Magna Carta: How relevant to Australia and Human Rights?
Articles,  Blog

Magna Carta: How relevant to Australia and Human Rights?


– Gillian Triggs: Thank you very much Helen, and very distinguished guests,
friends, and colleagues. It’s wonderful to be here
in such a warm environment and in such a wonderful place, Old Parliament House, and the Museum of
Australian Democracy. And I too of course am proud to acknowledge
the traditional owners of the land and respect their elders past and present. Well, Alice Tay I knew quite well
as a young academic, a few years younger than her
but not much and I do seem to have followed
in many of her footsteps. She was of course, the Challis
Professor of Jurisprudence at the University of Sydney and a former president of what was then the Human Rights and Equal
Opportunity Commission, and she too worked on asylum seeker
matters during the Tampa case. Alice was a highly intelligent feisty scholar who was never happier than when working with young lawyers
on human rights issues. She had an international
and regional reputation and I was always rather amused that wherever I went in China,
Vietnam, or Indonesia I would always be asked, “Do you know Alice?” They didn’t even have
to mention her surname. We all knew who Alice was
wherever we went in that region and it’s been a great honour for me to be
able to speak in her memory today in this lecture on law and human rights. May I also, of course,
recognise Valmae Freilich. It’s a great pleasure for me to meet you. And of course to know that the
foundation’s been set up quite specifically to deal with bigotry and to
promote its study and avoidance. And bigotry is not a very nice word. In fact, it’s not a word that I would
really have used in common times, but it seems it’s reached
a level of notoriety that we can now go back
to talking about it again, but it is crucial and
it was very interesting, and I would turn to this thing, that the reason section 18 C
of the Race Discrimination Act was not ultimately amended or repealed, was because the Australian public
knew that we need that provision to prevent the level of
racial insults and abuse that does sadly happen
still in our community. So bravo to the foundation and thank you for the support
you and your husband have given to ensuring that we continue
to see bigotry when it’s there, and to speak up about it. So thank you. Well I have been asked today
to speak about human rights in contemporary Australia, and it’s a large subject stimulated by our celebration of
the 800th anniversary of the sealing of Magna Carta on this day, the 15th of June 1215 on the river meadows of
Runnymede in England. The Charter of Liberties, or Magna
Carta as it later became known, was drafted by Stephen Langton,
the Archbishop Canterbury, in an effort to end the conflict
between the king and his barons. Notably, King John was probably illiterate
and he didn’t sign the document. Rather he attached his seal to it. Both the king and his Barons then swore
oaths before a crowd of hundreds, the king to abide by
the terms of Magna Carta and the barons to give fealty to the king. But within nine weeks of
the sealing of the Magna Carta it was annulled by Pope Innocent III. Civil war soon broke out
and within a couple of, well within a year or so,
the king was dead. How was it that this Latin
inscribed sheepskin parchment became anything more than a
minor foot note in English history? Why is Magna Carta today recognised as the foundational document
of English constitutional law and the symbol of liberty and freedom throughout the English-speaking world? Well I believe the answer lies
in two seminal ideas that underlie Magna Carta. First, the sovereign, or in today’s parlance,
“executive government”, is subject to the law. It was the articulation of the idea that the king, like his barons, with subject to the law of the land, that explains the enduring
power of Magna Carta. The second important idea was
chapter 14 of the 1215 document in which the king agreed to obtain
the common counsel of the kingdom if he was to have any taxes. He agreed that we will cause
to be summoned the archbishops, bishops, abbots, earls and greater barons — and all of those holding us, in chief-
for a fixed date, namely after the expiry of 40 days,
and to a fixed place, — when the summons has been made, the business shall proceed. Well this clause was later struck out
as “important but doubtful” but the damage was done. In short, Magna Carta was a revolution. It was described in the earliest
contemporary account in the Chronicle of Melrose Abbey as follows: A new state of things
has begun in England; such a strange affair
as had never before heard; for the body wished to rule the head, the people desired to be
masters over the king. While parliament evolving from this
slender idea of a common council took many centuries to evolve, the idea of a common council
to advise the king was sown. And it’s about the vital role
our parliaments play, whether State,
Territory or Federal, in protecting our ancient
democratic liberties and rights that I would like to
