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The Law Report from the ABC Radio June 24th, 2008 (transcript sent by a contributor & received with thanks)

The death of Graeme Wylie

The death of Alzheimer's sufferer Graeme Wylie; was it kindness or a cold-blooded killing? A jury in Sydney found Graeme's long-time partner Shirley Justins guilty of manslaughter, and the couple's close friend, Caren Jenning, guilty of being an accessory.

The jury decided the pair didn't help Graeme carry out an act of free will. Rather, he was in no condition to make a decision to end his own life and the pair made that decision for him.

Damien Carrick: Today on the Law Report: character tests and the law, that's later; but first the death of Alzheimer's sufferer Graeme Wylie.

Last week Shirley Justins, his partner of 18 years, was found guilty of his manslaughter. And close family friend Caren Jenning was found guilty of being an accessory.

Newsreader: A jury in Sydney has convicted two women in a controversial euthanasia case. They maintained they were just trying to help an Alzheimer's sufferer die with dignity, but the jury found the dead man lacked the mental capacity to make the decision to end his life, and that the two women had breached their duty of care.

Reporter: The 71-year-old had been suffering from Alzheimer's disease for three years. The court heard by the end he couldn't recognises his own daughters.

Woman: I think the verdict is correct.

Philip Nitschke: I think it's a disgusting decision, and I'm very, very distressed by it. And as I said, it sends a dreadful message to the elderly people of Australia and especially those either with Alzheimer's disease, worrying about getting it, or caring for people with this condition.

Damien Carrick: Euthanasia activist Dr Philip Nitschke, who's disgusted by the jury verdict. And before him, one of the daughters of Graeme Wylie, who believes the jury made absolutely the right decision.

Initially, Shirley Justins and Caren Jenning denied any involvement in the death of Graeme Wylie. They pleaded not guilty to the murder/manslaughter charges. However, once the trial commenced, Justins was prepared to plead guilty to assisted suicide. And Jenning was prepared to plead guilty to importing the drug, Nembutal. But by this point the prosecution declined to bargain, and the trial continued until the end.

Cameron Stewart is an associate professor of law at Macquarie University. He says there is no question that at some points Graeme Wylie wanted to end his own life. He had tried to commit suicide a number of times. In December 2005, he approached the Dignitas Group in Switzerland, an organisation that facilitates assisted suicide.

Cameron Stewart: Graeme Wylie was an ex airline pilot who had been diagnosed with Alzheimer's disease, and he'd made a decision, or it was argued that he'd made a decision, that he'd wanted to end his life. He, with his partner and friend, had made an application to go to Switzerland to visit the Dignitas Group in Switzerland and have access to their treatments for euthanasia. During that process of evaluation, whether he would be allowed into that clinic, it was decided by the Dignitas Group that he was not competent enough to make a decision with regards to ending his life, and so they rejected his application to go to Switzerland for that.

Damien Carrick: That was in December, 2005.

Cameron Stewart: Yes. And so that was a couple of years back. From what we know, also from the media reports on the trial, after that decision he was disappointed, then he sought other options for ending his own life. And that eventuated in a drug called Nembutal—which is primarily used in veterinary medicine, in Australia, it's not available for other things. It's a form of phenobarbital—that drug was procured for him from Mexico, and it was provided to him; he took that drug and he died.

Damien Carrick: How exactly did he die? Was the Nembutal placed on a table in front of him and he picked it up and put it in his mouth?

Cameron Stewart: Basically that seems to be the case, that it was provided in a form for him to swallow, and he took that and he swallowed it. There were some media reports that a statement was made to him at the time that 'this will help you with your pain'.

Damien Carrick: What were Shirley Justins and Caren Jenning arguing?

Cameron Stewart: They were arguing that it was a suicide. And on the basis of the guilty plea, I suppose their argument was this person had made a conscious decision on their own to end their life. And we may have been guilty of providing support in terms of that person killing themselves. And they were arguing that's a very different thing from a situation where someone would intentionally end the life of another.

Damien Carrick: But the jury found that Graeme Wylie was not of full mind; he was not capable of making a meaningful decision to end his own life, so therefore this pair weren't involved in assisting a suicide, they were involved in something much more serious.

Cameron Stewart: Yes, I mean that's an assumption we make from the jury's finding, but I think it's a credible assumption to make. I think that they were really not convinced that this was a person who could make a decision on their own. There was conflicting evidence about that, and in the end the manslaughter conviction appears to be an acceptance that this man was not able to make a decision to kill himself.

