Ei incumbit probatio qui dicit, non qui negat

The Daily Telegraph reports today that Attorney-General Senator George Brandis will be bringing a new batch of laws to Cabinet next week dealing with the subject of terrorism. Amongst the mooted provisions is the idea that Australian travellers to Syria, Iraq or other declared zones must be “presumed” to be involved in terrorism. More importantly, the onus will be on the returnee to prove that they were not involved in terrorist activities.

The new legislation appears to be in response to the recent media reports of  two Australians, Khaled Sharrouf and Mohamed Elomar, assumed to be fighting with jihadis in Syria. Nobody can deny that the apparent actions of these men – their alleged crimes – are heinous and deserving of punishment. With that in mind, it is important to remember that an Australian committing a crime in an overseas jurisdiction cannot be charged and punished for that crime when they return to this country. That is why we have extradition laws. If these men have committed war crimes, or if the “war” in Syria is illegal and their actions constitute murder, they were carried out in a foreign jurisdiction; the killing of foreign nationals in a foreign nation does not make them guilty of any crime in Australia.

But not if Senator Brandis has his way. With the new provisions in law, if Sharrouf and Elomar were to return to Australia they are automatically guilty. They could be arrested at the airport and brought to court on the presumption of involvement with terrorist groups, something for which there does exist Australian law. Currently Australia does not apply mandatory minimum sentences for terrorism offenses, but conservative governments continually seek to impose these.

Some might not seek to protest about this outcome for Sharrouf and Elomar. It seems beyond serious dispute that these men have contravened our understanding of civilised society, have been involved in activities that should be punished, and would be extradited for foreign justice if Syria had such a thing as a functioning legal system. But laws drafted to apply to one or two people may still have wrenching outcomes for others.

It’s not a long time since the Campbell Newman government in Queensland implemented their highly controversial “illegal bikie gangs” laws, which coincidentally also include provisions to reverse the onus of proof. Some protested about this at the time, but protests fell on deaf ears and the laws still exist and are still being applied. It would be salutary not to forget them. Under these laws, belonging to a motorcycle gang and simply being in the same place as two others from the same club is sufficient to make you automatically guilty of illegal association. Immediately and without appeal you can then be arrested, held for thirty days in solitary confinement and confined for twenty-three hours out of every twenty-four. That automatically then becomes a mandatory minimum sentence of at least 100 days imprisonment, unless you can prove that the organisation you belong to (not you personally) is not engaged in criminal activity. In other words, you would need to be able to prove that your bikie gang did not exist for the purposes of bar fights. Whilst it seems logical that bar fights might be an unintended outcome of any gathering of people, rather than any specific gang, proving that the group does not support or promote that activity is nearly impossible. Additionally, if one defendant can prove that, it must automatically apply to all others defendants from the same gang. If you can prove that, you are effectively negating the State’s classification of the gang as a lawless association. There are so many flaws and ethical conundrums inherent in this set of laws that we can barely scratch the surface here.

Presumption of innocence

Presumption of innocence is fundamental to our system of law. I don’t normally quote from Wikipedia, but in this case the principle is so basic and universal that I will use its definition: “the principle that one is considered innocent until proven guilty. In many nations, presumption of innocence is a legal right of the accused in a criminal trial. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt.” Guilty beyond reasonable doubt. We accept this condition. We rely on it, should we ever have the misfortune to be caught up in the legal system. Innocent until proven guilty has been the cornerstone of Australian legal practice since its foundation.

“Tony Abbott declined to rule out a reversed onus of proof, but said any changes would be “consistent with our traditional principles of justice and freedom”. This is a pure oxymoron; it is impossible to remain consistency with our traditional principles when you’re talking about reversing the cornerstone.

How do you prove innocence? Even our courts don’t currently try to do that. As others have pointed out, the best you can hope for in a modern trial is a verdict of “Not Guilty”. This does not equate to innocence. If you cannot be proved to have committed the crime, you are not guilty; you may still have committed the crime, but our system deliberately errs on the side of caution. The presumption of innocence exists because it is better to let guilty parties go free than to lock up innocents. This is a fundamental component of our understanding of jurisprudence and to reverse it means that people will be caught up in and eaten by the system. Of course, the Coalition has form in this – look no further than the case of Mohamed Haneef.

If you don’t do anything wrong, you don’t have anything to worry about

Oh yes you do. Let’s consider for a moment the kinds of people who might visit a “declared zones”. Certainly, there will be a small number – an exceedingly small number – who travel to conflict areas for the purposes of violent jihad, or just for kicks. There are mercenaries, even from Australia, who fight for the highest bidder, not being beholden to Allah but simply seeking to parlay their skills into profit. Putting aside the ethics of the equation, if jihadis and violent thrillseekers and mercenaries are caught up in these laws, that’s probably the intended outcome.

The Greens and Labor suggest that these changes may also apply to aid workers and journalists. Of course, the Coalition doesn’t actually believe in the work that aid workers (reduction in Australia’s aid budget) or journalists (culture of secrecy) do, so they possibly think these are acceptable outcomes.

But what about family members? There are people living in Australia who originate from conflict areas. Some of these happen to be Muslim, and have relatives living in peaceful cities in Syria, Iraq, Afghanistan or other countries otherwise beset by war and unrest. People do travel, and people do visit these countries for reasons other than violent jihad. It’s not a stretch at all to think that a Muslim man, visiting his family in Baghdad, might return to find himself forced to prove that he did not, while he was there, consort with militants. That can be very hard to prove. Read: impossible.

How about tourists? Iraq and Syria, Turkey and Egypt, India and Pakistan – there are wondrous works of nature and of man in these places, and Australians travel there every year to visit them. Are all of these tourists, young and old, single and married, Christian and Muslim and Buddhist, to be automatically assumed guilty of terrorism offences?

If the answer is no, the question becomes How do you tell which ones? Only the Muslims? Perhaps any Muslims between certain ages? If you need to prove that somebody is appropriate to have laws applied against them, then you should have to prove it. There are no circumstances under which a blanket rule like this can be applied without it either applying to everyone, or basically giving carte blanche to bureaucrats to ignore otherwise necessary burdens of proof. Relying on instinct and gut feeling have been shown, time and again, to be insufficiently rigorous methods of jailing people.

Finally, how do you identify a “declared zone”? Iraq and Syria are currently topical. In recent years we have seen unrest in Egypt, Tunisia, Libya, Yemen. There have been protests in Algeria, Morocco and Israel. There were minor protests in Saudi Arabia, Oman and Mauritania. How about Thailand? Burma? Indonesia? Bali? There is conflict and terrorist activity across the breadth of the world, including in any number of places to which Australians love to travel. Not every Australian who travels to Sri Lanka wants to be a Tamil Tiger. Not everyone who goes to Bali intends to bomb cafes. If you can accuse one such traveller of such crimes – indeed, assume their guilt unless they can prove otherwise – you have to apply it to all.

Of course, this legislation has not yet gone to Cabinet, let alone to the Parliament. There’s still plenty of time to see it changed or dropped. We can only hope that the Coalition will have the sense to take a more moderate approach; and when the current government’s intransigent lack of moderation brings these laws to the Parliament, we can only hope that the crossbench senators will see these laws for what they are – another step down the road towards a police state.

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