Thought 'death cult' lawmaking ended with Abbott? Think again
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- Category: Uncategorised
- Created: Saturday, 16 April 2016 07:07
- Written by Michael Bradley- The Drum, ABC News
A shadowy entity is deciding the fate of Australian citizenship, while NSW lawmakers want the power to punish those found not guilty of crimes. The erosion of our rights is continuing, just without the fanfare, writes Michael Bradley.
Post-Abbott, the nightmare continues. I say that from the perspective of a person who cares deeply about the rule of law, the separation of powers and the basic human rights which our democracy was designed to protect.
For those who believe the dogma that, if you've done nothing wrong, you have nothing to fear, you can stop reading.
What could be worse than the Abbott era fever-dream of death cult lawmaking? Well, we're no longer being told daily that we're about to be knifed in Martin Place by a hijab'd jihadi and that we need to give up just one extra bit of privacy or freedom so that the feds can keep us safe. But the erosion of our preciously balanced protections from arbitrary state-imposed harm is going on unabated; just without the fanfare.
Two things are happening right now which we should fear in our bones. We really should.
First up is the Crimes (Serious Crime Preventions Orders) Bill, currently before the NSW Parliament.
Unusually, it's the love child of the Police Minister, not the Attorney General, and it wasn't reviewed by the Law Reform Commission or made the subject of discussion with the public or legal profession. It doesn't sound as exciting as Queensland's Vicious Lawless Association Disestablishment Act, but it is no less profound a power grab.
For many centuries, the courts maintained an iron-clad rule: with extremely limited exceptions, a person could only be imprisoned if they were convicted of a crime in a court of law. The exceptions were mainly pre-trial refusal of bail, and war-time expedients.
In more recent times, that boundary has become more porous, as governments look to get around the restrictions of the burden of proof so that it won't be so hard to "lock up bad guys", such as terrorists, bikies and organised crime gangs.
This new NSW law is a major development. It empowers a court, if asked by the police, DPP or Crime Commission, to make a "serious crime prevention order" against a person, which includes any restrictions on that person's freedom of movement or communication as the court considers appropriate to prevent, restrict or disrupt their involvement in "serious crime related activities".
If we were talking about convicted criminals here, then there would be a serious question mark over this law, given that it directly inhibits the freedoms of people who have already served their time. Still, there appears to be plenty of public appetite for continuing to punish criminals well after their sentences have been served.
But we're not just talking about that. This law also allows restrictive orders to be imposed on a person who has been "involved in serious crime related activity", whether or not they have ever been charged with an offence or, if they have, they were acquitted.
To be very clear about this: this law says that if you are charged with a serious crime, and you are found not guilty at trial, the courts can still make orders directly reducing your freedom of movement or communication (for example, house arrest) on the basis that it substitutes its own factual finding for that of the judge or jury who originally acquitted you.
This is a form of double jeopardy, the rule that says you can't be tried a second time for a crime once acquitted, which has been around since Ancient Greece. It also tramples on the principle that you cannot be punished for a crime unless you are tried and found guilty beyond reasonable doubt.
Imagine the cops think you're a criminal. Here's a tool they can use to come after you, unburdened by the need to prove that you've actually committed a crime. All they'll need to prove is that you might.
The other outrage du jour is something called the "Citizenship Loss Board".
Its existence was casually dropped by Immigration Minister Peter Dutton earlier this month. It is apparently actively considering the cases of 100 or so Australian citizens who have been allegedly fighting in Syria and Iraq.
This is a shadow entity of the most extraordinary kind, existing as it does in what is supposed to be a transparent parliamentary democracy. In legal terms, the Citizenship Loss Board doesn't exist at all. It is not mentioned in the Australian Citizenship Act, or the regulations. It was not created by formal delegation of Ministerial power. It is not gazetted anywhere. You will find no trace of it in any official document, at least not one which you will ever be allowed to see.
And yet, it very much exists. Apparently its membership includes bureaucrats from the Departments of Immigration, Foreign Affairs, Attorney General and Defence. It may also include ASIO and AFP representatives.
What does it do? According to submissions made to the Parliamentary Joint Committee when it was considering the amendments to the Citizenship Act which now allow for Australians to automatically "renounce" their citizenship by conduct, the Board will get together to work out whether or not a person has engaged in conduct which has caused them to lose their citizenship, and then report that to the Immigration Minister. His job is then to tell the person that their citizenship is gone.
The amendments were carefully designed to avoid any suggestion that the process of renunciation involves anybody in making an actual decision - because that should be a matter for the courts, not the executive government. That's why the Board is hidden in the shadows.
The reality is that it is a star chamber par excellence; its role is precisely to sit in judgment on the actions of alleged terrorists, and determine whether or not they should have their citizenship taken from them. Its deliberations occur in secret; there is no right to be heard or represented; no right to see the evidence it considers; no right to even know that it is deciding your fate; no avenue of appeal. It is in theory possible to ask a court to review your case on the basis that you didn't in fact do anything to lose your citizenship, but good luck trying to organise that from Christmas Island.
In practice, it is going to work like this: the Minister will one day hold a press conference at which he will hand out a list of names of Australian citizens who are no longer Australian citizens. He will say that they are no longer citizens because they chose to renounce their citizenship by their actions (not words). He will say that, magically, he became aware of this and he's just letting us know.
In truth, the Minister will be acting as mouthpiece for an invisible court of bureaucrats who have passed judgment on the actions and intentions of citizens of this country, with the result that they are citizens no more. It will be as if this outcome was ordained by God. For an appropriate historical precedent for this form of legal process, we have to turn to the Inquisition.
Rest easy, Australia. All these measures continue to be targeted at bad people only. As history's past lessons such as Henry VII's Star Chamber, the Catholic Church's Inquisition and the House Un American Activities Committee amply demonstrate, the rest of us have nothing to fear.
Michael Bradley is the managing partner of Sydney law firm Marque Lawyers, and he writes a weekly column for The Drum. He tweets at @marquelawyers.
Source : http://mobile.abc.net.au/news/2016-04-21/bradley-death-cult-lawmaking-continues/7344290
