No doubt the Thomas case will end up in the High Court. In Fardon 2004 the High Court upheld the validity (on technical grounds) of a Queensland Act which permitted detention, not just control. Gleeson CJ said “There are important issues that could be raised about the legislative policy of continuing detention of offenders who have served their terms of imprisonment, and who are regarded as a danger to the community when released. Substantial questions of civil liberty arise.” There was no protest from the Left.
Control Order legislation or their like are becoming more common throughout Australia. They are designed to protect the community in circumstances where criminal custody is not justified. It is a balance between the perceived need for the safety of the community and restrictions on an individual. Formerly, dangerous individuals could only be dealt with by criminal prosecution, conviction and jailing — that is, after they had committed the predicted offence.
The two best examples are dangerous sexual predators (Mr Baldy) and terrorists (Thomas). Last year, I appeared for the government and obtained the first order in Victoria which was against Mr Baldy. He had fully completed his jail sentence (so parole was not an option) and was about to be released as a free citizen, having paid his price to the community. Instead, the legislation permitted his freedom to be impaired. There was no protest from the Left that I can recall.
The other case is Thomas who has admitted training with al Qaeda which brings him squarely within the legislation which has been passed by our democratically elected Parliament and is now the law.
Thus both the Labor government in Victoria and the Liberal government in Canberra were faced with the problem of protecting the community from possible future offences
In this debate, it is important to remember two things.
First, by definition, control orders are not conviction based — they relate to the fear of future criminal conduct, not punishment for past conduct.
Second, we are dealing with an infringement of the rights of an individual which have been imposed outside the criminal process. That infringement, in the case of terrorist suspects, can range from a Control Order (Thomas) to a Detention Order. After all, detention is the ultimate form of control.
So the issue to be debated is: is it appropriate to infringe a person’s liberty when they have not committed a criminal offence but where it can be established that they are a risk to the community.
Whether you support such controls is not a matter of right or wrong or of legality or illegality. It is simply a matter of your own moral preference. I support control orders and detention. The Left opposes them for terrorists but (illogically) supports them for Mr Baldy and other dangerous sexual predators.
As far as Thomas goes, he has admitted training with al Qaeda and this makes him dangerous. No government could take the risk to let him run free. If he committed a terrorist act the community would be outraged. Obtaining the order is the correct thing to do.