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Australia's Intelligence Agency, US president George W Bush and the quest to find Osama Bin Laden: ask Jack Thomas!

Tales from The Land of Jihad Jack

Recipes for becoming relaxed and comfortable in Australia

Image: Thanks to cartoonist Peter Nicholson

On this page, contributions from Fairfax opinion writer Mike Carlton, and from barrister Julian Burnside.

What's on this page

An introduction

A hundred or so years ago, if you couldn't get to sleep, and you were born into a loving and caring family, you may have been so blessed as to have Grandma enter your bedroom and tell you a story or two from the book of fairy-tales by Wilhelm and Jacob Grimm, better known as The Brothers Grimm, or a story from the hand of Hans Christian Anderson.

Aren't we lucky in The Land Down Under to have writers who fill the hiatus left by Good and Blessed Granma when she passed on all those years ago ... now, if your terror fears and anxiety keep you awake at night, we have a rapidly developing array of cartoonists and writers to give you the antidote to regain your rest and relaxation, so a restful sleep can envelop you with its blessings and restoration.

For this page, please exalt and thank cartoonist Peter Nicholson, Fairfax opinion writer Mike Carlton and barrister Julian Burnside QC, and let your spirit be drenched by their contributions to your night's blessed rest: they are well qualified to replace Grannie.

Read on and be relaxed and comfortable. Our terrorising Canberra-based government that's trying to scare the living daylights out of you, scaring you with Muslims who do not speak English, with "dangerous terrorist suspects" like Jack Thomas - who hugs and kisses his youngest child and carries her in his arms on Melbourne's streets as soon as he gets released from prison - will not be allowed to write the last chapter of your day's events. We expect the Attorney-General's action to get a bit more bizarre yet, before the 2007 election gets announced by our dear Prime Minister John Howard, but the last word will be reserved for those who send you to your peaceful sleep, and not to those who keep you awake, fighting in the dark, alone with your terror fears.

Related pages

5 September 2006: George Clooney's Good Night, and Good Luck - "... seeing this multi-award winning movie about the McCartheism era in the USA raised my faith in the WA State government by quite a few notches - even though the government seemed to have taken in all of the Federal Anti-Terrorism legislation ..."

Another Project SafeCom Event!  6 September 2006: Fun, Laughter and other Seditious Causes - Make the right joke in public, and the man in dark glasses will follow you around town. Draw a cartoon, and find yourself in a secret court. Write a hot news article, and you might end up in jail. Deep, depressing issues or ... a seriously entertaining evening of Forum Theatre! Join Orisha's performers Rina Sani and Omar Pumar Romay for this special event at Kulcha.

Ruddock linked to school socks scandal

Sydney Morning Herald
Mike Carlton
September 2, 2006

TO BE linked is a swift and often terrible thing. Links can hit you out of the blue, just like that. And once linked, it's forever.

All week we have been warned that Jack Thomas, the ferocious terrorist, has links to Jemaah Islamiah, the fanatical Indonesian gang that did the Bali bombing.

According to the Australian Federal Police, this is because Thomas is married to an Indonesian, Maryati, who might - or might not - have gone to the same school as the second wife of Abu Bakar Bashir, the snaggle-toothed old murderer who is JI's spiritual guru.

No matter that Maryati is in her late 20s or perhaps early 30s, while Bashir's missus, Aisyah Baraja, is in her 50s. This suggests their school days were not exactly concurrent, but the link is there anyway, in bonds of steel and newspaper ink.

Which is very worrying. Joining the dots with the inexorable logic employed by the Australian Federal Police, I find I am linked to Philip Ruddock, and therefore to the Howard Government and the Liberal Party. Ruddock and I also went to the same school - at the same time - which must mean to the spooks that we are hand in glove, as thick as thieves. (For those hungry for more, the future Attorney-General was three years ahead of me and a senior, as they were called, a species of sub-prefect. You will not be surprised to learn that he relentlessly policed the minutiae of school rules: regulation grey socks, no sideburns, silence in assembly, all that stuff. In the Leaving Certificate of 1959 he scraped through with the bare minimum of B-passes in English, modern history, geography, maths II and physics.)

