Does Terrorist Laws Protect Citizens From Terrorists

Written by: B. Carroll 12th June 2008 “Within Western societies the persistence and recreation of tradition was central to the legitimization of power, to the sense in which the state was able to impose itself upon relatively passive ‘subjects’.1 The current global security environment of conservative neo-liberalism government (in Australia) as described by Thorne and Kouzman has taken advantage of “the political and economic opportunities presented by the ‘War on Terror’.2 Terrorism and terrorist organisations are a threat to the people of Australia. In regarding risk management strategies to counter terrorism and national security the Australian Government has enacted an extensive legislative regime.

With unprecedented powers given to police and security

agencies under this legislation there is a risk to civil liberties in Australia. In broadly defining what terrorism ‘is’ the Australian government has indicated conduct/behaviour that it deems to disrupt social cohesion and to place or potentially place individuals, communities and the Australian government at risk. This legislation is a means to protect Australian citizens from great harm, but this comes at a cost. I question the equality of Australia’s counter terrorist legislation balanced against human rights protection. This utilitarian legislation is an abuse of power. This research paper shall engage with the court proceedings and commentary of two cases under Australia’s Anti-terrorism legislation that of Joseph ‘Jack’ Thomas and Faheem Khalid Lodhi.

1

Giddens, A, ‘Living in a Post-Traditional Society’ in U Beck, A Giddens and S Lash (eds), Reflexive Modernization: Politics, Tradition and Aesthetics In The Modern Social Order, Stanford California, Stanford University Press, 1994, p.56. 2

2

Thorne, K. Kouzmin, A, The USA PATRIOT Acts (et al): Collective Amnesia, Paranoia and Convergent, Oligarchic Legislation in the ‘Politics of Fear’, Flinders Journal of Law Reform, Issue 10, 2007/2008, p.544.

Written by: B. Carroll 12th June 2008 Since September 11th 2001(Black Tuesday)3 there has been comprehensive implementation of federal legislation, approximately 31 key anti-terrorism legislative pieces.4 On the other hand in protecting the security of the Commonwealth from an invisible enemy, it has placed Australian’s in a swift flow of changes in law. Research shows there is broad academic criticism aimed at the speed of this anti-terrorism legislation. Due to haste, people’s rights have been left by the way-side. Jude McCulloch states that “the quantity and pace of legislative change in this area has reduced the opportunity for informed debate.” Furthermore the greatest criticisms are directed towards security and police agencies extraordinary powers and the wide scope of terrorism definition. The extraordinary powers given to ASIO, AFP and state police and security officers in the areas of preventative detention orders5 and the issuance of control orders6 are carried out with-out due process and are a threat to the rule of law.7 There is flaw in the Australian government’s hard stance in giving unprecedented wide ranging powers to pre emotively intercept and combat potential terrorist acts. Whereas terrorist legislation has been constructed enabling prosecutor’s to ‘create a ‘terrorist’’8. Evidence is shown in the criminal case against Faheem Khalid Lodhi. 3

Vidal, G, Perpetual War for Perpetual Peace: How We Got to Be So Hated, New York NY, Thunder’s Mouth Press, 2002, p.3. 4

Australian Government, Australian National Security, http://www.nationalsecurity.gov.au

5

Criminal Code Act 1995, pt 5, div 105.

6

Criminal Code Act 1995 pt, 5, div 104.

7

Emerton, P, ‘Australia’s Anti-Terrorism Legislation: A Threat to Democracy and The Rule of Law’, Dissent, (Summer) 2005/2006, pp.19-21. 8

Mc Culloch, J, ‘Australia’s Anti-Terrorism Legislation and the Jack Thomas case’, Current Issues in Criminal Justice, [online], Vol. 18, Issue 2, (November), 2006, p.359.

