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2007/03: Australia's anti-terrorism laws: is the control order that has been placed on Joseph 'Jack' Thomas appropriate? <BR>

2007/03: Australia's anti-terrorism laws: is the control order that has been placed on Joseph 'Jack' Thomas appropriate?

What they said ...
'If you work on the assumption that only those people who could be convicted of an offence are subject to a control order then you wouldn't have control orders'
Philip Ruddock, Australia's Attorney General

'The [control order] regime undermines fundamental principles, including that Australians should be presumed innocent until proven guilty'
Professor George Williams, a constitutional lawyer

The issue at a glance
Joseph 'Jack' Terrence Thomas is an Australian citizen whose previous convictions for receiving funds from Al-Qaeda and using a falsified passport were overturned on appeal on August 18, 2006. The convictions were overturned because it was judged that Mr Thomas' supposed confession had been acquired under duress. Mr Thomas, commonly referred to in Australian media as 'Jihad Jack', had previously been acquitted of providing resources that would assist in a terrorist act.
However, on August 28, 2006, Joseph Thomas become the first Australian to be placed under a control order under the Australian Anti-Terrorism Act 2005. Mr Thomas detention has been challenged in its own right and as the first Australian instance of the operation of control orders whose critics consider an attack on civil liberties.
Defenders of both control orders and the application of a control order to Mr Thomas argue that such laws are necessary to protect Australia's population against terrorist attacks.

Background
On 28 August 2006, following the quashing of his convictions, Mr Thomas was the first person to be issued with a control order under the Australian Anti-Terrorism Act 2005. Written consent for this was provided by the Australian Attorney-General Philip Ruddock.

The control order places the following restrictions on Mr Thomas:
* He must abide by a curfew, confining him to his home from midnight until 5am each morning.
* He is restricted in the phone services he is allowed to operate (one mobile phone, one land line) and must have these approved by the Australian Federal Police. He is prohibited from using public pay phones.
* He is required to seek written approval to make telephone calls.
* He is not to communicate with a list of persons identified as terrorists including Osama bin Laden, Ayman al-Zawahiri and Abu Musab al-Zarqawi.
* He must agree to be fingerprinted.
* He must not leave Australia.

Australian Anti-Terrorism Act 2005
Summary of Australia's 2005 Anti-Terrorism Laws
The laws allow for short term detention for named individuals: without evidence; and without criminal involvement; the detainee may be interrogated by ASIO; disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.
The laws allow for almost unlimited restrictions on named individuals: freedom of movement; freedom of association (including one's lawyer); banning the performing of named actions and owning named items, including actions and things necessary to earn a living; unlimited requirements to be, or not to be, at specified places at any or all times of the day and week; wear a tracking device; and including encouragement to submit to re-education. These restrictions are referred to as 'control orders', and may be granted for a period of one year before review.
The laws allow for significant restrictions on the right of any citizen to express certain opinions: including criticism of, or 'urging disaffection' with the sovereign, the constitution, the government, the law, or 'different groups'.
Exemptions may exist where the target of criticism is agreed to be 'in error'; exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society; onus of proof of goodwill is on the defendant - the presumption is not of innocence.
It becomes a crime, punishable by life imprisonment, to recklessly provide funds to a potential terrorist: funds include money and equivalents and also assets; it is not necessary that the culprit know the receiver is a terrorist, only that they are reckless about the possibility; it is not even necessary that the receiver is a terrorist, only that the first person is reckless about the possibility that they might be.
Police can request information from any source about any named person: any information about the person's travel, residence, telephone calls, financial transactions amongst other information; professional privilege does not apply; it can be an offence to disclose that such documents have been obtained.

Internet information
The text of Australia's Anti-Terrorism Act (No 2) 2005 can be found at http://www.austlii.edu.au/au/legis/cth/num_act/aa22005n1442005241/
Schedule 4 as listed in the Act's table of provisions details the effect of terms of control orders.

