Back in 2007 the High Court, this country’s highest court, in spite of a powerful and compelling dissent from Justice Michael Kirby, gave a green light to one of the most contentious of the battery of anti-terror laws passed after 9/11 — control orders. But in the past 48 hours, Gordon Brown’s beleaguered government has been told by the House of Lords that such orders represent a fundamental breach of human rights and do not comply with human rights obligations.

Control orders are used by governments to keep individuals under surveillance and to restrict their movements, even though they have not be found guilty of any anti-terrorism offence. Orders can be made in a person’s absence and the security and police agencies can withhold evidence from an individual and his or her lawyers in the name of national security.

Most famously in Australia it was used in the case of Jihad Jack Thomas, and it was his case challenging the constitutionality of control orders that the High Court threw out in 2007. David Hicks was also subject to a control order for 12 months after he was released in 2007 from prison in Adelaide.

However, the House of Lords decision, Secretary of the Home Department v AF, takes a less pro-state security line than did the High Court in Thomas’ case. The House of Lord’s has ruled that a control order cannot be made against a person unless they know the gist of the case against them.

In a powerful set of reasons Lord Hope eloquently puts the case for their being a genuine balance between protection of the community and the respect for the rights of the individual:

The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.

The House of Lords was influenced by a decision earlier this year of the European Court of Human Rights, which also dealt with control orders and the inherent unfairness of them to an individual.

The egregious practice in the UK and Australia in terrorism cases of government lawyers using secret material to which the defendant and his legal team have no access has been struck down at last — at least in the UK. This means Australia once again lacks behind its former colonial master in human rights protection.

Australia’s anti-terror laws in respect of control orders, despite being upheld by the High Court two years ago, should now be reviewed by Attorney-General Robert McClelland and brought into line with the House of Lords ruling. The Rudd government must not hide behind the fact that Australia lacks a human rights law and therefore can get away with trashing them when it suits it.

Peter Fray

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