OK to lock up terror suspects – but innocent suspects deserve compensation 
Posted By Mirko Bagaric on August 1st, 2007
Criminal. That’s the only way to describe a legal system which does not award compensation to people who are detained in prison and ultimately shown to have committed no crime.
The fact that Indian doctor Mohammed Haneef will not receive compensation for the approximately one month he spent in criminal and migration detention before being released adds to the egregious insult – in the form of using the migration power to supplement the criminal law – he has suffered on our shores.
As a community we should continue to lock up suspected serious criminals pending trial where we believe that they present an unsatisfactory risk to the community. History shows that when we have our backs to the wall, as a community we readily violate the rights of individuals.
Pre-trial detention is a necessary evil, particularly in relation to heinous offences such as terrorism. While detention without trial is harsh, it is not as bad as allowing terrorists to kill innocent people. Every reasonable precaution should be taken to thwart the prospect of a terrorist attack on Australian soil.
That’s why the government’s tough counter-terrorism laws are a welcome addition to the Australian legal landscape.
However, as has been graphically illustrated by the Haneef case, no system is perfect and police (and migration officials) will sometimes charge and detain innocent people.
Where this is the case, suspects will have been subject to the harshest punishment in our system of law, imprisonment, without so much as an apology.
This needs to be addressed by passing laws which better balance the security interests of the community and the rights of wrongly detained suspects.
The problem is more widespread than you think. Every year hundreds of Australians are charged with serious criminal offences and remanded into custody until their trial, which often takes more than a year to commence. Many of these people are ultimately found to be not guilty.
And what compensation do they receive for this egregious denial of their liberty? None. Not a cent. Not even a crocodile apology from a public servant working at the Department of Justice.
There is no justification for continuing to not compensate suspects who are placed in custody pending trial and ultimately acquitted. These people are innocent and deserve to have their rights restored to the extent that this is possible – as is the case with most other rights infractions.
The absurdity of the present process is highlighted by the fact that if a public servant says something which unduly tarnishes the reputation of a suspect in custody the suspect can sue for defamation and would be eligible to receive compensation in the order of tens, if not hundreds, of thousands of dollars.
Now some of us might disagree with the ‘sticks and stones’ proverb, but it is surely even less tenable in reverse – damaging one’s reputation surely can’t hurt them more than locking them up for months and sometimes years.
Sure this proposal might cost the government a few dollars, but the price for not doing so is too high. Winston Churchill once stated: ‘the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’.
Until we compensate the wrongly detained we will continue to fare poorly on this scale.
Dr Mirko Bagaric is a lawyer and author of Human Rights Charters in Victoria and the ACT (Sandstone Academic Press, 2007).
A version of this was in the Geelong Advertiser on 1 August 2007.