Pearls and Irritations

Now is the time to end a dangerous threat to basic freedoms and the rule of law.  The Albanese government has a critical role to play in ensuring that outcome.

The decision on Friday of UK Home Secretary Priti Patel to approve the extradition to the US of Australian citizen and WikiLeaks founder Julian Assange is not surprising in some ways.  Ms Patel has swallowed the ‘assurances’ of lawyers acting for the US that Assange would get a fair trial in an Eastern Virginia court on charges relating to his publication in 2010 and 2011 of shocking revelations about the war crimes and other serious misconduct perpetrated by the US and its allies in the Iraq and Afghanistan wars.  But Ms Patel’s decision drives home the need for the Albanese government to roll up its sleeves and ensure this Australian citizen does not face an effective death penalty of over 170 years in an US prison.

Unlike his Labor predecessor Julia Gillard and subsequent Liberal Prime Ministers Mr Albanese has rightly expressed genuine concern over the treatment of Assange.  He is on the record, on a number of occasions as saying that he does “not see what purpose is served by the ongoing pursuit of Mr Assange” and, as importantly, “enough is enough”. In a statement released by Foreign Minister Penny Wong on Friday night in response to the Patel decision, she also repeated the Prime Minister’s words.

More recently, in the context of a recent media conference, Mr Albanese indicated the Assange case was not one to be pursued by megaphone diplomacy.  An interesting comment clearly implying he is prepared to speak with US President Joe Biden about the matter, but in a closed door fashion.

The change in rhetoric and the sense that the Australian government might actually work assiduously to ensure that Assange, languishing with declining health in the notoriously harsh Belmarsh prison outside of London, is released and allowed to re-join his family, is a welcome development. Rome wasn’t built in a day and while there are many who understandably would like to see Mr Albanese dial the White House today, it is important to quickly get the approach right before that conversation, or conversations, are had.

The Assange case will drag on in the UK courts now given the inevitability of appeals against the Patel decision and a cross appeal against rulings in the original extradition case in 2021.  Meanwhile the threat to freedom of the press and the rule of law which this case poses remains potent.

Eminent Australian journalists such as the former Financial Times and Fairfax foreign correspondent Tony Walker, the ABC’s Kerry O’Brien and Andrew Fowler and the former SBS’ presenter Mary Kostakidis have been rightly warning about how serious a threat to journalists and publishers this case really is.  If the US is successful in prosecuting an Australian journalist and publisher for letting the world know the dirty secrets of the US military machine then this will have a chilling effect on press freedom.  And it will embolden other nations to follow suit.  If the US can seek the arrest of a journalist who is not a citizen of that country and who has not set foot in the US, then how can it, and nations such as Australia, criticise China for enacting a law last year which allows for critics of that regime to be hunted down irrespective of where they are in the world.

From the perspective of the rule of law the Assange case should trouble new Attorney-General Mark Dreyfus.  Extra-territorial reach of laws is generally thought to be stretching the idea that the law of a nation only applies to those who are its citizens or who allegedly commit crimes in territory that is governed by that nation’s laws.  To seek to extend the reach of domestic laws to those who have no legal connection to it by way of citizenship, residence or other ties to the jurisdiction, is anathema to the rule of law.  That is the danger presented by the Assange case.

Of course, some say the Assange case must be allowed to take its course via the courts because extradition is a legal process.  While that is true in the vast majority of cases this is an exceptional set of circumstances.  In that sense it is like the case of David Hicks, the Australian who found himself in the torture chamber that is Guantanamo Bay facing trumped up terrorism charges.  Rightly that case was resolved via the political relationship  between the Howard government here and the Bush Administration because it too was a case infused with a political overlay.

Now is the time to end a dangerous threat to basic freedoms and the rule of law.  The Albanese government has a critical role to play in ensuring that outcome.

Greg Barns SC is an Adviser to the Australian Assange Campaign

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