by Ken Crispin
Scribe, $35 pb, 350 pp,
Australian Book Review.
A lawyer who practises in ethics is a rarity. Ken Crispin has his doctorate here, and clearly this passion focuses him on the ways human rights are pared away by parliament. His tone is urgent:
In Australia, control orders may also be imposed for periods of up to 12 months. Interim orders may be sought on an ex parte basis – that is, without the suspects’ presence or even knowledge ... Information may be withheld on the grounds of national security, public interest immunity, risk to ongoing operations or risk to the safety of the community or law enforcement or intelligence officers. Hence, unlike the position in Britain, a control order may be imposed on a suspect with little understanding of the case against him.
Many Australians might also be surprised to learn that, in some circumstances, people may be detained and held in custody without being suspected of any crime, and even more surprised to learn that members of their family may be sent to prison for mentioning the detention.
As counsel for Michael and Lindy Chamberlain at the Royal Commission which exonerated them after convictions for the murder of their infant Azaria, Crispin will have seen, at close hand, the way secrecy of evidence and stealthy entrapment can work against the innocent, who have no idea of the danger afoot around them, rather than against the guilty, who do.
The book is itself a ‘quest for justice’, not merely a history, although Crispin sets out history where relevant, and footnotes each source, which is particularly satisfying when he is dealing with modern governmental atrocities. Support for a Bill of Rights appears throughout the book.
Until the last few years, I would have dismissed as fanciful any suggestion that western democracies would have authorised measures such as detention without trial, torture of suspects, arbitrary powers of search, guilt by association or reversal of the onus of proof.
Crispin does not chance his arm with a draft, but makes clear the aims which should shape it:
Two fundamental principles may then be deduced as guidelines for legislative policy and judicial interpretation. The first is that the role of law should be seen primarily as a means of defending human rights … The second is that no one’s rights should be restricted without sufficient justification and, even then, the degree of restriction should be limited to that which is reasonably necessary.
The intervening chapters present his reasons for a growing distrust of governments as guardians of human rights. The punitive excesses of Western democracy he is aghast at, especially in Australia, Britain and the United States. Crispin reserves special derision for the American neo-conservative episode:
Yet, when the World Trade Centre was destroyed in 2001, these principles were openly abandoned. All men were no longer endowed by the Creator with equal and inalienable rights to liberty; the theology of the Declaration of Independence had been supplanted by the neo-conservative heresy that the Creator had only bestowed such rights upon Americans, and even they were not inalienable. Arrest without charge, imprisonment without trial, cruel and degrading treatment, and the attempted creation of a law-free zone within which human rights could be ignored all became part of the new regime.
The law-free zone is Guantanamo Bay, but special agents now carry a law-free zone around them wherever they go, much as Supreme Court Justices carry their Court with them. The criminal abduction and torture we now know as Rendition is at the hot end of Crispin’s anger. This raises a curious question: is assassination of a law-free special agent lawful? I expect that Crispin’s answer would be No, since he would make the judgment on grounds to do with the reduction of harm, but I would rather hope for an answer more in line with anger.
Central to Crispin’s arguments is his belief that the Rule of Law is a foundation block of democracy, a connection echoed in Michael Kirby’s foreword. Now, I’d be more enthusiastic about democracy if ever I’d laid eyes on it, but I concede it as a worthy social aim. The protector of the Rule of Law is the judiciary, and this ex-judge’s case assumes that judges are more likely to uphold the Rule of Law and a Bill of Rights more justly than will parliaments. I began a courtroom career six decades ago, and remember two judges who had racist bigotries and another who never seemed to find in favour of injured Italian labourers. I knew three magistrates who were corrupt. The best I can say about those times is that the parliamentarians were worse. Today, Crispin is on firmer ground.
I came to this book believing that individual human rights should be protected by a strong culture of humanitarianism rather than by some addendum to the Constitution. Faced now with the subversion of that culture, and with the threat of worse, I am convinced we may need both. The prime duty of a parliamentarian is to be re-elected. This causes injury to democratic efficacy, and gives lying an attractiveness no politician can pass up. A prohibition against more than two consecutive terms may help, but is not imminent. The growing likelihood that parliamentarians may intend harm to more and more citizens in order to be re-elected can best be prevented by a Bill of Rights and an independent judiciary. Inevitably, an independent judiciary will be hated by the lawmakers.
Five instances of redefinition of a crime have irked Dr Crispin: terrorism provisions applied to other disruptive behaviour; sex offences where both parties are under age and where each may be deemed a paedophile; an unlawful threat with blood which was classed as armed robbery; drink drivers in the United States who were arraigned for murder; the wonderful instance during Gordon Brown’s premiership when the assets of Icelandic Bank Landsbanki were frozen under the Anti-terrorism Act and the bank was listed as a ‘Proscribed Regime’ alongside Al Qaeda, because it faced insolvency. We can add the redefinition of simulated drowning from torture to persuasion in the United States, and in Australia the redefinition of indictment to deny more defendants their constitutional right to trial by jury. Crispin doesn’t link his own instances. I think he missed an opportunity here.
Subversion of meaning and semantic trickery in English law reaches back at least to the Middle Ages. The procedural rules then did not allow for a Summons for Directions, a ruling on a hypothetical set of facts for the guidance of legal advisors. To try a hypothetical issue, lawyers devised a pretence, a writ was issued setting out a dispute between John Doe and Richard Roe, synonyms now for fiction or anonymity, still existing in some jurisdictions today. Persistence with the Legal Fiction harms us all. Our duties should be clear. I would like to see Crispin or another jurisprudential thinker take this further.
The phrase ‘war on terror’ is fraudulent, as Crispin sees it, a ruse to protect the United States against charges of unlawful detentions. I am not with him on this. I recall Australian governments grappling with a similar problem during the Malayan Emergency and later in Vietnam, where, for a time, the opposite excuse was favoured. No, call it war. Clarify the issues over which it is being fought. We should recognise that we now live in an Age of Religious Wars.
The chapter ‘Sentencing’ is Crispin’s plea for leniency. Daily, judges consider and deliver punishment uniquely appropriate to a criminal event which is also unique. Media then report the judgment using a vocabulary, or really a dialect, better suited to a standard grid of human behaviour, through which little meaning survives. Readers believe another criminal has been let off too lightly. A politician again calls for tougher punishment, urges support for mandatory imprisonment, one size fits all. So the judges are too harshly, and wrongly, judged. This chapter is a delight. Throughout Ken Crispin’s book the tone is one of exquisite fairness.