Wheels of justice grind

Last week commentators were crowing that the overturn, on appeal, of the terrorism conviction of Jack Thomas (Jihad Jack) was a triumph for Australian justice.

The appeal court judgment says that Pakistani officials threatened to pour water on Thomas, electrocute him and execute him.

They told him on several occasions: "We're outside the law. No one will hear you scream." One of the officials strangled him with his hood until he screamed. Another threatened to send him to Guantanamo Bay. The evidence, thus gained, was ruled inadmissable.

One writer put the scenario: Imagine for a moment that, instead of being found guilty initially of charges connected to possible terrorist activities, Thomas had been charged with another offence that triggered less passion; say, armed robbery. Then look at the way authorities proceeded to gather the evidence against him.
Thomas was arrested by Pakistani immigration officials in January 2003 and held in solitary confinement for five months. During this time he was not charged, was not brought before a judge and was refused access to a lawyer.

Well the Australian government is having no part in that. While they are forced to release Thomas from setention they have now imposed control orders, under the anti-terrorism act, which severely restricts his movements.

It sounds like sour grapes, but it is something worse. Control orders give the Government a second chance to deprive someone of their liberty even after they have been acquitted in a fair trial or had any convictions quashed on appeal.

Now we will find out how secure the Australian justice system really is, because this has opened the real prospect that the High Court could strike down the law as a breach of the separation of powers in the Australian constitution.

The law normally states that someone can be deprived of their liberty only where a jury drawn from the community has found the evidence against them proved beyond reasonable doubt.

With a control order, there is no jury. A judge sitting alone need only find on the balance of probabilities that the order would substantially assist in preventing terrorism or that a person has received terrorist training.constitution mandates a separation of powers between the different arms of government. The High Court has held many times that this means that federal judges can exercise only judicial power. It is arguable that making a control order is not such a power because it is alien to how judges normally carry out their role as part of a fair trial. Such a finding could lead to the law being struck down.

At the first stage, as has occurred with Jack Thomas, a judge can reach this finding without listening to what someone might say in their defence. Thomas will get a chance to contest the evidence against him, but with very little notice and only after an interim control order has been made against him in his absence.

This issue was canvassed heavily at the time the act was passing through parliament. The constitution mandates a separation of powers between the different arms of government.

The High Court has held many times that this means that federal judges can exercise only judicial power. It is arguable that making a control order is not such a power because it is alien to how judges normally carry out their role as part of a fair trial. Such a finding could lead to the law being struck down.

The governments promoting these draconian measures are consitently being knocked down by the courts; the US with Guantanamo Bay and the related kangaroo courts, or wiretapping, orritain with aspects of their terror laws. There might, in the end, be justice in the system; but it is painfully slow justice.