The thought police are listening

It seems pretty ridiculous that Dr Haneef has been charged with supporting a terrorist organisation by leaving his SIM card with his second cousins in Glasgow. I was wondering how they could charge him, and decided to look at the terrorism offences. I’m not a criminal lawyer, let alone one acquainted with the Federal jurisdiction. I found it interesting to check out these provisions.

Section 102.7 of the Criminal Code makes it an offence to possess things connected with terrorist acts. The relevant offences are in 102.7(1) and 102.7(2):

102.7 Providing support to a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b) the organisation is a terrorist organisation; and

(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b) the organisation is a terrorist organisation; and

(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

So I presume that the police are saying that the SIM card is a thing connected with the planning of the Glasgow bombings, that Dr Haneef supplied it to his second cousins and was reckless to the possibility that it might be used for a terrorist act. Still, it seems like the AFP are drawing a long bow, charging him just so that he has been charged with something. I don’t know if there’s further intelligence as to whether he helped his second cousins in the plot, or whether he got out of the country because he knew about it but didn’t want to be involved. It’s hard to make a judgment without knowing all the facts.

But it seems to me that this kind of charge represents a worrying trend. Isn’t this the very thing the Western world should be against – a charge for the sake of it?

Check out Marcellous’ post on the topic for more insightful legal commentary.

Update

I was looking at the wrong section, as Marcellous has pointed out. Now amended to Section 102.7. Told you I’m no criminal law expert. Especially criminal law involving statutes. Well, I guess that’s all of it…

Update 2

It seems the government has revoked Dr Haneef’s visa. Again, I suspect that there’s more to this guy’s actions that we’re hearing in the press. I don’t know the full evidence on which the Minister made his decision.

But if the Magistrate was satisfied with imposing strict bail conditions on Dr Haneef, why wasn’t that enough? It seems as though the government is using immigration detention as a method of imposing a punitive gaol sanction where the courts have decided that the suspect should be released. Doesn’t seem like due process to me.

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26 Comments

Filed under Australia, courts, criminal law, islam, law, religion, terrorism

26 responses to “The thought police are listening

  1. Pingback: Legal » Blog Archive » The thought police are listening

  2. Sorry you feel that way. It seems to me in this society today we must keep check on those who appear to be in league with the bad guys and if it meens checking their family and friends too then so be it.

  3. Forester, yes it’s a balance, but this is a bit more than just checking up on the guy. I have no problem with thorough checks, and allowing the AFP to go through all his stuff.

    I guess it’s just a question of where you’re comfortable drawing the line.

  4. Actually, I think the editorial in The Age sums it up well – it’s a dilemma.

    As I said above, I don’t know the full facts – there may be some British or other intelligence which would sway my mind in another direction, but on the face of it, it seems pretty harsh.

  5. LDU

    I’m so very excited.

    I just can’t wait for the day when people will be imprisoned for disagreeing with the government. Yippppeeeeeeee, seems the Orwellian prophecies are being fulfilled.

  6. pete m

    I love how the hand wringers are already protesting this one – seems D Hicks has warmed their hearts and off they go on to the next bandwagon.

    Of course we will never see a terrorist bomb blow up here – yep, never happen …

    The police are not tools – they don’t charge such a publicised case to be seen as malicious.

    There is a hell of a lot more to this case. Simply lending a sim card because it had $ left on it is only how the media percieve it. Fair enough. But then think about the knowledge terrorist plotters had of how other terrorists have been caught, and then think about why this one wasn’t.

  7. It’s like ye olde ‘unlawful use of a motor vehicle’.

    Your mate may have pinched it. Your mate may be driving it. But if you sit in the passenger seat and know that, you’ll get done for ‘unlawful use’. I don’t see how this is any different.

    /criminal lawyer off

  8. LE, great to see you reading up on this absolutely appalling law. It has to be amongst the worst things on the criminal statute books in Australia. Most people are, sadly, completely ignorant of it or its implications. However, you missed what is arguably the worst part, the ‘note’ in subsection (5):

    A defendant bears an evidential burden in relation to the matter in subsection (5)

    So rather than having to prove you guilty, you must instead prove your innocence, i.e. prove that you did not have the requisite intention.

    if you sit in the passenger seat and know that

    Skepticlawyer, you better /criminal lawyer on again for a minute. It’s not like that at all – there is no requirement of knowledge. You only have to be “reckless” as to how the “thing” is to be used, and as subs (3) makes clear, it need not even be a specific use or planned use, or a use that ever actually takes place.

    I have deep suspicions that this section is voidable for uncertainty – it is simply not possible to rationally distinguish between acts which fall within the section and acts which do not.

    In my opinion people such as pete m who cannot distinguish between the issues of innocence/guilt on the one hand and whether or not a law is a good idea on the other hand are so stupid that they should not be allowed to vote. The “hand wringing” has nothing to do with whether Haneef is guilty of this offence, or indeed whether he is a madman seeking our destruction. It has to do with these laws, and whether they are fair, transparent, reasonable, well adapted to the task they are supposedly there to achieve, and safe in the hands of a less even handed Government (ahem).

    It’s a very unpopular view, apparently, but I’d prefer the 0.0000000001% chance of getting blown up by a terrorist to the 100% chance that removing all civil liberties will eventually be abused by an unscrupulous Government.

  9. If you follow the logic of probability of deaths caused by unintentional consequences, perhaps suppliers of alcohol should be charged with killing and maiming thousands of Australians a year – or charge the liquor licensing board members? After all, it’s a near certainty that the alcohol sold will kill people.

