Judges get it right – Paul Kelly
I can’t agree with this editorial by Paul Kelly. The executive arm of government has the ability…..the ‘power’….. to wield a concept known as the defence power. This power effectively activates and exercises the military right of Australian governments to defend the country and its citizens by military force. The exercising of the defence power does not, should not and must not be reclassified as an ability to make decisions regarding basic human rights because of an ideological interpretation of the vague terminology we call ‘terrorism’.
(Justice)Kirby found that the executive had failed to offer a convincing case to justify the control orders. The intrusion they represented was out of proportion with any threat. He found that the law went beyond the concerns of the defence power into the domain of civil government. Coming down in favour of the long-established “containment of the defence power”, he supported its restriction to the body politic. He argued that control orders impinged on the right to liberty, and the court’s role was to “guard against unwarranted departures from fundamental rights”.
The unstated yet fundamental difference between Kirby and the majority resides in attitudes towards the parliament. This is the pivotal difference, not just on the bench but in the wider nation. For Kirby, the court’s task in an age of terrorism is to insist on settled principles and to keep the parliament and executive in check.
But Kirby’s vision of rights is unbalanced and overlooks that terrorism represents a fundamental assault on human rights. Incredibly, he implies the court’s decision gives terrorists the victory they cannot secure for themselves. This is an indulgent misjudgment.
This is a simplistic acceptance of a dangerous precedent. By surrendering basic human rights to the fear and loathing precepts of a manipulative executive hands the so-called terrorists a victory on a silver salver. Control orders, their instigation and activation must remain the premise of the judicial arm or government and never be handed to the executive arm.
This decision is a clear breach of the seperation of powers.