Sunday, March 06, 2016
Australia's Star Chamber is worse than the 16th century original
Obsessional and tyrannical secrecy. Australia badly needs a 5th amendment
When the 20-year-old man who can be named only by the pseudonym ZZ appeared before the Australian Crime Commission he couldn't even tell his mother where he was going.
He was frightened, tired, suffering from what was later diagnosed as post traumatic stress disorder (PTSD) from allegedly being tortured by a foreign intelligence agency, and couldn't find a lawyer to represent him.
He could tell nobody that he had been called before the commission, not even his friends or family. To do so would be illegal. He was required, under threat of jail, to answer all the questions put to him truthfully.
"I was there for two hours. It felt like two days," he would later tell a forensic psychiatrist.
While it holds hearings in a way that may look like a court, the crime commission operates more like an intelligence agency; with its day-to-day workings and the identities of those who comes before it kept confidential.
The commission has the power to force people to give evidence against their friends and family in secret. This can later be used to help build criminal investigations.
ZZ is just one of dozens of people being compelled to give evidence against their friends and family in relation to terrorism matters. His case is the latest in a string of people who are often described as "linked to" or "closely connected" to terrorism investigations - although they may have committed no offences themselves - brought before the commission or its state equivalent, the New South Wales Crime Commission.
While terrorism investigations are an important law enforcement function, legal experts have raised concerns about whether these kind of proceedings are really consistent with basic principles of natural justice. And whether they could potentially be doing more harm than good and damaging relationships with communities.
The ACC chief executive officer, Chris Dawson, told Guardian Australia the ACC "adopts measures to accommodate young and vulnerable witnesses. Such proceedings are subject to general administrative law principles in relation to procedural fairness and natural justice."
ZZ was charged and prosecuted with contempt for failing to answer questions before the commission. In 2015 Justice Steven Rares found that while he may have been suffering post-traumatic stress disorder, his failure to answer the commission's questions were contempt.
The contempt case against him is unique. It gives the public a rare glimpse into the work of the commission. Guardian Australia has obtained and published the full transcripts of the ACC hearings that led to ZZ's imprisonment. What follows is an account of the hearing.
The case: ZZ called before the commission as part of special national security investigation
ZZ was called before the ACC in February 2014 as part of a special operation relating to the recruitment and funding of foreign fighters. He was unemployed. He was receiving no employment benefits. He lived with his mother, father and sister. His brother was in prison.
Six days, only three of which were working days, before appearing before the commission, he was served with a summons at his house. When he arrived at the Sydney office, he showed up without legal representation. He said the barrister he contacted was not able to come to represent him on the day.
Standing in the commission before what is known as an "examiner", in this case Geoffrey Sage, the commission's legal officer Kate Deakin and a handful of staff, he was alone.
This would be an opportune moment to describe what the commission looks like, but that isn't possible. The public is not permitted to attend hearings, or even see the inside of the commission.
Those who have seen how it works say that the proceedings can be intimidating.
"You're summoned, you can't have any support persons. You have people sitting around you and you have no idea who they are," said Moustafa Kheir, a solicitor at Birchgrove legal who has considerable experience in crime commission proceedings.
"You have four people sitting by your side. They aren't questioning. They have computers in front of you. They just stare. It's a form of intimidation."
In ZZ's case, the questions begin with a series of outlines about what can happen if he breaches the law by failing to answer a question. They go on to ask whether ZZ has spoken to anyone. Deakin asks whether he told his mother about it. They take his phone and download a copy of its contents. They ask him about his email addresses and social media accounts. They even asked him what his profile picture is.
A lot of the first interrogation is about a sum of money that had been deposited in his account and who gave it to him. It was slightly more than $2,000.
Deakin says, "Mr ZZ listen to me, don't make up stories." And again, "Don't tell me maybe." And again, "Don't interrupt me."
ZZ answered vaguely. He said he didn't know about why some of the amounts appeared in his account. Maybe it was from some people in prison to pay his brother?
Eventually, a photograph was produced, an image from an evening in September 2013. The photograph appeared to show a group of men. One particular man was pointed out, he was dressed in white.
Deakin: "Who's the guy in the white?"
ZZ: "I don't know"
Deakin: "Come on Mr ZZ."
It's a painstaking cross examination and ZZ is alone. Even if he had a lawyer there would be little he could do to object to it and there's no judge in the chamber.
Another photo is produced with ZZ and same man in white in it. ZZ said he wasn't lying before, "I didn't see myself."
