Freedom on trial

One of the more disturbing items in this morning’s news is a report that not only are police pushing for special inquisitorial courts with reduced standards of proof for the trial of terrorism suspects, but that apparently the only objection our highly principled Amnesty International member Attorney-General Phillip Ruddock has to the idea is a budgetary one!!

“But it would need to be more widely based (than terrorism matters) in order to justify an increased level of expenditure.”

Does anyone else find this distinctly ominous?

Less surprising but equally depressing is the evident yearning Federal Police Commissioner Mick Keelty seems to have for adopting Indonesia’s human rights standards:

“Is current legislation equal to the task of bringing the perpetrators to justice if an event like Bali happened in Australia instead of across the Timor Sea?

“Given the ability of our Indonesian counterparts to hold and interrogate suspects for periods longer than those specified by Australian law, without laying charges and a minefield of interlocutory options here in Australia, I fear not.”

I’d give it a fortnight at the outside from the time the Howard government gets control of the Senate until Ruddock introduces legislation along similar lines to that enacted last week by the Blair government in Britain, which:

allows suspected terrorists, including British citizens, to be held under house arrest or supervised under control orders without being brought to trial.

Conservative and Liberal Democrat MPs, as well as a number of rebellious Labour politicians, opposed the new law on the grounds that it violates one of the oldest principles of British law, habeas corpus, or the right not to be imprisoned without recourse to the courts.

The Government argued that some dangerous terrorists could not practically be brought to trial, either because the evidence against them was obtained through surveillance and therefore inadmissible, or because the evidence was classified.

Attentive readers will recall that this was precisely the excuse trotted out in thinly veiled terms by Bush and Howard government mouthpieces as to why Mamdouh Habib wasn’t charged with terrorism offences.

Habeas corpus and the right to a fair trial are just about the most basic of protections of a free society. They’ve survived any number of wars and crises that were self-evidently more grave than the current War Against Terror. Certainly internment of enemy aliens was sanctioned during both World Wars 1 and 2, but administrative detention without trial of any person, Australian citizen or not, manifestly poses a much wider threat to fundamental freedoms.

Police have always been rather fond of the notion that society would be a much better place if they had more powers, and if the judiciary would stop being so inconveniently solicitous of the rights of the accused and realise that police never charge innocent people. So Keelty’s enthusiasm for Indonesian-style justice and imprisonment without trial isn’t really surprising. Nor, I suppose, is Ruddock’s seeming compliance given his previous supine stewardship of refugee and asylum seeker policy.

How could any Right-thinking Australian possibly object to imprisonment without trial on the basis of the sort of devastatingly and unfailingly accurate intelligence information we saw deployed in relation to Iraq’s huge arsenal of WMD? Typical of traitorous Howard/Bush-hating lefties!

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Rafe
2022 years ago

The erosion of civil liberties in the west using anti-terrorism as a “trojan horse” has been alarming for some years now. In the US it was the War on Drugs before that. These tendencies have enjoyed bipartisan support for the most part which has made it virtually impossible to generate any political traction. I just wish that people who care about freedom would give up on divisive zero-order symbolic issues like the Republic and focus on those areas where our freedoms are seriously at risk.

Cameron Riley
2022 years ago

Rafe, the issue of freedom/liberty and Republic are entwined IMO. We are witnessing the failure of representative government. It now exists for the entrenchment and glory of the major factions. It only represents common weal when it doesnt interfere with the major factions goal of absolute power.

The Republic is important because we need that acknowledgement of the necessity of change to implement protections that ensure individual freedom and liberty; as well as defend against government tyranny and arbitrariness.

The Madisonian Republic has explicit constitutional rights. The “bearded men” inexplicably over looked that component. So we have to catch up there. We are a 230 years behind and counting.

Representative government has also skewed to minority interest – ie the interests of the major factions. Madison argued that representative government best represented common weal, but we have seen the process of malapportionment, electoral bribes, etc.

