Tuesday, October 25, 2005

Terror lawyers caught with their briefs down

"John Howard says proposed anti-terrorist laws don't breach the constitution, but lawyers and Queensland Premier Peter Beattie say they may be. Mr Beattie has reportedly received advice from his solicitor-general saying preventative detention and control orders raise constitutional problems. But Mr Howard said he had received advice the laws were constitutional. He said it was not unusual to have conflicting advice from lawyers.
"But constitutional lawyer John Williams said judges and magistrates would be within their rights to argue that the legislation undermined the independence of the judiciary. Dr Williams, of the Australian National University, believed a High Court challenge to the laws was almost inevitable. "Under the legislation, by concealing charges, by forcibly removing people, to holding them in camera, in so much as you're asking the judiciary to be involved either as individuals or as a court, you're asking them to undertake activities which are just wholly incompatible with what we understand the judicial process is."

"Professor George Williams of the University of NSW agreed. Judicial independence could be compromised if judges were seen to be doing the bidding of government by helping police to enforce aspects of the laws, like preventative detention, he said. "Judges may well be reluctant to be involved in a process that they think may undermine their independence or undermine people's perceptions of them doing their job properly as judges and not on behalf of government," Prof Williams told ABC radio today."
"Gough Whitlam, the former prime minister, has attacked the proposed anti-terrorism laws which would allow Australians to be "interned", and then face criminal charges if they spoke to their families or employers about it. Calling for more debate on the proposals, Mr Whitlam yesterday accused the Howard Government of using fear as an election winner. He lamented the fact that his own Labor Party had not joined in opposing the proposed laws."
"Two former chief justices of the High Court have joined two former prime ministers, Gough Whitlam and Malcolm Fraser, and a former chief justice of the Family Court, Elizabeth Evatt, in expressing concerns about the new counter-terrorism laws and calling for greater public debate on their far-reaching implications.
"Laws impairing rights and freedoms cannot be justified unless they are shown to be needed to target an identifiable, present danger to the community," the former chief justice Sir Gerard Brennan said in a statement to the Herald. "A legislature should not attempt to bring in such laws until the community has had an opportunity to examine their terms and decide on their purpose and effect."
"The former chief justice Sir Anthony Mason said recently that it was essential that adequate time be allowed for public and parliamentary debate of new counter-terrorism laws. "It would be disappointing, to say the least of it, if full and frank debate were not to take place for fear that those who stand up for civil rights will be labelled as 'soft' on security," he said in a speech this month.
"Elizabeth Evatt said she was stunned that any Australian government would contemplate the proposals for preventive detention and control orders. "These laws are striking at the most fundamental freedoms in our democracy in a most draconian way."

"Legal and civil rights bodies, including the NSW Bar Association and the Law Council, have criticised the laws since a draft of the bill was leaked by the ACT Chief Minister, Jon Stanhope.

A professor of international law and human rights at the Australian National University, Hilary Charlesworth, said that the provisions for preventive detention and control orders did not include the judicial safeguards the Government had promised. "You've got this walk-on role for the judiciary which is far short of judicial review," Professor Charlesworth said. "In the case of control orders, which go for a year and can be renewed indefinitely, the actual order is issued without hearing from the person who's going to be subject to the orders, so you don't hear from the other side".

"The editor-in-chief of The Age, Andrew Jaspan, told the Law Institute in Melbourne yesterday that the publication of even minor details about a terrorist suspect could lead to lengthy jail terms. Governments were in danger of imperiling the very freedoms they espoused for other countries, he said."

Mussolini, the Cultural Revolution Gang of Four, Hitler, Stalin, even Shakespear ("first thing we do is kill all the lawyers"), all have not been very tolerant of the learned opposition and other so-called "intelligentsia". Howard, for some damned reason, is positioning himself with some very strange bedfellows. And with Beazley in the same bed, there ain't much room for the likes of meself.

More discussion of the legal issues is found here: http://troppoarmadillo.ubersportingpundit.com/archives/009619.html

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