But the plot thickens. Ruddock is therefore also linked to Peter Garrett, the rock singing, tree-hugging, federal Labor MP for Kingsford Smith. Same school again. You shudder to think what conspiracies they might be hatching in secret.

And to top it off, the three of us are linked, QED, to a bloke in my class who flourished as one of Sydney's more entrepreneurial heroin dealers until the narcs put him away for 13 years.

I thought I should confess this before the feds get hold of it and leak it to the panicky editors at The Australian for yet another alarming front-page splash: MINISTER, MPs, MEDIA FIGURES IN MR BIG DRUG LINK.

Other links entrap me, too. I once had drinkies with Anne, the Princess Royal, in a gilded salon at Buckingham Palace. RADIO SHOCK JOCK LINKED TO QUEEN'S DAUGHTER. That's enough to provoke a control order.

MY OLD school chum is clearly a greater danger to our democracy than the naive and wretched Jihad Jack.

It is Ruddock who is ripping into our ancient rights at law, with his airy acceptance of detention without trial, of torture where useful, and his draconian control orders decreed at the stroke of a pen.

Thomas, on the other hand, was in such manic distress on television on Wednesday night that he could barely change his child's nappy, let alone plot world domination with Osama bin Laden. Even a federal magistrate thought that idea was farcical.

The parrot cry of the ratbag right is that Thomas "got off" on a technicality.

This is ignorance or stupidity. First, a jury found him not guilty of two serious charges of aiding terrorism. Second, the Appeal Court judges in Victoria ruled that the Federal Police case for two lesser charges relied solely on evidence obtained by torture or the threat of it. Confessions made under duress are not admissible in Australian courts. Case dismissed.

This is no flimsy technicality. It is bedrock justice. Tudor monarchs cheerfully employed the rack, the thumbscrew and the red hot poker to extract confessions, but over the succeeding four centuries we have moved beyond such barbarism.

Or some of us have. The White House and the CIA still think torture is OK. So, apparently, does Ruddock; the brutalities inflicted upon Thomas, and on David Hicks, disturb him not at all.

As an aside, it is curious that all the legal running on this dismal affair has been made by three Melbourne silks, Lex Lasry, Brian Walters and Julian Burnside. There has not been a peep from the lions of the Sydney bar. I suppose they are too busy making money.

THE truly shocking news of the week is that George Bush enjoys a good fart.

According to the magazine US News and World Report, normally a bible of starchy American conservatism, "the President loves flatulence jokes".

"A top insider let that slip when explaining why President Bush is paranoid around women, always worried about his behaviour," the magazine reported. "But he's still a funny, earthy guy who, for example, can't get enough of fart jokes. He's also known to cut a few for laughs, especially when greeting new young aides."

This explains a great deal.

Australia keeps terror suspect in check

Curfew ordered after court quashes conviction

Posted: August 28, 2006
5:26 p.m. Eastern
© 2006

A man whose terror-related conviction was quashed on appeal has been ordered to be on curfew and tell police where he is, in the first anti-terror control order issued by Australian authorities determined to take a hard line and prevent a terrorist attack.

The report by Reuters confirms the nation's no-tolerance stance toward any terror-related activities is much harsher than that of the United States.

The report said Joseph Terrence Thomas is subject to a midnight to 5 a.m. curfew even though an appeals court ruling on Aug. 18 concluded an interview he had with Australian police in Pakistan was inadmissible in the case because he had no lawyer's advice and it wasn't voluntary.

Australia's leadership long has held the position that if it's terror-related, it's not welcome in their nation.

Prime Minister John Howard earlier had said he supported monitoring the activities of those in Australia's mosques, citing a need for the government to know if members of the Islamic community supported or taught violence.

And Education Minister Brendan Nelson said those members of the Islamic faith who do not support Australian values are welcome to leave.

"We have a right to know whether there is, within any section of the Islamic community, a preaching of the virtues of terrorism, whether any comfort or harbour is given to terrorism within that community," Howard told Australian radio earlier.

In this week's case involving Thomas, a father of three, Ruddock reported the control order was issued to protect the community.

Thomas had been jailed in April on a five-year sentence for getting $3,500 and a plane ticket from senior al Qaeda agent Khaled bin Attash after being trained in Afghanistan in 2001 by a militant network affiliated with Osama bin laden, the report said.

