Terrorism is a major threat to Australia. It threatens our way of life.
And make no mistake the terrorists are winning, at least some of the time.
That was no more evident than last week when the Australian Federal Police found Jack Thomas holidaying in Gippsland and ordered him back to Melbourne and under curfew from midnight to 5am. There were no criminal charges.
Thomas had been subjected to a “control order”. The order had been granted by a Federal Magistrate at a weekend hearing at which neither Thomas or his legal representative were present.
Hitherto in Australia, a person could not be deprived of liberty without being charged with a crime.
This is a first for Australia.
Thomas’s earlier conviction on some terrorism-related charges had been quashed because the Australian Federal Police had coerced a dodgy confession from Thomas when he was being held in a Pakistani jail – maybe anyone would confess to anything to get out of there.
The control orders are similar to the banning orders of the former apartheid regime in South Africa, though, admittedly much less severe. Both orders restrict movement, restrict contact with other people and deny a presumption of innocence until proven guilty.
Small l liberals are obviously aghast, but should be small c conservatives. Sure, socialist commissars might want to put people up against a wall without trial and might be happy to take away individuals’ liberties in the interests of the state.
Liberties and institutions that have been built up over centuries have gone beyond being threatened in the fight against terrorism. They have been eroded.
The most insidious part of the control-order regime is the way in which the Executive – the Howard Government – is getting the courts to do its dirty work.
Under the regimes, the Australian Federal Police with the consent of the Attorney-General can seek control orders in the Federal Magistrates Court – that is the court that John Howard set up and to which his government appointed all the magistrates. No doubt the magistrates are all doing their best to fulfill their judicial oath, but they must baulk at the control-order legislation.
An interim control order can be issued without the subject of it getting a chance to be heard or the evidence tested, and the order can be confirmed with precious little notice to the subject of it.
Further, the order can be granted on a test that it is more likely than not that the subject poses a threat to the community, not that the evidence proves beyond reasonable doubt that a person committed a criminal offence.
The ordinary criminal law against violence and planned violence is enough to deal with those terrorists we catch, as the Lodhi case earlier this month well illustrated. There is no guarantee against a criminal terrorist act in Australia. Just as there is no guarantees against ordinary criminal acts such a Port Arthur.
So why allow a Government to squander well-won liberties just because it feels the need to be seen to be doing something?
It would not be tolerated in the United States. Their Constitution provides “nor shall any person be subject for the same offense to be twice put in jeopardy . . .; nor shall be deprived of life, liberty, or property, without due process of law”.
It cannot be tolerated in Britain because Britain is subject to the European Convention of Human Rights which prohibits detention without trial – which is what happens under an Australian control order (even if the detention is home detention). Britain’s control orders will have to be read down.
Alas, we do not have such explicit protections of freedom in Australia. This is the freedom we are determined the terrorists will not take from us. But they have succeeded in taking away some of the freedoms because they have scared us into take them away from ourselves. We have been blind enough and silly enough to let them.
We need a Bill of Rights in Australian now more than any time since the 1950s. That’s if we really want to protect our liberty.
But there is a glimmer of hope. Weak as our Constitution is on human rights, it does at least provide that the judicial power of the Commonwealth lies in the High Court and other courts created by Parliament, such as the Federal Magistrates Court. And Executive power lies with the Government.
The High Court has often held that this means federal judges cannot do the work of the executive. They can only act as judges.
Well, I reckon that the act of banging someone up in home detention because someone thinks they are more likely to be a danger to the public than not is not a judicial act.
I am writing this on Thursday, so I do not know what will have happened in court on Friday.
But Jack Thomas’s lawyers should ask the High Court to put a stop to this dressing up of executive abuse of power in judicial clothing to make it more palatable to a gullible public.
This is not legal technicality. This is the stuff which if applied in 1930 would have prevented Nazi excesses and which if applied in the 1970s would have prevented the horrors in Chile and Cambodian horror.
The price of liberty is eternal vigilance – that does not only mean a big army, a large police force and intelligence services. It also means watching Howard, Ruddock and the abuse of power in devices like control orders.