speak to you today. Over the last three years as president
of the Human Rights Commission, I’ve become increasingly
concerned about the decline in the effectiveness of parliament and diminution of the role of the judiciary and the corresponding increase
in executive discretion, all too often exercised
without independent scrutiny. For our democracy rests
upon three institutions; the executive government,
parliament, and the judiciary. If the separation of
these powers is distorted, democracy is at risk. Power must be exercised
according to the rule of law. The majority cannot abuse
the rights of the minority. But let me begin by taking you back to and event that has fascinated me
since I was a young student at law school. Let’s go back to 1535 and the trial for sedition and treason
of Sir Thomas More. His trial was for refusing
to take the oath acknowledging the supremacy
of King Henry VIII. The evidence adduced against Sir
Thomas concerned a conversation he was alleged to have had with
the Solicitor General, Richard Rich. And the conversation
went a little like this: Sir Thomas asked: “Suppose that Parliament enacted
a law stating ‘God is not God’. Would this be a valid law?” Wisely, the Solicitor General, said: “No, it would not”. Sir Thomas More then said “Parliament can make a king, but it cannot declare the king
to be above God” – a dangerous comment to make, knowing that his monarch
sought a new wife. It took the jury 10 minutes to find Sir
Thomas guilty of sedition and treason and his head was separated
from his shoulders at the Tower of London shortly after. Were a conviction for
treason to be made today, he’d probably have lost his citizenship. [crowd laughing] Sir Thomas made a point
that has always fascinated me: “What are the proper limits
on the power of Parliament?” This is a question that remains a live one
for contemporary Australian democracy. Over the last 14 years or so, the major political parties have agreed
with each other to pass laws that threaten some of the most
fundamental rights and freedoms that we’ve inherited from our
common law tradition. Indeed, respective governments
have been remarkably successful in persuading parliaments
to pass laws that are contrary, even explicitly contrary, to common law rights and to the international
human rights regime to which Australia is a party. Particularly since the 9/11 attacks
in 2001 on the United States, Australian parliaments have
passed scores of laws that infringe our common law freedoms
of speech, association and movement, the right to a fair trial and the
prohibition on arbitrary detention. These new laws undermine
a healthy, robust democracy, especially when they grant
discretionary powers to executive governments in the absence of meaningful
scrutiny by our courts. What then are the safeguards
of democratic liberties if parliament itself is compliant and
complicit in expanding executive power to the detriment of the judiciary
and all Australians? What are the options for democracy when both major parties,
in government and opposition, agree upon laws that violate our fundamental
freedoms under the common law and breach our obligations
at international law? In considering these questions we need to be clear about
what we mean by the rule of law. Some might say that it means those
laws that are passed by parliament and are valid under the constitution. The argument being that the
sovereignty of the people is exercised through their elected parliamentary
representatives and legislation and is thus the law of the land so long as it does not breach
constitutional constraints. But the question I have is what if there are few
constitutional constraints and parliament passes laws
that violate our liberties? I’ll come back to those
questions a little later. But for the moment, let us recall some of the many promises
made by the King in Magna Carta to abide by long recognised laws
and freedoms at that time. In other words, Magna Carta didn’t
invent these laws and freedoms. They had existed and they were
being enforced upon a king who refused to abide by them. Buried in the middle of this Latin document dealing with the rights of widows
on the deaths of their husbands, or the standard measure
of a glass of wine or ale, or the breadth of a piece of cloth, are these clauses: No freeman shall be taken
or imprisoned or stripped of his rights or possessions, or exiled, or deprived of
his standing in any way, — 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 words are the defining
statements of the rule of law and of the limits on the
arbitrary power of the state. They ring through the centuries and remain the bedrock
for principles of justice that we struggle to protect in the
second decade of the 21st century. But let me go back again
to the 17th century, where Magna Carta was employed
to very good effect by this man, Sir Edward Coke. I was always annoyed
as a law student that the word “Cook”
should be pronounced “Coke.” But anyway, it’s one of those
nuances of a law degree that one learns to recognise. But Sir Edward Coke was England’s
first Lord Chancellor and he employed the Magna Carta
