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| Boy can give evidence against brother in terrorism inquiry, court orders Boy can give evidence against brother in terrorism inquiry, court orders | |
| (3 months later) | |
| A 16-year-old compelled to give evidence against his accused terrorist brother before the New South Wales Crime Commission (NSWCC) has lost a court bid to have the summons quashed. | A 16-year-old compelled to give evidence against his accused terrorist brother before the New South Wales Crime Commission (NSWCC) has lost a court bid to have the summons quashed. |
| But the NSW supreme court laid down rare checks on Australia’s most secretive investigative body, which had argued it was exempt from following the rules of natural justice or procedural fairness when summonsing people to attend compulsory examinations. | But the NSW supreme court laid down rare checks on Australia’s most secretive investigative body, which had argued it was exempt from following the rules of natural justice or procedural fairness when summonsing people to attend compulsory examinations. |
| Justice Stephen Rothman said on Tuesday that both principles did apply to the NSWCC and that it must consider Australia’s UN obligations on the rights of the child in deciding whether to compel young people to give evidence. | Justice Stephen Rothman said on Tuesday that both principles did apply to the NSWCC and that it must consider Australia’s UN obligations on the rights of the child in deciding whether to compel young people to give evidence. |
| The teenager – identified only as SA – was summonsed to give evidence to the commission in June as part of an investigation involving his elder brother, who is charged with terrorism offences. | The teenager – identified only as SA – was summonsed to give evidence to the commission in June as part of an investigation involving his elder brother, who is charged with terrorism offences. |
| The commission has the power to coerce witnesses, including children, to give evidence and jail anyone who reveals they were summonsed. | The commission has the power to coerce witnesses, including children, to give evidence and jail anyone who reveals they were summonsed. |
| Lawyers for the 16-year-old argued the boy had been treated with a lack of “sensitivity” given his age and the risk he could incriminate his brother, and that having to wait until the summons came into effect to object to it had caused him undue “stress and anxiety”, breaching the principles of natural justice and procedural fairness. | Lawyers for the 16-year-old argued the boy had been treated with a lack of “sensitivity” given his age and the risk he could incriminate his brother, and that having to wait until the summons came into effect to object to it had caused him undue “stress and anxiety”, breaching the principles of natural justice and procedural fairness. |
| The NSWCC had argued it was generally exempt from both principles, needing only to follow them when explicitly bound to by its legislative rules. | The NSWCC had argued it was generally exempt from both principles, needing only to follow them when explicitly bound to by its legislative rules. |
| Rothman dismissed the teenager’s case to have the summons quashed on Tuesday but said natural justice and procedural fairness did apply to the NSWCC. | Rothman dismissed the teenager’s case to have the summons quashed on Tuesday but said natural justice and procedural fairness did apply to the NSWCC. |
| “That means that the commission must afford the party a reasonable opportunity to present any objection that party may have to the giving of evidence,” he said. | “That means that the commission must afford the party a reasonable opportunity to present any objection that party may have to the giving of evidence,” he said. |
| He said “the best interests of a child” should be considered “as one of the primary matters” in deciding whether to issue a summons to a young person, in line with Australia’s obligations under the UN convention of the rights of the child. | He said “the best interests of a child” should be considered “as one of the primary matters” in deciding whether to issue a summons to a young person, in line with Australia’s obligations under the UN convention of the rights of the child. |
| The boy’s solicitor, Brad Mallinson, said the decision was “an important one for the rights of children caught up in Crime Commission investigations”. | The boy’s solicitor, Brad Mallinson, said the decision was “an important one for the rights of children caught up in Crime Commission investigations”. |
| “Every child who is summonsed to appear before the Crime Commission is now clearly entitled to both full procedural fairness and the consideration of their best interests as a child. This places on the Crime Commission an important responsibility. | “Every child who is summonsed to appear before the Crime Commission is now clearly entitled to both full procedural fairness and the consideration of their best interests as a child. This places on the Crime Commission an important responsibility. |
| “This decision makes it very clear that the NSW Crime Commission is subject to the rule of law and that children have special interests which must be considered,” he said. | “This decision makes it very clear that the NSW Crime Commission is subject to the rule of law and that children have special interests which must be considered,” he said. |
| Guardian Australia revealed in March the Australian Crime Commission (ACC) had interrogated a 20-year-old who alleged he had been tortured by a foreign intelligence agency. | Guardian Australia revealed in March the Australian Crime Commission (ACC) had interrogated a 20-year-old who alleged he had been tortured by a foreign intelligence agency. |
| After refusing to answer questions to the ACC’s satisfaction, the man was charged and found guilty of contempt by the federal court and imprisoned for a month until he agreed to answer questions. | After refusing to answer questions to the ACC’s satisfaction, the man was charged and found guilty of contempt by the federal court and imprisoned for a month until he agreed to answer questions. |