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New law could link our courts with torture
Allowing overseas video evidence in terror trials could prove dangerous, writes Andrew Lynch.
FORGET the Federal Government's use of the Melbourne Cup as a smokescreen for the introduction of its Anti-Terrorism Bill into Parliament. Consider instead what other laws are passing under the radar courtesy of the debate over that bill itself. Because the spectre of torture has arrived in Australia and few seem to have noticed it.
Last week the Senate's Legal and Constitutional Legislation Committee heard submissions about the Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005. Despite the bland name, the bill seeks to introduce very significant changes to the way in which terrorism suspects will be tried in this country. Its central purpose is to allow a court to take evidence from witnesses via video link and also foreign evidence not delivered "live" but in the form of written, video or audio material.
That basic purpose is commendable in trying to overcome the difficulty of courts accessing evidence when trying a crime such as terrorism, which often involves international networks. But the devil is in the detail. The processes that the bill would require of federal courts have the potential to inhibit the defendant's right to a fair trial and also to damage the integrity of those courts in administering justice.
What is clear on the face of the bill is that the Government is seeking to stack the odds against the defendant in a terrorism trial by making it extremely difficult for him or her to argue against the prosecution calling forth video link or foreign evidence.
Note that the onus is not on the party seeking to use video evidence but that which seeks to prevent it — quite the contrary to how state and territory courts now approach the same question.
But the unique features do not stop there. Essentially, defendants would have to show that the evidence "would have a substantial adverse effect" on their right to a fair hearing.
This is a much higher standard than that which the prosecution has to meet when it seeks to block a defendant from using the same kind of evidence. They simply have to convince the court that denying the evidence is in the "interests of justice". That test involves the court in balancing the positions of the parties and the conduct of the trial overall. It gives much more oxygen to the prosecution in objecting to an application from the other side than the defendant has.
The Attorney-General has played down the extent of this difference, but it is manifestly obvious that the bar is being set higher for the defendant. If you want an idea as to how hard the "substantial adverse effect" standard is designed to be, consider that the standard set for the defendant to oppose video evidence by children in sex abuse cases under Commonwealth law is simply to convince the court that it is not in the "interests of justice".
A suspected sex offender has better chances of preventing video testimony from an abused child than a suspected terrorist has of stopping the court from accessing evidence in the same way. And there are much graver reasons against use of this kind of evidence in terrorism cases.
This is where torture comes in. How can we be sure that evidence used to convict somebody of a terrorism offence and which has been brought in from overseas was not procured through torture? The bill makes no mention of this concern — not even directing the court to exercise its discretion to refuse such evidence unless it can be satisfied that torture has not played a part. Nor does the bill recognise that torture is openly employed in some countries and so evidence obtained from a prisoner or accused held in those places should be dismissed as a matter of course.
We should all be worried about the kind of evidence that might find its way into Australian courts if the bill goes through without more express restrictions. The case for amendment of the bill is made stronger by the fact that the House of Lords is right now considering a case challenging the use under English law of evidence gained by torture.
Preventing the use of such evidence will ensure a fair trial for the accused and satisfy Australia's international obligations. But this is also about protecting the courts themselves.
While it is important that courts have access to all relevant evidence, it is vital that such evidence is reliable and that the fairness of the trial process is beyond reproach so the public can have confidence in the conviction of terrorists in the Australian court system. There is nothing to be gained by finding the innocent guilty and much to be lost by doing so.
Andrew Lynch is director of the terrorism and law project at the Gilbert + Tobin Centre of Public Law, University of New South Wales.