in his legal battle with King James I of England. Sir Edward placed his own
contemporary spin on Magna Carta to reject the idea of
the divine right of kings and to subject the sovereign
to laws passed by Parliament. His Petition of Right
in 1628 informed, in turn, the United States
5th and 6th amendments and the United Nations’ Universal
Declaration of Human Rights in 1948, an inspirational document and one that I think as Australians
we should be so proud that our Dr HV Evatt made such
a significant contribution to. You may recall that not only was he one
of the eight representatives of nations to draft the Universal Declaration, but he was the president
of the General Assembly when it passed the General Assembly
without a single negative vote. And I think he was a pretty
feisty strong man but he knew what was needed
for that post-war period and he succeeded with Eleanor Roosevelt in getting that extraordinary document through that underlies all of
our modern human rights law. Well Magna Carta, today, is honoured as an historical
and political symbol, rather than as a directly applicable
source of legal rights and freedoms. And indeed, the Chief Justice
of our High Court, Robert French, recently observed rather dryly: “Magna Carta has given
many a plaintiff false hope in litigation before the courts”. Yes, he is right, it is true that little remains
on our statute books today of the liberties set out in Magna Carta, liberties that reflected long-established
Anglo Saxon and Angovian Laws. Magna Carta is often dismissed by
many as an overrated political myth. But once the historical
revisionists have done their worst, it remains true that Magna Carta
“means more than it says”. The myth has potency as a universal
acknowledgement of the principles that the sovereign
is not above the law, that sovereignty lies with
the people through parliament. In short, and to go back to that
great document of precedent, the Castle, “It’s all about the vibes.” [crowd laughing] Other legacies of Magna Carta that
contribute to our legacies, liberties rather, include the right to a fair trial
and access to justice; habeas corpus; the idea that
“punishment should fit the crime”; that courts should sit
regularly in one place; that laws should be
written and made public; that widows should have their
inheritance and not be forced to remarry. In summary, today the Magna
Carta represents the idea of the protection of the individual
against arbitrary power. Appeal to Magna Carta,
is often legally and historically inaccurate, but they continue to be made today
because of that vibe, because of the iconic status. The “Occupy London” protest
at St Paul’s courtyard was, for example, justified in court
on the basis of Magna Carta. But, it should be noted, that the Master of the Rolls gave
the argument very short shrift. So it’s not the technical provisions
of Magna Carta that are important. It’s its symbolic power
that informs my concern that the supremacy of the law
over the executive is under threat in Australia’s contemporary democracy. Before looking at some
examples of the many laws that now diminish our freedoms, it should be acknowledged
as axiomatic that human rights and freedoms
are rarely absolute and they must be balanced
with each other, including, of course, concerns
for public and national security. The validity of laws that,
on their face, breach liberties depends on whether
they are necessary and proportionate to achieve a legitimate end. This legal test is, of course,
very easy for a lawyer to state, but very difficult to apply and practice. And you’ll all recall that the High Court of Australia
split 3/3 on the question whether the letters written by Mr. Monis to the families of Australian soldiers
killed in Afghanistan were protected by the implied right to
political communication. So the proper limits on the right
to freedom of speech or freedom of political communication
to be strictly accurate has yet to be resolved. Even on an issue
as significant as that, our High Court was not
able to reach a conclusion. There are two major examples
that I’d like to discuss in in the context of executive overreach. The first is arbitrary
and indefinite detention. And may I repeat these words
of Magna Carta: “No free man is to be imprisoned except by the lawful judgment of his equals
or the law of the land.” But over recent years respective Parliaments
have granted governments the power to detain indefinitely
various classes of persons, including most notably
refugees and asylum seekers, along with those less well known
who have infectious diseases, who are subject to mandatory admission
to drug and alcohol rehabilitation facilities, or who are mentally ill. Few of those detained under such laws
have meaningful access to legal advice or regular independent
judicial or administrative review. Australian jurisprudence on
the validity of executive detention was developed by the High Court in
Lim’s case more than 20 years ago. And the central rule is that if detention is for a legitimate non-punitive
and essentially administrative purpose, it will be valid. So detention of those unfit to
