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August 29, 2006
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. Concerns were expressed at the time that these laws would ride roughshod over the individual liberties of Australian citizens.
Jack Thomas ("Jihad Jack" to some commentators) was the first person to be tried in Australia under the Federal Government's new anti-terror laws. He was freed by the Victorian Court of Appeal a week ago. Thomas had been charged with four terrorism-related offences. At his initial trial, the jury acquitted him of the two most serious charges ---- those relating to his alleged training and planning for terrorism offences. He was convicted of two lesser charges: one count of receiving funds from a terrorist organisation and one of possessing a falsified Australian passport.The evidence against him was based entirely on confessions.
Thomas' convictions were quashed because the Court of Appeal found that his admissions were made under duress. Australian Common Law, holds that a confession made out of court by an accused person is not admissible as evidence unless it is shown to have been made voluntarily. Thomas has since been issued with a control order restricting his movements.
What suprised me was the conservative hostility to the Victorian Court of Appeal decision.
Chris Merritt, the legal affairs editor of The Australian, in an op. ed entitled 'Legal system releases the enemy' said that:
When the legal system allows a mate of Osama bin Laden to walk free in Melbourne, something is terribly wrong...There might be all sorts of nice legal arguments that favour yesterday's decision. But try explaining those to the families of those who died in Bali.
The 'nice legal argument' was that Thomas had been subjected to intimidation, coercion and ill-treatment by Pakistani and American officers, sometimes with ASIO officials present, that were designed to extract intelligence from him. So it could not be said that his confessions had been freely made. Consequently, the record of interview was inadmissible and, because it constituted the entirety of the prosecution evidence, the convictions had to be set aside.The Court summarised its decision as follows:
Put bluntly, there can be little doubt that it was apparent to [Thomas], at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co-operation was far more important than reliance on his rights under the law. Indeed, it is apparent that he believed ---and we would add, on objectively reasonable grounds ---that insistence on his rights might well antagonise those in control of his life.
Presumably Merritt and The Australian condone confessions extracted by threats and torture and are opposed to those who argue that such evidence should not be admitted because it perverts our law.As The Australian put it in an editorial 'the war on terror is real. And as in previous wars, sacrifices sometimes need to be made, and without the right to life, none of our other rights apply.' If torture of Australian citizens is okay, then the sacrifice involves suspending the rule of law in an emergency. No matter what the law says, Jack Thomas should be locked up. He's the enemy of the national security state. So a fundamental Common Law principle--that admissions must not be procured by duress-- should be dumped because the war on terrorism constitutes a state of emergency.
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