On September 9 2005 Radio National interviewer Fran Kelly discussed the proposed Anti-Terrorism laws in Australia with the Attorney General Philip Ruddock.
In the interview the Attorney General gave arguments intended to defend the provisions of the Act.
The interview can be found at http://www.nttf.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Interview_Transcripts_2005_Transcripts_9_September_2005_-_Transcript_-_Radio_National_Breakfast_with_Fran_Kelly_

The provisions of Britain's Prevention of Terrorism Act (which include control orders) can be found at http://www.opsi.gov.uk/acts/acts2005/20050002.htm

The Justice for Jack Campaign is the Internet site of those who are campaigning to have Joseph Thomas' control order removed and who previously sought to have his convictions overturned. The site gives legal updates and gives links to current media treatments of Joseph Thomas. This Internet site can be found at http://www.justice4jack.com/

On July 3 2003 The Education Age published a treatment of Australia's first Anti-Terrorism laws. The Education Age presented some arguments suggesting the necessity for the laws together with claims that the laws significantly infringe Australians' civil liberties and the fundamental principles of Australian law.
These arguments can be found at http://www.education.theage.com.au/pagedetail.asp?intpageid=1160&strsection=students&intsectionid=0

On September 18 2006 Gerard Henderson, a commentator for The Australian and member of the conservative think tank The Sydney Institute had published an opinion piece defending Australia's Anti-Terrorism laws and the actions taken against Joseph Thomas. The full text of Gerard Henderson's comment can be found at http://www.thesydneyinstitute.com.au/ghseContent.php?ghseID=8
The piece is published on The Sydney Institute's Internet site.

On September 17 2006 The Adelaide Advertiser published an opinion piece from the Attorney General Philip Ruddock defending the restrictions imposed on Joseph Thomas.
The full text of this opinion piece can be found at http://www.news.com.au/adelaidenow/story/0,22606,20428681-5006704,00.html

On August 30 2006 the online radical paper 'The New Matilda' republished an opinion piece previously published in The Age. The comment, written by Professor George Williams and Edwina Macdonald was titled 'Separation of powers may be under threat'
The piece argues that the new Anti-Terrorism laws contain provision which may challenge fundamental legal protections in Australia.
The full text of the article can be found at http://www.newmatilda.com/admin/imageLibrary/images/George%20Williams%20AGE%2030%20August%202006mri7LXw33El2.pdf

Arguments in favour of a control order being placed on Jack Thomas
1. Control orders are intended to protect the community, not punish an offender convicted of a crime
Under general principles of law, a convicted person will be imprisoned for three reasons. The first is to prevent them committing further crimes, while second is to act as a deterrent to the convicted person and others who might commit similar crimes. Both these rationale grow out of a concern to protect the community. The third reason is to punish the convicted person.
Control orders are not concerned with punishment. The person whose conduct is being controlled may not have been convicted of an offence and so cannot be punished for this. Rather, their movement and freedom of action are being limited in order to protect the community from what it is reasonably believed they might do.
The federal Attorney General, Mr Ruddock, has noted that control orders are about 'protecting the Australian community, not punishing the person for an offence'.
Therefore, it is neither necessary nor anticipated that a person placed on a control order will have been found guilty of a crime. In fact it is precisely because someone believed to be dangerous cannot be legally imprisoned that a control order is imposed upon them.
The federal Attorney General explained, 'If you work on the assumption that only those people who could be convicted of an offence are subject to a control order then you wouldn't have control orders.'

2. There are legal constraints imposed on the application of control orders to ensure they are not imposed inappropriately
Defenders of the control order imposed on Mr Thomas argue that such orders are regulated by clear safeguards.
In an interview given in September 2005, the Prime Minister, Mr Howard, stated, 'You won't be able to get a control order unless the head of the Australian Federal Police (AFP) has reasonable grounds for making the application. He'll need the consent of the Attorney General, but critically the control order can only be granted by a judge... typically we would see a control order being applied for if a person for example, on information available, was likely to commit a terrorist offence and we had strong grounds for believing that; somebody who may have trained with a terrorist organisation but because that was not a criminal offence at the time the training took place, that person might be free in the community, but might be behaving in a way that gave grounds to believe he could be involved, or about to be involved in committing a terrorist offence. Now in those circumstances the AFP would go to the Attorney General, get the Attorney General's consent and would then have to appear before a court, a federal judge, or judicial officer in order to get the control order. Now that is the best safeguard of the lot. The granting of the control order would be in the hands of an independent judicial officer.'

