It’s as though the nation is in the grip of an hysteria that would make Joseph McCarthy proud.
A young man with a conviction for threatening to kill Asio officers appears on ABC television and asks what would happen to him if the immigration minister had the power to unilaterally cancel his citizenship.
All hell rained down on the head of the national broadcaster. The prime minister suggested the ABC was treacherous: “Whose side are you on?”; the minister for communications, Malcolm Turnbull, rang the managing director and the chairman to complain, declaring that Zaky Mallah’s appearance on the show was a “grave error of judgment”; another Liberal backbencher declared the broadcaster had engaged in a “form of sedition”.
All of which culminated an a grovelling apology from the director of television, Richard Finlayson and, in the time-honoured fashion, an “external review”.
Predictably, the Murdoch newspapers overindulged in a bout of hyperventilation. The Daily Telegraph stole the morning with “How dare the taxpayer-funded ABC allow this man to spout his bile on national TV”. The Australian thought that Mallah’s appearance was “deliberately manufactured by the ABC to ambush guests”.
The answer to Mallah’s question of what would happen to his citizenship was lost in the fog of confected indignation. Actually, nothing would happen to his citizenship because, according to Q&A’s star performer, he is an Australian citizen without dual nationality.
Mallah told the ABC audience he was charged with planning a terrorist attack in Sydney in 2003, was acquitted by a supreme court jury in 2005, but pleaded guilty to a charge of threatening to kills Asio officers.
Q&A panellist and parliamentary secretary Steve Ciobo, a cardboard cutout Liberal from the Gold Coast, immediately leapt in with an impressive display of stupidity.
He thought Mallah was acquitted on “a technicality rather than it being on the basis of a substantial finding of fact” and because “at that point of time the laws weren’t retrospective”.
What on earth was he talking about? Mallah was acquitted because a jury found him not guilty of charges relating to doing acts in preparation for a terrorist act.
As Mallah himself says: “I was dumb and naive at the time. I was only 20.” He was talking the talk and strutting his stuff, and importantly the jury believed he had no intention to follow through with his threats.
Where’s the technicality? The Howard-era amendment to the criminal code applied squarely to the charge and wasn’t in need of retrospective fiddling.
In terms of making sense, Ciobo failed dismally, but that has not stopped other hairy-chested souls seizing the moment and ramping up the “war on terror”.
There is an interesting aspect in relation to the charge of threatening to kill Asio officers.
Radio man Alan Jones was on the case about Mallah and this was followed up by the Australian. It is understood the newspaper paid him $500 for an interview.
The police then secured further information by sending an undercover officer posing as a journalist to interview him. He told the police officer-journalist that he had a suicide bomber video tape. The “journalist” said this was a great story and he could get it on to the front page of Time magazine and published elsewhere.
The plan hatched with the undercover officer was that on payment of $5,000 Mallah would hold everyone hostage at Asio headquarters and the “journalist” would have a scoop.
When the police go undercover in the guise of someone else and offer money as part of the entrapment of a suspect, they are supposed to obtain a “controlled operations authority”.
Here there was no controlled operations certificate when the police approached Mallah pretending to be interested in buying his story, so if we’re talking about “technicalities” the police in this instance were acting illegally.
Nonetheless, at Mallah’s trial Justice James Wood let the evidence in.
Defence lawyers tell of stories where they have successfully acted for people accused of terrorism offences, secured their acquittal, and seen them go on to lead productive and successful lives. These people are pleased that their youthful excesses are behind them, however under the government’s proposed amendments to the Australian Citizenship Act, any dual nationals in this category would be marched out of the country.
At this stage the government’s amendments on citizenship seem confusing. Immigration minister Peter Dutton is saying there are three proposed ways that could see the “automatic loss of citizenship”: anyone who acts “inconsistently with their allegiance to Australia by engaging in certain terrorist conduct”; someone convicted of a terrorist offence; and those fighting in another country against Australia.
The first mechanism, could on its face, pose a constitutional problem because it engages in the imposition of a penalty without the application of a prior judicial function. However, there would be a post facto judicial review of revocations that fall in that category. Guilty first, trial later.
There are then two categories of revocation: automatic and non-automatic. The latter is more soundly based in law than the former and doubtless at some point that will play out in the courts.
Counter-insurgency adviser David Kilcullen had useful observations to make in this context. He says Isis regards its western recruits as poor military assets and wastes them with tasks that will almost certainly result in their death.
If they try to escape they will be shot or beheaded as deserters. Numbers vary, but it is understood that more than 60 Australians are now fighting for Isis in the Middle East. Kilcullen estimates that no more than 10% could return home.
So the new citizenship law will “technically” apply, on this reckoning, to about six Australians who might want to return.
Adapting Lenin’s phrase, Kilcullen calls them “useful idiots”.
It’s also fascinating to see “retrospectively rolled out” as the new-new thing “by hook or by crook” method of doing business. Ciobo was frustrated, mistakenly, that Mallah only slipped through the law because it wasn’t retrospective. The government would also like the citizenship amendments to apply retrospectively.
Retrospectivity is all the go, which must make the NSW government’s retro-amendments to the Icac Act seem perfectly acceptable.
In 2002, the Australian reported that while at university Ciobo considered joining Asio. Instead, he went to work for PricewaterhouseCoopers.
With that sort of career path in mind, little wonder the parliamentary secretary was mightily miffed by Mallah’s TV appearance.
None of which explains why it was an “error of judgment” to have Zaky Mallah zhoosh up an otherwise tepid Q&A.