Over the years, there has been much discussion about whether the Australian Constitution should include a Bill of Rights. While the 1999 "Republic" referendum suggests the reasons for the shape of the official document are complex and might not relate to actual need, it certainly seems that arguments against having a formal Bill of Rights have prevailed over the case for such an instrument. However, the arrest of David Hicks by a foreign military power is so testing the Government’s attitudes to the rights of Australian citizens, that many former opponents of an entrenched Bill must be reconsidering their positions.
Until recently, it seemed that several interlocking features of Australian political culture obviated the need for a Bill of Rights. These included: the separation of powers; a strong and independent judiciary; quasi-judicial bodies and statutes dealing with discrimination; absence of great strains in the body politic together with a relaxed national attitude to affairs of state; a Senate hostile to the Government; a relatively free press; and respect for international protocols on human rights. Unfortunately, it is no longer possible to take these extra-constitutional guarantees of freedom for granted.
Government supporters would probably argue that unforeseen circumstances have forced it to modify these guarantees. Perhaps adjustments were needed because of crises provoked by judicial activism on Aboriginal land rights, court obstruction on asylum seekers, voter anger over Hansonism, a budget deficit caused by overly generous welfare payments and cheating, and a media beholden to old elites. Government critics might agree with the general list, but rather than describe them as crises, would attribute the Government responses not to wise governance but to blind implementation of ideology.
In the context of the Government’s actions in these areas, the (small "c") constitutional implications of the Hicks case are profound. While the Government might have no power to secure the release of a citizen arrested elsewhere, it has does not seem to have tested the possibility that an appeal might succeed, especially given the closeness of relations between our Prime Minister and the US President. On the contrary, the Government’s attitude seems to be that if you arrested overseas then you are on your own. Indeed, government remarks following the arrest of the “Bali 9” suggest that the official policy is to accept the guilt of Australians until they are proven innocent.
The ways the Government has justified its reluctance to act are downright alarming. Its defence of the US military system of "justice" has been extraordinary. Were similar principles to be applied to the rights of Australians domestically, then our freedoms vis-à-vis government would be non-existent. Three areas of specific concern are the rights to an open trial, a quick trial and humane treatment.
David Hicks has been detained for so long that government assurances it wants to see the trial expedited are astounding. Further, the Government seems not to believe Hicks could have been mistreated by the US military, despite its appalling treatment of prisoners in Iraq. If its efforts in this case show what it understands to be a quick trial and humane treatment, then the sooner we have a Bill of Rights the better.
The most alarming failure of the procedure being used in the Hicks case is that the trial will not be open. The Attorney General said as much in a doorstop interview, citing the need for a closed court to safeguard military intelligence. This is worrying for several reasons. Military tribunals in Australia have failed on several criteria to deliver justice to charged personnel, and it seems a huge leap of faith for a government that cannot establish a fair system here to presume that it knows it can trust the US system.
Military intelligence, held by some critics to be an oxymoron, has not earned the right to credibility. Its failures have been so great that trust can be placed in such clandestine agencies only if you swallow the line that on balance the intelligence services have achieved a great deal indeed. And this introduces the third problem. The Government wants us to accept there is a positive side to the intelligence balance sheet. Why? How? Well, it cannot explain, for reasons of security. But it says so. This reasoning, applied to domestic security, would override every other principle of justice. Why does Hicks not have an open trial? Because the military cannot reveal its case against him. Why should we accept that is the real reason? Because the military says so.
The Government seems to think that concern for Hicks is largely a media preoccupation and that ordinary Australians are not interested. As a front piece to her comprehensive survey of the Government’s anti-terror bills, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, Jenny Hocking cites a warning from Pastor Martin Niemoller. Niemoller lists several categories of people - communists, Jews, trade unionists, Catholics - and admits that he did not speak up for them in Nazi Germany, because he did not belong to any of those classes. His conclusion is chilling: "Then they came for me, and by that time no-one was left to speak up."
The Government believes that David Hicks is guilty, largely it seems, because the allegations against Hicks are so serious. Should the seriousness of allegations made by executive government become grounds for establishing guilt, then "justice" would be meaningless. If the US and Australian authorities think they have a case against Hicks, then they should be willing to test their evidence in open court. What do they think their war on terror is protecting? The rhetoric seems to be a smokescreen for the enlargement of executive power at the expense of principles of justice. Allegations will never, ever make Hicks guilty. Only due process of law can do that, and due process is precisely what the Government has tried to avoid ever since Hicks’ capture.
The Australian Government has shown itself willing to imprison people who have committed no crime by "detaining" asylum seekers including children for unconscionable periods. It allows the security services to invade Australian homes without public explanation and without laying charges. It seems to have a very poor understanding of what it is that distinguishes rights from privileges. Its behaviour is scarier than any number of terrorists. It has convinced me that the sooner we get a Bill of Rights, the better.