plead because of mental illness, of accused persons
before their trial, or of aliens prior to deportation
or the grant of a visa can be valid so long as the aim
is not penal or punitive. The Australian Human Rights
Commission is particularly concerned by the growing instances
of detention in prisons of those with cognitive disabilities
for lengthy periods without releasing them into
more appropriate facilities and in absence of regular review
by an independent tribunal. In a recent complaint to the Commission, we found that four Aboriginal men
with intellectual and cognitive disabilities had been held for many years
in a maximum security prison in the Northern Territory. Each complainant had been
found unfit to stand trial on the grounds of mental disability. In respect to two of them, had they received a maximum sentence
on a proper conviction of the charges, they would have received no
more than 12 months in prison. But instead, they were held
without conviction for four and a half years
and six years respectively. The Commission found that
the failure by the Commonwealth was a violation of the right
not to be detained arbitrarily under the International Covenant
on Civil and Political Rights, a provision that of course matches
the important provisions in the Magna Carta. And I think that you’ll understand that the obligation of the
Human Rights Commission is to assess and hold
the government to account for compliance with the
international human rights treaties to which we’re a party. Sadly, such detention
disproportionately impacts Aboriginal and Torres Strait Islanders; a problem exacerbated even
further by the recent adoption in Northern Territory of
“paperless arrest” powers which permit detention for four hours without being brought
to a court for offences that in many cases do not attract
the sanction of imprisonment. Such detentions have dramatically
increased the rate of detention of Aboriginal Australians. I understand an additional 700
detentions have taken place since that law was introduced last year. But even more tragically
as you may know, an Aboriginal man died on the basis
of that paperless arrest last week, 25 years after the Royal
Commission’s report into the Aboriginal deaths
in Custody There will of course be instances where detention at the discretion
of the executive is justified in the interests of community safety. A detainee might be
violent or dangerous, or reasonably likely to
commit sexual offences. But conviction and
imprisonment for a serious crime, does not, of itself,
justify continued detention at the discretion of the government
once the sentence has been served. And at the Commission
we’ve considered many cases in which this is the situation where the government allows
a sentence to be served and then immediately re-arrests
or re-detains the individual and holds them without charge
and without trial in many, many cases for years despite, of course, a High Court ruling
in Kable over 20 years ago that preventative detention orders for those “more likely than not to commit
a serious crime of violence” was unconstitutional. Detention powers of the executive
have also been expanded to detain asylum seekers
and refugees indefinitely, powers that were found to be valid
by the High Court in Al-Kateb in 2007 in a judgment of
four judges in a majority. Most egregiously, those with ASIO
adverse security assessments are detained indefinitely, many, including children, for years without meaningful access
to legal advice or independent review. Today nearly 2000, people,
including 127 children, remain in closed detention
in mainland Australia and about 1,000 males remain
on Manus Island and 700 people on Nauru,
including 95 children. Most have been held
for well over a year, many for years, in conditions that have
been criticized by the United Nations as breaching the Torture Convention. Never before has Australia been
charged with a breach of that convention. I suggest that this level
of detention has become, as prolonged and indefinite, has become punitive and as punitive detention
is for the judiciary, I believe it may well be beyond power. But the second major example
of executive overreach that I’d like to raise with you today, concerns the spate of
counter-terrorism laws that have been introduced
in the last few months. The strength of the rule of law,
I suggest, is more truly tested when security is threatened than
in times of tranquillity or peace. When Australia is threatened
by terrorism, the need to protect our traditional
liberties assumes an even greater urgency. Many laws introduced with unseemly
haste in the two weeks before Christmas, and in the name of national security, go well beyond what might
be deemed to proportionate, creating a chilling effect on
freedom of speech and the press and breaching our rights to privacy. The Data Retention laws
you will all be aware of, are particularly curious. While metadata is significantly more
intrusive into the lives of citizens than access to mere content, a warrant is required for content
but not for metadata. As metadata will be collected in respective