3. There is significant reason to believe that Jack Thomas represents a threat to the Australian community
It has been repeatedly claimed that although the Federal High Court dislallowed Thomas' early terrorist-related conviction, it did so only because his confession was deemed to have been acquired under duress. The facts of that confession have not, Thomas' detractors point out, been disputed. In an opinion piece published in The Australian on September 2, 2005, that newspaper's editor-at-large, Paul Kelly, noted, 'There are two defining aspects of the Thomas case. First, his confession, disallowed as evidence by the Victorian Court of Appeal, is true and authentic. Thomas has had a long and remarkable association with terrorist groups whose declared aim is to kill Australian citizens and attack this country.
He has had extensive terrorist training, close links with al-Qa'ida, Jemaah Islamiah and the Taliban regime, contacts with senior al-Qa'ida leaders, ongoing terrorist associations after 9/11, volunteering his services to the terrorists after 9/11, operating on a false passport, lying about his activities, enlisting with the Taliban against US and Australian forces and accepting money from al-Qa'ida. All this is true. It puts Thomas into a category of persons and Australian citizens you could count on the fingers of one hand.
This is known because Thomas gave the ABC's Four Corners a detailed account of his activities similar to the interview ruled as inadmissible evidence he gave to the Australian Federal Police in Pakistan.
Federal Court documents say because Mr Thomas trained with al-Qaeda in 2001, 'he is now an available resource that can be tapped into to commit terrorist acts' and is 'attractive to aspirant extremists. They also say Mr Thomas is 'vulnerable' to the views of extremists.'

4. Terrorism represents a new type of risk against which new protections have to be put in place
The point has been made that the threat of organised violence against a civilian population which terrorism represents necessitates that Australia take preventative measures to protect its citizens. It is, many defenders of the control orders claim, simply too late to restrict the movements of a terrorist suspect once he has committed an offence.
In an opinion piece published in The Australian on September 2, 2005, the newspaper's editor-at-large, Paul Kelly, commented, 'The lesson of September 11, with its mass attack on a civilian population, is the need for ongoing changes in the criminal and security laws with greater provision for prevention, not just prosecution post-crime. Such adaptation is not a denial of Australian democracy but consistent with our democracy.
One sign of a mature democracy is its ability to change its security laws in response to an unprecedented threat to its society. What else would a mature nation do? Denial is not an option. Australia's history shows a nation whose polity adjusts to threats, witness the serious restrictions on civil liberties in World War II under Robert Menzies and John Curtin, with the precise claim at the time from critics that they were destroying Australia's core values. They weren't.'

5. The Australian system of control orders is similar to that operating in the United Kingdom
Defenders of Australia's control orders have attempted to give them legitimacy by claiming they are based on similar orders which can legally be imposed in Britain.
Australia's Prime Minister, Mr John Howard, has suggested that this country's control order laws arose out of the London attacks. Mr Howard has stated, 'We've had the benefit of briefing from the federal police team that went to Britain in the wake of the attack on July 7.'
A similar point has been made by Australia's federal Attorney General Philip Ruddock when he originally argued for the introduction of control orders in Australia. Mr Ruddock stated, 'The point I am making is that control orders are being used in the United Kingdom,. If you look at the preventative detention regime, the United Kingdom has a preventative detention regime of the sort that we are suggesting should be implemented here.'

Arguments against a control order being placed on Jack Thomas
1. The control order imposed on Jack Thomas undermines important rights and legal safeguards
Opponents of control orders claim they are an attack on previously guaranteed rights and that they sidestep important legal safeguards.
Professor George Williams, a constitutional lawyer, has stated, 'A control order targets someone not for what they have done, but for what they might do. The potential scope of an order is very wide, including imprisonment through house arrest.
The regime undermines fundamental principles, including that Australians should be presumed innocent until proven guilty. It can be applied against a person who has been acquitted or who has never been charged. It enables the Government to bypass a fair trial, or to have a second go at a person if it has not managed to secure a conviction.
While the person who issues the control order is an independent judge, the process is unfairly stacked against the defendant. A criminal case needs to be proved beyond reasonable doubt, whereas a control order can be based on evidence that satisfies a balance of probabilities. Even on this lower standard of proof, the terms of the order against Thomas, such as the reference to communicating with Osama bin Laden, have begun to unravel.
The values on which our legal system and that of Britain rest have been developed over centuries. They include independent judges and the principles of justice that led to the quashing of Thomas's convictions. These recognise that governments can abuse their power, especially at times of major conflict. We forget them at our peril.'

