AS WITH any highly publicised legal decision, detailed and varying coverage in the press was to be expected when Jack Thomas was acquitted by the Victorian Court of Appeal. Such coverage was always going to create a divide between the law and wider community sentiment, said Stephen Shirrefs, chairman of the Criminal Bar Association in Victoria.

“[There was] a conflict between the application of the rule of law, and the popular opinion that this person, on the face of it, presents a danger. Fortunately … the press at least were prepared to cover articles concerning the issue of the rule of law, and publish articles and letters by persons who congratulated the Court of Appeal for upholding the rule of law, which is what it has done,” Shirrefs said.

Yet a vociferous argument was offered by some in the media that the Court of Appeal failed to consider the fact that Australia is waging a war on terrorism, and in war concessions have to be made.

“Jihad Jack is on the wrong side in a war. And in war, different standards apply,” The Australian said. This view was often delivered, part and parcel, with the notion that the legal community, in bed with civil libertarians, is doing all it can to frustrate the government’s attempt to win the war on terrorism.

“The debate really is about whether we should have these laws, such as the control order legislation — I’m against them for a number of reasons. To bring those sorts of emotive concepts into it … doesn’t help,” Shirrefs said.

“I don’t really think we are necessarily at war. Terrorism is an ongoing problem; it has its ebbs and it has its flows. But I think it important that we as a society adhere to the freedoms and liberties that we have fought for so long to protect and uphold,” he said.

Spencer Zifcak, associate professor of Constitutional Law at La Trobe University and a committee member of Liberty Victoria, considers wartime rhetoric dangerously misleading when viewed as a justification for reform of the law as it now stands.

“[Some] journalists … first characterised the situation we are in as some kind of public emergency, which is not my view,” Zifcak said. It was not justified to use what he called “hyperbole” to “argue for dramatic changes in the law which would represent a radical departure from the underlying principles of fair trial as we have come to know them over some centuries”.

Andrew Lynch, director of the Terrorism and Law Project of the Gilbert & Tobin Centre of Public Law at the University of New South Wales, shared Zifcak’s concern.

“The threat of terrorism is a very real threat; I don’t think anybody is pretending that it is not. Whether we go onto a war footing is a different question. Obviously the major distinction here, unlike the people who argue that this is similar to World War II … is that the war on terrorism is a war completely without any end in sight. And so our willingness to depart from norms and legal rights should be fairly circumspect,” Lynch said.

What remains unclear is just how far the adverse media coverage of the Court of Appeal decision went in prompting the Australian Federal Police to issue the first and only control order on an Australian citizen.

“That’s not something one can know, but it does smack of pique on the Attorney-General’s part, in relation to the Court of Appeal decision. What needs to be remembered here is that [Thomas] … was acquitted by a Supreme Court jury of the very kinds of offences which the Attorney-General’s control order now suggests he may commit,” Zifcak said.

Those offences were the more serious of the four charges levelled against Thomas; his alleged training for, and the associated planning of, terrorism offences, which never came before the Court of Appeal.

Shirrefs, who regards the control order as “cynical”, said he could not “imagine that any of the terrorist organisations named would consider using Jack Thomas for anything. He’s in the public eye, and people know who he is”.

According to Lynch, “the apparent reactive nature of the control order, and also it being sought while there is still an ongoing question in the Victorian jurisdiction, is I think one of the more concerning aspects of this [situation].”

The media drawing a connection between the Thomas decision and the Bali bombings is a cause for further concern, said Waleed Aly, Melbourne lawyer and board member of the Islamic Council of Victoria.

“I think it was wholly inappropriate to interview the families of Bali bombing victims in those circumstances, not because I don’t think those views are necessarily relevant — but if you’re looking for the counterpoint to civil liberties lawyers then the people you really should be interviewing are people who are security and intelligence experts. They are the two tensions that are at play here — security and liberty,” he said.

For Aly, the issue of trial by media is a much broader problem than that which currently surrounds the Thomas case.

“I have for a long time worried about the way in which journalists respond to legal matters. I’ve seen them get all sorts of issues — and pretty important issues — surrounding high profile cases, wrong, and do that repeatedly,” he said.

But the way in which some media sectors have made allusions to Thomas’ apparent involvement with the Bali bombings, as well as his mateship with Osama bin Laden, is particularly worrying for Aly.

“It is very simplistic commentary, and it is glib. It would sound well read out on drive radio, but it is not what I would call serious analysis,” he said.

A further point of contention surrounds the use of the name ‘Jihad Jack’. Although Jack Thomas claimed the name ‘Jihad’ in an ABC television interview on Four Corners earlier in the year, it was always intended to be used as a replacement, not in addition to, the name ‘Jack’, according to Aly.

“‘Jihad Jack’ is almost to create another persona; [Thomas] would never call himself that. It is clearly a media catchphrase, and that I think is worrying, because it’s clearly one that sends a certain message about him.”

The popular western translation of ‘holy war’ is similarly misleading. “To call a child ‘Jihad’ is not uncommon, and it is not especially militant either,” Aly said, explaining that the word ‘jihad’ is linguistically best defined as “to struggle, or to strive, or to exert effort in some way”.

To what extent Thomas, and the wider legal community, is set to struggle against Australia’s new terror laws remains to be seen.