Damien Carrick: What was that conflicting evidence?

Cameron Stewart: Well the evidence comes from various sources. The evidence with regards to why it was that Dignitas rejected his application to go to Switzerland, the reasons for that were primarily based upon his cognitive ability, his ability to functionally understand the decision that he had to make with regards to ending his life. There were also conflicting reports about his memory—whether he could remember even his daughters around the time of some of these decisions being made. And there was also conflicting evidence about the status of his will. And I think the combination of all those events may have very much affected the jury's assessment of whether he had the ability to make his own decision about ending his life.

Damien Carrick: So the evidence was cognitive tests and the post-mortem of the brain, which revealed moderate to severe dementia—and also, I think, testimony from his daughters, who are profoundly angry with Justins and Jenning, that he was unable to hold proper conversations and was unable to identify everyday objects and identify people, even.

Cameron Stewart: That's correct. I think we need to be careful, though, when we're talking about capacity, when we're talking about functional cognitive abilities. It's not purely a question of some medical test. Capacity generally is a legal test—and when we're looking at wills, if we're looking at other types of decisions, medical treatment, refusal of treatment—the test for whether a person has the ability to do that in the legal sense is a legal test, it's not a medical one. So we could have many tests that are biological, we could have many tests which are psychological, psychometric; they're not necessarily going to tell us whether at that particular time a person had the capacity legally to make a decision or not.

So medical evidence is helpful, medical evidence gives us an indication of the person's capacity, but ultimately it comes down to that functional ability, whether a person at that particular point in time can understand what they're being asked to do, assess the information, believe that information, and communicate the decision. Now that's very difficult to do in this situation because we didn't have that type functional assessments going on regularly, in fact as far as we know, it probably didn't happen at all. But the real problem for us is drawing a distinction then between the question of whether he had a legal ability to understand what he was doing, and that medical evidence about the level of his cognitive impairment due to the dementia.

Damien Carrick: It was clear, or likely, that at one point when he had his full mental capacities, that he had expressed a desire to end his own life and to not lose control over his body, but the question here was whether at the time of his death, he was still of full mind, he was still making a choice, rather than having a choice made for him.

Cameron Stewart: Yes, and that's the pivotal issue in determining whether this is an act of suicide to which they were assisting, or it was a type of homicide, an intentional killing. That's the key difference. If the request is being made by a competent person, it's easier for us to understand that as being a form of suicide to which they're assisting. If not, then we are really concerned, and it seems the jury was obviously concerned and they've decided that it wasn't that type of situation, rather this was a situation where he really didn't have that capacity and these women had basically been involved in committing homicide.

Reporter: The Crown had been seeking a murder conviction for Shirley Justins, saying she was motivated by money. A week before Graeme Wylie's death his will was changed, which left Justins most of his $2.4 million estate. But Justins argued that although her partner had Alzheimer's he knew he wanted to die, and had twice tried to kill himself.

Damien Carrick: There was of course the question of the will. In his original will he had left 50% of his $2.4 million estate to his children and 50% to his long-term partner, Justins. But under the new will, almost everything was left to Justins, and she was the one who instigated the change to the will.

Cameron Stewart: This is a problem with all of these end-of-life decisions, because we want families to be involved in end of life decision-making just generally, it's better for families to be involved with physicians and carers, so that everyone's on board, everyone's able to give the person the most dignified death possible. But when we go out of even the ordinary spectrum and into more active forms of euthanasia, any question of conflict of interest is really going to complicate the matters even further. And I think people have a justifiable suspicion in those more active forms of euthanasia, combined with questions of competence, and now combined with some form of financial conflict. In those situations, people I think are rightly suspicious of the motivations.

Damien Carrick: And so the Prosecution was essentially arguing that Justins wasn't interested in facilitating her partner's clear and lucid wish to die, but rather killing him so she could inherit the cash, and there was no love there. I think that was essentially the argument.

Cameron Stewart: Well that may have been an argument. What the jury ended up deciding in that room we'll never know, but maybe that is one of the conclusions we might be drawing. I'm not so sure, I think perhaps it's the combination of all these events which has led to the jury finding in the way that they have.

Reporter: The euthanasia campaigner, Philip Nitschke, who was present throughout the seven week trial, said he was stunned by the jury's decision.