The order was the first issued in Australia under anti-terrorist laws which have been tightened gradually since the Sept. 11, 2001, attacks on the United States.

Thomas' brother, Les Thomas, however, said it was just a "vindictive move" by police.

Joseph Thomas's lawyers said during his trial he had taken the money and plane ticket in order to get home, but he didn't intend to act as a resource for al Qaeda.

The tough stance has generated criticism, too.

Government leaders "have started playing an extremely dangerous game with the intent to control 'suspected' and public Muslim 'extremists' amongst Islam adherents" in Australia," according to Jack Smit, of the human rights group called Project SafeCom.

He said parallel cases could be built against "conservative Jews," who call non-Jews Gentiles as well as "the Church of the latter-Day Saints and the Jehovah Witnesses, who think that anyone who's not in their group will go to Hell and is damned."

Until now, Australia has been "a tolerant nation," he said.

There are an estimated 280,000 Muslims in Australia, mostly in population centers in Melbourne and Sydney.

Australia has maintained its position as a steadfast U.S. ally and just recently dispatched more soldiers to Afghanistan in the search of al Qaeda and Taliban fugitives. The nearly 200 special forces are bringing Australia back into the Afghanistan situation for the first time since 2002.

During an interview with the Courier Mail in Brisbane, Howard also said it's right for the nation to refuse entry to asylum seekers, because "you don't know who's coming and you don't know whether they do have terrorist links."

There has been concern that there might be a terrorist attack in Australia, and in a report Treasurer Peter Costello said some could be asked to leave the country.

"If those are not your values, if you want a country which has Shariat law or a theocratic state, then Australia is not for you," he was quoted as saying. "I'd be saying to clerics who are teaching that there are two laws governing people in Australia, one the Australian law and another the Islamic law, that that is false. If you can't agree with parliamentary law, independent courts, democracy, and would prefer Sharia law and have the opportunity to go to another country which practices it, perhaps, then, that's a better option."

Jihad Watch said even the suggestion that Australians preferred to keep their own laws and law-making procedures was too much for some.

The group said the Lebanese Muslim Association called that attitude "unjustified, unacceptable and hatred-instigating."

However, Jihad Watch said the reaction of the Lebanese Muslim Association "reflects a worrying mindset, a sense of grievance and entitlement influenced by hard-core generations of fundamentalist Muslim preachers..."

Of Secret Trials and National Security

New Matilda
By Julian Burnside
Wednesday 23 August 2006

One hundred years ago, in July 1906, Alfred Dreyfus was finally pardoned. The affair which bears his name had lasted 12 years before Dreyfus was vindicated. He had been convicted of treason in a trial held in secret. The crucial evidence against him was not shown to him or his counsel. It was forged. It took 12 years for this gross violation of justice to be acknowledged and corrected.

Two matters made the Dreyfus Affair possible: a secret trial using of concealed evidence; and racial/religious prejudice which ran so deep it blinded people to any concern about the quality of justice accorded to Dreyfus (who was a French Jew).

As to the second matter, Anti-Semitism may no longer exist in Australia in the virulent form which characterised Western Europe 100 years ago. However, there are groups who are sufficiently unpopular that most members of the general community do not regard their rights as important enough to deserve protection. Those unpopular groups include alleged paedophiles, alleged terrorists, Aborigines, people with mental disorders, and Muslims.

The Australian Government's disregard for the basic rights of David Hicks and Mamdouh Habib illustrates the problem. In addition, John Howard watches unconcerned as Government members suggest that Muslim women shouldn't wear hijab; that Muslims who don't embrace Australian values should leave the country; that Muslims will soon swamp our population. All this against a background of constant reference to 'Muslim terrorists' - creating the false sense that all terrorists are Muslim and therefore all Muslims are terrorists.

And as to the first matter, the possibility of secret trials already exists in Australia.

Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may apply for a Preventative Detention Order (PDO), which will result in a person being jailed for up to 14 days without having been charged with, much less convicted of, any offence. The PDO is obtained in the absence of the person. When taken into custody, the person is given a copy of the PDO and a 'summary of the grounds' on which it was made - but the evidence which the police used is not made available.

