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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

control orders in Australia « Previous | |Next »
August 30, 2006

Control orders are one of the most controversial aspects of the new anti-terror laws passed last year. These laws were supported by the Federal Opposition and state premiers because of the threat of global terrorism. A control order has been applied to Jack Thomas, and this restricts Thomas' movements and contacts to protect the community from terrorism. Control orders are, in a sense, preventative justice.

Peter Faris QC, the former head of the National Crime Authority, says that control orders:

...are designed to protect the community in circumstances where criminal custody is not justified. It is a balance between the perceived need for the safety of the community and restrictions on an individual. Formerly, dangerous individuals could only be dealt with by criminal prosecution, conviction and jailing — that is, after they had committed the predicted offence.

Control orders relate to the fear of future criminal conduct, not punishment for past conduct. It is about future conduct in the sense of identify people who are thought to be dangerous. If so then the community has the right to restrict our civil liberties. Is Thomas a dangerous individual? Don't we judge future criminal conduct by past actions?

The control order against Thomas was initiated, even though the Court of Appeal quashed convictions against Thomas for receiving funds from al-Qaeda and travelling on a false passport. In the original court verdict, the jury relied on a confession that was to be ruled inadmissible on appeal. Even so, the jury acquitted Thomas of charges of training for and planning terrorism offences. Accordingly, Thomas cannot be deemed a terrorist, as Faris states, If this case is about national security and trying to protect the Australian public, then can Thomas be deemed a risk to the community? Has his liberty been restricted with just cause? Is a terrorist suspect? Is he risk to this country? That is for the courts to decide, is it not?

Faris acknowledges that control orders are an infringement of the rights of an individual which have been imposed outside the criminal process. As he rightly observes the issue to be debated is this: is it appropriate to infringe a person’s liberty when they have not committed a criminal offence but where it can be established that they are a risk to the community.

George Williams and Edwina Macdonald, writing in The Age, concur with Faris that this is the issue to be debated. They say:

Control orders....raise questions about how far we should go in the war on terror. They impose sanctions not for what someone has done or due to what they are preparing to do, but because of what they might do in the future. They remove the presumption of innocence and limit a person's freedom even where there is not enough evidence to convict them under one of our many new terrorism offences. A control order can regulate almost every aspect of a person's life, from where they work or live to whom they can talk to. A person can also be detained under house arrest. The order can prevent someone leading a normal life without the evidence against them being properly tested.

Where then are the safeguards to protect our liberty? Faris evades this. He says that whether you support such controls is not a matter of right or wrong or of legality or illegality. It is simply a matter of your own moral preference. I support control orders and detention. The Left opposes them for terrorists.Yet Australia does not have any human rights legislation that sets out the basic standards of liberty needed for a democracy and ensure that tough terror laws do not undermine the rule of law or the values we are seeking to protect.

Therein lies the problem. This leads to a second question. Is the law constitutional? That is for the High Court to decide.

| Posted by Gary Sauer-Thompson at 8:43 AM | | Comments (6) | TrackBacks (1)
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» sacrificing the rule of law from philosophy.com
The National Security State has taken a strong position on national security since 9/11. It's new anti-terrorism laws, which were modelled on those of the UK, were introduced last year. Jack Thomas (‘Jihad Jack’ to some commentators) was the first ... [Read More]

 
Comments

Comments

I love the language.

"I support control orders and detention. The Left opposes them for terrorists"

i.e. I am tough on bad guys, the Left supports them.

Typical weasel language - if you don't support us, you must support the other guy, when the Left's argument is with the erosion of our freedoms.

BigBob,
as The Australian would say its war time and sacrifices have to be made. That is what makes a patriot.

Faris was more reasonable--les political--- on Lateline last night. But the politics comes in here:
PETER FARIS QC: ..... This is a case about trying to protect the Australian public. And all we have is this, this galaxy of civil liberties lawyers who don't care a fig about the safety of the Australian public, but only care about the rights of Jack Thomas. What about the rights of the Australian public? Don't they have a right to be protected?

PROFESSOR GEORGE WILLIAMS:....I'd say that my view is that I think we do need tough terror laws. I think we ought to have laws that target people who prepare for terrorist attacks. And that's something that goes far beyond the normal criminal law, which deals with committing acts and attempting acts. I think it quite rightly deals with those issues. But my view is, the way we deal with this is that if there's a problem with someone like Jack Thomas, ASIO and other agencies have very extensive powers to engage in surveillance - covert - they can tap telephones, they can issue tracking devices. ASIO can even call him in for questioning and he can go to jail if he does not answer those questions.

PETER FARIS QC: So you're happy with that?

