Ruddock lowers the bar on legal terror tactics

Sydney Morning Herald
November 01, 2005

The Attorney-General has shown himself unwilling to fulfill his traditional obligations, write Ian Barker and Robert Toner.

TRADITIONALLY the federal attorney-general is the notional leader of the bar in Australia. That tradition relies on the attorney-general being the main barracker in defence of civil and political rights in our country. Philip Ruddock is shouting for the other side.

Article 9.2 of the 1966 International Covenant on Civil and Political Rights says: "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

Article 9.4 says: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Australia was a moving force behind this treaty and its parent, the Universal Declaration of Human Rights. These documents - in the absence of an Australian bill of rights - squarely define what we hold as fundamental to our democracy.

The proposed anti-terrorism bill creates control and preventive detention orders which will give the Government the ability to control, monitor and jail people who have not committed a crime. These people will not be charged with a crime.

Fundamental to the concept of the rule of law is that citizens are entitled to due process which necessarily includes a right to know what is alleged against you and the facts that are said to support that allegation and to have the allegation determined by a court of law which stands independent of the executive government.

Neither the person subject to the control order nor anybody acting on his or her behalf is given documentation other than the order itself which describes the basis upon which the order was made. The information that the Australian Federal Police provides may be inaccurate, maliciously informed, biased or little more than rumour or gossip clad as reliable information.

One might have expected our first law officer to be of some assistance to the public, to provide some restraint, to the Prime Minister's legislative ambitions; but no.

Today we are on the edge of a slide into our own 21st-century form of fascism: secret arrest, secret detention, secret interrogation, by secret people. This will be a product of the Anti-Terrorism Bill, itself kept secret until the last minute to avoid scrutiny by those it will put at risk: the Australian public. The premiers and chief ministers are largely compliant in the process, beguiled by secret information derived from the untested assertions of secret intelligence agents.

Lord Acton famously said: "The duty of Her Majesty's Opposition is to oppose." Kim Beazley and Labor, no doubt driven only by poll numbers, have abdicated from that duty. So we have nowhere to turn.

In the time he has been Attorney-General, Ruddock has shown himself incapable of independence consistent with his traditional obligations. For example, we have heard no criticism from Ruddock about Mamdouh Habib's abduction to Egypt by the US military for interrogation by those special Egyptian methods.

Whatever Habib did, he was and is an Australian citizen. Yet Ruddock cannot seem to even admit that Habib went to Egypt, even though ASIO must have told him Habib was sent there from Pakistan. And take David Hicks, who has been imprisoned for some years now in Guantanamo Bay. Along with Howard and Alexander Downer, Ruddock blandly repeats their agreed mantra: Hicks will be fairly tried.

Ruddock is at one with Howard in proposing the most gross attack on the rights of ordinary Australians in peacetime since federation.

The strangest aspect of it all is that no one has ventured an explanation of how or why the legislation is likely to have any affect on the probability of a terrorist attack.

The only argument advanced is: trust us.

Ian Barker, QC, and Robert Toner, SC, are Sydney barristers.


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