In addition, the summary of the grounds need not include any information which is likely to prejudice national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act (2004) - the NSI Act.

Division 104 of the Commonwealth Criminal Code allows a senior member of the Federal Police to obtain a Control Order (CO), which can confine a person to a single address for up to 12 months, without telephone or internet access. COs are obtained in secret and in the absence of the person. When the person is served with the CO, they are given a summary of the grounds on which it was made, but again not the evidence.

In this way, a person's freedom of movement can be grossly interfered with for up to 12 months without them knowing the evidence on which the CO was obtained. Again, the summary of the grounds on which the CO was obtained need not include any information which is likely to prejudice national security.

The NSI Act, therefore, looms large. It is perhaps the most draconian piece of legislation ever passed by an Australian Parliament in peace time. As originally passed in 2004, it was limited to criminal proceedings. In 2005, it was amended to extend to civil proceedings.

The Act says that, if a party to a court case believes that they will disclose, in the case, information that relates to national security, or the party intends to call a witness who would disclose such information, then the party must notify the Commonwealth Attorney-General, the opposite party and the court.

The court is then required to adjourn the until the Attorney-General acts on the matter. If the Attorney-General chooses, they may sign a 'conclusive certificate' to the effect that the proposed evidence or witness, would be likely to prejudice Australia's national security interests. The certificate must then be provided to the court which must then hold a hearing to decide whether to prevent the evidence or witness from being called.

During that hearing, the court must be closed - the Act authorises the court to exclude both the relevant party and their counsel. In deciding the balance between the interests of a fair trial and national security interests, the NSI Act directs the court to give the greatest weight to the Attorney-General's certificate.

These provisions of the NSI Act are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when it is understood that 'likely to prejudice national security' is defined to mean that there is a 'real, and not merely remote, possibility that the disclosure will prejudice national security'; and 'national security' is defined as: 'Australia's defence, security, international relations or law enforcement interests.'

This definition is rendered astonishingly broad when 'law enforcement interests' includes:

By reference to this definition, Australia's national security is affected by each of the following things, for example:

These provisions are likely to have powerful effect in several types of case.

First, in cases where people are charged with terrorist offences, confessions may be received but evidence that torture or other improper practices were used to obtain the confession may be excluded, in the name of national security.

Second, where a person is the subject of a Preventative Detention Order or a Control Order and they seek judicial review of the order.

Third, in cases where a person's rights have been interfered with because of an adverse security assessment by ASIO, it may prove impossible to have access to the material on which ASIO acted and thus impossible to challenge its accuracy.

There may be examples of the second type, but we are not allowed to know. The secrecy surrounding COs and PDOs means that, in effect, the general public will not learn of them until many years have passed.

However examples of the third type can already be identified. An adverse security assessment from ASIO can result in a person's passport being cancelled, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for ASIO's assessment may prove difficult or impossible.

Cancellation of a passport following an adverse ASIO security assessment may be challenged in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and their lawyer from being present in the Tribunal while certain evidence is given and submissions made. Here is the text of one such certificate, issued early in 2006:

I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia ... hereby certify ... that disclosure of the contents of the documents ... described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security.

I further certify ... that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents ... are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

As the responsible Minister ... I do not consent to a person representing the applicant being present when evidence described ... above is adduced and such submissions are made ...

In those short paragraphs, the Attorney-General produces the conditions which led to the false conviction of Alfred Dreyfus.

Faced with such a certificate, the applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because he will not know the full nature of the case against him.

Fair trials are one of the basic assumptions of a democracy. It seems a pity that we have abandoned the possibility of fair trials, ostensibly to save democracy from terrorists. These measures suggest that the greatest danger to democracy in Australia is the Federal Government. (In case this is seen to be an attack on the Howard Government, it is worth noting that the Labor Opposition did not oppose the measures.)

We have been alert long enough: it is time to be alarmed.

About the author: Julian Burnside QC is a Melbourne barrister, specialising in commercial litigation and human rights.

The control order against Jack Thomas

by Julian Burnside
August 2006

Jack Thomas' conviction was quashed on 18 August 2006. On 28 August he was served with a control order. It is an interim order, which can be confirmed at a hearing later this week.

