Separation of powers may be under threat

Control orders have no precedent in Australia. They give the government a second chance to deprive someone of their liberty even after they have been acquitted in a fair trial or had any convictions quashed on appeal. Indeed, there is a real prospect that the High Court could strike down the law as a breach of the separation of powers in our Constitution.

We do need tough laws to deal with terrorism. This is why such offences are among the most serious on the statute book. They not only criminalise committing or attempting a terrorist act, but also beginning to prepare for one. It was on this basis that Faheem Khalid Lodhi was recently sentenced to jail for 20 years for possessing a thing and collecting documents in preparation for a terrorist act, even though he had no specific plan to carry this out.

Control orders go even further. More sharply than other laws, they raise questions about how far we should go in the “war on terror”. They impose sanctions not for what someone has done or due to what they are preparing to do, but because of what they might do in the future. They remove the presumption of innocence and limit a person’s freedom even where there is not enough evidence to convict them under one of our many new terrorism offences.

A control order can regulate almost every aspect of a person’s life, ranging from where they work or live to whom they can talk. A person can also be detained under house arrest. The order can prevent someone leading a normal life without the evidence against them being properly tested.

The law normally states that someone can be deprived of their liberty only where a jury drawn from the community has found the evidence against them proved beyond reasonable doubt. With a control order, there is no jury. A judge sitting alone need only find on the balance of probabilities that the order would substantially assist in preventing terrorism or that a person has received terrorist training.

At the first stage, as has occurred with Jack Thomas, a judge can reach this finding without listening to what someone might say in their defence. Thomas will get a chance to contest the evidence against him, but with very little notice and only after an interim control order has made against him in his absence.

Attorney-General Philip Ruddock has said that our system of control orders copies that of the UK. While the British system bears a strong similarity to our own, Ruddock has failed to mention that our system is missing important British safeguards.

Unlike Australia, the UK has a national Human Rights Act. The UK is also subject to the European Convention on Human Rights. All British law must be read against these two instruments, which set out the basic standards of liberty needed for a democracy. They ensure that tough terror laws do not undermine the rule of law or the values we are seeking to protect.

These protections have had an impact, with UK courts casting doubt over their control order regime. Earlier this month, the UK Court of Appeal held that certain control orders infringed article 5 of the European Convention, which prevents indefinite detention without trial. Australia, with no equivalent law for our fundamental rights, has copied the UK law without the safeguards.

If Thomas fails to overturn his control order, he will not be out of options. He could challenge the constitutionality of the law in the High Court. When the law was rushed though the federal Parliament late last year, many people, including Queensland Premier Peter Beattie, raised concerns about whether it might breach the Constitution.

Our Constitution mandates a separation of powers between the different arms of government. The High Court has held many times that this means that federal judges can only exercise judicial power. It is arguable that making a control order is not such a power because it is alien to how judges normally carry out their role as part of a fair trial. Such a finding could lead to the law being struck down.

Do not be surprised if this is only the beginning of the legal fight. With such an extraordinary new power, the matter will not be resolved until the High Court has spoken.