2. Control orders impose severe restrictions on an individual's liberty.
Opponents of control orders have argued that they impose severe restrictions on the liberty of any person against whom they are imposed.
Professor George Williams, a constitutional lawyer, has stated, A control order can regulate almost every aspect of a person's life, from who they can talk, to where they work or live. A person can also be put under house arrest.
Under the order, the Melbourne father of three is confined to his house between midnight and 5am, must report to police three days a week, is banned from leaving Australia without permission and is restricted in what phones he can use.
Joseph Thomas' brother, Les Thomas, has stated that the government's actions were 'very psychologically damaging' to Joseph Thomas, who said his brother was also struggling to deal with post-traumatic disorder stemming from being tortured in a Pakistani prison and from solitary confinement in Australia.
Les Thomas has stated, 'Jack is in a very fragile mental state, it will take a long time before he can overcome these things.'

3. Jack Thomas does not pose a threat to the Australian community
Supporters of Joseph Thomas claim that the significance of his involvement with al-Qa'ida has been highly exaggerated. They suggest that his image as 'Jihad' Jack has been fostered by the federal Government and the media. Joseph Thomas brother, Les, has stated, 'Most people who have heard of my brother's case know him by the media's favourite nickname for him "Jihad Jack". It's a catchy piece of alliteration bound to conjure impressions of some kind of fanatic intent on waging holy war against the West, especially among people with no knowledge of the broader Arabic meaning of the word jihad, "to strive to improve one's self".
For anybody familiar with the real Jack Thomas, the person we know and love bears no resemblance to the myth we often read about in the papers.'
Joseph Thomas maintains that he never took any action against Australia and that when he trained with the Taliban and others there were no laws in Australia which would have made it illegal for him to do so.

4. The control order was imposed for political reasons
A number of those opposed to the control order imposed on Joseph Thomas have argued that the order was put in place not because Mr Thomas represented any real threat to the Australian people, but because the overturning of his former conviction was a political embarrassment to the Government which had argued very strongly for his guilt and imprisonment.
This point has been made by Joseph Thomas' brother, Mr Les Thomas, who has stated, 'This has nothing to do with justice or security. The court's decision embarrassed the government and they are going after my brother to try to save face. Amnesty International once described the control order provisions of the anti-terror legislation as "house arrest under a different name". What is Australia coming to when a man can have charges dismissed by the legal system - but the government can still target him like this?'
Les Thomas further claimed, 'Obviously, the decision to quash my brother's convictions and make him a free man were a setback to the Australian Federal Police and the attorney-general's office, whose claims of Jack being some kind of terrorist sleeper were thrown out by a jury.
There have been assorted claims made throughout the trial that have been proven to be false, yet the government is trying to save face in this case and score propaganda points.'
A similar point has been made by Julian Burnside, Joseph Thomas' former lawyer who has stated, 'the Thomas case looks like sour grapes, or political persecution'. Julian Burnside has further noted, 'an allegation that Thomas was disloyal to Australia would make the Order openly political, and would run into all sorts of objections. But the logic of the document suggests that this Control Order is, in truth, an undeclared test of allegiance - a test conducted on Mr Ruddock's rules.'

5. Control orders would represent no protection to the community against a significant terrorist threat
There are some opponents of control orders who object to them not as a violation of civil liberties, but because they are ineffective. Currently in Britain control orders are being criticised because two suspected terrorists have absconded while on control orders.
David Davis, the British shadow home secretary, has said, 'The government justified control orders on the basis of protecting the public from potentially dangerous terrorists. It is therefore hard to understand how this man was allowed to escape, especially while undergoing psychiatric assessment.'
The British Liberal Democrat home affairs spokesman, Nick Clegg, has remarked similarly, 'Since control orders were the government's flagship anti-terrorism measure, this is a huge embarrassment ... the danger of control orders is that they short-circuit due process and keep suspects in limbo. Our aim must be to get suspects into court and, where they are guilty, convicted. This should act as a spur for the government to develop more robust ways to get suspects into court in the first place, such as using intercept evidence.'

