Freedom & Evidence In The Age Of Terrorism

Are there any circumstances in which an individual’s right to due process can be infringed upon if it is considered to be for the greater good of others within a society?

In recent weeks, we have seen authorities use, and attempt to expand the scope of, ‘secret evidence’. Although not a term recognised in legislation, ‘secret evidence’ is essentially:

(a)   information that is withheld from an accused person or person of interest and their legal representatives; and

(b)   can still be considered by a judge or used to justify the compulsory examination of an individual.

The first well-publicised matter involved a teenage boy who police allege was part of a Sydney terror cell. Subsequent to the recent terror related raids in Sydney, the NSW Crime Commission issued the teenager with a summons. The basis for the summons was detailed in a classified document.

The lawyers argued that the boy should not be questioned without knowing why. An application to review the evidence that was used to justify the compulsory examination of the teenager was refused by Justice Fagan in the Supreme Court of NSW.

The second recent matter of interest involved proposed counter-terrorism legislation that was introduced to Parliament last month by attorney general George Brandis.

One new provision proposed under the Bill states: “information may be disclosed to the court and considered by the court… without its contents being disclosed in any form to the relevant person or the relevant person’s legal representative.”

This raises some fundamental questions about the rule of law.

Should citizens – or non-citizens, for that matter – have an inalienable right to hear and, more importantly, cross examine the evidence used against them? It is a likely a right you would expect to have if you were found in this situation. But what about if the release of such evidence will put the safety of the wider community at risk? Or if it will allow a more senior or harmful individual the opportunity to evade the law? Opinion seems to be divided.

This is not a new argument. It has been raised in a range of contexts previously – organised crime, drug dealing, paedophile rings. The difference in this instance seems to be the magnitude of the risk posed by terrorism. It seems to be common amongst all commentators and academics that the rights of an individual should, in the ordinary course of things, remain unfettered unless there are exceptional circumstances to justify departing from that position. So, ultimately, the question seems to be where we, as a community and through our elected members of Parliament, are willing to draw the line? What is the threshold for ‘exceptional circumstances’? Do potential acts of terrorism cross that line? And, if so, what individual rights are we willing to sacrifice on the altar of the greater good?

The dialogue will continue. It will be interesting to see which way it goes.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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