    When will Amnesty International “excommunicate” Ruddock?

    No, I take those things back… “the … Howard … regime … is … double … plus … good.” We’ve got to start keeping that uppermost in our minds!

  10. marcellous

    Isn’t the relevant section 102.7(2) of the Code?

    102.7 Providing support to a terrorist organisation

    (1) A person commits an offence if:

    (a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

    (b) the organisation is a terrorist organisation; and
    (c) the person knows the organisation is a terrorist organisation.

    Penalty: Imprisonment for 25 years.

    (2) A person commits an offence if:

    (a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

    (b) the organisation is a terrorist organisation; and

    (c) the person is reckless as to whether the organisation is a terrorist organisation.

    Penalty: Imprisonment for 15 years.

  11. Oops. Now updated.

    Patrick’s comment about recklessness still holds good though. There’s no requirement on knowledge on Dr Haneef’s part. If he knew that those guys were in a terrorist organisation or planning a terrorist attack, then sure, he deserves to be arrested.

    Recklessness, I suppose, could equate to willful blindness – he didn’t look too closely at what they were doing because he didn’t want to know. Can’t remember that criminal law case on point, but it’s one where a truck driver recklessly crashed into a bar.

    I suspect from the comments of the immigration minister that there’s more to this guy than meets the eye. But if the Magistrate was satisfied he should be released on strict bail conditions, why then revoke his visa?

  12. Exactly LE.

    And, given that the govt and AFP have been leaking like a sieve, surely Andrews would only be too happy pony up some evidence as to this, either officially or unofficially.

    Furthermore, if Andrews does indeed know more, than why didn’t he, or his cohorts, appeal the bail, rather than wait till after, where there would be no judicial eye on it? (I’m not a lawyer, though; I have no idea if that’s the way it would go, but that’s my impression?).

    I guess what it comes down to is why should we throw presumption of innocence out the window just because the “t” word is mentioned, both in a legal situation, and as a community.

    When we say things like the police/authorities/whoever _must_ have more evidence than they’re letting on, that is precisely what we are doing. If they have more evidence, then by all means, let’s hear it: if the AFP have been happy leaking every other detail of the case, they should be prepared to let this one go. And if not, put it in front of a judge; that’s what they’re there for. And unlike ministers, et al, they have little political imperative, and a respect – and knowledge – of the law.

  13. Also I think, on balance, we should be more skeptical of authorities’ charges regarding terror, given how many people they’ve had to release without charge, rather than the other way around.

    Who knows how many if these people were indeed planning terrorist acts at the time Haneef lent the phone card. Furthermore, who knows if it was used in the failed attacks. Furthermore, these dumbos would be stretching the definition of organisation, imho!

  14. Recklessness essentially means that a person must foresee that a certain result is likely to occur from their action, even if they do not actually intend for it to occur.

    However, how does one “foresee” what will happen as a result of ‘possessing a thing’? How can one foresee the consequences of possessing a thing that will be used ‘in connection’ with a planned terrorist act?

    It is so incredibly vague that virtually anything could fit this category, or virtually nothing, depending on how you interpret it. This is why I think there are serious, serious problems of statutory interpretation which might be serious enough to render the whole thing void.

  15. Oh, and one more thing – Haneef’s lawyer has suggested he can avoid detention in Villawood by not posting bail.

    It’s actually quite ingenious – he would get the, er, benefits of being in a normal prison awaiting trial, such as visiting rights and access to his lawyer, rather than being subjected to the incredibly dubious and opaque migration detention system.

  16. I must admit that occurred to me, too. Fail to post bail and he’ll have to go on remand.

    The legislation is very vaguely drafted, I agree, but I must say I’ve seen a helluva lot of young people (often juveniles) hop in a mate’s car ‘recklessly’ rather than ‘knowingly’ and still get pinged for unlawful use. The section (in Qld at least, which is a Code state) is construed so as to take in the ‘wilful blindness’ LE mentions.

    That said, whoever wrote this piece of shite didn’t have Griffith’s masterly Criminal Code in mind. The old bloke’s probably rotating briskly in his grave at this point.

  17. Pingback: Larvatus Prodeo

  18. Pingback: Dr Haneef: The Story So Far

  19. pete m

    patrick b – where did I debate the law? I’m commenting on this particular fellow and his charges, and that we do not know the full story, which was part of LE’s comment. You chose to debate the law, and that is fine – in fact I agree the shift of burden in a criminal matter is grossly unfair and ought to be repealed. The people protesting are largely ignorant of the points you make, and are just going by the media treatment of the evidence released so far.

    democracy – we all get an equal say, but then you seem to only want certain people to be able to vote – hypocrit.

  20. Interesting point about failing to post bail. I’d rather be in gaol than in immigration detention, I think. There’s more outside scrutiny, and more procedures that have to be followed. Not to mention the right to legal advice too.

    I worry that this kind of behaviour by the government will ironically inflame extremists. They will then think they have the right to behave badly because our government has treated Dr Haneef badly. Well, they think they have the right to behave badly anyway, but they love having some kind of warped moral justification for their actions by pointing out ways the West has behaved badly.

  21. MCB Esq – thank you, that was indeed of interest.

  22. Pingback: Balneus Haneef sketches : Herald-Sun racial prejudice? «

  23. Pingback: Club Troppo » Missing Link - Dr Haneef Edition

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  25. Pingback: Limits on executive power « The Legal Soapbox

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