Terrorism and the Right to a Fair Trial

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Earlier this year, Attorney-General George Brandis has been urged to consider new terrorism legislation.

Since 2001, Parliament has seen the introduction of over 50 pieces of legislation relating to terrorism. But many of the new laws have run contrary to the principles of criminal justice.

One legal giant stated that he would rather see ten guilty people escape than let one suffer, and lent his name to this maxim that would become known as the ‘Blackstone Ratio’.

But what happens if even one of those ten guilty people had the potential to kill hundreds or even thousands of others?

This is the reasoning behind the argument that the freedom of the one should be sacrificed.

This is the moral conundrum with which our law continues to grapple, finding a balance between protecting Australia from terror threats while preserving the integral freedom and rights of individuals.

Terrorism is in some ways different from other crimes – there may be no particular target or targets but the victims could be random and numerous.

Yet there are plenty of reasons why we should not have laws that erode the fundamental rights and principles on which our legal system was built.

While Australia is fortunate to have largely escaped from terrorist attacks, our laws remain amongst the strictest in the world. This might not be a problem, except that they clash with our civil liberties.

In a terrorism charge, the defendant must disprove the charges, reversing the burden of proof that has historically been on the prosecution.

This goes against the presumption of innocence that has always been an integral feature of Anglo-Australian common law. Click here to read more about the origins and the advantages of the presumption of innocence.

A person held in custody on suspicion of terrorism can be detained for questioning without charge for renewable periods of seven days, which could in theory, be renewed indefinitely (for comparison, the usual time that a suspect can be held for questioning is a “reasonable time” of not more than four hours, although this period may be extended by a warrant for another four hours).

It is a criminal offence to refuse to answer a question if arrested on terrorism charges (in contrast to the general right to remain silent) and no avenue of judicial review is available.

Schedule 7 of the Anti-Terrorism Act (No 2) of 2005 makes using force or violence to bring the Sovereign into hatred or contempt or to “urge disaffection” for the Constitution, the Government of the Commonwealth or either house of parliament.

The punishment is seven years imprisonment.

Such a crime seems to go directly against the principles of political freedoms and liberty, especially since it has been held by the High Court that the Australian Constitution provides for agitation for legislative and political changes.

Anyone who is old enough to remember the 1950s will likely remember that it was during this decade that Australians voted in a referendum against outlawing the Australian Communist Party.

Many chose to vote against it on the grounds that it would lay the groundwork for further limiting freedom of speech and association.

The aims of the Communist Party would no doubt have contravened the above provision of the Anti-Terrorism Act.

In 2009 Australia watched the effects of terrorism legislation play out in the case of   Mohamed Haneef, an Indian doctor who was arrested and held for twelve days before being charged with a terrorist offence.

Many Australians may not realise the implications of these laws, reasoning that if they have nothing to hide, the laws will not negatively affect them.

There are two problems with this: the first one is that even the innocent can be suspected and even ultimately acquittal, in the case of Dr Haneef would not make up for the twelve long days he spent in prison, unable to contact his family or even know on what charges he was detained.

The second is the perhaps subtle ebbing away of the fundamental freedoms which form part of our laws. In the absence of a formal bill of rights, many freedoms enjoyed by Australians come from the common law, or judge-made law, which are vulnerable to being overridden by statute.

Perhaps the question should be: how can we feel safe, let alone from terrorist attacks, if we cannot rely on our own government to protect our fundamental rights?

To read more about the development of these laws, and why they should go, click here.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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