PROFESSOR GEORGE WILLIAMS: If he puts a foot wrong in preparing in any way - collecting documents, possessing things, he can go to jail for 20 years. He doesn't even need a specific plot. We've seen Faheem Lodhi go to jail for 20 years in a similar circumstance. That's the way the deal with this. Don't get someone before they've done something. Use all the tools at the disposal of authorities, very tough tools that we've got, pick them up and go through the proper process that will maintain community confidence.

Gary,

You quote Faris saying, "It is simply a matter of your own moral preference. I support control orders and detention. The Left opposes them for terrorists.". But this is a contradiction. On the one hand he says it's a moral preference, but on the other he assumes that the target of a control order is in fact a terrorist (and that, by extension, the left refuses to control terrorists). Clearly this is not a personal issue, but a political issue, because he immediately attacks the left in the same sentence. If this came down to personal preference then the left and right would probably be equally divided. But this is not about left and right; this is about democracy and autocracy.

Thomas has not been convicted because there is not enough evidence to support the conviction. The poor bastard had his confession tortured out of him! So using the logic of all the years of law and legal history and precedent, he is not a terrorist -- regardless of what anyone thinks. His illegal conviction has been overturned. I'm surprised that Thomas can't take defamation action against these elitist, anti-democratic vermin who continue to call him terrorist when he has never been so convicted.

Unfortunately, Faris's personal opinion is that he is a terrorist, and Faris is willing to dismantle what little protection we have against arbitrary detention in order to punish this innocent man. We're heading back to the times before the magna carta. It's time to lock up Lindy Chaimberlain again, because the Court of public opinion found her guilty.

Cory Doctorow once said, "The terrorists hate our freedom, so by eliminating the freedom, we can stop the terrorists from hating us". We - The People - are not protected by being locked up. Who's next in line for an extra-judicial restraining order? I say let's lock up Faris. He's doing more damage to our society than any terrorist. But, of course, he has powerful friends, so I guess I need to be locked up for pointing it out.

Mark,
I think that we should swap Faris' use of 'moral' for 'political.'

Faris' argument to justify control orders to protect the community from terrorism was based on examples. Faris effectively equated the Thomas case with that of a convicted sexual paedophile (Baldy). Faris says that there was no protest from the Left that he can recall to inhibit the freedom of Baldy.

Yet Baldy was never been tortured and he received a fair trial. He was found guilty on evidence which was not procured through means which are absolutely contrary to values of justice, equality and transparency – that are the cornerstones of our legal system. None of that applied to Thomas as judged by the courts.

So Faris frames Blady as a convicted offender and Thomas as not one in terms of it being a left versus right issue. Doesn't that reveal Faris' own conservative ideological biases, and his role in the culture wars against liberalism?

Far more people have been harmed by recidivist criminals, drunk drivers, pedophiles and assorted friendly neighbourhood psychos than have, or will ever be by terrorists. So logically, if the rationale for these Control Orders is indeed public safety and not politics, they should be applied to these people first, irrespective of whether they've been convicted or not.

But we all know that it ain't going to happen because this is really about political theatre/point scoring and not public safety.

As Prof. Williams says, ASIO is empowered to keep close tabs on those it deems are dangers to society. Its what they do, and did with groups that were a greater potential threat than Thomas is likely to be. Commies, Neo Nazis, Ustashi sympathisers and adherents of 'strange' religions have all come and gone under ASIO's watchful eyes without a Control Order in sight!

PS: And don't forget that most murder victims are bumped off by their sig others, so lets lock up everyone in a relationship just in case!

Ian,
the control order is an interim Order, which can be confirmed at a hearing later this week.

According to George Williams and confirmed by Julian Burnside in New Matilda, at the hearing both Thomas or his lawyers --in Burrnside's words:

...not allowed to know the evidence used against him. Thomas is not allowed to know the reasoning which allows the giant leap from his training with al-Qaeda (in 2001) and his being vulnerable (now) to a future terrorist attack. He has not been told how a curfew, or regular reporting to a police station will reduce the risk of terrorism in Australia.

Burnside says that the logic of the control order suggests that this Control Order is, in truth, an undeclared test of allegiance — a test conducted on Mr Ruddock's rules:
Thomas was said to have engaged in lawful quasi-military training 5 years ago, and he is vulnerable....Is there an implication that his loyalties are with al-Qaeda rather than with Australia? The Control Order does not assert that Thomas is not loyal to Australia; it does not say that he is not only vulnerable but also treacherous. Such an assertion would distinguish his circumstances from those of a vulnerable former member of the Australian Army.

He says that such an allegation that Thomas was disloyal to Australia would make the Order openly political, and would run into all sorts of objections.

But if that is the logic then we are in for a rough time.