Keeping Jack in a Box


The Jack Thomas case, involving the first use by the Australian Federal Police (AFP) of their controversial powers to seek Control Orders over persons thought likely to commit terror crimes, has exposed worrying flaws, not only in the powers themselves, but in our justice system and even the separation of powers between the Parliament, the Judiciary and the Executive.

The Interim Control Orders imposed on Thomas are not in themselves onerous it is their prejudicial effect on a possible new trial which is most disturbing, and the actual process of the case has been horribly deficient, too.


The first problem is that the Attorney-General Philip Ruddock had a role in initiating the Control Orders because his approval for an application must be sought. The A-G should have no role whatsoever in initiating any criminal or quasi-criminal proceedings. In the 1980s, the Commonwealth and the States, in reaction to heavy criticism of political interference in criminal prosecutions during the 1960s and 1970s, set up independent Directors of Public Prosecutions on the British model which had existed for decades.

This has worked particularly well in NSW where the independence of the DPP is almost absolute. The current incumbent, Nicholas Cowdrey QC, who is appointed for life, takes a fiercely independent view of his position and often strongly criticises politicians of all persuasions when they advocate populist ‘law and order’ policies. This irritates some, but they should thank him for his support of good policy. His strong resistance to political pressure is a very healthy feature of the NSW legal system.

Thanks to Paul Batey

This degree of independence is not replicated in the Federal arena because, there, the DPP is appointed for a seven-year term. Without commenting on the present incumbent, appointees to the position are often seeking re-appointment or judicial appointment at the end of their term. This means the Federal DPP is less independent and less inclined to be critical of the Government. The Howard Government’s recent insistence on giving itself, through the Attorney-General, consent roles in prosecuting the new sedition laws as well as Control Orders has also devalued the DPP’s role.

The Federal DPP’s independence could be increased if the term were lengthened, perhaps setting a retirement age of 70, like Federal judges.

That would not fix the lack of independent ‘prosecution’ of Control Orders because the Federal DPP’s functions extend only to criminal prosecutions and the DPP has no role at all concerning Control Orders. The A-G and AFP are the prosecutors there. Police prosecutions are, elsewhere, confined to the Magistrates’ Courts and even then, a succession of Royal Commissions and inquiries over the last 25 years have strongly criticised that practice, recommending that DPPs take over all prosecutions.

The second problem with the Thomas case was that the application for Interim Control Orders is made in secret, the person sought to be controlled having no knowledge of it. The interim hearing can accept hearsay evidence and the police need only prove their case on the balance of probabilities! This, apparently, is justice.

A third problem arises from the Australian Constitution. The Interim Control Order which imposed a curfew on Thomas was based on section 104.5(3)(c) of the Criminal Code which gives the court discretion to order a person to ‘remain at specified premises’ for up to 12 months.

This extraordinary provision has been described as a ‘house arrest’ order but it goes further than that. ‘Specified premises’ is wide enough to include any building including a prison, a detention centre, or even a tin shed in the Simpson Desert! As such, it is probably un-Constitutional. The High Court has said on several occasions over the past 20 years that, exceptional cases aside, the Federal Parliament cannot give any court the power to detain someone unless they have been charged with a criminal offence.

Because Thomas’s curfew order was based on that provision, under which the court could have imprisoned Thomas for 12 months, his lawyers may apply to the High Court to seek to have the provision ruled invalid. The High Court is likely to split on the issue but the traditional view of ‘no charge, no detention’ was re-stated by two of the Justices in Fardon v A-G of Qld in October 2004. Those two (Bill Gummow and Michael Kirby) are probably the two most influential lawyers in the country one because he is the most frequent dissenter on the High Court (Kirby), and the other (Gummow) because he is the precise opposite. When they agree, their view usually prevails.

If the High Court has any doubts, it will probably lean towards invalidity because Control Orders are unnecessary. The likely candidates for such Orders are people with a history who will invariably be suspected of criminal offences. The task then should be evidence-gathering, something which is now easier than at any time in history because of technological advances. In addition, terror offences are almost always pre-meditated and therefore easier to detect.

A fourth problem was exposed by the way Control Orders were introduced. They were proposed by the Prime Minister at the Council of Australian Governments (COAG) meeting in September last year. The problem with COAG is that although it is a representative body comprising the leaders of Federal and State Governments plus the Local Government Association it is not a democratic one. It cannot make an effective decision unless the Prime Minister agrees with it.

It is striking that the last few COAG meetings have made decisions on fundamental issues which have not been debated in the Parliaments. This is a subversion of the Parliamentary political structure intended at Federation. Unlike any other Federation in the world, power in Australia has centralised over time elsewhere the opposite is the case.

Against this background, the Prime Minister brought his proposals for Control Orders and Preventative Detention Orders to COAG last year. He promised that the (unseen) draft legislation would be in accordance with our human rights obligations, contain appropriate judicial review, and any curbs on fundamental rights would be proportionate to the ends achieved. The Premiers believed him.

Such decision-making effectively shuts out any significant role for State Parliaments or the Federal Opposition Kim Beazley said he was not consulted about the changes.

Consequently, when the legislation came before the various Parliaments, the respective governments and oppositions had already been locked in. It was legislation by Executive fiat. Properly viewed, COAG is an undemocratic meeting of representatives of the Executive Governments, which is held in private, is dominated by the Commonwealth, and reduces Parliamentary involvement in its decisions to a ratifying rubber stamp.

Finally to the politics. The publicity which has and will flow from the Thomas case plays right into the Howard Government’s hands. They’ll love it. Yet another opportunity to exploit fear and ignorance of Muslims right up to the next elections.

Of course, it’s all the fault of those overpaid lawyers. Bloody friends of terrorists. How dare they tell us that Parliament can’t pass whatever laws it likes!

A good furore involving racial/religious dog-whistling plus anti-lawyer inverted snobbery may also provide an effective smokescreen for our wonderful Attorney
-General Ruddock who is currently sitting on the Australian Law Reform Commission’s final report on the new sedition laws. The Commission (‘bloody academics’) delivered it to his office last month.

Ruddock will have to table it in Federal Parliament this month and if he can divert attention to fears of terrorism, the Commission’s expected trenchant criticisms of the sedition changes introduced in the same Bill as the Control Orders last December may be blunted.

Within the next year, the High Court will likely hear a challenge to the Control Order provisions and possibly also to Howard’s unprecedented laws allowing ASIO to detain and interrogate non-suspects. The argument will be the same in both cases: ‘no charge, no detention.’

We are in for an interesting 12 months court cases, State elections and a Federal poll to follow. Will Jack Thomas be facing an application for extension of his year-long Control Orders, conveniently, just before Howard goes to the people? We will have to wait and see.

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