The Section 51(VI) Defence Power in the Australian Constitution: Threats to Human Rights During the 'War on Terror' and Suggested Remedies

There is currently limited protection of human rights in Australia, with one of the most fundamental rights, the right to liberty of the person, primarily stemming from the separation of judicial power contained in the Australian Constitution. Notably, there are no express rights to habeas corpus or due process – two key aspects of the right to liberty of the person – although there is an argument that such are implied by virtue of Constitution Ch III. This is unlike overseas jurisdictions including the United States of America, Canada and South Africa, which have explicit constitutionally entrenched bills of rights to protect such essential rights.

In the absence of substantial rights protection, the use of the s 51(vi) defence power to enact security legislation poses a significant threat to the right to liberty of the person. Historically, during periods falling short of ostensible peace, such as periods of increasing international tension and wartime, the defence power has been interpreted broadly, and the judiciary has deferred to the legislature and the executive on matters concerning the defence of the Commonwealth. Following the terrorist attacks of September 11, 2001, in the United States, Australia introduced anti-terrorism legislation which increased the power of the executive through allowing the imposition of control
orders and detention orders, with minimal scope for judicial involvement or review. The legislation also contains far-reaching terrorism offences and imposes restrictions on federal criminal and civil court proceedings. In the absence of a constitutionally entrenched bill of rights, the current human rights protections in Australia are not sufficient in the age of the ‘War on Terror’, and additional protections are required.

Noting the threat posed by terrorism and the need to strike a balance between protecting the community and protecting individual rights, this thesis posits two strategies. The first proposes a modified proportionality test for use when the validity of defence legislation and executive actions that infringe express and implied constitutional rights, including the implied right to due process, are challenged. This would see the survival only of defence measures that are the least restrictive means available to serve the defence interest. Noting the elasticity of the defence power, the defence interest served by the measure must be proportionate to the level of threat faced.

The second strategy proposes that the rights to habeas corpus and due process be explicitly inserted into the Australian Constitution. Express rights would put it beyond doubt that the judiciary is empowered to quash legislation and executive actions which infringe those rights. That being said, the right to due process cannot be absolute. Therefore a limitations clause would see the right not to be arbitrarily detained or imprisoned, and the right to be afforded due process of the law, subject only to such reasonable limits prescribed by law as can be demonstrably justified as being the least restrictive of those rights as is necessary in a free and democratic society. This would incorporate the modified proportionality test posited in the first strategy