The stabbing attack in Melbourne’s CBD on 9 November breathed more oxygen into the debate about how Australia’s national security laws should work. The attacker, Hassan Khalif Shire Ali, had his passport cancelled in 2015; should he have been monitored more closely? Mr Ali was out on bail for minor driving offences and had missed a number of court appearances; should the rules about granting bail be tightened? Mr Ali appeared to have a history of mental illness and substance abuse; was this a failure of the mental health system rather than the national security system? And Mr Ali was Muslim; wasn’t this more evidence that all Muslims are somehow, in some way, all collectively responsible if not actually guilty?
I want to dig around a bit in these intuitions, but it is worth highlighting an event that happened the day before in Canberra: the High Court handed down its decision in Strickland (a pseudonym) v the Commonwealth Director of Public Prosecutions. This is a complex case, but it asks us to think about exactly how much power we want to give to authorities when people are suspected of engaging in illegal behaviour.
We all know the slogans about our justice system, but how often do we ask ourselves whether we really believe them? Take the principle of ‘innocent until proven guilty’: what do we really mean by this and how should we apply it? In practice, it is a privilege that we afford to the accused that we will err against punishing them until a threshold is met. But it is entirely silent about victims. Why do we have jury trials of ordinary citizens instead of expert panels of fact-finders? Why do some people think a ‘right’ to a trial by jury should be part of our political rights frameworks? In practice, it is a vehicle by which prejudices against minorities can enter the legal system unchecked and unmonitored. A recent piece in The Guardian by Julie Bindel explores both of these slogans when it comes to rape trials:
More than 800 years since trial by jury became a right, we have to recognise that women and girls who are victims of sexual assault also have a right to justice. Until we see an end to toxic rape mythology and victim blaming among the general public, juries can’t be trusted to try such cases.
Strickland asks us to think about the rights of the accused in a different way. In this case, a company was suspected of trying to bribe a foreign official. The Australian Federal Police was interested in prosecuting but getting the evidence needed was difficult. The AFP can’t force suspects to confess. They can’t compel evidence from people. The accused can refuse to cooperate with their inquiries. The State has to prove guilt; the accused does not have to prove innocence.
But there is a narrow category of crimes where we feel that our national security interests should outweigh the rights of the accused. It’s not a free-for-all in favour of the State, but legislation allows certain organisations to use more coercive forms of evidence collecting, even compelling witnesses to provide evidence with penalties if they refuse. One of these organisations is the Australian Criminal Intelligence Commission. Under the ACC Act, the Australian Criminal Intelligence Commission was given powers to undertake ‘examinations’. Here are the parts that are worth thinking about:
- Section 30(2)(b) provided that a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that the examiner requires the person to answer.
- Section 30(6) provided that a person who fails to answer is guilty of an indictable offence punishable by up to five years’ imprisonment.
- Section 30(4) and (5) provided so far as is relevant that if before answering a question a person claims that the answer might tend to incriminate the person or make the person liable to a penalty the answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than confiscation proceedings or a proceeding in respect of the falsity of the answer.
So these powers are oriented towards getting information, but with the trade off that the information obtained is barred from being used in a criminal proceeding against the accused.
But imagine how powerful that information is. Sure, you can’t use that testimony in evidence, but you could use it to coerce other evidence that would be admissible. And instead of having the possibility that the accused is innocent, you now have solid proof that there is evidence of guilt to be found. You can stop investigating other suspects. You can put more resources into finding admissible evidence.
The problem in Strickland is that this is pretty much what happened. The AFP and ACIC colluded to use ACIC’s powers to inform the AFP investigation.
Since the time of the collusion, there have been changes to the way that ACIC is overseen, including bringing it within the oversight of the Inspector-General of Intelligence and Security (a highly respected and extremely powerful statutory authority that can compel those working in the Australian Intelligence Community to provide information about their activities). And the consequences for this extraordinarily poor judgement was severe: the High Court has barred the Commonwealth from prosecuting people who we now know are absolutely and entirely guilty.
That gets me back to Mr Ali. What powers would we give to the authorities that could have prevented his attack in the streets of Melbourne? There appears to have been evidence that he wanted to fight with terrorist groups overseas, so his passport was cancelled in 2015. This is a very low level of interference with Mr Ali’s rights and freedoms: it only prevents him from leaving the country.
This gives rise to two issues. First, some people thought that the evidence that he wanted to fight with terrorist groups overseas means that authorities should have interfered with Mr Ali’s rights and freedoms more. But what evidence was there, prior to the attack, that more should have been done? Framed more carefully, evidence that supports one kind of intervention might not support a wider range of interventions. Interventions should be narrow: people should be able to live their lives without unnecessary interference from the State, even if they’re complete villains, until there is a lawful reason to interfere.
Second, what sort of intervention would have prevented the attack? If you’re suspected of wanting to fight with overseas terrorist groups, should your licence be suspended so that you won’t be able to drive a car lawfully? Should kitchen and homeware shops be required to contact ASIO every time somebody purchases a knife? Do we just lock up everybody suspected of everything at all times?
Strickland shows us that, even if a person really is guilty, we can lawfully only do so much. If we want to extend the powers of authorities (which I’m generally in favour of) it needs to be done in a rational, careful way that keeps in mind the possibility of powers being misused (as they were in Strickland).