The order imposes a curfew, confining him to his home between midnight and 5 am each day; it prevents him from contacting certain named people; it restricts his use of electronic communications and it requires him to report to the Werribee police station 3 times a week.

When the order was served, Thomas was holidaying at the beach in South Gippsland with his family. Obviously the Federal Police are watching his every movement. Curious then that they obtained the order from a Federal Magistrate in Canberra, rather than approach one of the many Federal Magistrates in Melbourne. The inevitable result is great trouble, inconvenience and expense for him and his legal team, who are all based in Melbourne, if they want to go to the court later this week in order to argue that the order should not be confirmed. If the hearing is on one of the days when he is to report to the police station, there will be real practical difficulties in negotiating court times, aeroplane timetables and the reporting requirement.

Perhaps he should not bother going along to Court at all. There is not a lot he and his lawyers can do, because he is not allowed to know the evidence used against him. He is not allowed to know the reasoning which allows the giant leap from training (2001) and vulnerable (now) to a future terrorist attack. He is not told how a curfew, or regular reporting to a police station will reduce the risk of terrorism in Australia.

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:

The elements of this are:

  1. That Thomas trained with al Qua'ida and that he 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 the mining industry would have the same technical skills with munitions.
  2. That he is vulnerable. The same could be said of a many people in Australian society, including some who have trained in the army.
  3. 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 Qua'ida. So the control order was obtained on the basis that he was said to have engaged in lawful quasi-military training 5 years ago, and he is vulnerable. The logic of this is alarming, especially in light of Thomas' recent history. After he returned to Australia in 2003, he remained free in the community for 18 months. The Federal Police watched him closely. He did nothing wrong.

Now, after he has been traumatised by months of solitary confinement, a committal, a trial and an appeal, he is the subject of a secretly obtained control order on grounds which could be used to describe thousands of Australian citizens.

Is it possible that a person who trained in the Australian army and was psychologically vulnerable would be the subject of a control order?

If the answer is Yes, then we can expect a raft of them in the near future.

If the answer is No, then the Thomas case looks like sour grapes, or political persecution.

But there may be another explanation. Thomas is said to have trained with al Qua'ida. Is there an implication that his loyalties are with al Qua'ida rather than with Australia? The control order does not assertion that Thomas is not loyal to Australia; it does not say that he is not only vulnerable but also treacherous. Such an assertion would distinguish his circumstances from those of a vulnerable former member of the Australian Army. Of course an allegation that Thomas was disloyal to Australia would make the order openly political, and would run into all sorts of objections. But the logic of the document suggests that this control order is in truth an undeclared test of allegiance, a test conducted on Mr Ruddock's rules.

If that is the case, we are in for a rough time. It would be a frightening development if Mr Ruddock's assessment of a person's loyalty was to be the touchstone for control orders. As Immigration Minister, Ruddock presided over the cruellest excesses of the mandatory detention system while wearing his Amnesty International badge. Ruddock as Attorney General is one of the few people in the Western world who thought that the David Hicks military commission at Guantanamo Bay would be a fair trial. As first Law Officer of the country he has the task of deciding whether control orders and preventative detention orders can be sought. His conception of justice brings disgrace on the office he holds. If control orders can be obtained because Ruddock doubts a person's allegiance to Australia then we have stumbled blindly into a brave new world in which Ruddock's conceptions of justice will lead swiftly to the destruction of basic human rights. Secret orders, secret evidence, control orders without a breach of the law: these are the stuff of Orwell's Nineteen Eightyfour.

From Julian Burnside's website at

Order puts rights of all at risk: lawyer

Sydney Morning Herald
Tom Allard, Ian Munro and Kenneth Nguyen
August 29, 2006

AMNESTY International - which counts the Attorney-General, Philip Ruddock, among its members - has attacked the imposition of a control order on Jack Thomas as ushering in a "regrettable" period in Australia's record on human rights.

"Control orders potentially violate a range of human rights," said Amnesty International's campaign co-ordinator, Katie Wood.

These include the rights to liberty and security, freedom from arbitrary detention, freedom of movement, freedom of religion, freedom of expression and association and the right to be presumed innocent.

Moreover, the orders could breach Australia's international obligations, Ms Wood said.

