Katy Barnett’s recent post on the seemingly increasing tendency of Australian parliaments to enact retrospective criminal laws provoked my interest. Arguably a Bill concerning “people smugglers” currently before Federal Parliament is the most troubling of these instances. As Barnett explains:
An Indonesian man, Jeky Payara, was charged with aggravated people smuggling pursuant to s 233C of the Migration Act 1958 (Cth) after he was accused of carrying 49 asylum seekers to Christmas Island in September 2010. In August this year, Payara sought to challenge the law on the basis that be argued was he was legally entitled to assist genuine refugees to reach Australia. He pleaded not guilty, and has not yet been convicted of any offence. The matter was referred to the Victorian Court of Appeal.
However, on 1 November 2011, the Federal Government hastily passed the Deterring People Smuggling Bill 2011 through the House of Representatives, with the support of the Federal Opposition (bipartisan support is a rare sight in these days). As with the previous Act, this Bill is intended to operate retrospectively (the new s 228B is to operate from 16 December 1999). Consequently the Age reports that Victorian Legal Aid, who was acting for Mr Payara, were forced to adjourn the proceedings before the Victorian Court of Appeal to await to see whether the legislation will successfully pass the Senate. With bipartisan support in the House of Representatives, it is difficult to see any obstacles to the legislation passing through the Senate.
I wouldn’t necessarily object at least on moral grounds if this was just closing a loophole allowing people smuggling “kingpins” to continue trading on human desperation and putting lives at serious risk.
However the “people smugglers” who come before Australian courts are not the kingpins but rather the “mules” who crew the boats. They are generally poor, uneducated fishermen who are almost as desperate and lacking in viable choices as their asylum seeker cargoes. Do we really think irregular migration is such a serious problem that it’s desirable to demonise these people and flout a fundamental principle against retrospective criminal laws? The problem of retrospectively criminalising conduct that was not (or at least may not have been) a crime when committed is compounded by the fact that even minor involvement as a first offender in people smuggling now carries mandatory imprisonment for a three year term. It is a draconian combination for anyone concerned by basic human rights issues.
Some of the defendants are Indonesian children, and far more worthy of sympathy than the spoiled brat Australian teenager currently facing gunja charges in Bali whose family is about to profit to the tune of several hundred thousand dollars from selling his story.
I pointed out on Twitter that the High Court upheld retrospective war crimes legislation in Polyukhovich v Commonwealth (1991) 172 CLR 501. But that isn’t really an accurate account of Polyukhovich. Three Justices (Mason CJ, Dawson and McHugh JJ) held that Commonwealth legislative power extended to enacting retrospective criminal laws even though that concept might offend basic rule of law principles. Another three Justices (Deane, Toohey and Gaudron JJ) held that a retrospective criminal law would offend the fundamental nature of judicial power and therefore could not be vested in a court exercising power under Chapter III of the Australian Constitution. The seventh Justice, Brennan J, did not need to decide the retrospectivity point in that he held in dissent that the war crimes legislation could not be supported by any head of Commonwealth law-making power in any event (neither the defence nor external affairs power).
The war crimes legislation survived challenge because Toohey
and Gaudron JJ held that it was not retrospective in the relevant constitutional sense. Murder (which was effectively what Polyukhovich was accused of) was a crime in both Australia and Latvia, Lithuania or Estonia at all material times. Moreover, the cold-blooded murder of unarmed civilians in war situations breached international law as well. Therefore, according to Toohey and Gaudron JJ, it didn’t offend notions of judicial power to close a loophole (the fact that a murder committed in Europe was not until then a crime in Australia) and give Australian courts the power to adjudicate such an offence.
I suppose in one sense that’s a reasonable pragmatic solution to a thorny moral dilemma. Do we really want to let World War II mass murderers escape justice for their crimes against humanity? But the reasoning of Toohey
and Gaudron JJ was not without its problems, as other Justices pointed out at the time. For much of World War II, including the period when Polyukhovich committed his alleged offences, it was a defence in international law (and conceivably under the domestic law of Latvia, Lithuania or Estonia as well) if a person who committed what would otherwise be a war crime was acting under general orders of a superior officer. “I vas only doing vat I vas told” was a defence given short shrift during the post-war Nuremberg trials in relation to many associated with the Holocaust death camps, but not without formal legal weight at least for part of World War II. The Australian war crimes legislation expressly excludes the “following orders” defence, and therefore in that sense goes further than the law did in World War II and does criminalise behaviour that would not have been criminal at the time it was committed. See War Crimes Act 1945 (Cth) especially s16.