Philip Nitschke: I think it's a disgusting decision, and I'm very, very distressed by it. As I said, it sends a dreadful message to the elderly people of Australia, and especially those either with Alzheimer's disease, worrying about getting it, or caring for people with this condition.
Reporter: The jury found that Graeme Wylie no longer had the mental capacity to decide to end his life. Dr Nitschke said ...

Reporter: While the jury had been told that this was not a referendum on euthanasia, Philip Nitschke says the verdict sends the wrong message.

Philip Nitschke: As people who know they're getting Alzheimer's disease will take the option and end their lives earlier rather than later.

Reporter: Justins and Jenning were both ...

Reporter: And the euthanasia campaigner, who wept outside the court and was comforted by supporters, said he'd been holding workshops advising his supporters to keep any signs of dementia secret.

Philip Nitschke: Don't go to your doctor, don't have the tests done, and if you do have the tests done that show that you're starting to lose mental capacity, make sure it's not recorded. So we'll be giving all of our members a test and telling them to do it privately behind closed doors, and never mention it.

Cameron Stewart: I think that's a very dangerous thing to be saying to people who've newly discovered that they're suffering some form of dementia. I think what we really need to be doing is encouraging people to work very closely with their carers and their medical professionals, we need to be having conversations about their wishes, and there are ways that you can currently give medical directions, place down advance care planning, so that your decisions will be respected in the future, and they are legal and they are available now. But the best way to have them go ahead is for you to speak to your medical professionals and get them involved in your care with your family. So I feel the heartstrings pull for Dr Nitschke, I understand why he's upset, but I think that's a very dangerous thing to say to people.

Damien Carrick: His statements have certainly enraged some doctors who treat Alzheimer's. They say the comments are profoundly irresponsible because if you don't diagnose an illness and provide appropriate treatment, then that's a terrible outcome.
Cameron Stewart: It's a real danger to people because this is about ongoing care as well. While they still have their cognitive abilities, they need to be given an opportunity to speak about what they would like to have happen in the future. And I'm sure that Dr Nitschke has often argued for that, but getting people not to go to their doctors would result in the opposite outcome.

Damien Carrick: This case is being seen as opening up the debate around legalising euthanasia, but is that really the case? Because Wylie did try to access the Dignitas program, the Swiss-based clinic which assists people to die, and in an Australia where euthanasia was legal, we'd still have cases exactly like this, wouldn't we? Where people would try and access whatever programs were legal and then might still be knocked back, and we might still find ourselves facing this situation.

Cameron Stewart: That's correct, that's absolutely right. If it's the case that Mr Wylie was not competent, he wouldn't have been able to access the Northern Territory scheme either, even if it had been legal at the time. These schemes are for people who have full competence, in control of, and have a functional understanding of their conditions, are able to make decisions. They're not schemes for people who are unable to make decisions, and in fact I don't think anyone is arguing for a scheme of involuntary euthanasia of people with cognitive impairment. No-one is arguing for that. But the question you've asked me is whether this case would happen again. Well one of the arguments is (I'm not sure if it's correct) but one of the arguments is if we have a voluntary euthanasia regulation, or regime, you're not going to see as many cases like this happen, because the field will be better regulated; people will have better access to treatments and you won't have people trying to access Nembutal, you won't have people trying to access drugs through the back door; there won't be that social pressure for people to commit suicide in that way. They'll have another avenue, they'll have a medical avenue for that to happen.

Damien Carrick: But Graeme Wylie was a man of means, he had funds, and he or his family did try and access that Swiss-based program, Dignitas. So the argument would be that already in a globalised world, these options exist for people and if that's the case, then as the jury found here, there was abuse. And if in Australia we had a legalised system we'd still have these difficult cases, and we'd still have this, as the jury found, criminal behaviour.

Cameron Stewart: We may still have cases like Mr Wylie's case, but what we won't have—well the argument is what we won't have is the number of people who are suiciding at the moment, and taking their own life, using illegal means. If you provide an avenue for people to have medicalised euthanasia, the argument goes then you reduce the problem of people committing suicide. Suicide is not illegal, the problem at the moment for medicalised euthanasia is that assisted suicide is illegal.

