Controlling Jack Thomas

Jack Thomas š conviction was quashed on 18 August. On 28 August he was served with a Control Order. It is an interim Order, which can be confirmed at a hearing later this week.

The Order imposes a curfew, confining him to his home between midnight and 5:00am each day; it prevents him from contacting certain named people; it restricts his use of electronic communications; and it requires him to report to the Werribee Police Station 3 times a week.

Thanks to Bill Leak

When the Order was served, Thomas was holidaying at a beach in South Gippsland with his family. Obviously, the Federal Police are watching his every move. Curious then that they obtained the Order from a Federal Magistrate in Canberra, rather than approach one of the many Federal Magistrates in Melbourne. The inevitable result is great trouble, inconvenience and expense for him and his legal team (who are all based in Melbourne), if they want to go to the court later this week to argue that the Order should not be confirmed. If the hearing is on one of the days when he is to report to the police station, there will be real practical difficulties in negotiating court times, aeroplane timetables and the reporting requirement.

Perhaps Thomas should not bother going along to court at all. There is not a lot he and his lawyers can do, because he is not allowed to know the evidence used against him. Thomas is not allowed to know the reasoning which allows the giant leap from his training with al-Qaeda (in 2001) and his being vulnerable (now) to a future terrorist attack. He has not been told how a curfew, or regular reporting to a police station will reduce the risk of terrorism in Australia.

Control Orders are authorised by Division 104 of the Criminal Code. An interim Control Order is made in secret, with the permission of the Attorney-General. When it is made, it must be served on the person against whom it is directed. The Federal Police officer who serves it must explain its effect to the subject of the Order. It must contain a summary of the grounds on which it was made, although the evidence relied on is not provided to the subject of the Order.

The summary of grounds in Thomas’s case is interesting. Here is part of it:

There are good reasons to believe that Mr Thomas is now an available resource that can be tapped into to commit terrorist acts on behalf of al-Qaeda Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.

Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his re-integration into the community.

Furthermore, the mere fact that Mr Thomas has trained in al-Qaeda training camps is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.

The controls set out in this interim Control Order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas’s knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.

The main elements of this Control Order are:

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Firstly, that Thomas trained with al-Qaeda and that he therefore has the skills to be engaged in or involved with a terrorist attack. The same could be said of anyone who has served in the Australian Army; the skill sets are substantially similar. Equally, some who have worked in demolitions or the mining industry would have the same technical skills with munitions.

Secondly, that Thomas is vulnerable. The same could be said of a many people in Australian society, including some who have trained in the Army.

Thirdly, that Thomas could therefore be sought out by a terrorist group in connection with a terrorist attack.

It was not an offence in 2001 to train with al-Qaeda. So the Control Order was obtained on the basis that Thomas was said to have engaged in lawful quasi-military training 5 years ago, and he is vulnerable. The logic of this is alarming, especially in light of Thomas’s recent history.

After he returned to Australia in 2003, he remained free in the community for 18 months. The Federal Police watched him closely. He did nothing wrong.

Now, after he has been traumatised by months of solitary confinement, a committal, a trial and an appeal, he is the subject of a secretly obtained Control Order on grounds which could be used to describe thousands of Australian citizens.

Is it possible that a person who trained in the Australian Army and was psychologically vulnerable would be the subject of a Control Order?

If the answer is ‘Yes,’ then we can expect a raft of them in the near future.

If the answer is ‘No,’ then the Thomas case looks like sour grapes, or political persecution.

But there may be another explanation. Thomas is said to have trained with al-Qaeda. Is there an implication that his loyalties are with al-Qaeda rather than with Australia? The Control Order does not assert that Thomas is not loyal to Australia; it does not say that he is not only vulnerable but also treacherous. Such an assertion would distinguish his circumstances from those of a vulnerable former member of the Australian Army.

Of course 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.

If that is the case, then we are in for a rough time.

It would be a frightening development if Ruddock’s assessment of a person’s loyalty was to be the touchstone for Control Orders. As Immigration Minister, Ruddock presided over the cruellest excesses of the mandatory detention system while wearing his Amnesty International badge.

Ruddock as Attorney-General is one of the few people in the Western world who thought that the David Hicks military commission at Guantánamo Bay would be a fair trial. As first Law Officer of the country he has the task of deciding whether Control Orders and Preventative Detention Orders can be sought. His conception of justice brings disgrace on the office he holds.

If Control Orders can be obtained because Ruddock doubts a person’s allegiance to Australia then we have stumbled blindly into a brave new world in which Ruddock’s conceptions of justice will lead swiftly to the destruction of basic human rights.

Secret orders, secret evidence, control orders without a breach of the law: these are the stuff of Orwell’s Nineteen Eighty-Four.