Further implications
The control orders that are part of Australia's anti-terrorist legislation have been likened to apprehended violence orders. An AVO is a court order that places certain conditions on a perpetrator of domestic violence. A typical AVO will clearly state that the defendant (the perpetrator) cannot assault, harass, threaten, stalk, or intimidate the complainant (the person who applied for the Order). It may also prohibit the defendant from going within a certain distance of the complainant's home or workplace. Other specific orders can be included if necessary, and the AVO can also protect children who have experienced domestic violence. Apprehended violence orders though well-intentioned have the capacity to be abused, as they can be used to limit the movement of individuals who have yet to commit a crime.
What is disturbing about control order is that their scope is far greater. The AVO is instituted to protect one person or at most a small group of people from the potential threat posed by another person. The potential offender's freedom of movement is usually restricted to the extent that they are required to avoid the person to whom they have been judged to pose a risk. Control orders are significantly different in that their intent and scope are far wider. The control order seeks to control the behaviour of an individual who has been judged to pose a significant threat to a far larger section of the community. Thus they seek to control and limit the behaviour of the person against whom the order has been imposed to a far greater extent.
The difficulty with both actions is that are essentially preventative and can be taken out against individuals who are suspected of being a threat but who may not yet have acted in a way that proves they are a threat. This means there is obviously scope for abuse and misapplication. Any penalty that is imposed on someone because of what it is feared they may do rather than what they are known to have done is capable of being imposed in error.
Increasing the possibility of error are the secrecy provisions which surround control orders. The secrecy provisions which are part of Australia's anti-terrorist laws only increase their capacity to be abused. For example, it can be an offence for someone who has been briefly detained without charge or trial to make public that this has occurred. There are also limited options for appeal against the application of a control order. Once an appeal has been made and failed the appellant has no other form of redress.
Terrorism is a fearful crime and one which it is difficult to counter. However, the difficulty with some of the provisions of Australia's anti-terrorist legislation is that in the name of defending the lives of Australian citizens they put some of our most fundamental rights at risk.

Newspaper items used in the compilation of this issue outline
The Age
AGE, September 4, page 5, news item by V Burrow, `Thomas: warrant served on Age man'.
AGE, September 2, Insight section, page 9, comment by Tracee Hutchison, `Where difference is becoming a threat'.
AGE, September 2, Insight section, page 5, analysis by Kenneth Nguyen, `What price rights?'.
AGE, September 2, page 3, news item by Kenneth Nguyen, `Terror laws' reach queried'.
AGE, September 2, Insight section, page 8, cartoon on control orders.
AGE, September 1, page 17, comment (cartoon) by Peter Faris, `Pondering a question of control'.
AGE, September 1, page 5, news item by Ian Munro, `Magistrate slams "farcical" ban on bin Laden' (with related items, `Howard warns of likely "lifetime" war against terrorism' and 'British split on control orders').
AGE, September 22, page 3, news item by Tom Allard, `No evidence on Thomas, police admit'.
AGE, October 13, page 14, editorial (on erosion of civil rights generally), `Search and seize or search and destroy?'.

The Australian
AUST, September 4, page 4, news items by Fitzpatrick and Karvelas, `Jihad Jack's family raided / Aussies "too relaxed" on terror threat'.
AUST, September 2, page 20, comment by Greg Sheridan, `Libertarians taking liberties with the facts'.
AUST, September 2, page 18, comment by Paul Kelly, `Clearly crying out for control'.
AUST, September 2, page 16, editorial, `Civil wrongs lobby'.
AUST, September 1, page 16, comment by Thane Rosenbaum, `Security is necessary for freedom to exist'.
AUST, September 1, page 16, comment (with cartoon) by Dennis Shanahan, `Labor leader treads carefully on control order'.
AUST, September 1, page 16, comment by Michael Costello, `The prosecution of Jack Thomas was a legal disgrace'.
AUST, September 1, page 6, news item by Neil Robinson, `Ban on bin Laden contacts just "silly"'.

Herald-Sun
H/SUN, October 6, page 13, news item by Mark Dunn, `Push for Thomas to face new trial'.
H/SUN, September 1, page 2, news item by Katie Lapthorne, `Jack ban deemed farcical' H/SUN, September 1, page 23, cartoon.
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