The Government has started well. It appears to be taking a more compassionate view of people in detention. It has abolished Temporary Protection Visas. It is holding an enquiry into the ‘Citizenship Test’ and will hopefully create a test that makes more sense, does less damage, and is not so heavily biased. But the Government has not said anything of which I am aware about our interrogation laws, about the greatly increased powers, including powers to detain those known to be innocent, given to state and federal police and ASIO in the so-called ‘War on Terror’.
I want to devote myself to a particular question which goes to the heart of a government’s belief in the rule of law and due process. What does this government believe about its commitment to see that any Australian arrested in any part of the world is granted justice under the rule of law and due process?
So far the Government has been silent on this issue; an issue revived in recent times by the admission by Paul O’Sullivan, head of ASIO, that Australia, at a very high level, objected on many occasions to the US rendition of Mamdouh Habib and to his torture in Egypt.
The previous government, of course, maintained that it knew none of this. The Foreign Minister, at some point, said he had made enquiry of the Egyptian authorities but that there was no record of Habib going in or out of Egypt. Did the previous government really believe that there would be an official record of America’s rendition trail?
The statements of Paul O’Sullivan make it quite impossible to believe that senior ministers did not know that Habib had been taken to Egypt. We now know that ASIO, the police and three senior departments were involved in discussions concerning the matter. So, the previous government was willing for an Australian to be tortured; an Australian against whom there was never sufficient evidence to make any charge, and then sent to Guantanamo Bay. In the end the Americans just wanted to be rid of him and so sent him back to Australia.
Is this justice? It is the kind of action we would expect in a dictatorship, not the kind of action we would expect from rule of law-based countries like the United States and Australia.
We should not have been surprised by these developments because, for some time, we have known what happened to David Hicks, held for 5 years in Guantanamo Bay. As I am advised, the CIA paid large sums for every person handed over by the Northern Alliance as a ‘supporter’ of the Taliban. Hick was, of course, held for many years in Guantanamo Bay, called the ‘worst of the worst’ and the most terrible of all people; the US Ambassador here said David Hicks would readily shoot an American or Australian if he had a gun in his hands. Yet there was no evidence he had ever fired at anyone.
When finally charges were brought against David Hicks, most were rubbed out by Justice Susan Crawford, then Head of the Military Tribunals, for lack of evidence. One charge was left standing against him; that of providing material support for terrorism. This charge involved a retrospective law; a law which even John Howard said he would not pass in Australia because he would not convict someone in Australia on the basis of a retrospective criminal law. He was, however, quite happy for the US to do so.
In the US such a law could not have applied to any American because, under their Bill of Rights, a retrospective criminal offence cannot be created. But, until it is tested in the Supreme Court of the US, the Bush Administration has taken to itself the power to pass retrospective criminal laws in relation to non-citizens.
If there is to be justice, if the rule of law is to prevail, it must apply to everyone. An Australian government should not sit by and allow an Australian to be charged with an offence, fabricated to achieve a guilty verdict, and denied access to a properly constituted court and to the rule of law, simply to please a stronger ally.
Did the previous government believe that the sacrifice of David Hicks would strengthen our relationship with the United States?
As a result of communications between lawyers, but also communications involving governments, a plea bargain was struck in Washington. Hicks’ defence counsel was told to go to Washington to negotiate. The prosecution in Guantanamo Bay knew nothing of it. And so the plea bargain was struck: nine months, and nine months’ silence.
But after 5 years in the most oppressive detention, wouldn’t the most innocent person have accepted that plea under threat of a further 20 years in Guantanamo Bay?
Two weeks after the plea bargain was struck, the mock trial took place. You knew what the result was going to be: a guilty verdict. But the Tribunal or the Commissioners did not know, the Prosecuting Officer did not know and the ten senior colonels, flown in from all round America to determine the length of sentence, did not know that everything they were doing was irrelevant. It was all a farce but farces are meant to make us laugh. This one was evil. It was playing with an Australian’s life.
After Hicks had been found guilty and after the colonels had determined a seven year sentence, the maximum for the particular office, they were all told their role was irrelevant because the actual sentence was all determined two weeks previously, under political direction in Washington.
That is not the rule of law. That is not justice. So we should not be surprised at Paul O’Sullivan’s statement that Australia was aware, at the highest levels, that Habib had been rendered to Egypt. It only reminds us of some of the things done in the time of the previous government.
We know about Habib, we know about Hicks, we know about certain cases under immigration detention. How many are there that we do not know about? How many injustices were in fact perpetrated by the previous government? You may well say, well, all right, these are past acts and the government has suffered its electoral defeat. So let it lie. Today, however, the more important question is: what is the attitude of the new government to an ally who can behave in such a way? Will the Rudd Government stand up for basic justice for every Australian, even if it involves a stoush with the United States?
I have enormous respect for the United States. The good things that have happened since the Second World War, through most of my active life, have been supported or led by the United States. This is true even of the International Criminal Court, whose statutes would never have been drafted without the support of American lawyers and of earlier American administrations.
The America that can do so much good and which is coming to despise and deride the current President in his dying months, does not expect an ally to be subservient and compliant. The best of America respects open and often vigorous debate. That America will listen to alternative points of view and would listen to an ally like Australia if we spoke clearly and forcefully. Such attitudes would enhance respect for Australia.
Let us have an answer as to what the Rudd Government believes to be its duty of care to Australians imprisoned, abused or tortured, beyond the reach of the rule of law and a properly constituted court.
The Rt Hon Malcolm Fraser, AC, CH is a former Prime Minister of Australia