One is tempted to suggest that all Australians travelling abroad should have a warning attached to their passports: “if you do anything to upset the Americans, don’t expect our help.”
The common law system, which is a description of the law that applies, inter alia, in the United Kingdom, United States, Canada, Australia and New Zealand among many smaller places, is of particular relevance in the case of Julian Assange. It is the system of law that has evolved over centuries, and has been modified to suit changing circumstances. Some basic principles however, remain essentially unchanged.
One of these principles is generally referred to as lawyer – client privilege. It refers to the principle that communications between a lawyer (they go by different names in different jurisdictions) and his or her client are privileged.
This carries with it a number of connotations, the essential one, which remains fundamentally unchanged since its inception in a 1577 case known as Berd v Lovelace (1577 Cary 62) is that communications between lawyer and client cannot be disclosed to any third party without the consent of the client, whose privilege it actually is.
One of the principal rationales for such a rule is that the client should have the benefit of expert legal advice, without that advice being known to third parties. As Lord Brougham put it in another famous case, Greenough v Gaskell (1833 1 M & K 98), without the privilege, a client would not be encouraged to disclose all relevant facts and would have to rely on their own resources.
This principle is so fundamental, that it has never been seriously challenged in the now well over 400 years since being formulated in Berd’s case.
Modern technology however allows those of ill-will and unscrupulous principles to circumvent the basic concept. That has come to recent light with the revelation that conversations between Australia’s most famous political prisoner Julian Assange, and his legal advisors during his long incarceration in the Ecuador Embassy in London were in fact filmed and recorded with neither his knowledge, nor the consent of either Mr Assange or members of his legal team.
It is now known that the information obtained by this means was transmitted to both Ecuador and the United States. Although the identity of the US recipient has not as yet been disclosed it is a virtual certainty that it was one or more of the United States intelligence agencies.
This means that every relevant detail relating to Mr Assange’s defence to the numerous charges the United States has filed against him is known in advance of any trial by the United States prosecuting authorities.
It is difficult to understate just how serious this fundamental breach of Mr Assange’s rights are. A fundamental principle of law has effectively been disregarded by the United States authorities who have a direct and relevant interest in everything that Mr Assange might discuss with his legal advisors.
To say that a fundamental principle has been violated is not an overstatement. Similarly, it is not an overstatement to say that it is now impossible to argue that Mr Assange can receive a fair trial in the event that the United Kingdom government (and its judges) adhere to the United States request for Mr Assange’s extradition.
We do not of course know at this stage how many other persons have been similarly spied upon and their defence compromised irretrievably by this fundamental breach of principle. It would not be safe to assume that Mr Assange’s case is in any way unique.
A wider victim of this case therefore is the reputational damage done to the whole of the legal system. The consequences of that damage are immeasurable, but it is not an overstatement to say that the damage is huge and the recovery of public faith in the system will be long and difficult.
The other element of Mr Assange’s case that is worth noting is the degree of support, or more accurately lack of support, he is receiving from his own government. To describe the Australian government’s response as almost invisible is not an exaggeration. Nor is it only the current government.
Mr Assange took refuge in the Ecuadorian embassy in June 2012 at which time Australia had a Labor government. They are now the official Opposition but it would be difficult for the casual observer to note any significant difference between the attitudes of both Labor and the Coalition. To describe the lack of support shown by successive governments to one of its citizens whose only “crime” was to reveal through his organisation facts about mainly, but not exclusively, United States war crimes, as derisory would not be an overstatement.
Australia is a loyal and uncritical ally of the United States. The Australian government’s silence in the face of continuing revelations about the lies that were used to justify the attacking, invasion and occupation of numerous countries is itself an indictment. That Australia’s active participation with the United States in, for example, the invasion of Afghanistan, Iraq and Syria, and WikiLeaks’s exposure of the allied forces multiple war crimes therein, is a probable major reason why Mr Assange has been notably lacking in support from his own government.
The silence of the Australian government (and Opposition) to the latest revelations of lawless activity by the United States in eavesdropping on confidential legal communications, is no surprise. One is tempted to suggest that all Australians travelling abroad should have a warning attached to their passports: “if you do anything to upset the Americans, don’t expect our help.”
The blatant disregard for fundamental legal principles shown by those who recorded Mr Assange’s legal discussions should serve as a warning to all. Disregard the pious words about the “rules based international order” the politicians are so fond of quoting. They are just words. As the revelations about the treatment of Mr Assange’s confidential legal consultations demonstrate beyond a shadow of doubt, governments observe the law only when it suits them. The rest of the time, beware.
*Barrister at Law and geopolitical analyst. He may be contacted at [email protected]