High Court Jack Thomas decision underlines need for Bill of Rights

By Raul Bassi, Socialist Alliance National Executive
August 3, 2007

“With its decision to uphold the legality of the Howard government's preventative detention order against Jack Thomas the High Court has lined up with the Coalition's disgraceful campaign to severely curtail civil liberties and destroy the presumption of innocence”, Raul Bassi, Socialist Alliance spokesperson on democratic rights said today.

“This decision, coming on top of the disgusting treatment of David Hicks, Dr. Mohamed Haneef and Mamdouh Habib, underlines why we desperately need a Bill of Rights in this country.

Bassi said that the decision came as no surprise given the conservative stacking of the court during a decade of Howard government judicial appointments

“What the court has effectively said is that governments can use the defence power in the Constitution to pass laws not just in respect of external threats to Australia’s security, but internal threats as well.

“In doing that it has decided that a government of rogues like the Howard administration can be trusted with an absoluely draconian power”, Bassi stressed.

The Socialist Alliance spokeperson noted that the decision effectively overturned one of the key decisions in Australian legal history—the Communist Party case of the 1950s, when the High Court blocked the attempt of the Menzies government to ban the Communist Party.

Bassi praised the principled stance of the dissenting justice Michael Kirby, drawing attention to his comment that:

I did not expect that, during my service, I would see the Communist Party case sidelined, minimised, doubted and even criticised and denigrated in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values.

Bassi concluded: “The Socialist Alliance will be using the coming federal election to build the growing campaign for an Australian Bill of Rights. In particular, we call on the Labor Party to stop vacillating on this vital issue and express its support for a principle with which the vast majority of Australians agree.”

For further comment: Raul Bassi (0403 037 376)

Jack Thomas loses challenge on control orders

This morning (August 2, 2007), the High Court handed down its judgment in the case of Thomas v Mowbray - better known as the challenge by Joseph Terence "Jihad Jack" Thomas against the control orders placed on him by the Federal Government under the new anti-terror laws.

By 5 to 2, the Court found the legislation allowing the control orders valid. The Wombats were not surprised, only disappointed, angered, and and somewhat peeved.

Unsurprised, because we have little trust left in the corrupt, empty shell that is the liberal bourgeoise democracy and its 'rule of law'.

Angered at a system (it extends beyond merely one government, federal or otherwise) that should allow such a law to be passed in the first place, and angered that the High Court should go against even the logic of its own flawed tradition and reasoning and support the legislation. That an unconvicted man could be placed under such a regime.

Angered also that it comes so soon after the victory for Dr Mohamed Haneef, the Indian doctor arrested for terrorism (and subsequently bailed, then had his visa revoked, then had the charges dropped, then got deported anyway) because he gave his cousin a SIM card, and his cousing might have been involved in the bungled terror attcks in Britain. In so doing, the Thomas judgment gives the Howard Government a bit of a distraction in the terror stakes as its own bungling and political football-playing over Haneef is exposed bloodily in the media.

And not just a little peeved that at least one wombat now has an enormous (over 200 pages) judgment to read in order to scrabble together a 4000-word paper on the thing.

Justice Michael Kirby (who now bears the dubious title of most dissenting judge in High Court history) was true to form, as the fall-guy to straight-man Kenneth Hayne in the minority. Kirby's criticisms, however, reflect some of the central concerns felt about both the legislation and the judgment.

The High Court's decided that the defence power was a valid 'head of power' to enable the legislation under which Thomas' control was ordered.

The Wombats will provide (in a few days, once the judgment has been scrutinised - maybe weeks given the size) an analysis of just how far this goes, but Kirby's concerns over the breadth of interpretation given to the defence power seem legitimate.

In a nutshell, the court found that the defence power could be used for the purposes of combating terrorism, and could be used for matters internal to Australia, both of which are somewhat worrying developments.

As Kirby points out:

“Moreover, drawing a line between acts designed to coerce or intimidate an Australian government for a political, religious or ideological cause (thus falling within the definition) and pure advocacy, protest, dissent or industrial action (falling outside of the definition) could be difficult,’’

The Wombats will return later - including double-checking this decision with the Communist Party case and a few points on the Bill of Rights debate - but in the meantime, we are left with the hard facts. There's little point trusting in the dessicated follies of the legal system to protect civil liberties and basic human rights.

These things are won (as they always have been) on the streets and in the workplace.