Australia: 'handing victory to terrorists': lawyers warn over denial of bail and parole

The Melbourne barrister and human rights advocate Julian Burnside has warned politicians that tightening bail and parole laws at the expense of a right to justice and freedoms “is to hand victory to terrorists”. His comments follow an announcement from the prime minister, Malcolm Turnbull, on Friday following a meeting of the Council of Australian Governments that laws would be strengthened to create a presumption against bail and parole for people who have demonstrated support of, or links to, terrorist activity.

“Violent criminals with terrorist links should not be walking the streets,” Turnbull said. Parole and bail laws dominated the discussions between Turnbull and state leaders following the siege in the Melbourne suburb of Brighton on Monday by Yacqub Khayre. The 29-year-old Somali-born Australian declared links to both Islamic State and al-Qaida – although police have questioned the strength of those links – and shot a man dead and injured three police officers.

Speaking to Guardian Australia from Indonesia, Burnside expressed concern about the bail and parole amendments, and said he would need to see the finer details. “That said, a presumption against bail is a bad idea: it means jail before a finding of guilt. “As for parole, the politicians should leave that to judges and the parole board. Moves like this are a reminder of the old idea that ‘We will take your freedom in order to protect your liberties’.

“To abandon ancient freedoms is to hand victory to terrorists.” The Melbourne criminal defence lawyer Rob Stary, who has handled some of Australia’s high-profile terrorism cases, said “the devil will be in the detail” of the changes – the government is yet to release the details of how themeasures would work or be rolled out across the country. But he said “less than a handful” of those accused of terrorism had ever received bail anyway.

“And of those that do get bail, they usually only had the most minor of roles in the crime,” he said. “The bigger point, and I think this has been lost in the crude, populist, law and order backlash, is that when you have offenders who are almost invariably young, what you want to do is get them to accept responsibility for their conduct and their wrongdoing so you can critically and immediately begin a process of de-radicalisation. “An offender only participates in these mandated programs once they’re convicted.

“There is a real risk once laws are tightened and we have a punitive approach that people will just roll the dice and plead not guilty. I’m certain this will start to happen in terrorism offences. If they feel they are being given disproportionate sentences you’re deterring people from taking responsibility because they’re not going to plead guilty.” Stary said a far greater number of people were killed and seriously injured every year by domestic violence and drug offenders out on parole.

“Do we say men should be indefinitely detained? We don’t have that same disproportionate response, we instead put them through behaviour change programs or drug rehabilitation programs, whether they plead guilty or not. “Terrorism in Australia, fortunately, is responsible for a smaller number of people being harmed. But it is always in dramatic and catastrophic circumstances, and that puts fear into the hearts of the community and stops people from putting things into perspective.”

He said changes to parole and bail laws risked leading to higher incarceration rates, and that although the US had the highest incarceration rates in the world, it did not make it a safer society. “Studies and evidence from around the world show that punitive approaches are counterproductive,” Stary said. “Rehabilitation and looking at the justice system as a whole, not just parole and bail, is not a leftwing approach. It’s an approach that protects the community.”

He said Khayre, who he was informed had been on a five-day binge on the drug ice before he carried out the attack, might have carried out the siege whether he was affiliated with Isis and al-Qaida or not. Khayre had also adhered to all his parole conditions, including drug testing, for six months before he carried out the attack.

“How is it that at a young age and after an ice-fuelled bender he did what he did?,” Stary asked. “People who relapse on ice relapse hard, and they engage in violent and erratic behaviour. How do you predict that? “He was the product of a criminal justice system that had failed him.”

Dr Diana Johns, a lecturer in criminology with the University of Melbourne who has researched post-prison issues, said people who returned to society after serving a full prison sentence without parole did so without the supervision and strict conditions that form part of a parole release. “For this reason I see parole as one of the most important parts of a prison sentence,” she said.

Johns said she did not believe that the changes to bail and parole announced by Turnbull would have prevented Khayre from carrying out his crimes. The state where the attack occurred, Victoria, already had the toughest bail and parole laws in Australia, she said. Khayre had been acquitted of terrorism-related charges he faced in 2009, and it was unknown whether he had any established links to Isis or al-Qaida at the time of his death.

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