So yes, you may have outlying behaviours and you may have people that will be prosecuted, but another way to look at it is that means the Dignitas process worked. For all those people that say that voluntary euthanasia schemes don't protect people with cognitive impairments, that there's a slippery slope. The Dignitas people did not euthanase Mr Wylie, they refused to, they did an assessment, they protected his vulnerability. He ended up being killed, that's true, but that's not because of the euthanasia scheme, it's not because the laws didn't say that it was wrong for him to die. So in one sense, in a sort of a reverse sort of logic, maybe having a voluntary euthanasia scheme would protect more people with these vulnerabilities. Because there would be a process where people could go and get their capacity assessed, there would be a system of checks and balances to make sure that if they didn't have capacity, then you wouldn't have access to these types of behaviour.

Damien Carrick: Finally, the judge in this case will hear sentencing arguments in October and sentence the pair in November. What do you think are his options, and what do you think he's likely to do?

Cameron Stewart: It's hard to say. I'm reluctant to look into any form of crystal ball. What I do know is that studies have shown us that generally mercy killing cases are ones which are normally treated with leniency, and people often get suspended sentences or lighter sentences, non-custodial sentences, in many of these cases. But there are some features of this case though that are different. There are some features of this case which make it stand out from the traditional suicide or murder-suicide arrangements that often happen in elderly married couples. What are those features? The fact that we have this tainted will; the fact that we have arguments about financial conflict; the fact that we have arguments about whether there was proper capacity assessment. In this particular case there may be reasons for the imposition of a heavier sentence.

Damien Carrick: Cameron Stewart, associate professor of law at Macquarie University. Caren Jenning is suffering terminal bone cancer and her lawyers will be seeking a non-custodial sentence.

Quite coincidentally, this week the Senate will consider a bill put forward by the Greens that would repeal the federal legislation that stomped on the Northern Territory's voluntary euthanasia scheme back in 1997.

Guests
Cameron Stewart,  Associate Professor Law, Macquarie University
 

June 21, 2008

SHE'S facing up to 25 years behind bars for assisting in her friend's manslaughter, but Caren Jenning may not live long enough to learn her fate.

Her daughter Kate Jenning yesterday said her mother's terminal bone cancer meant "she may not still be alive" when sentencing over Graeme Wylie's death begins in October.

But Jenning's friend, euthanasia advocate Dr Philip Nitschke, suggested the 75-year-old may be contemplating suicide.
He said Jenning had "made it pretty clear that she's not, given her state of health, going to prison if she can do anything about it".

"She probably is thinking along those lines. Certainly she has talked about that, and who can blame her?" he said.

"It wouldn't be a way of circumventing the law, simply a way of saying, 'I'm so ill, it is a reasonable next step'."

Jenning was a NSW representative of Exit International, the pro-euthanasia group founded by Dr Nitschke.

He said the organisation had raised more than $100,000 towards her defence.

A Supreme Court jury this week convicted Jenning of being an accessory before the fact of Mr Wylie's manslaughter. She illegally imported Nembutal, the veterinary drug that killed him in March 2006, from Mexico.

The drug was given to Mr Wylie, 71, by his partner Shirley Justins, who was convicted of manslaughter.

Both women told the court Mr Wylie wanted to end his own life, but the jury found he lacked the capacity to decide because of Alzheimer's disease.

Kate Jenning yesterday spoke out against the verdict, saying "the drug was not administered to someone who didn't want to die".

She described her mother as gentle and compassionate, saying she was Mr Wylie's closest, dearest friend and "the last thing she could bear was him rotting in an institution".

Mr Wylie changed his will a week before he died to leave Justins most of his $2.4 million estate, but Ms Jenning said the case was not about money. Justins was simply "a sweet soul" who "cared greatly for Graeme and did what she thought he wanted".

Despite her illness, Ms Jenning said it was unlikely her mother would use Nembutal to end her life.

Asked whether her mother intended to suicide, Ms Jenning told The Daily Telegraph she could not speak for her mother, but they had not discussed such plans.

 

Sentencing: Do killers deserve any sort of mercy?

By Michelle Cazzulino
The Telegraph
June 20, 2008

Justice Roderick Howe faces arduous task in sentencing

CAPTION: In tears at decision ... euthanasia advocate Dr Philip Nitschke. Picture: Sam Mooy

HE observed that the jury had been forced to adjudicate on an "extraordinarily difficult" case, but Justice Roderick Howie now faces an equally arduous task.