A phone call is then played that ZZ says he could not recall and it is put to him that ZZ was talking to the man in white during it. It's about this point of the hearing that the examiner tells ZZ he is considering charging him with contempt and the hearing is adjourned while ZZ is allowed to seek legal advice.
Three days later ZZ travels to the airport and tries to board a flight to Vietnam. He is detained by the Australian federal police and immigration officials and kept from leaving.
He appears before the commission again in February, March and April, each time giving the same answers and now with a lawyer representing him, Phil Butterfield. In a later hearing Butterfield has to give the commission an undertaking that he will destroy his notes relating to ZZ after the examination finishes.
Butterfield presents the commission with a mental health assessment of ZZ from the consultant forensic psychiatrist Richard Furst, who says ZZ appears to be suffering from PTSD. He attributes the diagnosis to ZZ being detained when he was 18 for a month in an unnamed Middle Eastern country, where ZZ alleges he was subject to "severe torture" by a foreign intelligence agency.
It also states that he presented with a high level of anxiety, depression and experiences flashbacks and nightmares from his interrogation. In court the ACC did not dispute his incarceration or his mental condition. Consular officials who saw ZZ during his incarceration said he had told them he was not being mistreated, although his interrogators were also in the room at the time.
"His memory and capacity to recall past events may have been affected, as people often find it hard to concentrate and remember things when stressed, especially in a setting that reminds them of past traumas," the assessment reads. Two other psychologists backed the report.
The ACC put forward evidence from Dr Stephen Allnutt. While he acknowledged that ZZ may have had PTSD, he disputed the opinions of the other doctors that ZZ was suffering from memory impairment.
In April 2015 ZZ was charged with four counts of contempt and brought before the federal court. In a thorough examination, Rares found ultimately that while it was likely he did have PTSD, this had not impaired his memory; he said ZZ had deliberately given statements to the ACC that "were not truthful, and knowingly so".
ZZ was found guilty of contempt and jailed in NSW.
Is it the right approach for terrorism matters?
Before his appearance at the ACC, ZZ hadn't been charged with any offence. His only crime, as far as we can tell, was knowing the wrong people.
While the ACC's initial remit was largely focused on drug and organised crime cases, it now operates far beyond this, and still compels people to give evidence in secret.
Increasingly its powers are being used in active terrorism investigations. Many matters currently before the courts are relying on the unseen probing of the ACC and the NSW Crime Commission in order to help them build cases.
While the responses given by ZZ and others can't be used as direct evidence in criminal proceedings, they can be used to derive further evidence about a case.
Recently, a 16-year-old who has been summoned to appear before the NSW Crime Commission in relation to a terrorism matter sought to challenge the summons on the grounds it didn't afford him procedural fairness. His lawyers argued his vulnerability should have been taken into account.
"He has to deal with the stress and anxiety of this process having been commenced that will see him having to incriminate a sibling," Lawrence said.
Last week an 18 year old woman was charged with failing to answer 31 questions about her husband's involvement in alleged terrorism activities.
In the context of debates over deradicalisation, these questions about the secret commissions are all the more important.
"The Australian Crime Commission regime where they have very draconian powers to force people to give evidence is a great concern. These powers are now obviously being exercised frequently and regularly," said Stephen Blanks, the president of the NSW Council for Civil Liberties.
"There is almost no scrutiny or accountability with how the ACC works. And it is entirely possible that its activities are a significant factor in deterring people in the Australian community from cooperating with law enforcement agencies because of the fear that draconian powers will be used against them."
The ACC takes issue with these concerns. Its chief executive officer, Chris Dawson, told Guardian Australia in a statement: "The Australian Crime Commission is supporting the national effort against terrorism through its foreign fighters taskforce."
"Working under Project Ridgeline, the Australian Crime Commission is increasing the national understanding of the evolving threat posed by foreign fighters, identifying previously unknown threats, and contributing to domestic monitoring and disruption activities."
"Examinations of witnesses are conducted in private with appropriate safeguards for witnesses, including protection against use of their evidence in criminal proceedings and restrictions on publication of the fact witnesses have been examined and what they have said."
And what happened to ZZ? After a month he was released from prison. Although we don't know all the details, the federal court found he had given answers to the ACC after he was jailed that satisfied them.
Little else can be said about him. While some in the community may know of ZZ's fate, they can't talk about it.
Even if ZZ happened to be reading this now, he wouldn't even be able to tell us who he is.
Original report here
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Posted by bussorah at 9:02 PM