EXECUTIVE EMERGENCY POWER, COMMON LAW AND ALIENS

In Australia, there have been a marked increase in the use of emergency powers by the Executive: From Bushfire Crisis to COVID-19 public health emergencies (Morrison); Offshore Detention Regime 2012-2015 (Abbott); GFC Management 2008 (Rudd) and setting up of Offshore Detention Centres and signing of MOUs with Nauru/PNG 2011-2012 by (Rudd/Gillard) and, of course, that infamous Tampa Crisis 2001 (Howard). In a way, such emergency executive powers had been used by all political leaders. Only time could tell, however, that there would have been any genuine needs to use such emergency powers in each of those cases. The government exercise of emergency powers can become more controversial, when that has direct impact upon persons' inalienable rights and liberties.

The nature, limits and scope of Executive Government's powers, including that of emergency powers, within Australian Constitution have been summarised, with interesting historical accounts, by the Hon. Judge Gageler in M68/2016 HCA reasons for judgment [115-185, #1]. As we all know, Tony Abbot's Administration (2013-2015) inherited the Offshore Detention Centres from previous Labor government. The Abbott's Administration had continued to operate those centres in emergency mode. In M68 case, the questions had been raised on the legality of government procurement of private contracts with Transfield in emergency mode, as well as that of the detention of asylum-seekers offshore. Notably while M68 case was in progress, the Commonwealth Parliament subsequently enacted and inserted the offshore legislation, i.e. "Section 198AHA", on 30 Jun 2015 -- so as to remove the premises of pending High Court case -- with retrospective effects dating back from August 2012. In any case, the Executive's actions done under emergency powers, therefore, are to be understood as those actions having done without Parliamentary (statutory) authority.

This government's non-statutory emergency powers can be classified as the prerogative executive powers and non-prerogative executive capacity [134, #1]. The nature of these powers are described as [#1]:

"135 An act done in the execution of a prerogative executive power is an act which is capable of interfering with legal rights of others. An act done in the execution of a non-prerogative executive capacity, in contrast, involves nothing more than the utilisation of a bare capacity or permission, which can also be described as ability to act or as a 'faculty'. "

At anytime exercising those emergency powers in the absence of any statutory mandate, the Executive Government is required, like everybody else, to observe substantive laws that include common law laws. Therefore, the Executive Government at anytime, including under emergency mode, is not above the laws and that it must act within the bound of laws. This means "the Executive Government must take the civil and criminal law as the Executive Government finds it, and must suffer the civil and criminal consequences of any breach".

In case of breach of the laws, the officers or Agents of Executive Government were not immune from being prosecuted, even if they were found to have been following the government orders [see 136, #1].

Analysis of how ABF commits the crime of assault on Bomana Prisoners

"The [officers'] trust in the Commonwealth and in those who approved the exercise or gave them their directions or instructions was completely misplaced. The 'authority or consent necessary to make any act or thing lawful' was not obtained and, in the absence of special statutory provision, was probably not within the power of any person or combination of persons to grant. The 'direction' to participate in the exercise, in the manner in which it was carried out, was a direction which the Commonwealth executive could not lawfully give. To the extent that the [officers] may themselves have been involved in criminal activities, the 'Commonwealth exercise cards' which they were 'instructed ... to show' should they be questioned were completely ineffectual to establish legal justification."

With respect to aliens, the Executive Government is not allowed to held them in a prolonged period in an emergency mode; such detention must be reasonably capable of being seen as necessary for the purposes of removal; or otherwise be properly engaged them with available statutory provisions [#7]. Furthermore, the Executive Government in emergency mode is not allowed to treat the aliens as "outlaws" [149, #1]:

"Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision."

Above paragraph highlighted the Executive Government, like everybody else, must observe the common law of Australia at all times, including in the emergency mode.

COMMON LAW, STATUTORY LAW AND INTERNATIONAL LAW

Australia, like US, UK, NZ and Canada, has a strong tradition of common law. The English common law has been known to operate throughout once British empire, now even faraway places like Burma, Uganda and Nepal. Almost universal in its adaptation, the common law has the emphasis on the natural justice and procedural fairness, and also taken into account of a person’s rights, interests or legitimate expectations [#9]. In fact, one of the High Court Judge has pointed out [see quote, #8]:

"It does not take a great stretch of the imagination to visualise intersections between these fundamental rights and freedoms, long recognised by the common law, and the fundamental rights and freedoms which are the subject of the Universal Declaration of Human Rights and subsequent international conventions to which Australia is a party."