Charged with the responsibility of sentencing Shirley Justins and Caren Jenning over the death of Graeme

Wylie, he will once again confront the complexities of a high-profile case that divided the community from the outset.

With seemingly no public consensus on the subject, community attitudes towards euthanasia are unlikely to provide any guide to sentencing.

Further complicating the matter is the respective ages of the two offenders: Shirley Justins, who was found guilty of manslaughter, is 59, while Caren Jenning, who was found guilty of being an accessory to manslaughter, is 75 and suffering terminal cancer.

The severity of the women's respective crimes is such that, under the law, Justice Howie could impose prison terms of up to 25 years each, effectively sentencing them to die in jail.

There are some who would argue that outcome was warranted. During the trial, the jury was also reminded that the trial was not to be a "referendum on euthanasia".

Manslaughter was only put before the jury during the trial's final stage, after Justice Howie allowed an amendment of the indictment to include the charge. He said it was an unusual step, but was appropriate given the evidence.

Justice Howie will begin sentencing proceedings in October but the lawyers for Jenning already flagged their intentions of seeking a non-custodial sentence due to the "unusual" circumstances of the case.

Prosecutor Mark Tedeschi QC told the jury Justins was motivated by a desire to secure her financial future, and deliberately killed her dementia-stricken partner or let him take an overdose of the drug Nembutal and was indifferent to the fatal consequences.

Justins pleaded guilty to aiding and abetting suicide early in the trial, and said Mr Wylie was desperate to die before his illness got worse.

Jenning also told the jury she was motivated by mercy in travelling to Mexico to obtain the Nembutal for Mr Wylie, who was one of her oldest friends.

Yesterday neither woman offered any comment on the decision.

Justice Howie adjourned the matter to allow for the gathering of medical and other evidence related to the sentence to October 7, with a likely sentence date in November.

Within minutes of the verdicts being handed down yesterday, euthanasia advocate Dr Philip Nitschke had labelled them "disgusting" and "distressing".

"Many people that know they're getting disease will take the option and end their lives earlier rather than later, because the know that if they let it go too far they're going to find themselves in the situation as these two poor women found," Dr Nitschke, who broke down in tears after the verdict, said.

"People will . . . end their lives before their time, simply because of the message that this court has sent."

As a result of the verdict, Dr Nitschke said his organisation Exit International would change the way it advised alzheimer's patients. Those comments were slammed by mental health experts.

The pro-life group NSW Right to Life welcomed the decision and posted a statement on its website.

"Human value cannot be forsaken regardless of how old or how weak these individuals are," CEO Chiang

Lim said last night.


 

Due to the excessive cost of funerals I have posted this article here because it tells us what is legal rather than what the local funeral director would prefer you buy....My friend insisted on using one for her mum's funeral because of her previous strong held views about the environment.   It cost her $500 then,  but I have not checked out the pricing on those on the website I've copied and pasted this article from.   Anyone with a further interest can undertake their own research....  I am not marketing a specific casket type, just advising on the legality of what's available....There is more on this subject under Additional/Related Readings/Facts & Figures.

Is it legal to use cardboard caskets in Australia?

The use of cardboard coffins and caskets is quite legal in all States and Territories in Australia. The various State Acts vary in their level of detail regarding coffin requirements.

For example, in Western Australian and Queensland, there is no mention of what constitutes suitable coffins or caskets in their relevant Acts. In NSW, under their “Public Health (Disposal of Bodies) Regulation 2002”, it only specifies that coffins must “have a securely fitting lid”. In all other States, they request that coffins are of “sufficient robust construction” and will not collapse when damp etc.

It is clear that cardboard coffins and caskets are legal as long as they meet the OH&S requirements of the funeral directors, crematorium and cemetery staff. These requirements are best articulated in the Australian Cemeteries and Crematoria Association (ACCA) "Guidelines In The Use of Cardboard and Other Receptacles" Please visit our Downloads Page to view these guidelines. Please click here to read more about the various State Government regulations affecting the use of coffins and caskets in Australia.

Is it possible to decorate a casket after purchase?

Yes, you can decorate the casket. Our caskets can come in a basic white finish to help with drawing or painting designs and messages on the casket.

