When open justice is an optional ingredient

Feb 13, 2024
Digital Artwork of Julian Assange.

I had been assuming that Julian Assange, whose case comes up for adjudication in the British Courts soon, was a shoo-in for being Australia’s prisoner of conscience of the decade, but a late entry into the competition is Michael Pezzullo, who appears to have been condemned by an Australian Star Chamber convening in secret, without the public having any satisfactory explanation of what he is said to have done wrong.

Pezzullo may be an unlikely candidate for being the prisoner without a name, in a cell without a number. Indeed he was one of the architects and champions of some of Australia’s most oppressive national security legislation, which has allowed Australians to go to jail without the public being allowed to know, or know why. And legislation which permitted criminal prosecutions in which people could be charged in secret courts on the basis of evidence they could not see or cross-examine. He also helped establish a shameful and unaccountable system of foreign concentration camps for people seeking Australia’s protection against war, which operated with conscious cruelty and lack of respect for human rights. It was not his fault (or really the present Labor government’s) that some of this regime has been rejected by the courts.

That might suggest a special karma in Pezzullo’s being publicly condemned for offences the public is not allowed to know. I do not believe that he deserves any special consideration or mercy if what is alleged against him is true. But whatever his own very limited view of and understanding of human rights, he is an Australian entitled to Australian justice, open and accountable, and explained by reference to facts and law. If that has not happened, he is, in my opinion, a victim of a terrible injustice. And so is the community at large.

In saying he has been railroaded, I am not impugning former Public Service Commissioner Lynelle Briggs, the person who conducted an inquiry into his conduct, or the procedures she used. It is not her fault that the government, and the public service commission, has thrown a blanket over the whole proceedings, with only an uninformative statement summarising alleged breaches of the public service code of conduct.

Because of that blanket we do not know the facts, we do not know their weight, or any other considerations taken into account, and we do not know the factors Ms Briggs took into account in coming to her decision. We cannot judge the judge, always as much on trial as the accused.

Indeed, we have only the haziest idea of what her inquiry was all about, other than that it is said to have included a clandestine, and on its face, improper relationship between Pezzullo and a lobbyist with Liberal Party connections, said to have a pipeline into Malcolm Turnbull’s ear, if that can be imagined.

Paddy Gourley, a colleague and friend well familiar with public service inquiries, has put in an FOI request for a copy of the Briggs report. It has been completely refused. Kylie Barber, the representative of the public service commission, claims that no disclosure at all is possible because everything is exempt. It could prejudice investigations into breaches of the law, might disclose the existence or identity of confidential sources of information and perhaps endanger their safety. It could involve the disclosure of material passed to Ms Briggs in confidence, in circumstances where breach of confidence could found an action for damage caused. Some of the material was said to be covered by legal privilege, touching advice given by outside lawyers to a government department (not necessarily Home Affairs).

She also claimed that disclosure “would or could reasonably be expected to cause damage to the security, the defence or the international relations of the Commonwealth.”

Is there a secret NACC inquiry into Pezzullo?

It is by no means clear from what has been publicly disclosed by the prime minister or the commission what on earth the decision maker could be referring to. The media report in the old Fairfax papers which sparked the sacking do not seem to involve secret defence or foreign affairs material, nor anything on its face involving police investigative techniques.

While I can well imagine a conga line of people willing to dob Pezzullo in for any number of grievances, real or imagined, I cannot see these being able to found equitable obligations of confidence, particularly in circumstances where, because Pezzullo has gone, there is no prospect of retaliation.

I have a suspicion that a carefully worded, but deliberately uninformative statement is trying to conceal that there is a secret ongoing National Anti-Corruption Commission inquiry into matters touching some, or all, of the allegations against Pezzullo. Could the secret email correspondence (on an encrypted account) have come from someone inside the NACC to the journalists? Those journalists were at pains to stress that the email trail had originally been obtained by lawful means.

Earlier last year, an incautious AFP chap made reference to an inquiry into the making of a Home Affairs contract for services to our concentration camps. Pezzullo’s name was not mentioned, and it was not suggested that the inquiry was into him. But nothing more has been heard of such an inquiry, which is of a nature that it could have ended up with the NACC. The fact that some of the brief outline of Ms Briggs’ findings contained a suggestion of his gaining some personal benefit from something he did could, though it may not necessarily, refer to this.

But this is sheer speculation, and there may be completely different explanations. For Pezzullo, the lack of a public report, the failure to specify alleged breaches of the code of conduct, and the lack of any explanation for the findings, means that people can draw the worst possible conclusions from superficially damning findings.

But it is not only Pezzullo who has a legitimate interest in the facts coming out. The public at large has a right to know. All the more so given the low odour into which the public service has fallen, the unconvincing changes and “reforms” since the advent of the Labor government, and the way in which the prime minister, and the Attorney-General, Mark Dreyfus, have become models of secretiveness, lack of transparency and lack of accountability on the level of Scott Morrison and his government. Despite all the promises, and all the pretences.