many of the 23 million Australians, but those involved in terrorism
are very few, it might be said that the Act employs
a sledgehammer to crack a nut. It’s also curious that Executive Government may apply
for a “journalist information warrant” to compel the surrender
of a journalist’s metadata to identify their sources, but such a warrant is not necessary
in respect of anyone else. Lawyers it seems do not
have the special privileges that are extended to journalists. And I’m sure there are many of
you in this room who would wonder why that privilege is not
extended to you as well. And it’s of course ironic that
in the last week or so the United States Congress
has just passed a new law replacing the Patriot Act
with the Freedom Act which restricts, for the first time
I understand in American history, the powers of its intelligence
and security agencies with regard to the collection,
storage, and access to metadata. Of course many politicians
support the rule of law. That phrase slips easily from their lips. They support the freedom of speech but they are breathtakingly
inconsistent in doing so. While the government argued for the
repeal or amendment of section 18C of the Race Discrimination Act on the basis that it was necessary
to protect freedom of speech, the same government
made a 180 degree turn with new counter-terrorism
crimes of advocacy and penalties for the disclosure of
protected information. A new offence has been created
of “advocating terrorism” that is so imprecise in scope that it may well cover opposing the
Assad regime in Syria for example. Last week, the attorney
announced further legislation to create a “social media monitoring capability”. He justified this new law on the ground that it’s necessary to detect
terrorist propaganda “as one of the biggest challenges”
facing Australia today. If proportionality is the test, I wonder what new laws and fundings
will be forthcoming to address domestic violence. Almost two women a week killed
by their partners or former partners, and an estimated 43 women
have been killed this year alone. Other rights are threatened frequently. Freedom of movement is threatened in which new laws declare
the Mosul district in Iraq and Al-Raqqa province in Syria as areas
in which no Australian may enter. And if we do, there is
a 10-year prison sentence unless you have a valid excuse, the evidentiary burden for proving
lying on the accused. So the burden has shifted
to the accused to demonstrate that they’re in a region for good reason. ASIO officers have now been
given total immunity from civil and criminal prosecutions while they are engaged in
“special intelligence operation”. Anybody who discloses information
about a special intelligence operation will be subject to a mandatory
five to ten year penalty. Now there are many problems with that,
but one of them that concerns me is that judges no longer have that
power to determine individually whether the sentence should be imposed, but Parliament imposes a sentence and the judge loses that
traditional judicial power. “Anti-bikie” laws threaten our right
to freedom to association. The principle against
self-incrimination has been eroded and may even in future legislation
now being introduced as a bill may take it away entirely. And the judicial powers with regard
to individual circumstances have been taken away. One that is of particular concern
to me and to my colleagues at the Commission is that references to the Refugees
Convention in the Migration Act have now been taken away entirely and replaced by the Minister’s
understanding of the meaning of “Refugee’ and the powers that this legal status imports. The Migration and Maritime Powers Act explicitly authorizes the acts
of government officers where those acts violate international law or fail to meet due process laws. I know of no other instance
anywhere in the world of another nation’s law that states
that the law is to apply regardless of international law or of its own domestic
administrative law principles of national justice, natural justice. Well these are just a few examples and I’m afraid I go into law school mode
in giving you far too many examples. And I don’t want to weary you too much, but what I am saying is
this is the tip of the iceberg. There are many more in the pipeline
that have attracted very little attention. There’s one bill that’s been
introduced recently to Maintain Good Order of
Immigration Detentions that gives guards enforcement powers that are greater than those available
to the Australian Federal Police. And those guards will be immune,
for all practical purposes, from prosecution in the courts. Social Services Legislation
Amendment Bill introduced this year removes the financial support for
forensic patients with a mental illness, if they have been charged
with a “serious criminal” offence regardless of whether they’re ever whether they’re ever convicted
of those offences making it even more difficult for them
to adjust as they return to society. But, finally, we come to the yet
to be defined proposal that those accused of being Jihadists
fighting against Australian interests, will be stripped of their citizenship