Is it possible to obtain and store a casket for a period of time before use or are there some legal requirements that prevent this?
There is no legal restriction regarding storing the casket until it is required. However, we would suggest that you contact your funeral director to ensure they are happy to use the cardboard casket. Some directors claim that they can’t use a cardboard casket because it is not legal etc. Cardboard caskets are quite legal in all states and territories in Australia. OnEarth caskets have been tested to meet the OH&S standards of the funeral industry by the NSW testing authority – Testsafe Australia. A copy of their report is located on our downloads page.

Do OnEarth's cardboard caskets look like traditional funeral caskets?

A cardboard casket has been called "cheap" and lacking in "dignity" by some people. However, OnEarth's 100% recycled cardboard caskets maintain the dignity and respect associated with traditional wood-based caskets. The innovate use of honeycomb cardboard provides exceptional strength and rigidity to the casket. All panels are then treated with a water-proof lacquer. This gives a professional and beautiful looking casket which anyone would be proud to present at their loved-one’s funeral.

Does a cardboard casket help in the cremation process?

Some people have mistakenly suggested that a wooden casket helps in the cremation process by providing fuel for the cremation. A modern crematoria expends about 90kg of gas and burns at a constant temperature of 850o C for about 3 hours to complete the cremation process. This would suggest that in fact, some of this energy would be used to “burn-away” the wooden casket to allow the cremation process to proceed.

If you would like to know more about the cremation process, please visit the FAQs page at the Adelaide (South Australia) Centennial Park Crematorium website: - http://www.centennialpark.org/faq.asp
 

This article was posted by email to me by a concerned citizen.   Haneef could have been you or me if it suited the Howard Government to create an environment akin to the Tampa fiasco.   Australians must protect our rights before we become a Dictatorship, which is geared to make the evidence fit the crime according to one's political agenda!    Hicks & Haneef...two H's in a living hell!

War on Error: A Dangerous Precedent
By: Kirk McKenzie

Wednesday 18 July 2007

Last Monday, Dr Mohamed Haneef was granted bail after being held in custody for 12 days without charge. Desperate to win a victory on something, anything, the Federal Government then revoked his visa and detained him under immigration laws.
Prior to 1991, it was the law in Australia that a person arrested by a police officer without a warrant needed to be charged and then brought before a justice as soon as practicable, unless released on bail. So a person arrested in the morning was taken before a court in the afternoon and a person arrested in the afternoon was taken before a court the following morning, at the latest. No arrest could occur without the police having a reasonable suspicion of the person’s involvement in a crime.

This changed in 1991, when the Federal Parliament passed a law that allowed an ‘investigation period’ of four hours from the time of arrest within which the person must be charged. An extension could be obtained from a magistrate or if unavailable, a justice of the peace (JP), to allow up to a further eight hours if sufficient evidence was likely to be obtained within the extended time. The new laws also allowed down-time periods which stopped the investigation clock ticking.

In late 2001, in the wake of the World Trade Center attack, the Howard Government increased the extension period for terrorism offences only, from eight to 20 hours, making a total of 24 hours. Then, in July 2004, three months before the last Federal election, the Howard Government made an extraordinary change to the down-time provisions.

It enacted the section of the Crimes Act under which the 24-hour period can be extended by making an application to a magistrate (or if unavailable, a JP!) either in writing or by electronic means to ‘preserve or obtain evidence or to complete the investigation’.
Importantly, there is no time limit on the extension that can be granted, as long as the investigation is ‘conducted properly and without delay’.

So a magistrate or JP, acting as an arm of the executive government and not as a court, can extend the period of detention for weeks (or theoretically indefinitely) before a person is required to be charged or released.

This is what happened to Dr Haneef over the last two weeks.

It seems clear that the extended investigation resulted in either no further evidence against him or very little. The question arises: why was he not charged shortly after being arrested?

There are two possible answers. The police either felt they had insufficient evidence to justify the charge; or they had sufficient evidence to justify it but preferred to keep Haneef without charge (and access to bail) in the hope that more serious charges would be available after further evidence was obtained. If the former is the case, the charge looks like a face-saving exercise.

There are two more concerning aspects of this saga. The first is the charge brought against Haneef itself: Supporting a Terrorist Organisation.

The offence (Section 102.7(2) of the federal Criminal Code 1995) is as follows:
(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.

The definition of ‘terrorist organisation’ includes: ‘An organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs)…’
Incredibly, Section 5.4 defines recklessness to include where the person is ‘aware of a substantial risk’ that a terrorist organisation ‘exists or will exist’ (emphasis added).