There’s also a more general problem with the reasoning of Toohey
and Gaudron JJ. It potentially robs a prohibition on retrospective or “ex post facto” laws of any real force. It would almost always be possible for governments to argue that conduct of the general sort in question (whatever it might be) is already criminal and that they are merely closing an unintended loophole. For example, one could mount such an argument in relation both to the current people smuggling amendment and the social security amendment discussed in Katy Barnett’s post.
In fact there are powerful reasons for drawing a constitutional implication prohibiting retrospective criminal laws, whether grounded in the nature of Chapter III judicial power, the rule of law or a combination of the two. As Deane J argued (after discussing Bills of Attainder and Blackstone’s observations that retrospective criminal laws breached fundamental rule of law principles but were nevertheless within the legislative power of the UK Parliament):
Nonetheless, their Lordships’ comments – like those of Blackstone – are directly relevant to the determination of what lies beyond the limits of the legislative function under a constitution which, like ours, entrenches the doctrine [of separation of powers] and subjects legislative power to it. In that regard, it is important to note that their Lordships identified the central vice of a Bill of Attainder not as lying in its specific naming of an individual but as lying in its ex post facto operation as a legislative decree that an act which was not criminal when done was “voided and punished” as a crime. …
The position is less obvious where such a statutory provision does not nominate a particular person or group of persons but identifies the persons whom it makes punishable for past “crime” by reference only to their having committed some past act which was not criminal when done. In such a case, there will be a need for a trial to determine whether a particular accused falls within the class of those whose past conduct is retroactively made criminal. Nonetheless, such a statutory provision declaring past conduct to have been a criminal offence constitutes a usurpation of judicial power in that, once it is established that the accused has committed the past act, the question whether that act constituted a criminal contravention of the law is made simply irrelevant. To that extent, curial determination of criminal guilt is ousted by legislative decree. The point can be illustrated by dividing the legislation in such a case into its essential components. One component of such legislation is the requirement that there be a “trial” in the courts, in which judicial process must be observed, to determine whether it is established beyond reasonable doubt that a particular person knowingly engaged in the designated conduct. The second component is the enactment that, if it be established that the particular person did in fact engage in that past conduct which was not criminal when done, he is guilty of a punishable crime. That second component of the legislation invades the heart of the exclusively judicial function of determining criminal guilt, that is to say, of determining whether past conduct constituted a criminal contravention of the law. It pre-empts and negates what would otherwise be an inevitable judicial determination that, since the act of the particular person did not constitute a criminal contravention of any Commonwealth law which was applicable at the time when it was done, that person committed no crime under our law. In the place of that inevitable judicial determination, it imposes a legislative enactment of past guilt which it requires the courts, in violation of the basic tenet of our criminal jurisprudence and the doctrine of separation of judicial from legislative and executive powers, to apply and enforce. It is simply not to the point that the first component of the legislation camouflages the usurpation of judicial power involved in the second by requiring a display of the full panoply of judicial process for the purpose of determining whether it is established beyond reasonable doubt that the accused person knowingly did a specified act which was not criminal when done.
Brennan J may well have reached a similar conclusion had his reasoning path required him to decide the retrospectivity point in Polyukhovich. Towards the end of his judgment he said:
The means which the Act adopts to secure future adherence to the laws and customs of war not only trample upon a principle which is of the highest importance in a free society, namely, that criminal laws should not operate retrospectively, but also select a specific group of persons from a time long past out of all those who have committed, or are suspected of having committed, war crimes in other armed conflicts. Respect for the laws and customs of war cannot be secured by a law having such an oppressive and discriminatory operation.
Accordingly, as far as I can see there is scope for a High Court challenge to the Deterring People Smuggling Act 2011 once enacted. We may well see such a challenge in the near future, and it may well lead to a further implied constitutional restriction on Commonwealth law-making power (and possibly State power as well if the Kable doctrine is invoked). Not before time as far as I’m concerned.
Postscript - Mr Polyukhovich was eventually tried and acquitted of the war crimes with which he was charged. This story provides some of the human dimension:
Mr Polyukhovich, 77, and his family have refused to speak to reporters but the family agreed late yesterday to answer questions from the Herald put through his lawyers.
They said the personal cost to the family had been enormous. The strain and emotional upheaval had destroyed his health.
Court proceedings, both at committal stages and during his trial, had been interrupted as Mr Polyukhovich suffered two suspected heart arrests, gastroenteritis and high blood pressure.
At one stage, a doctor was required in court to monitor his blood pressure. In 1990, Mr Polyukhovich was hospitalised for three months. The defence has continued to deny prosecution allegations that the injury was part of a suicide attempt while Mr Polyukhovich was suffering from dementia and depression.
Throughout, he had remained largely impassive but was concerned when his wife, Maria, became distressed.
His family said he now wished to just live quietly tending his vegetable and flower gardens and looking after his bees in his north-western Adelaide home.