At the time Australia became a Federation (1901), there had already been the continuum for common law tradition throughout its early Colonies. This suggests, ever since Australian Constitution had coming into force, and when the Commonwealth Parliament began enacting its legislation (statues), there have been the force and influence of common law that has been prevailing as the backbone for Australian Legal systems.

INTERNATIONAL LAW REGIMES AND COMMON LAW REMEDY

Australia had ratified the 1948 Geneva Conventions (include Refugee Convention) along with the ICCPR. The Commonwealth Parliament, however, have not locally enacted human rights legislation in regards to those UN Treaties. These treaties, although binding upon Australia as a State, therefore remained as a "non self executing treaties". This means, an asylum-seeker or individual detained unjustly cannot directly bring their case to the local courts, making reference to the Geneva Refugee Convention or the ICCPR.

In regards to Rome Statute and ICC treaty, Australia deploys different tactics [#10]. The Commonwealth Parliament has enacted "the International Criminal Court Act 2002 (Cth) (ICC Act)" and "the International Criminal Court (Consequential Amendments) Act 2002 (Cth) (Consequential Amendments Act)." However, to assert the primacy of Australian jurisdiction over that of ICC, any of related court proceedings must first be approved by the Attorney-General who is a political appointee. The ICC cannot expect full and unreserved cooperation from Australian Government when it comes to dealing with the crime against humanity such as that of enslavement crimes [#11]. In "theory", of course, a possible scenario might as well have been suggested along with the noted scholar [#10]:

"... any decision to allow a prosecution will lie exclusively with the unimpeachable ‘political’ judgment of the Attorney-General. While it is highly improbable that an Attorney-General would permit prosecutions against members of his own government or officers .... , it becomes possible, for example, for any subsequent government to prosecute those who were responsible for any ... crimes that might have been committed ..."

I would emphasise, this is highly unlikely scenario, of course, any political opposition, whilst vociferous at all in Parliament, might have prepared to throw their adversary directly into the hands of ICC.

One possible remedy to this situation is for any party with certain grievances to bring his/her case through to local court under common law laws. Such avenue is not limited only to the crime against humanity slavery laws, of course.

CONSTITUTION AND ALIEN RIGHTS

The framers of Australian Constitution had carefully considered protection against personal liberties of their citizens. In addition to separation powers, by now familiar Section 75 was included in order to safeguard the excesses of governmental powers [125-126, #1]:

"... s 75(iii) had the consequence of exposing the Commonwealth from its inception to common law liability, in contract and in tort, for its own actions and for actions of officers and agents of the Executive Government acting within the scope of their de facto authority"

"The purpose of s 75(v) ... was "to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power"

For aliens, who are not Australian residents, there have been the flow-on benefits from that common law and Constitutional guarantee for freedom and liberty. For example, no Australian can be allowed to forcibly restrain any alien -- say a visa over stayer -- who might have been 'unlawful' for the purpose of Migration Act. Anyone who use the force against that alien will have the common law liabilities.

This very same scenario was observed in the case of S99/2016; An asylum-seeker on Nauru who fell pregnant and wanted a safe abortion. The legal responsibility of Immigration Minister was highlighted by the Judge as [#12]:

"4. Despite the nomenclature used by the Act to describe her, the applicant remains entitled to the protection of Australian law. Principally, that is because the Minister is bound by the law and, as my reasons explain, the Minister and the applicant are parties to a relationship recognised and enforced by the law out of which legal rights and obligations flow.

"5. The applicant claims that by reason of a legal relationship recognised by the common law, the Minister must take reasonable care of her....."

Therefore, the Australian Parliament has denied the human rights of aliens by failing to enact relevant legislation. However, the common law in Australia and Constitution does not deny them their humanity.

Keep checking on Bomana pages. Cheers, NetIPR.
http://www.aus4iccwitness.org/node/83

Footnotes

M68/2016 HCA Judgment
[#1] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
M61/2010 HCA Judgment
[#7] http://www.aus4iccwitness.org/legal-resources/20101118_m61-hca-judgment.pdf
Gillian Triggs/Executive Overreach
[#8] http://www.aus4iccwitness.org/legal-resources/20151105_exec-overreach-by...
[#9] https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encr...
Gillian Triggs/Australia and Rome Statute
[#10] http://www.aus4iccwitness.org/legal-resources/20030101_aus-n-rome-statut...
[#11] http://www.aus4iccwitness.org/node/68
S99 Case, Bromberg Judgment.
[#12] http://www.aus4iccwitness.org/legal-resources/20160506_bromberg-judgment...