The Imagining Australia folks argue for new layers of specialists to temper the power of representative government, like a smaller Senate and a group of economicists that can adjust the tax rate up and down by 1% to manage the economic cycle alongside the reserve bank.

The South Sea Republic folks, myself included, argue for more direct democracy based methods such as ratification and sortition.

Both are reactions to what can be perceived as the skewing of the representative system by the major factions. When the factions entrench themselves, and seek impugnity – liberty is the first to go. And like you said, the loss of liberty is alarming. Especially when we dont see anyone in the major factions care about it.

But I do think the advance and expansion of indivudal liberty is entwined with Republicanism. The Westminster representative system has exhausted itself. It needs evolution to genuinely represent a free people and protect our liberties.

Rafe
2022 years ago

There is indeed a tangled complex of issues here and I have grave reservations about the effectiveness of more direct forms of representation, apart from the citizens right of veto if the Parliament loads the dice too much in favour of some faction. This is essentially a brake (a NO or a refutation, if you like) rather than giving direction (or confirmation of a direction).

Cameron Riley
2022 years ago

Rafe, direct representation would need to be phased in at the parliamentary as well as electoral level. The most immediate form would be to have ratifiers – chosen by sortition – that are between parliament and the GG. So the ratifiers can veto repugnant legislation with super-majorities.

The big issue though, is that government is trading our liberties for absolutely no reason. Ensuring maximum liberty is a common cause and government is failing on this.

Dave Ricardo
Dave Ricardo
2022 years ago

You can’t blame Keelty. not really. He’s a cop; his job is to catch bad guys as expeditiously as possible, and if ancient liberties get trashed in the process, that’s not his department.

Ruddock has no such excuse. As Attorney General, he should be providing a brake on the illiberal use of executive power, not an accelerant for it.

Rob
Rob
2022 years ago

I’d like to put a contrary view if I could.

It is not the fault of governments or the police or intelligence services that special legislation is being considered, or in the case of the UK, enacted, to deal to deal with the particular case of terrorism. It is the fault of the terrorists.

After September 11, it became increasingly clear that liberal democracies are frighteningly open to terrorist attacks and heavily constrained in their ability to identify, locate and deal with terrorist elements in their midst. Our system of government, with its network of checks and balances, is essentially designed to restrain the power of the state and inhibit the exercise of its authority over citizens and nationals. We can all agree that that’s a good thing – although extremists of left and right never have.

However, our system and its architects never envisaged a situation where a sizeable number of peoples residing within it would determine on a course that had the objective of destroying the very civil society that the system was set up to establish and protect. And more than that, that they would systematically exploit the constraints on state power to further their aims.

This is the dilemma, it seems to me, that governments confront today. Civil society as we know it requires the state to be constrained; conversely, the state must be able to protect the civil society from attack, both from within and without.

Before the advent of liberal democracy, there would have been no problem: the equivalent of terrorists and their advocates would simply have been done for sedition and treason and promptly hanged (or guillotined, or shot).

Thankfully, those options are no longer available to the state. But it has to find some other way. The stark reality is that in Australia, the US or the UK or Europe or Asia – almost anywhere, in fact – anyone so minded can strap themselves up with explosives, enter a crowded public place, and self-detonate. And terrorism is truly transnational: a radical imam in London can urge his fiollowers to do just that – in Iraq, in Israel, in Saudi Arabia. This is what the police and security services are charged to prevent.

Our ancient liberties were desgined to protect the community from the state. Now we have seen the emergence of a great and growing danger to the community from elements embedded within it. How to achieve the kind of protection the community rightly expects? That is the question.

The other question of course is how to ensure that where those ancient liberties are infringed, it is only because the danger is real, manifest and pressing. Here the watchdog and accountability roles of authorities such as the Inspector-General of Intelligence and Security become critical, since they have access to all the information – including that which is classified – which the courts do not.

In the end, it is far better that these issues be ventilated and debated publicly, and that the ultimate solution, even if illiberal on its face or indeed sustance, is endorsed by parliament with whatever provisos it deems necessary (sunset clauses, etc.).

