A permanent state of war

August 17, 2007

On August 2, the High Court of Australia upheld the constitutional validity of a control order on Jack Thomas.

The interim control order was imposed by the government on August 28, 2006, following Thomas's release from prison after a Victorian Court of Appeals quashed his terrorism conviction. It imposes a curfew on Thomas, restricts his communications and requires him to report to police three times a week.

The High Court voted five to two in support of the control order. Justice Michael Kirby, a dissenter, criticised the decision for being based on "legal and constitutional exceptionalism" that threatened to do more damage to the nation than any terrorist act.

Thomas has been used as a political tool by the Australian government and security agencies, eager to establish their credentials as the protectors of Australia from an "evil" threat.

When a jury cleared Thomas last August of any terrorist intentions, that should have been the end of the matter. But that would have been too embarrassing for the government and security agencies, which had worked hard to demonise him. So instead, Thomas is to be retried and has had a control order placed on him, implying that he is an ongoing threat.

The legal basis for Thomas's retrial is a seriously flawed "anti-terrorism" law that criminalises receiving money from a terrorist organisation, regardless of the purpose for which the money is received. Thomas vigorously disputes that the money came from terrorists, but in any case the law being used against him allows for the conviction of non-terrorists. Like the Mohamed Haneef case, Thomas's situation shows how easily the terror laws can be misused for political purposes.

Control orders are a dangerous tool in the hands of governments and police. Although the conditions imposed by the control order on Thomas are not onerous, such orders can be used much more rigorously, including to place under house arrest individuals who are not convicted of any offence. Like the terror laws, control orders have the potential to be used to suppress dissent. In the meantime, they can be used for political advantage.

The High Court's decision in support of the control order on Thomas was based on finding that the "defence" power in the constitution applies not only to external threats or in war. The decision thus implies that Australia is now in a permanent "war" against "terrorists" within and beyond its borders.

This notion of a permanent war is very useful as a pretext for stripping away civil liberties and establishing totalitarian powers, and both the Coalition and Labor leaderships love the idea.

The ALP has supported the terror laws and control orders all the way. It has supported the demonisation of Thomas and would like to lock him up, just as it would have supported Haneef's imprisonment in the Villawood detention centre until his trial if the case against him had not unravelled. We have as much to fear from a future Kevin Rudd government as we do from Howard's.

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