A SIM card belonging to Haneef was allegedly found in a car used in the Glasgow terrorist attack. According to reports, Haneef gave the card to his second cousin, a suspect in the attack, when he left Britain for Australia.

But Haneef came to Australia in September last year, some nine months before the event. For him to be convicted, his distant relative and his associates would need to have already formed a terrorist organisation at that time. However, under the definition of recklessness, whether or not Haneef was aware of this is irrelevant. If last September, when he gave his cousin the card, Haneef was aware only of a risk that a terrorist organisation would later exist, that may be enough. This is a vague and unsatisfactory basis for conviction for an offence which carries a maximum penalty of 15 years jail.

It is bad enough that such a serious offence can be satisfied by recklessness as to the existence of the organisation, but it seems extraordinary that a person may be convicted if he has a vague notion that it may later exist. A person convicted of the offence may end up spending years in jail for a simple error of judgement or an inability to predict the future!

The second concerning development is the Government’s cancellation of Haneef’s visa because of his suspected association with persons involved in criminal conduct. However justified in law, this is just guilt by association.

Fortunately the Constitution requires that in a Federal criminal trial, there must be a jury and its verdict must be unanimous. Even the Howard Government can’t cancel that ancient right.

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New law frees spy agencies to snoop on the innocent
By George Williams
April 3, 2006
 

 Federal Parliament passed a new law that allows the Government to read our private emails, text messages and other stored communications without our knowledge.

The power extends to innocent people, called B-parties, if they have been unlucky enough to communicate with someone suspected of a crime or of being a threat to national security.

The Government should sometimes be able to monitor the communications of innocent people. This may be necessary to protect the wider community in case in which a suspect can only be tracked through another person. However, the law goes far beyond what can be justified and undermines our privacy more than is needed.

Under the Telecommunications (Interception) Amendment Act, the Government will be able to access communications not only between the B-party and the suspect, but also between the B-party and anyone else. If you have unwittingly communicated with a suspect (and thereby become a B-party) the Government may be able to monitor all of your conversations with family members, friends, work colleagues, your lawyer and your doctor. Your most private and intimate communications may be pored over, without your knowledge, by people you have never met.

The Government may be able to use the information it collects even though the information is not related to the original suspect. It also does not have to tell you that it has been listening in. This is the case even if telling you would not prejudice the investigation. While you have some remedies if you have been illegally monitored, these are pointless if you do not know you have come under surveillance.

This is of even greater concern given how easy it is for ASIO to gain a warrant. The gatekeeper is not an independent person such as a judge, but a politician, the federal attorney-general. As long as ASIO has tried other means of tracking a suspect, to gain a warrant it need only show the attorney-general that intercepting the B-party's communications is likely to assist in obtaining intelligence related to security. The use of terms as vague as "likely to assist" and "relating to security" provides scope for the misuse of the power.

A further issue is how the law distinguishes between stored and real-time communications (such as telephone conversations). It is much easier to monitor stored communications, apparently because they are seen as less private than telephone conversations. However, now that telephone conversations often occur in public on mobile phones, many people, particularly young people, reserve their most personal interactions for email and text messages. It is nonsensical that our personal affairs are made less private because they are in an email rather than said over the phone.

These problems have been compounded because the Government rushed the law through Parliament without taking account of advice from its own ranks. The Senate committee examining the bill unanimously found last Monday that the powers were too extensive. It recommended a major strengthening of the protections against misuse. The Government's own report into the area also suggested stronger protections. Despite these warnings, the law does not incorporate the recommended safeguards. Amendments to the law over the past week widened the reach of the law.

The Government says that there is an urgent need for this law and that it could not wait to give further consideration to the Senate committee's recommendations. This approach is wrong-headed. Like the sedition laws of late last year, a law of this importance should not be enacted in haste in the face of obvious problems. This is especially true when the law provides for covert surveillance.

Protecting our national security and investigating serious crime are important goals. But we must be careful that in developing a legal response, we do not lose sight of the freedoms we are trying to protect. We should ensure that if the Government gains intrusive new powers over our privacy that they are balanced and go no further than is required.

This law goes too far. It contains more power to access our emails and text messages than is needed and contains too few safeguards. The Government should have come up with a law that better protects the private communications of innocent people.

Professor George Williams is director of the Gilbert + Tobin Centre of Public Law, University of NSW. He was assisted in this article by intern David Hume.