I recognise that this is difficult and dangerous territory in which to walk, especially if you believe, as I think we all do here, in the core values of liberal democracy. But, to reprise the trite phrase, these are difficult and dangerous times.

Finally – something has to be done, or we may well eventually face our own September 1. The government, the police and security services have not imagined the threat into existence: the terrorists have created it. So if not this, then what?

Rob
Rob
2022 years ago

Ooops – ‘our own September 11’, that should have been.

And as a coda: far, far better it be done this way than as was done, one suspects, during the Thatcher years of combating the IRA, when the security forces took matters into their own hands and acted extra-judicially with the tacit approval of the government.

Tiny Tyrant
2022 years ago

Rob,

So, rather than our elected leaders and police acting like terrorists outside of the law, we change the law, allowing them to remain within it?

A cumbersome and permanent approach to a temporary problem (I refer to the terrorist’s ’cause’, as opposed from terrorism).

These laws will not rid the world of terrorism, nothing can. It is a ridiculous idea to even suggest it.

Rob
Rob
2022 years ago

Not really my point, with respect, TT. These laws will enable the government to protect the community from terrorism, not eradicate it from the world. I am more sanguine on that point than you, incidentally. Terrorists like the ETA or HAMAS have an identifable goal, or end-state, which however difficult to achieve will see their advocates and practitioners clinging to the faith in the hope that one day it will be accomplished. Islamic terrorism has no identifiable end-state other than the implementation of a new theocratic caliphate and the Islamisation of the entire world. I suspect – though I may well be wrong – that this will burn out much more quickly than the generations-old terrorism that derives from historical aspirations such as Basque separatism or an united socialist Ireland or the annihilation of the state of Israel.

Dave Ricardo
Dave Ricardo
2022 years ago

“These laws will enable the government to protect the community from terrorism”

Even if that is true (very doubtful given the quality of our intelligence services) what will happen for certain is that these laws will be abused by the authorities who will use them for purposes unrelated to terrorism.

How do I know? Because it is happening already. As I write, two British men are fighting extradition from the UK to the United States because it is alleged they committed a business fraud – in the UK, but with American victims. The law that enables the extradition to take place is one enacted by the Blair Govenment after 9/11, at the request of the Bush Administration.

Its intention was to allow terrorists who had committed crimes against Americans but were caught in the UK to be deported to the US. (Needless to say, Bush refused Blair’s request to pass a reciprocal law.) There was never any stated intention to use this law against alleged white collar criminals, but that’s what has happened.

The evidence against the two men is weak but because this law was purportedly to fight terrorism, essentially all that is required is an allegation, not meaningful evidence. If they get deported, they face two to three years in jail before their case even comes to trial.

Forget the theory that we need illiberal laws to fight nihilistic Islamic terrorism. The British example is what we’ll get in practice.

Rob
Rob
2022 years ago

Dennis Richardson’s comments are germane, I think.

http://www.heraldsun.news.com.au/common/story_page/0,5478,12635709%255E661,00.html

Richardson is a former Hawke staffer who has gone on to become probably ASIO’s best-ever head. His remarks deserve to be listened to with respect, IMHO.

Ben Cross
Ben Cross
2022 years ago

I am a first year uni student assigned the task of a senate simulation in the role of Attorney-General Phillip Ruddock. The task requires presenting a proposal on the new aquired control of the senate. Your views on these two issues woul dbe greatly appreciated.

Ben Cross
Ben Cross
2022 years ago

I am a first year uni student assigned the task of a senate simulation in the role of Attorney-General Phillip Ruddock. The task requires presenting a proposal on the new aquired control of the senate. Your views(and any other informed readers) on these two issues would be greatly appreciated.

Mindy
Mindy
2022 years ago

I can understand the frustration of the police force and their desire for better laws to help combat terrorism. Perhaps their current push for changes is designed to end in a middle of the road compromise which gives them what they need. Its pretty much accepted practice to ask for more than you know you’ll ever get, in the hope that you might get what you need.