Peter Faris today expands his defence of the anti-terrorism laws under which Jack Thomas has been subjected to a control order. He frames this analysis as a reasoned legal one:
Two issues arise. First, is the control-order legislation good and appropriate legislation against the perceived terrorist threat? Second, has this law been appropriately applied to Thomas?
I pricked up my
ears eyes because I thought he might actually go on to set out on a legal basis why he supports the existence of this legislation. But if you read on, his answer to the first question is simple:
But I also point out that the control-order legislation is a valid law passed by our democratically elected parliament and is the law of the land. It must be applied, even if some people consider it to be a bad law.
…it really doesn’t matter what I think. The reality is that any control order proceedings take place according to the laws of Australia, in open Australian courts.
Subject to national security issues, the public (through the media) are made fully aware of any proceedings. An independent judicial officer considers the case and makes impartial findings. His decisions can be reviewed or appealed. The constitutional validity of the law can be tested in the High Court.
As a lawyer writing an opinion piece about whether or not a particular set of legislation is good or bad, Faris has effectively created the “innocent until proven guilty” doctrine as it applies to legislators. Laws are valid until proven otherwise provided they have been properly enacted. This is of course true in a constitutional sense, but Faris is not commenting constitutionally. He is using this response to answer the question “is the control order legislation good and appropriate legislation against the perceived terrorist threat?” Yes, says Faris, so long as it is constitutionally valid.
But despite this slippery evasion, I would herald this opinion piece as a landmark moment in the culture wars. I can see the headlines now – “Right wing legal commentator supports the role of the High Court to strike down unconstitutional legislation!!”