The Guardian 2 November, 2005

Taking issue

"Unless it's to do with terrorism …"


As a working criminal lawyer, I often advise people about their rights if they're stopped by police. "You only ever have to tell them your name and address ... and if you own a car, who was driving it at a given time". In recent years, I've had to add the proviso "Unless it's to do with terrorism ...".

In my case, as a criminal lawyer who mainly works in the Local Courts, it's highly unlikely that the average drug-addicted defendant is ever going to be suspected of terrorism, so I haven't spent a lot of energy coming to grips with the intricacies of the anti-terror laws.

The unspoken part of my warning could be compared with a typical attitude of a GP in Sydney — they are not likely to come across Ebola, so even though it's a deadly, highly-contagious disease, not particularly concerned with it.

However, what little I've learnt of these laws is truly terrifying — they are massive inroads into people's rights.

The concept of secret arbitrary detention is the opposite of the core of our criminal justice system. Open courts and appeals-systems are central mechanisms which temper the state-imposed violence of jailing people convicted of crimes. Without these (albeit imperfect) controls, state- imposed violence will be legally allowed to reach incomprehensible levels.

Without the right to silence, people can be punished by incarceration for refusing to speak. Given our violence-ridden jails, incarceration for refusing to speak amounts to de-facto torture.

The principle of "presumption of innocence until proven guilty" is also demolished when the right to silence is removed. Although an abstract idea, innocence of individuals is a crucial concept in a capitalist society, particularly in underpinning another abstract but crucial concept — the Rule of Law. The Rule of Law is one of the few pro-equality ideas in an economically divided modern capitalist society.

Another part of my work as a criminal lawyer is regular exposure to evidence of police, and other authority figures, acting in breach of their powers. Sometimes this is accidental and occasionally it can be proved to be deliberate.

My exposure to evidence of abuse of powers has only proved to me personally the clichéd idea — where there is a power it will inevitably be abused.

The terror laws will be abused. I do not doubt that.

I have enough trouble keeping up with the "mainstream" criminal law being constantly weighted against defendants and the increasingly draconian jail and parole systems.

I keep waiting for a chunk of time to sit down and grapple with the specific sections and subsections of the new anti-terrorism laws. And I feel a sense of doom as I wait for that time.

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