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City Desk
8 September, 2006  
Control Orders: Henderson v Burnside

Old cold-war warrior turned terrorist warrior Gerard Henderson once more got snitchy with Melbourne barrister Julian Burnside. He accused the civil rights man of throwing the switch to “hyperbole” over his criticism of the Jack Thomas control order. Burnside fires back

imageMelbourne silk and tireless advocate for those the government mistreats, Julian Burnside, has been critical of the control order imposed on Jack Thomas.

He wrote as much last month in New Matilda.

Have a look and see for yourself what he said. Then read what Gerard Henderson claimed Burnside had said (The Sydney Morning Herald, September 5).

Burnside believes Henderson misrepresented his argument, in particular on a point about the “elements” of Thomas’ control order. In New Matilda Burnside described one of the elements that underpinned the order in this way:

“Firstly, that Thomas trained with al-Qaeda and therefore has the skills to be engaged in or involved with a terrorist attack. The same could be said of anyone who has served in the Australian army; the skill sets are substantially similar. Equally, some who have worked in demolitions or in the mining industry would have the same technical skills with munitions.”

In other words, like anyone else trained by the military or familiar with munitions there would be, as the control order itself said: “the capacity to execute or assist with the execution directly or indirectly of any terrorist acts”.

imageBut what Henderson attributed to Burnside was the claim that: “Thomas was no more a security risk than a member of the Australian army.”

Hardly the same thing at all. Now Burnside lets fly:

“Here is the Gerard Henderson technique: misrepresent the argument of those you disagree with, demolish the argument that was not made, then accuse the other of hyperbole. His account of my argument about the Jack Thomas control order is an absurd misrepresentation of the point I made. It so completely misses the point as to look willful.

The summary of grounds in the control order recites that Thomas trained at an al-Qaeda camp and that he is vulnerable. Presumably that training involves weapons training. Perhaps it involves political indoctrination. The same could be said of any military training.

Control orders are authorised by Division 104 of the Criminal Code. An interim control order is made in secret, with the permission of the Attorney General. When it is made, it must be served on the person against whom it is directed. The federal police officer who serves it must explain its effect to the subject of the order. It must contain a summary of the grounds on which it was made: the evidence relied on is not provided to the subject of the order.

The summary of grounds in Thomas’ case is interesting. Here is part of it:

‘There are good reasons to believe that … Mr Thomas … is now an available resource that can be tapped into to commit terrorist acts on behalf of al-Qaeda… Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.

‘Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community…

‘Furthermore, the mere fact that Mr Thomas has trained in al-Qaeda a training camps … is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.

‘The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas’s knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.’

The elements of this are:

(a) That Thomas trained with al al-Qaeda and that he therefore has the skills to be engaged in or involved with a terrorist attack.

(b) That he is vulnerable. The same could be said of a many people in Australian society, including some who have trained in the army.

(c) That he could therefore be sought out by a terrorist group in connection with a terrorist attack.

It was not an offence in 2001 to train with al-Qaeda. So the control order was obtained on the basis that he was said to have engaged in lawful quasi-military training five years ago, and he is vulnerable.

What is implicit in the control order and in Henderson’s article is this: We think Thomas is a traitor who might lend himself to an attack on Australia. Unless that assumption is made, training with al-Qaeda nearly six years ago tells you nothing about Thomas now, except that he probably has some skills relevant to a terrorist attack.

If the control order alleged that today, nearly six years later and post-September 11, Thomas is a traitor, it would make sense. Without an allegation that Thomas is a traitor with treacherous plans, the control order is unjustifiable. Thomas faces the problem of not knowing whether his loyalty is directly in issue or not. Perhaps it is just in the vibe.

In this context it is simply not enough to allege that a person trained with a terrorist organisation. If the training had been recent, its significance would be different: an inference about his loyalty might readily be drawn. Most people think September 11 changed many things. Training with al al-Qaeda before September 11 (if Jack Thomas did) looks very different to training with al-Qaeda after that date.

Thomas has said repeatedly that the attack on America horrified him, and changed his view of al-Qaeda methods. Since he returned to Australia in July 2003 he has given extensive help to the Federal police. What clearer renunciation of al-Qaeda’s ways could he be expected to give? What demonstration of his loyalty to Australia does the control order call for?

As a matter of the most basic fairness, Jack Thomas should be allowed to know the allegations against him, and the evidence against him; he should be allowed to know the factual basis of the case against him so that he can challenge it. It is a dramatic shift in the operation of our legal system if it is now possible for a person’s liberty to be curtailed by a secret hearing on secret evidence because of an unstated doubt of a person’s loyalty to Australia.

Henderson is apparently unconcerned with the control order against Thomas because, he says, the orders are “relatively mild”. Basic liberties are rarely taken all at once and from everyone: they are taken by small degrees and from the unpopular or powerless. It is foolish to be complacent.

Terrorism is not new. The risk of terrorism is not new. The 20th century is littered with examples of terrorist activity. Democracy has proved itself robust enough to withstand the risk without compromising its essential elements. The law which permits control orders threatens basic democratic principles.

Secret hearings and secret evidence have a nasty habit of producing injustice, and it is a certainty that control orders and preventative detention orders will result in grave injustices to individual Australian citizens. But the greatest casualty will be democracy itself.”