Lawyers said Mr Thomas's fate demonstrated the extent to which the control orders regime could overtake citizens' rights.

A University of NSW law professor, George Williams, said the restriction of a citizen's liberty without a finding of guilt "until this point did not have clear precedent under Australian law".

He allowed that "it may well be that [authorities] have cogent, relevant information that justifies the order".

Labor's homeland security spokesman, Arch Bevis, declined to comment, citing coming legal proceedings.

The president of Liberty Victoria, Brian Walters, SC, said Mr Thomas was not being punished for having been found guilty beyond reasonable doubt, but on the basis of a balance-of-probabilities argument in which he did not even take part.

"It's been the tradition of our democratic system for hundreds of years that you don't lose your liberty except on the allegation of a crime," he said.

"This shows that those fundamental freedoms and protections for the citizen are no longer respected by the Attorney-General for Australia.

"Far from making us safer, I think it makes all Australians far more at risk of arbitrary detention at the hands of government authorities."

A Federal Police spokeswoman confirmed that a control order had been issued, but would not confirm that Mr Thomas was the subject of it.

"Under the provisions of the [Anti-Terrorism Act] the court must be satisfied that [the order] will assist in preventing an attack or that the person has received training from a listed terrorist organisation and that the conditions of the order are reasonably necessary for the purpose of protecting the public from a terrorist act," the spokeswoman said.

While the appeal court quashed Mr Thomas's convictions, it has also said it would consider a request by prosecutors for a retrial, based on an interview Mr Thomas gave to the ABC TV program Four Corners confirming he met Osama bin Laden and trained with al-Qaeda.

Ban order attacks our way of life

The Age
August 30, 2006

The Attorney-General is undermining civil rights after being thwarted by the courts, writes Brian Walters.

JACK Thomas was at the beach with his family when he was served with a control order signed by Attorney-General Philip Ruddock. He was required to return to Melbourne immediately. He will now be subject to a curfew and a requirement that he report to police daily, as well as other restrictions.

Although a magistrate will consider this further, he or she can only do so on a very limited basis. There will be no fair trial of the issues. There will be no proper rules of evidence. There will be no presumption of innocence. We have departed from centuries of hard-won democratic tradition under which deprivation of liberty can only follow an accusation of crime, with a trial in which guilt would have to be proved beyond reasonable doubt.

At his trial, Jack Thomas faced four charges. The jury acquitted him last February of the two most serious counts, which alleged training for and participation in planning for terrorism offences. He was convicted of two lesser offences. He was jailed for five years for receiving funds from a terrorist organisation. The Crown case was that he received an air fare and $1500. This offence does not require that you intend to do anything wrong with the money. It merely requires that you receive the money either knowing it is from a terrorist organisation or reckless as to whether it is from a terrorist organisation. The jury clearly did not accept that he intended to do any terrorist act. It acquitted him of the two charges that required such an intention.

On no reasonable view, even without his appeal, could Jack Thomas be described as a terrorist.

The key evidence against Thomas was an interview he gave to the Australian Federal Police in Pakistan.

Jack Thomas was arrested in Pakistan on January 4, 2003. He was held for five months before being allowed to return to Australia.

During the five months he was detained by Pakistani officials, Thomas was never brought before a judge or a magistrate, and was never charged with any offence. Pakistani authorities repeatedly told him: "We're outside the law. No one will hear you scream."

This type of detention, without any oversight by the courts, and without charge, is universally regarded as illegal. It is also illegal in Pakistan, since it violates section 10 of that country's constitution.

The reason is obvious. If you detain a person without oversight by the courts, you are no better than a kidnapper. You have the power to consign those you regard as undesirable to gulags or concentration camps, and you impose a reign of terror, not the rule of law.

Australia had the right, under the Vienna Convention on Consular Relations, to insist that Thomas be provided with a lawyer. Despite the fact that he was being held in violation of the basic legal protections understood by every civilised country, representations were merely made to the very Pakistani officials engaged in this conduct. At no stage did Australia exert even the minimal pressure of sending a diplomatic note.