if they are potentially dual nationals. Well Magna Carta of course has
something to say about this: it provided that no man is
to be “outlawed or exiled” except by the law of the land. It’s clear that all nations
have a sovereign right to determine who is to have citizenship. Australia may quite rightly decide that those fighting against it contrary
to law should lose their citizenship. This proposal is not new. It follows a Bill that was
introduced last year that gives the minister
even wider powers to revoke citizenship for fraud
or misrepresentation, or where the minister is “satisfied” that a person is not of good character, all without trial or conviction. To deny citizenship is
a very serious matter. It’s a human right to have a nationality and citizenship cannot,
under international treaty law, render a person stateless. But assuming that the government’s
proposal is confined to dual nationals, there remain significant problems. First, I believe this sanction
strikes at the heart of Australia as a largely migrant nation. Over half the nation has or
can claim dual nationality. Secondly, it’s by no means clear that the state of second nationality
will agree to grant citizenship if Australia has withdrawn it
on the grounds of terrorist activities. Why would a third country
grant citizenship for a person who is essentially
Australia’s responsibility? Thirdly, it appears that the determination
to strip away citizenship will be made at the discretion of one minister
or maybe three ministers. Either way, it will be contrary to
the separation of powers doctrine that underlies our democracy. Executive government
cannot both make the laws and judge compliance with them. It’s imperative that any
ministerial role arise only once a judicial process
and conviction has taken place according to the usual
rules of evidence. Possibly a middle ground could be
found for a temporary restraint on some citizenship rights pending
a proper judicial determination. But for the moment, it seems, the debate is between the subjective
satisfaction of a minister, versus an evidence-based
determination of a judge. Each of these examples of
the willingness of Parliament to pass laws that breach
democratic freedoms, taken individually, might be justified on the grounds
of necessity and proportionality. But viewed together I believe they are more than
the sum of their parts. They suggest an overreach of power or as Senator Cory Bernardi calls it,
“power creep”. I don’t usually cite
Senator Cory Bernadi. [crowd laughs] But he’s right on this occasion. Because he too understands a
declining willingness of Parliament to defend core freedoms. We’re aware an exclusion of
judges from interpreting laws according to common law principles
of legality and the presumption that Parliament intends to
comply with international law. Respective parliaments have failed
to exercise their traditional self-restraint. And I believe that self-restraint
has been exercised over many decades in this building, but unfortunately the volume of laws that currently infringe
our freedoms estimated by Professor George Williams to be
over 350 laws currently on the books, introduced for the most part since 9/11 – suggests prioritising government power has become a “routine part
of the legislative process”. As he observes, the enactment
of anti-democratic laws has become so accepted that they elicit little community
or media responses. I believe that parliamentary restraint
is especially important in Australia where we have an “exceptionalist” approach to the protection
of human rights. Australia has been a good
international citizen for the most part, playing an active role in negotiating
the human rights treaties that form part of
the international regime. However, as I’ve said earlier, these treaties do not apply in Australia because they have not been introduced
into our domestic law by Parliament. And they, in particular, concern
the International Covenant on Civil and Political Rights which reflect many of the provisions
of the Magna Carta and the convention, of course,
on the rights of the child. Our constitution protects
the freedom of religion, the right to compensation
for the acquisition of property, and the right to vote, and the High Court has implied
a right of political communication but there’s very little else. As is well known, unlike every other
common law country in the world, Australia has no Bill of Rights. And compounding our isolation
from international jurisprudence, the Asia Pacific has no regional
human rights treaty and no regional court to build
a regional consensus. But, it might be thought we can always rely on our courts
to protect our common law rights. Laws passed by Parliament
are not to be construed as abrogating our common law rights
except with clear words. Our courts have, where possible, employed the principle of “legality”
to adopt a restrictive interpretation of legislation to protect our freedoms. But sadly in practice this has not proved to be as effective a protection
as one might have hoped because laws today are drafted
