Lex Australia
Lex Australia
Came across an old post at Gavin Putland’s Leges Dubiae blog which coincides with what we tried to say way back when Haneef was the name on everyone’s lips.
Given the change of government and all, it seems timely to question this preposterous example of the legislative legacy of the Howard years.
It wasn’t so much about the guilt or innocence of Haneef, or the appalling mismanagement of the case by the Federal Police under the even more appallingly incompetent and bloody Mick Keelty. It was that the law under which Haneef was arrested and charged was stupid, or, as Putland puts it, “dubious”. Haneef is not a citizen of Australia and the act for which he was charged (giving his Sim Card to someone “with reckless disregard” for whether that person was a terrorist) was carried out in another country.
The whole idea is ludicrous. Putland says:
” Although the Statute of Westminster gave the Australian Parliament the power to make laws with “extra-territorial operation”, it has always been understood that such operation would affect only Australian citizens. By charging Haneef, Australia is now asserting the power to make laws binding on non-Australians outside Australia.”
As Alex Downer would have said, “That’s pwepostewous!” (God, don’t we miss him already?)
The problem even goes further.
This is what Haneef was charged with:
” intentionally providing resources to a terrorist organisation consisting of persons including Sabeel Ahmed and Kafeel Ahmed, his cousins, being reckless as to whether the organisation was a terrorist organisation”
This pre-empts British law, since the British have never charged either Ahmed brother with being a member of a “terrorist organisation”, and such an assertion, had it even been made, has never been tested in a court whether British or Australian. (Indeed, it was not even legally established or legally asserted at the time that the incident was a “terrorist act”.) Nevertheless, the Australian Federal Police, by making the charge under the extra-territorial powers of the you beaut Ruddock/Keelty legislation, arrogated the pre-eminence of Australian law over British law. That is just plain dumb.
The Lex Romana was intended (we appear to recall from long ago) to simplify and organise all the laws for all people under Rome’s sway. It is said to be Rome’s most important, lasting and unique gift to the world.
But now if Australia can make laws for the whole of the rest of the world – not just , Australians, Australia and its territories – and if every other nation, therefore, can also, with equal justification, make laws for everyone in the world, then we have a little more confusion than was intended by the codification of Roman law.
Saudi Arabia, for example, could take Australia’s example and under its extraterritorial powers impose Sharia law on non-Saudis living in Australia (i.e. most of us). It could then apply for extradition to Saudi Arabia of anyone it had reason to believe had committed adultery, say, so that they could be stoned to death – or perhaps just the women, in Sharia’s very civilised and enlightened way.
Yes, it sounds like a joke but it’s not. The law is a joke. But this joke of a law was seriously applied to Mohamed Haneef and threatened to send him to prison in Australia for fifteen very serious years.
And you know, the terrible irony is that the law was written (so hastily and so abominably poorly) with only one purpose in mind – the re-election of the Howard government…….
Oops!
The law is even worse and more stupid than this and you can read more of what we said in July. And here is a distillation of the relevant sections of the law under which Haneef was charged.
In a nutshell, the law means that:
if anyone, whether Australian or not, anywhere in the world, sells, shares, or gives any thing or any service, to anyone anywhere in the world, and they do not take reasonable and verifiable steps to assure themselves that the person to whom they provide the thing or service is not [or could not at some indeterminate time in the future be deemed to be] a terrorist or part of a terrorist organisation and they do not take reasonable steps to assure themselves that the person (or organisation) could not use it or plan to use it in any way as part of a terrorist act then they may be found guilty of the same crime that Haneef was charged with and spend fifteen years in prison.
So of course it’s ridiculous. But it’s no joke.
And it is still Australian law.
