Some time ago I had a bush-lawyer level discussion with a barrister I’m related to. Among other horror stories, this barrister was helping me come to terms with how any Australian Federal government could choose to use terrorism-related legislation to round up their political enemies through listing them as a terrorist organization. The discussion was not entirely serious, but it appealed to my inner-conspiracy-theorist and I’ve thought about it often. Sure, I understand that Australia is run by good people, and we have a long history of democracy, and there is nothing to be worried about. The moment we began to routinely bypass our legal institutions to mete out politically expedient ministerial justice there would be an uproar! An uproar I say!
Recent events have caused me wonder how close we are to abandoning old-fashioned notions like presumption of innocence, territorial jurisdiction, and habeas corpus. I wonder out loud when the up might be heard roaring.
This is part of a summary of how Australia lists “terrorist organisations”:
Under the law, there are two ways for an organisation to be identified as a ‘terrorist organisation’. Either an organisation may be found to be such an organisation by a court as part of the prosecution for a terrorist offence, or it may be specified in Regulations, known as ‘listing’. For a listing to be effective, the processes set out in the legislation must be followed.
Before an organisation can be listed, the Attorney-General must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.
The Attorney-General of Australia can list a group as a terrorist organization if he is satisfied on reasonable grounds that they are indirectly assisting in a terrorist act. I wonder whether the framers of this legislation thought terribly much about how flexible the concept of “reasonable” can be when an opportunity to grandstand and/or wedge your political opponents presents itself? The lack of checks on this power is pretty staggering. The rationale is that the attorney might need to act in haste to head off a terrorist plot, or whatever. How often will a terrorist organization just spring from nowhere and require the Attorney-General’s lightning listing reflexes to defend the Commonwealth? I don’t think the terrorist organization who’s main weapons are fear, surprise, and an almost fanatical devotion to the Pope are currently active.
So, completely theoretically, let’s imagine you’re a member of the Greens, or even the (old school!) Liberal Party, and you have billeted someone who has a cousin who’s a ship’s captain with Sea Shepherd. Unbeknown to you, they are (hypothetically) secretly plotting to join up with their cousin to jam shipboard GPS signals and force a whaling ship onto a reef. While staying with you they show a keen interest in borrowing a dusty tome from your library — “Readers Digest Satellite Navigation Jamming 2nd Edition 1992.”
After a terrible shipping incident a hypothetical future Labor government might agree with Japan that Sea Shepherd are a terrorist organization and list them. Suddenly you’re a suspect for assisting a member of a terrorist organization and your whole political party is about to be listed just for having you, an aider and abettor of Sea Shepherd, as a member:
When a court has determined, or by regulation it is determined, that an organisation is a ‘terrorist organisation’, it is an offence to:
- direct the activities of the organisation;
- recruit persons to the organisation;
- receive training from or provide training to the organisation;
- receive funds from or make available funds to the organisation;
- provide support or resources to the organisation.
Thankfully you can trivially demonstrate a lack of mens rea, and be given bail to work up a decent defence…
So much for that bail idea:
“The matter that I will be looking at very seriously is this question of the presumption against bail, there was an expectation as to how it would operate and if appeals suggest that we’ve got it wrong, well it’s a matter that the Parliament might well be asked to put right,” he said.
Mr Ruddock says changes to the law may be necessary.
“If we find in relation to these measures that the law that we passed that we expected would ensure that people charged with terrorism offences would have a presumption against bail is not being met we may have to look at that matter further.”
In any case, bail doesn’t count for people on visas. Kevin Andrews decision to put him in immigration detention for having “an association or link” with a criminal or terrorist is a jarring reminder that all immigrants are here at the pleasure of the Minister for Immigration. He can have you locked up or deported the moment he has reason to doubt your character. The Minister for Immigration is Judge Dredd for non-citizens.
I have no insight about the guilt or innocence of Dr Haneef. Haneef’s treatment by Federal Ministers with mumbled support from Labor makes me wonder how close we are to two-party-preferred elected despotism. At the rate we are trashing legal principles and developing a taste for barely checked ministerial powers, we’re getting pretty close.