Jihad Jack and the rule of law

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.

And later:

…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!!”

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12 Responses to Jihad Jack and the rule of law

  1. Ken Parish says:

    Hi Danielle

    In fairness to Faris, he does seem to concede that there might well be constitutional problems with the control order provisions, or at least he did in a debate with constitutional law academic George Williams that I watched on the ABC a couple of nights ago.

    The focus of Faris’s article is not so much the constitutional validity or optherwise of the legislation but the practical need for some such provisions, and the proposition that Jihad Jack himself apppears on the available evidence (i.e. his uncoerced admissions to Four Corners) to be exactly the sort of bloke authorities would be well advised to keep under very close surveillance. I agree with Faris on both counts.

    As for the constitutionality of the control order provisions, here’s what I observed in a blog post at the time:

    “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”

  2. Danielle McCredden says:

    Ken,

    All of these are valid arguments, and ones which could be brought into the debate. The point is that in this article, Faris poses the question and then avoids answering it. He is presenting himself (or is being presented) as the legal poster boy for this issue, but in this article as an example (and in discussions on the radio as well) he steers clear of actually bringing his legal expertise to bear on the issue.

    It annoys me because lawyers are perceived to be people of authority when they put their imprimatur on a particular issue. He does so without actually bringing any analysis to bear.

    I agree that the focus of the article is on the Four Corners interview and I don’t have any issue with that. All of that though is in response to his second question. I still find his answer to the first question wholly unsatisfactory – even intellectually dishonest.

    PS. You indicate that you believe that even the current conservative bench of the HC will strike this law down. I am not convinced, given the decision in Al-Kateb in which the majority chose to almost totally ignore separation of powers arguments in relation to the indefinite detention of asylum seekers.

  3. Ken Parish says:

    “I am not convinced, given the decision in Al-Kateb in which the majority chose to almost totally ignore separation of powers arguments in relation to the indefinite detention of asylum seekers. ”

    Yes, but that was the other side of the coin, where the High Court held that the executive arm of government could exercise powers in relation to detention that one might have imagined were punitive in nature and therefore matters of judicial power. Moreover, Al-Kateb was (at least arguably) consistent with the decision of the Mason High Court in Chu Kheng Lim, which had held that the immigration and aliens powers permitted the Parliament to vest powers of detention in the executive governmnet, because those powers were not “punitive” in nature but merely incidents of an executive power to deport aliens (ensuring that they would be available for deportation by locking them up to prevent absconding).

    Al-Kateb was admittedly something of an extension of the Chu Kheng Lim principle because there was on the facts of the case no clearly foreseeable prospect of deportation in that no other country would accept the failed asylum seekers in question, so ongoing indefinite detention was much less convincingly characterisable as genuinely incidental to the deportation power (one could reasonably have viewed that as a mere pretext and the true purpose as punitive and therefore an aspect of judicial power).

    Nevertheless, the Al-Kateb decision arguably did less violence to existing separation of powers doctrine than would a decision holding that federal judges (not members of the executive government) could validly order that someone have their liberty severely curtailed for a prolonged period not for something they had done but for something they might conceivably do in the future. It’s not judicial power because it’s creating rights and liabilities in futuro rather than adjudicating on the breach of existing laws, and moreover it’s a type of executive power that is much more contentious and “political” than the sorts of executive function the High Court has until now been prepared to countenance as appropriate for conferral on individual judicial officers as persona designata. That isn’t to say that it might not be upheld by a sufficiently sympathetic bench. The control order function at least keeps judges more at arm’s length from the executive government than the situation in Wilson v Minister for Aboriginal Affairs, where the judge was required to provide policy advice to the Minister! Nevertheless, upholding the validity of a control order function for federal judges would involve a more extensive loosening of the separation of powers doctrine than did the High Court’s decision in Al-Kateb.

  4. Danielle McCredden says:

    Hmm, I think that for these reasons we are seeing an interesting period in the development of law – having moved from an era when the HC is prepared to be extremely creative to conjure constitutional magic seemingly out of thin air, on to a time when the bench will bend over backwards to conjure interpretations favourable to the powers of the executive.

    The whole area of so-called anti-terror laws will be constitutionally interesting because, while cliched, it is true that we are dealing with a type of danger which by definition does not fit within our traditional frameworks. So we have seen a lot of legislative experiments with retrospectivity, prospectivity and similar. I don’t have a philosophical problem with control orders as a tool, but obviously the devil is in the detail.

    Our system is capable of using such orders in clearly defined circumstances (as the analogies with the state system works) and it would be perverse if those sorts of arrangements could be implemented in instances of mental health but not for terrorism.

    The conceptual difficulty I have with all of these efforts is, given the ground-swell of public support for anti-terrorism, then why doesn’t the government set up transparent systems which don’t violate the separation of powers?. They want to give judicial power to the Minister of immigration where one assumes a tight framing of a question for review by a judge would have required a permanent detention order. And they want to give extra-judical power when an appropriate ministerial approach could probably have accomplished the same goal.

    If terrorism is such a threat, then let the light shine on the legal responses to it. Even if the legislative response is disproportionate and unjust from the perspective of latte sipping law graduates, so long as it was properly implemented, the public would support it (one assumes).

  5. Don Wigan says:

    Leaving aside the legal niceties, some of the detail may need a bit of brushing up by the AFP or Ruddock.

    According to one radio report, the presiding magistrate found some of it farcical. Among other prohibitions imposed on Jack was that he must not attempt to communicate with Osama Bin Laden.

    Now, despite a reward offer of $25 million, the US have not gone close to tracking him down in 5 years. Where on earth did the AFP get the idea that Jack would be any more successful? And of course, assuming the aim is to catch Bin Laden (albeit the idea of an elusive demon forever haunting them probably has more propaganda appeal), surely it would make more sense to encourage Jack to make contact provided the tracking spooks were in place.

  6. taust says:

    i would appreciate the argument against giving the executive the power to issue the orders rather than the judiciary.

    The other side if the coin in giving either the executive or judiciary extra-ordinary

  7. Yobbo says:

    I don’t really understand the point of the control order. Presumably they are surveilling this guy – why would they want to confine him to his house?

    Wouldn’t it better if he DID go and make contact with terrorists so they could identify and/or capture them?

  8. rog says:

    I put the control order in the same hat as gun laws, “we think you may commit a crime so for the security of the public we will restrict some of your rights.”

  9. Danielle McCredden says:

    What is the point of the control order?

    In this instance, apparently to divert attention from the fact that the conviction of our downunder bin laden has just been overturned, because the only piece of evidence was obtained as a result of oppressive interrogation techniques.

    I have a sneaking suspicion that most of the anti-terrorist laws will be used much more for their PR capacity (look, we are doing things to defeat terrorists) than for their efficacy in actually defeating terrorists.

  10. rog says:

    I wouldnt be too quick to confess to being suspiciously sneaky..

  11. whyisitso says:

    “Where on earth did the AFP get the idea that Jack would be any more successful?”

    Maybe because he’s already met Osama Bin Laden, Don?

  12. derrida derider says:

    Yeah, this control order looks much more like sour grapes than an attempt to prevent future crimes. And that illustrates Danielle’s implicit point that this sort of legislation will inevitably be used for other than it’s stated purpose; only a fool trusts governments not to do so.

    Given the surveillance he’s under and his evident chastening, the risk of Thompson carrying out a terrorist act must be exceedingly low, with or without the order.

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