There are seven judges of the High Court. Eleven days ago they released a remarkable judgement, a judgement that, prominent Adelaide barristers agree, tears up four centuries of legal tradition.
Their honourable justices ruled that the Constitution allows the use of prosecution evidence you haven’t heard, can’t argue against and aren’t allowed to see.
“It’s ripe for corruption, it’s ripe for abuse, harassment and political mileage,” respected Adelaide barrister David Edwardson QC said about a swag of SA legislation affected by the judgement.
How did this law come about? To understand that, we need more numbers. We need to go through security at 200 Victoria Square, Adelaide and take the lift to the 15th floor. A little more security and you’re in the Cabinet Room, where the 15 ministers of the second Rann Government meet every first day of the working week.
Here, Rann’s Cabinet is meeting to discuss bold new laws. The year is 2005 and SA, like other states and the Commonwealth, is framing legislation designed to prevent domestic terrorist attacks.
While well-intentioned, some of these laws arguably violate a number of principles in the UN Declaration of Human Rights. Article 8, for example, says no one shall be subjected to arbitrary arrest, detention or exile, and according to Article 10 everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal. Yet under SA’s anti-terrorism laws, people can – merely on suspicion and without proof of wrongdoing – be jailed for 14 days without charge.
The law says allegations, even if they later turn out to be fabricated as in the Haneef case, are justification enough.
The concept that people’s guilt or innocence would be decided only in court, by a judge and jury and with all the evidence heard in an open trial, was swept away. From that day forward, people’s guilt can be decided by politicians on the advice of a state security apparatus.