a big week for the separation of powers

This week is turning into a big week for the notion of the separation of powers in Australia.  As you (should) know, the separation of power between the judiciary and the parliament/executive is one of the devices included in our Constitution to prevent abuses of power by those who govern on our behalf.

In addition to the clash between the rule of law and unreviewable executive action in the Haneef debacle, two other significant events have come to the forefront.

1. Warrantless wiretapping, Australian style 

First there is this: a proposal to allow the police to perform electronic surveillance on persons suspected of certain offences without the need for a warrant before they conduct said surveillance.  According to the draft law, they must obtain a warrant within 6 to 18 months – in other words, they can dig around for evidence, then justify it later. 

As discussed here a couple of days ago, Australia already has a high level of electronic eavesdropping compared to the rest of the (civilised) world.  What highlights the issue of the separation of powers in this instance is the justification as to why a warrant should not be required ahead of time: the courts apparently cannot be trusted with super-secret information:

The lack of judicial oversight was justified by the Minister for Justice and Customs, David Johnston, on the grounds that a court or judicial officer might leak news of the warrant.

“I don’t want to impugn anyone, but the security of these operations has to be pristine,” Senator Johnston told the Herald.

Controlling the actions of the police through review and control of evidence, and particularly the evidence that is relied upon in proceedings is part of the established role of the courts.  This legislation raises serious questions about the extent to which Parliament can authorise police interference with individual liberties without any form of concurrent judicial oversight.  An obvious question is how, when neither the courts nor the person being sureveilled are aware of the spying, its validity can be controlled and improper use be prevented.

2. The Constitutionality of control orders 

The second major event this week is that tomorrow morning at 10:00 am the High Court will be handing down its decision in Thomas v Mowbray & Ors, better known as the Jack Thomas control order trial.  The High Court will be ruling on the constitutionality of that part of the Criminal Code (Cth) which authorises the issuing of a control order by the Federal Court.  The case raises fundamental questions about the ability of the executive to interfere with an individual’s freedom without any finding of guilt by a court of law. 

In previous eras there is little doubt that the High Court would have found that an order interfering with a person’s freedom of movement and association on the basis of potential criminal conduct would have had a punitive character and therefore fall exclusively into the domain of a Chapter III court (that is, a court exercising the powers vested exclusively in it by Chapter III of the Constitution).  However, since the decision in Al-Kateb v Godwin [2004] HCA 37, in which a majority of the High Court held that immigration detention was not punitive in character, one cannot be at all confident that such an outcome will occur. 

Although it is difficult to predict what course the Court will take, it would not be at all surprising to see a majority judgment which reasons that a law authorising control orders designed to prevent terrorism is one which has a legitimate non-punitive purpose (the prevention of terrorism) and is therefore permissible under the Constitution despite the absence of a finding of guilt by a court vested with Chapter III powers.  In opposition to this, some members of the Court may find that permitting such orders without an adjudication of guilt is an impermissibly dangerous intrusion into an exclusively judicial sphere, and may seek to use the judgment to reassert the Court’s protected jurisdiction in the face of ever-increasing attempts to sidestep the judiciary by Parliament and the Executive.  It would not be surprising to see certain judges raising fundamental principles of criminal justice and individual liberties in their judgments, although it is doubtful whether a majority of the present Court would raise those matters.

More on this decision when it is handed down tomorrow.  To take a punt, your author predicts a 4:3 decision with Gleeson CJ, Callinan J and Kirby J dissenting.