One can also see this with disciplinary proceedings against public servants as a result of the Robodebt royal commission. It has been such a stately progress that it might, like the Brereton investigation into war crimes, have to be shelved because too much time has elapsed since the royal commission reported. Minimal information is being handed out, and the parties with the most interest in knowing what happened – the victims and the public – are entirely in the dark. This is, allegedly, so as to protect the privacy of public servants who had no compunction whatever about destroying the privacy of anyone who complained about Robodebt treatment.

What is in prospect is not justice being seen to be done, but housekeeping to put public service leadership dirt under the carpet. The new-look public service commission is the enemy of the public interest, of good public servants and of public service and public stewardship generally.

Meanwhile Julian Assange is in solitary confinement in a British jail awaiting a judicial decision on an American request for his extradition to face what are, in effect, espionage and treason charges. The decision is expected any day, and not many expect that the extradition request will fail.

Albanese has declared that Assange has been confined long enough, but there are occasional bulletins announcing that he has been unable to persuade the Americans to drop their proceedings. This seems to end the matter as far as Albanese is concerned, though in truth there are lots of things, by way of pushing his requests on Britain and the US that would be likely to succeed if only the government had any commitment to its citizens. Yet again, Australia is too timid to push its interests, least of all in the way that virtually every other nation did when the US was holding their nationals at Guantanamo Bay. We reserve our tough words for China.

Australian diplomatic and legal efforts on behalf of Assange have seemed half-hearted and desultory. The indifference of the intelligence establishment (a wholly owned subsidiary of the American one, albeit more zealous in American interests) is particularly notable.

Many, including Labor politicians, would not be unhappy if Assange were extradited and tried in the US. Some have been scarred by Assange revelations about their own open door and open mouth with American spies, including with vicious gossip about Australian colleagues.

Australia, in short, is preparing to shrug and pretend disappointment if the British courts uphold extradition. It will not exhaust a jot of its moral credit with Britain (over matters such as AUKUS) in asking that the minister exercise a discretion to prevent extradition. Nor will it test the patience of the US or act as if Allies and friends owe us anything.

If (Australian authorities assume when) Assange is convicted, one could expect that Albanese would announce that it was negotiating (in fact it already is) with the US to allow, as some sort of favour to us, Assange to serve most of his sentence in Australia. Albanese will then pretend he has upheld our interests.

Australian government has been half-hearted about Assange

Assange, after all, is guilty of the supreme sin against the Western Alliance. He has revealed information that has shown Alliance leaders, particularly the US, to be outright liars and frauds in many of their disastrous foreign policy adventures, particularly in Iraq and Afghanistan. He has used official US documents leaked to him by a now pardoned American, to show the vast gulf between what politicians, officials and military leaders have said, and what they have in fact been doing.

It was claimed at one stage that some of the information disclosed by Assange had been fed to him by Russian intelligence services with a view to discrediting Hillary Clinton. Assange did have an animus against Clinton, but it seems now to be accepted that the information against her had not come from the Russians.

The primary problem with the Clinton material was that it was embarrassing because it showed her to be knowingly lying. Saying one thing in public, another behind doors. Trump, campaigning against her, loved it at the time and spoke of giving Assange some sort of medal. These days his CIA chief, Mike Pompeo (soon to be a business partner of Scott Morrison) has described Assange’s Wikileaks operation as a foreign intelligence service and suggested that its activities exposed some of America’s Afghan associates to later retribution.

Some people complacently say that if Assange is to be regarded primarily as a journalist rather than a hostile agent, he should be able to establish it on trial in the US. But that ignores the fact that the US would not allow him to put defences to the charges which might succeed anywhere else than in America itself.

The US claims its laws apply all over the world, and that they cover the activities of a man never in the US, owing it no allegiance, and who, it is agreed, had not committed offences against the laws of Great Britain nor his native Australia. Many of America’s espionage laws, especially those with an implied treason component, assume a “duty” on the person charged to keep information secret. (That is a law that the illiberal Mark Dreyfus is trying to legislate in Australia). Assange is under no duty to the United States, except when he is physically present in the jurisdiction, a state of affairs that will occur only if he is brought over in handcuffs.

Anyone who has seen America’s lawless treatment of Guantanamo Bay internees, its secretive prosecutions under its national security law, and even the imitation Australian copies of such laws, will understand that when the US sees itself as being under threat, law and due process go out the window. A climate of hysteria reigns, even, or especially, from prosecutors. The injustices are often concealed by secret and unpublished proceedings, by conscious forum shopping for judges imbued with the right ideas, and by a judicial system seriously perverted and corrupted by practical politics.

I have very little sympathy with Donald Trump in his legal problems. Perhaps his trials, in both senses of the word, prove that no one, not even a former President, is above the law. But Trump, and many of his present supporters proclaim a complete want of confidence in the American justice system and in the way many prosecutors and judges work.

On the opposite side, many Democrats are openly contemptuous of the integrity of the Supreme Court. And ask any Afro-American what they think of the grindings of the mills of justice.

Why should Australians, or Australian governments, have a greater confidence in the American system than most Americans?

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