Written by: B. Carroll 12th June 2008 In court proceedings against Faheem Khalid Lodhi9the inference to his association with the then terrorist suspect Willie Brigitte, was key to establishing proof of intent. Lodhi was charged with four offences under Chapter 5 (The Security of the Commonwealth), Part 5.3, Division 101 of the Criminal Code Act 1995 (Cth). Charged with offences prescribed under Division 101.4 of possessing a “thing” connected with a terrorist act regardless of whether that terrorist act will occur or not. This terminology “thing” is very dubious, for the magnitude to what the interpretation of a “thing” is can be near limitless. While Lodhi’s intention may well have been to commit a terrorist act. Yet it was Lodhi’s alleged association with Willie Brigitte, this common association,10which was heavily inferred upon to support all charges against Lodhi. Whealy J in the New South Wales Supreme Court expressed that actions in preparation or connected with a terrorist act “as a matter of logic and common sense... had to be met with harsh legislation.”11 Whereas would it be enough of a deterrent too have legislation only dealing with acts of terrorism after an act is committed. Conspiracy is a crime. However with conspiracies there must be a plan and formal agreement to commit a criminal act. New anti-terrorism legislation has seemingly discarded the legal need to prove an agreement has been made to commit an act. That guilt can be found in the “type” of person and not solely the action of the accused. Furthermore that on appearance the case against

9

Regina v Lodhi (2005) NSWSC 1377

10

Regina v Lodhi (2005) NSWSC 1377. (File Number SC 2005/1094 Motion re Indictment 23rd December 2005) 11

Regina v Lodhi (2005) NSWSC 1377, op cit

Written by: B. Carroll 12th June 2008 Lodhi has created a new category of offence that criminalizes an association, this has occurred without substantial evidence and without legal justification.12 During the course of Lodhi’s trial substantial information’s were given by ASIO and protective orders were made. This was for protection of ASIO and other security agencies and individuals in relation to evidential document content and informing witness’s during the trial13. Lodhi appealed this order on the basis of being denied the right to a fair trial and open justice. This appeal was dismissed on the basis of seriously compromising future operations by ASIO and other security organisations. Lodhi was convicted of three of the four offences and sentenced to 20 years imprisonment.14 As a consequence, it can be prescribed that the right of an accused person to a fair trial is to be set aside for the security of the Commonwealth. The severity of pre-emptive/prepatory legislated terrorism offences are a stance in showing that tolerance is zero. But this stance seems to have come at a cost to maintaining individual’s civil liberties and open justice. A realistic balance of probabilities is needed to evaluate Australian legislation regarding terrorist activities. Specifically with the issuance of control orders that came as legislative amendments made to the Criminal Code Act 1995. Joseph Thomas was the first recipient of a control order in 2006 issued under Chapter 5 division 104 of the Criminal Code Act 1995.15 Thomas appealed the

12

Sorial, S, ‘GUILT BY ASSOCIATION The ‘anti-terrorism’ case of Regina v Lodhi’, Alternative Law Journal, Vol.32, No.3, (September) 2007, p.163. pp.160-164. 13

Lodhi v Regina (2006) NSWCCA 101

14

Lodhi v Regina (2006) NSWSC 691

Written by: B. Carroll 12th June 2008 imposed control order in the High Court of Australia.16 In a 5-2 decision the laws under which the control order was imposed was judged to be legally constitutional.

17

Justice Hayne found that while the control order regime was

supported by the defence power, he dissented in finding that it infringed Chapter III of the Constitution. Also in dissent Justice Michael Kirby further found that Division 104(Criminal Code Act 1995) was not supported by any head of legislative power and breached the requirements of Chapter III of the Constitution. Justice Michael Kirby stated “Whereas, until now, Australians including in this court, have generally accepted the foresight, prudence and wisdom of this court..., they will look back with regret and embarrassment at this decision when similar qualities of constitutional wisdom were demanded but were not forthcoming.”18 In relation to his decision by the High Court this is very significant because it highlights Australia’s failed obligations to the United Nations International Covenant on Civil and Political Rights.19The rights to free association and movement are not an absolute. In supporting the International Covenant,

15

Jaggers, B, Anti-terrorism control orders in Australia and the United Kingdom: a comparison, Canberra, Parliament of Australia, Department of Parliamentary Services, Parliamentary Library, http://www.aph.gov.au/library , No. 28, (April) 2008, p. 6. Cited 18th May 2008. 16