While he was in custody, Thomas was told that he could be held indefinitely. An official attempted to strangle him by the collar. Officials threatened to send him to Afghanistan, where the latest interrogation technique involved crushing the testicles. He was told (by an American) that agents would visit his wife and rape her. In the presence of Australian officials, he was threatened with consignment to Guantanamo Bay.

Instead of robust action to prevent this illegal treatment of one of our citizens, Australian authorities took advantage of it. They liaised closely with Pakistani security authorities to arrange interrogation of Thomas while he was in this predicament.

ASIO and the AFP, along with Pakistani security authorities, grilled Thomas for six sessions covering 20 hours. This is on top of extensive earlier interrogations by the Pakistani and US authorities. The Australians engaged in emotional manipulation of Thomas, showing him photographs of his wife and children, whom they knew he was desperate to see, and then withholding the photos as an obvious spur to co-operation.

They then interviewed him for the purpose of prosecution in Australia. He knew that his very future depended on the Australians telling his captors that he had co-operated and could be returned to Australia. The police knew he wanted a lawyer and they knew his family had appointed one, but they told him that the right to a lawyer - which the Parliament of Australia has said is his right as an Australian citizen - would not be available to him.

The resulting interview was, as the Court of Appeal held, involuntary. It is quite wrong to assert that it was only because he was not allowed a lawyer that the interview was rejected. He was forced to confess by appalling pressure involving the entire future course of his life.

Once you allow involuntary confessions, you license law enforcement authorities to break the law that it is their duty to uphold. You open the door to all manner of mistreatment, including torture. Instead of the law being founded on respect for the dignity of the human person, the law becomes an instrument to degrade humanity.

Not surprisingly in view of his cruel treatment at the hands of authorities, Jack Thomas has suffered serious psychiatric harm.

The Court of Appeal did the only proper thing to uphold the rule of law - it ruled that the interview should be rejected as evidence. It had been obtained in clear violation of decency and legality. The court set aside his convictions. In doing so the appeal justices did not undermine democracy; they upheld it.

The Court of Appeal is still to consider a Crown application for a retrial on the basis of a Four Corners program. If Thomas were to get in the witness box in the hearing before the magistrate, evidence he gave would very likely be used against him at any subsequent trial - a further serious inroad into the right to silence.

The Attorney-General, despite the jury's verdict that Thomas had not planned any terrorist activity, will not allow the courts to thwart his will.

He has not condemned mistreatment of an Australian citizen overseas. He has not stood against the extraction of confessions by cruel means.

Instead he has sought to perpetuate Jack Thomas' misery through a secret hearing without the normal legal rules applying. That is a grave danger to our carefree, beach-going, Australian democracy.

Brian Walters, SC, is president of Liberty Victoria.

Innocent, yes, but never free of suspicion

Sydney Morning Herald
by Doug Conway
August 29, 2006

YOU'VE been cleared by the courts, you're enjoying a family beach holiday, and the police turn up and order you home under curfew. Welcome to the harsh reality of Australia's new anti-terrorism laws.

The unprecedented "control order" slapped on Victorian man Jack Thomas marks Australia's entry to the legally grey world where the burning issue is not what a person has done but what he might do.

It is part of the Federal Government's attempts to prevent terrorism before it happens, rather than have to deal with the murderous fallout.

It is a praiseworthy goal but the draconian measures invoked have enraged civil libertarians, who now have a real-life case to illustrate their concerns.

Thomas, a Muslim convert, was found guilty in February of receiving funds from al-Qaeda and holding a false passport. But his convictions were quashed on appeal this month, and his five-year jail sentence overturned.

However, he still faces up to five years behind bars if he contravenes the control order that today forced him to return to Melbourne from a family holiday and subject himself to a midnight to 5am home curfew.

Mr Thomas can, and will, challenge the interim order, the request for which was signed by the federal Attorney-General, Philip Ruddock.

Such orders can be granted if it is thought there are "reasonable grounds" that they will substantially help prevent a terrorist attack, or if there are reasonable grounds to suspect a person has given or received training from a terrorist group.

Civil liberty groups say the order "smacks of politics".

These are among the realities legal luminaries warned of when the legislation was introduced.

The Melbourne legal academic Arie Freiberg called them the latest in a long line of legal measures that had "eroded the once-cherished presumption of innocence and blurred the nexus between crime and punishment".