who came from any of the Victorian Courts. Having to operate this statutory bill of rights of theirs … should probably disqualify them all…

Theirs will become a distorted jurisprudence. And their view of what is the proper scope of interpreting, as opposed to re-writing legislation will also veer out of kilter.”

I was so titillated by the prof’s reference to zombies, that I dug out the contemporary authority on the subject – Shaun of the Dead.

All became clear: Jim, played by Simon Pegg, was putting away the walking dead of the Victorian judiciary with a deftly wielded cricket bat.

imageBitten by the virus of human rights those moaning, shuffling wrecks deserve the full zombie treatment – removal of the brain.

Among the myriad antipathies to a Bill of Rights from Allan (pic), Albrechtsen, Carr, Hatzistergos, et al is that judges, on having to test legislation against another written standard, will find their will sapped and left only with the ability to do that voodoo that they will do-do so well.

Judges in this country have been measuring statutes against constitutional standards for well over a century.

Indeed, to this end, the High Court (no doubt draped in garlic and holding crosses on high) has twice in the last four months struck down State legislation.

American judges have managed to cope for over 200 years, and the Republic still appears in better shape than your average zombie.

Do the Allans and Albrechtsens of this world, and other upholders of rampant personal economic rights, ever spare a thought for those who go under the hammer of State power, wielded in this country in the absence of a constraining Bill of Rights?

imageIn this context Sheik Leghaei (seen here) comes to mind.

He is now on the final run to the airport after 15 peaceful years in this country, because ASIO says so – in secret – despite Anglican priests reporting on the sheik’s work in interfaith activities and Attorney General Robert McClelland’s own positive observations of the man.

ASIO rules unchallenged.

This is what the Migration Review Tribunal had to say in its decision on Leghaei last month:

“Although, as the primary applicant has correctly pointed out, the tribunal does not have the ASIO adverse security assessment before it, the existence of that assessment is not in doubt and was the subject of the proceedings before the Federal Court and the Full Federal Court. Its existence was advised to the primary applicant in a letter dated 26 May 2004.

Based on the evidence before it, the tribunal finds that ASIO assessed the primary applicant in or around May 2004 as being a risk to Australian national security.

The primary applicant’s application to the Federal Court to have the assessment declared void and inoperative was dismissed on 10 November 2005 (see Leghaei v Director General of Security.

The dismissal of the application for judicial review was subsequently affirmed on appeal, as mentioned above…

However, as the judgments in the Federal Court proceedings indicate, the assessment was made by reference to the definition of “security”, and related definitions, in s.4 of [the ASIO] Act…

The tribunal therefore finds that the assessment made by ASIO in relation to the primary applicant is an assessment that falls within Public Interest Criterion (PIC) 4002 and that the primary applicant does not satisfy PIC 4002.”

Neither the Sheik nor the tribunal had actually seen the ASIO material.

All the spooks have to do is report, in secret, to the Attorney General (who in this case had personally taken a totally contrary view).

This sort of nonsense in the name of national security has a long history in this country – back to World Wars I and II, when the War Precautions Act, and Regulations 55 and 56 under that Act were used to intern enemy aliens, without explanation.

In 1915 a Mr Franz Wallach of Melbourne litigated his right to resist internment and won, on the point that the regulations had not excluded natural justice.

That omission on the part of the authorities was promptly fixed, and internees in both World Wars were thereafter put away without a hearing.

That was, of course, all in the course of war.

But hold, aren’t we now in the course of an unwinnable war against terror, in which the best we can do is hold the line?

On that reasoning you can kiss natural justice goodbye into an indefinite future.

it just gets in the way of government, which is quite OK because politicians are “elected” and judges aren’t.

imageSo who needs a Bill of Rights?

Certainly not Prof Allan, Doc Albrechtsen (pic) or Bobby Boy Carr.

A statement of limitations on the breadth of parliamentary power would be the domain of ne’er do wells, riff raff aliens and other unwashed.

Just see the list of cases running through the British courts, where various Middle-Easterners have been found entitled to know the allegation against them, in accordance with the European Convention on Human Rights.

See Mohamed v Secretary of State for Foreign and Commonwealth Affairs.

In Western Australia, the police have the power to search people for no reason other than they feel like it. The elected WA parliament said so.

Similar search actions by the British police have been limited by the European Court of Human Rights, again by reference to the European Convention (Gillan and Quinton v United Kingdom, January 12).

History teaches us that power in the executive increases to fill any void.

And we don’t need a Bill of Rights? Like hell we don’t.