Thomas v Mowbray (2006) HCA 33

17

Kate Gibbs, ‘Jihad Jack’ loses High Court Challenge, Lawyers Weekly Online, http://www.lawyersweekly.com.au/articles/8216-Jihad-Jack-8217-los, posted 10th August 2007. Cited 21st May 2008. 18

Thomas v Mowbray (2006) HCA 33

19

International Covenant on Civil and Political Rights (ICCPR) 1966

Written by: B. Carroll 12th June 2008 incorporation would help to legally establish a clear human rights framework for counter terrorism legislation in Australia based on International standards. It bears to conclude that it is a small group of people who are given the power to protect citizens in addressing the increased potential threat of extremist terrorist acts in Australia. Current legislation enacted in Australia to counter combat a potential act of terrorism may be a heavy utilitarian hand. But in good faith our right to point out with a view to reforming errors or defects made by Federal or State Government, the Constitution or legislation is still in contact.20 For individuals to participate effectively in a democracy they not only need but therefore must have the rights of liberty, physical integrity and dueprocess.21 With the dissent of Justice Kirby in mind what is the future of Australian’s when the Government becomes the law breaker of the superior authority of its own Constitution.

20

Criminal Code Act (1995) Part 5.1, Div, 80.3.

21

Debeljak, J, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’, in T Campbell et al (eds), Protecting Human Rights Instruments and Institutions, New York NY, Oxford University Press, 2005, p.149

Written by: B. Carroll 12th June 2008

BIBLIOGRAPHY 1. Australian Government, Australian National Security, http://www.nationalsecurity.gov.au 2. Debeljak, J, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’, in T Campbell et al (eds), Protecting Human Rights Instruments and Institutions, New York NY, Oxford University Press, 2005. 3. Emerton, P, ‘Australia’s Anti-Terrorism Legislation: A Threat to Democracy and The Rule of Law’, Dissent, (Summer) 2005/2006, pp.19-21. 4. Gibbs, K, ‘Jihad Jack’ loses High Court Challenge, Lawyers Weekly Online, http://www.lawyersweekly.com.au/articles/8216-Jihad-Jack-8217-los, posted 10th August 2007. Cited 21st May 2008. 5. Giddens, A, ‘Living in a Post-Traditional Society’ in U Beck, A Giddens and S Lash

(eds), Reflexive Modernization: Politics, Tradition and Aesthetics In The Modern Social Order, Stanford California, Stanford University Press, 1994. 6. Jaggers, B, Anti-terrorism control orders in Australia and the United Kingdom: a comparison, Canberra, Parliament of Australia, Department of Parliamentary Services, Parliamentary Library, http://www.aph.gov.au/library , No. 28, (April) 2008. Cited 18th May 2008. 7. Mc Culloch, J, ‘Australia’s Anti-Terrorism Legislation and the Jack Thomas case’, Current Issues in Criminal Justice, [online], Vol. 18, Issue 2, (November), 2006, pp.357-365. 8. Sorial, S, ‘GUILT BY ASSOCIATION The ‘anti-terrorism’ case of Regina v Lodhi’, Alternative Law Journal, Vol.32, No.3, (September) 2007, pp.160-164.

Written by: B. Carroll 12th June 2008 9. Thorne, K. Kouzmin, A, The USA PATRIOT Acts (et al): Collective Amnesia, Paranoia and Convergent, Oligarchic Legislation in the ‘Politics of Fear’, Flinders Journal of Law Reform, Issue 10, 2007/2008, pp. 543-580. 10.Vidal, G, Perpetual War for Perpetual Peace: How We Got to Be So Hated, New York NY, Thunder’s Mouth Press, 2002. 11.Criminal Code Act 1995 (Cth) 12.International Covenant on Civil and Political Rights (ICCPR) 1966 13.Lodhi v Regina (2006) NSWCCA 101 14.Lodhi v Regina (2006) NSWSC 691 15.Regina v Lodhi (2005) NSWSC 1377 16.Thomas v Mowbray (2006) HCA 33