Ban order attacks our way of life
Melbourne Age August 30 2006
The Attorney-General is undermining civil rights after being thwarted by the courts, writes Brian Walters.
JACK Thomas was at the beach with his family when he was served with a control order signed by Attorney-General Philip Ruddock. He was required to return to Melbourne immediately. He will now be subject to a curfew and a requirement that he report to police daily, as well as other restrictions.
Although a magistrate will consider this further, he or she can only do so on a very limited basis. There will be no fair trial of the issues. There will be no proper rules of evidence. There will be no presumption of innocence. We have departed from centuries of hard-won democratic tradition under which deprivation of liberty can only follow an accusation of crime, with a trial in which guilt would have to be proved beyond reasonable doubt.
At his trial, Jack Thomas faced four charges. The jury acquitted him last February of the two most serious counts, which alleged training for and participation in planning for terrorism offences. He was convicted of two lesser offences. He was jailed for five years for receiving funds from a terrorist organisation. The Crown case was that he received an air fare and $1500. This offence does not require that you intend to do anything wrong with the money. It merely requires that you receive the money either knowing it is from a terrorist organisation or reckless as to whether it is from a terrorist organisation. The jury clearly did not accept that he intended to do any terrorist act. It acquitted him of the two charges that required such an intention.
On no reasonable view, even without his appeal, could Jack Thomas be described as a terrorist.
The key evidence against Thomas was an interview he gave to the Australian Federal Police in Pakistan.
Jack Thomas was arrested in Pakistan on January 4, 2003. He was held for five months before being allowed to return to Australia.
During the five months he was detained by Pakistani officials, Thomas was never brought before a judge or a magistrate, and was never charged with any offence. Pakistani authorities repeatedly told him: "We're outside the law. No one will hear you scream."
This type of detention, without any oversight by the courts, and without charge, is universally regarded as illegal. It is also illegal in Pakistan, since it violates section 10 of that country's constitution.
The reason is obvious. If you detain a person without oversight by the courts, you are no better than a kidnapper. You have the power to consign those you regard as undesirable to gulags or concentration camps, and you impose a reign of terror, not the rule of law.
Australia had the right, under the Vienna Convention on Consular Relations, to insist that Thomas be provided with a lawyer. Despite the fact that he was being held in violation of the basic legal protections understood by every civilised country, representations were merely made to the very Pakistani officials engaged in this conduct. At no stage did Australia exert even the minimal pressure of sending a diplomatic note.
While he was in custody, Thomas was told that he could be held indefinitely. An official attempted to strangle him by the collar. Officials threatened to send him to Afghanistan, where the latest interrogation technique involved crushing the testicles. He was told (by an American) that agents would visit his wife and rape her. In the presence of Australian officials, he was threatened with consignment to Guantanamo Bay.
Instead of robust action to prevent this illegal treatment of one of our citizens, Australian authorities took advantage
of it. They liaised closely with Pakistani security authorities to arrange interrogation of Thomas while he was in this predicament.
ASIO and the AFP, along with Pakistani security authorities, grilled Thomas for six sessions covering 20 hours. This is on top of extensive earlier interrogations by the Pakistani and US authorities. The Australians engaged in emotional manipulation of Thomas, showing him photographs of his wife and children, whom they knew he was desperate to see, and then withholding the photos as an obvious spur to co-operation.
They then interviewed him for the purpose of prosecution in Australia. He knew that his very future depended on the Australians telling his captors that he had
co-operated and could be returned to Australia. The police knew he wanted a lawyer and they knew his family had appointed one, but they told him that the right to a lawyer - which the Parliament of Australia has said is his right as an Australian citizen - would not be available to him.
The resulting interview was, as the Court of Appeal held, involuntary. It is quite wrong to assert that it was only because he was not allowed a lawyer that the interview was rejected. He was forced to confess by appalling pressure involving the entire future course of his life.
Once you allow involuntary confessions, you license law enforcement authorities to break the law that it is their duty to uphold. You open the door to all manner of mistreatment, including torture. Instead of the law being founded on respect for the dignity of the human person, the law becomes an instrument to degrade humanity.
Not surprisingly in view of his cruel treatment at the hands of authorities, Jack Thomas has suffered serious psychiatric harm.
The Court of Appeal did the only proper thing to uphold the rule of law - it ruled that the interview should be rejected as evidence. It had been obtained in clear violation of decency and legality. The court set aside his convictions. In doing so the appeal justices did not undermine democracy; they upheld it.
The Court of Appeal is still to consider a Crown application for a retrial on the basis of a Four Corners program. If Thomas were to get in the witness box in the hearing before the magistrate, evidence he gave would very likely be used against him at any subsequent trial - a further serious inroad into the right to silence.
The Attorney-General, despite the jury's verdict that Thomas had not planned any terrorist activity, will not allow the courts to thwart his will.
He has not condemned mistreatment of an Australian citizen overseas. He has not stood against the extraction of confessions by cruel means.
Instead he has sought to perpetuate Jack Thomas' misery through a secret hearing without the normal legal rules applying. That is a grave danger to our carefree, beach-going, Australian democracy.
Brian Walters, SC, is president of Liberty Victoria.