with such precision or are so constantly amended, that ambiguities are
very hard to find. And a good example of this is
the Malaysian Solution case but the High Court considered
under the regress of the Migration Act. And it found that the Malaysian
Solution was invalid because the minister could not send
asylum seekers to Malaysia as that nation had not ratified
the Refugees Convention that put an end we thought
to the Malaysian Solution. The government then returned to
Parliament to delete the offending clause and Parliament agreed to do so. So the problem is that if the language
of a statute is unambiguous, the courts can’t apply the common law
presumptions about freedoms and that is why, in part, that I believe that it is
more important than ever that our democratic system
through Parliament meets its obligations
as a check on executive government. Over the last 800 years, judges have asserted the rule
of law against the executive. And Sir Edward Coke’s struggle
for the supremacy of parliament continues to play out today between the high court of
Australia and our government. Time and again the High Court
has limited executive discretion by reference to statutory principles. But time and again the government
is successful in asking parliament to tighten up legislation to
permit what was hitherto illegal. But there are two recent, and very encouraging
decisions of the High Court. One late last year was Plaintiff S4. The High Court decided unanimously that the executive discretion to
detain was limited to two purposes – deportation or a decision to allow the Plaintiff
to apply for a visa. The Court qualified the power to detain, finding that the Migration Act
does not authorize the detention of a refugee or asylum seeker “at the
unconstrained discretion” of the minister. It found that an alien is not an “outlaw” and that the minister
must make a decision, one way or the other, “as soon as is practicable”. This didn’t get much publicity at the time but it’s actually a vitally important
decision of our High Court, unanimously, as I say, because it means that the minister
cannot sit on these matters leaving people to rest in
detention for many years. But the second decision is in some
ways even more astonishing because our chief justice issued a Writ
of Mandamus against the Minister for Immigration – a very rare phenomenon
under Australian law. The Minister in effect did not apply, did not comply with that
Writ of Mandamus and it went back the High Court of Australia
which then decided, unanimously again, to order the minister to comply
with the Writ of Mandamus and that meant that
the minister had to decide either to grant a visa to someone who’d already been
determined to be a refugee but had been held in closed
detention for three years or to deport him. So we have an extraordinary
precedent in which our courts will stand up but the point that has to
be remembered is that the court can only do what is allowed
within the terms of the Migration Act. But the court will do
what it can, when it can. So in conclusion,
what then is to be done to protect democratic rights
and freedoms in Australia? Well celebrations of Magna Carta
this year could reignite calls for some form of Bill of Rights. Had we such an articulation
of rights today, it would give greater scope for the courts to assess the validity of legislation
against human rights benchmarks. It would be possible to challenge
the indefinite detention of the mentally ill, of asylum seekers and refugees, to challenge the overreach
of counter-terrorism laws and to challenge disproportionate
restrictions on speech and association. But a Bill of Rights remains highly
improbable in the current environment. Other options are to strengthen scrutiny by the Joint Parliamentary
Committee on Human Rights which has been in existence
for the last four years or so and has the remarkable, across party lines, achieved consensus reports. And I was most encouraged by
the appointment of that committee, but sadly, its reports are generally not, do not have a significant effect
on the willingness of Parliament to pass bills both that
they might challenge. I, of course, would like to mention the role of the Australian Human Rights Commission as an independent statutory body that provides an access to justice
to 21,000 separate complaints a year, across Australia, 70% of which
we settle by conciliation But one of the most important and effective
safeguards of our human rights is the expectation of Australians,
the cultural expectations, that our freedoms will be protected. While most Australians are highly
unlikely to be able to describe the doctrine of the separation
of powers among the executive, parliament and judiciary, but they are very quick
to assert their freedoms under the rubric of a “fair go”, a phrase that is as close to
a bill of rights in this country as we are likely to get. [crowd laughing] It is this cultural expectation that
keeps our freedoms alive today as was amply illustrated by the
overwhelming community response to preserve 18C of the
Racial Discrimination Act. Promoting a community culture
that respects human rights also of course depends on
