The design of the legislation is to conscript the federal judiciary into sprinkling holy water over assessments made by ASIO and the Federal Police. If one of Papa Doc Howard’s tonton macoutes points the bone at you, basically you’re a goner.
I agree with many of Ackland’s comments, but he does play a little fast and loose with the text in his characterisation of the procedures for issue of “control orders”:
In the case of control orders a federal policeman is supposed to knock-up a bit of paper for the attorney-general saying it is “considered on reasonable grounds” that such an order would substantially assist in preventing a terrorist act or that someone is reasonably suspected of providing or receiving terrorist training.
If the A-G ticks off on that consideration or suspicion then a federal judge or magistrate can be asked to make a control order. All the judge is given is a copy of the attorney-general’s consent and the piece of paper from the federal coppers. That’s it. The person affected is not heard, there is no appeal and the proceedings are not open.
In fact the “piece of paper” the AFP or ASIO must provide to the Attorney-General and then the Court must contain:
(a) a draft of the control order to be requested;
(b) a statement of the facts and other grounds on which the member considers it necessary that the order should be made;
(c) an explanation as to why each of the obligations, prohibitions and restrictions to be imposed on the person by the order is necessary;
(d) a statement of the particulars and outcomes of all previous requests for control orders and preventative detention orders in relation to the person.
Those particulars are not dissimilar to the ones required for applications for questioning, search or wiretap warrants, so describing the document as just a “piece of paper” is perhaps a bit cute, though nevertheless arguably fair. The potential consequences for the subject of a control order are much more drastic and long-lasting than for any of these existing warrants.
In those circumstances, one would think that the minimum requirement for fairness and accountability would be that the AFP or ASIO be required to disclose the actual evidence or other material on which they have based their statement of facts, grounds and explanatory reasons. Otherwise how is the issuing federal judge or magistrate to make any meaningful assessment of whether there is in fact a reasonable basis for suspicion sufficient to impose quite drastic and long-lasting restrictions on a citizen’s liberty? Without such a requirement, an ASIO officer could simply submit to a judge an application baldly stating (say) that the suspect had received terrorist training with Al Qaeda in Afghanistan in 2001, and the issuing judge would have no way of assessing the strength or reliability of that assertion. On what material was it based? Could ASIO have mistaken the suspect for another person with a similar name? Was the suspect just paying an innocent visit to Uncle Omar in Kabul?
If the issuing judge isn’t required to be shown the evidence and the suspect isn’t required even to be told that the proceedings are taking place let alone allowed to know the evidence against him or her (as is the case), then it really is a case of the judiciary being used to “sprinkle holy water” over an assessment made in secret by the spooks.
Admittedly, suspects have a right to seek revocation of a control order under the current draft of the Howard bill, but even then they’re not expressly entitled to know the alleged facts or evidence against them. One would expect that the ordinary common law rules of natural justice would normally operate to require such disclosure in any event, but that then gives rise to obvious difficulties and operational uncertainties. Far better to draft the bill in a way that makes these entitlements clear.
Despite his scathing assessment, Ackland expresses pessimism about the current Howard bill being ruled unconstitutional by the High Court. Personally, I can’t see how the provisions (especially the control order sections) could possibly pass muster in their current form, even with the Court’s present conservative majority. This simply isn’t an exercise of judicial power (i.e. it breaches the separation of powers doctrine), quite apart from offending the so-called Kable “incompatibility” doctrine (or the federal equivalent thereof).
Where I differ from Ackland and other civil libertarian opponents of the anti-terrorism bill is in acknowledging that some such law is almost certainly needed. Intelligence assessments apparently indicate that somewhere betwen 80 and 800 Australian residents may have received some form of terrorist training in fairly recent years. Even if quite a few of those assessments are mistaken and other suspects have changed their minds and sen the error of their ways, it’s a fair bet that some still harbour murderous intentions. As Tim Blair noted the other day:
Mohammad Sadique Khan, the oldest of the four London suicide bombers, trained in a Jemaah Islamiah camp in the Southern Philippines during 2001 and was hosted on a visit to South-East Asia by the mastermind of the October 2002 Bali attack, Hambali …
A BBC report on the Bali-London links yesterday suggested that the British-born Khan, who worked as a primary school teacher’s aide with the children of immigrant families, was in contact with al-Qaeda figures for five years before the London bombings.
You’d be naive to imagine there aren’t a few Sadique Khans in Australia, biding their time for the right opportunity to wreak havoc. At the moment, security authorities clearly lack adequate powers to keep such people under effective surveillance.
But it is possible to legislate an effective regime which both meets the constitutional difficulties discussed here and previously and provides suspects with adequate protection of their human rights/civil liberties. It would simply require the establishment of a powerful independent commission consisting of senior retired judges, to perform the functions presently envisaged for federal courts and judicial officers. The commision would both oversee and approve the issue of control orders and preventative detention orders, and ensure that the subjects of those orders were treated in accordance with internationally-accepted human rights standards. ASIO and AFP would be required to produce to a commissioner all the evidence and other material on which allegations are based, and suspects would have rights of appearance, representation and appeal. They would also be entitled to know and contest the evidence against them, except to the extent that AFP or ASIO was able to satisfy the commissioner that disclosure of the evidence would significantly compromise intelligence sources or endanger people’s safety. Even in that case, the suspect’s lawyer could view and contest the evidence as long as that lawyer held an appropriate security clearance and undertook not to disclose sensitive evidence to the suspect himself.
Such a regime would be effective from a security viewpoint, would avoid constitutional problems with separation of powers or the Kable doctrine, and would adequately protect the rights of suspects. We can only hope that something along these lines is being discussed by the Commonwealth, State and Territory Attorneys-General as we speak (write).
PS A powerful independent commission like this one could also be given the role of supervising and ensuring the proper treatment of asylum seekers in mandatory administrative detention, another area of notorious alleged abuse of human rights standards.
But I won’t be holding my breath waiting for such an initiative from Howard or his esteeemed Amnesty International alumnus Phillip Ruddock. I wonder why self-styled “libertarian” bloggers never seem to concern themselves even momentarily with these sorts of basic liberties? The only sorts of freedoms that appear to concern most of them are their own rights to private property, avoidance of taxation, and anything else that might inhibit their middle class personal pleasures. They’d be more honest if they styled themselves “I’m-alright-Jack-ians”.