the education of young Australians so that they can better understand and
value our constitutional protections for democracy and the rule of law. And I’d like if I may to take just
a few minutes to show you a video that was launched today and
has been produced by the team at the Human Rights Commission. Annie Pettit’s here with us
and she led that team and this video will go out to all
the schools and all the students to give some idea of what it is
that Magna Carta’s all about. ♪ [music] [phone dialling] – narrator: It’s an 800 year old document, written on dried animal skin, in England, on the other side of the world, in a language we no longer use, that most people couldn’t read
even back then. So why is Magna Carta
important to us in Australia today? [woman screaming as she’s being
carried off on horse] – narrator; Because it was the starting point for some of our most
important human rights. – Soldiers: Take him away. – narrator: Things it’s
easy to take for granted. For instance, before Magna Carta,
life was pretty crazy. If you were a king, you could get away
with all kinds of things; forming your own armies, invading other countries
whenever you fancied, and taxing people to pay for
wars without even asking. Now there were laws in those days. But some rulers believed they had
absolute power and simply ignored them. That changed in 1215 when
a group of landowning barons finally had enough of King John’s behaviour. They decided the king governed
by their consent, not just because he was king. So they got together and forced the king to agree to limit his powers
by signing Magna Carta. It was the beginning of
fairer rights for the people. The king also agreed he
couldn’t just add new taxes. Free men had to be represented by
a common council to be taxed which started the evolution of democracy. It also meant the king
was no longer top dog. Because above him now was the law,
or at least that was the idea. Kings and queens had a lot of trouble
getting used to not being in charge. But over the next few hundred
years people power in the form of parliament grew
to be much stronger. In its Bill of Rights of 1689, the English Parliament formally decided it was the job of government to represent
the people and protect their rights. These ideas came to
Australia in English law. We know today if someone
is accused of a crime they have the right to a fair trial and they must be proven guilty
before they can be punished. Before Magna Carta,
justice wasn’t always applied fairly. Remember old King John? He was pretty good
at filling up the prisons. But under Magna Carta, it was no longer up to him to decide
whether someone had done wrong. It said, “No free man shall be
seized or imprisoned except by the lawful judgement of
his equals or by the law of the land.” Now you had to have a reason
to lock someone up and later people decided you also had a right to argue
your case in front of a court. But in 1215, “No free man”
didn’t mean everyone because in those days
most people weren’t free. They were poor peasants
who served the lords. It took till the 16, 17, and 1800s before
all men were free in Western countries. And most women waited
until the 20th century. In 1948 after the atrocities
of World War II, the nations of the world created
the Universal Declaration of Human Rights. For the first time the whole world
recognised that everyone, it didn’t matter who you were, had the right to enjoy freedom of
speech, freedom of religion, and freedom from fear and want. It has been described as the
International Magna Carta for all mankind. So this faded old piece of animal
skin has played a big part in shaping the democratic society
we have in Australia today. But many people around the world
are still denied their rights and freedoms. This reminds us human rights
shouldn’t be taken for granted. And until they are, the long story
of human rights and freedoms that began with Magna Carta,
will continue. [applause] Gillan Triggs: Well that video
is then followed up by teaching tools that you can
go into certain issues and get more information and teachers
can develop a curriculum from it. But we really hope that that
will be a way of ensuring that our young people are better informed
about what Magna Carta does and what our own democratic
freedoms mean today, not just as an historical issue. Well finally, in conclusion, can I observe that present
company of course excepted, human rights lawyers and activists
are not necessarily deserving of sainthood. On delving into Sir Edward Coke’s life I found that he kidnapped
his 14 year old daughter from the protection of his wife and married her off to a rich
and influential gentleman. He eventually fell foul of his king and served time in the Tower of London, but he survived to live in peace, until dying in his own bed aged 80. I hope that, despite challenging
the power of the executive as an Australian national
and an English migrant, I can keep my passport close– Escape statelessness to
retire and smell the roses. Thank you all very much. [applause] Thank you.

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