Further thought

by Lex Lasry QC

Presented at the Manning Clark House Day of Ideas in Perth: A Human Rights Act for Australia? 2 -3 September 2005

Thank you for inviting me to speak at the Day of Ideas dinner and, as the Americans say, thank you for coming out this evening.

I am a Melbourne criminal lawyer. In recent years I have watched the world through the eyes of someone fortunate to participate in a genuinely fair and independent criminal justice system.

I have been to The Hague and endeavoured to understand the benefits and shortcomings of international criminal justice in the UN tribunals there, in the ICTY and ICC, Tanzania and the Special Court in Sierra Leone.

I have been to Guantanamo Bay as an observer and I will come back to that.

I have client who is a young man on death row in Singapore who will probably hang for 390 grams of heroin. The death penalty in that country is mandatory.

I have recently watched so-called justice operation in Freetown in Sierra Leone in the case of Peter Halloran — the Australian police officer charged with indecent assault.

I will shortly defend Jack Thomas — the man dubbed "Jihad Jack" by the media for terrorism offences.

Those cases and 32 years of legal practice have led me to the view that an excellent way to get people to give up rights is to frighten them into it.

I am neither a Catholic nor much an historian but I understand that the French Cardinal de Retz writing his memoirs in 1718 observed that "Of all the passions, fear weakens judgment most".

Fear may weaken judgment but it seems these days that it strengthens and liberates politicians with a will to capitalise on its benefits.

People today are frightened and with some justification.

Terrorism is not new but the present level is intimidating.

The random nature of modern terrorism coupled with fanatical, illogical and angry justification for it by those who have perpetrated or will perpetrate these criminal acts demonstrates that no-one is safe or immune from the risk.

A nervous electorate feeling a lack of control over its future, particularly where that future may involve random physical attack, is much more inclined to cede power and control to its leaders if in return some level of future security is offered.

There is even a catchy mantra which goes "my right not to be randomly attacked by a bomb is more important than your individual liberties".

Apart from the flawed logic that giving up rights will reduce the risk of attack, the civil libertarians or human rights advocates reluctant to let go of those hard won liberties are instantly able to be portrayed as selfish and justifiably vilified.

Fear in the electorate also has its own liberating effect.

Politicians who might have thought twice about addressing ethnic or cultural minorities in terms like "shape up or ship out" or imposing requirements to divest themselves of religious symbols now suddenly feel courageous enough to do so - like anyone who draws courage from being part of a mob.

Politicians who have wondered about whether depriving members of the public of certain individual rights seen as investigative obstacles, now worry less about doing so.

And they think they hear an underlying chorus from so-called "ordinary people" who as yet in their lives have not had a need or a use for such rights and whose argument is predicted to be that if those suspected have nothing to hide, objection to compulsory detention and interrogation without rights cannot be justified

And importantly, a frightened community is also amenable to being diverted from issues of process and fairness to issues about individual conduct.

It appears to be a prerequisite to concern about issues of fairness and justice that the individual caught in the trap is appealing in a tabloid way.

The case of David Hicks is an excellent example.

David Hicks was captured by the Northern Alliance in Afghanistan in December 2001 and transferred to Camp X Ray at Guantanamo Bay Cuba in January 2002.

He waited another 18 months to be designated for trial and until December of 2003 for a military lawyer to be assigned to be him.

He was not actually charged until June 2004 — two and a half years after his capture.

I had the pleasure of going to "Gitmo" in August 2004 as the Law Council of Australia’s observer of the proceeding and as I walked into the Military Commission hearing room I noted the slogan over the door — "Honor bound to defend freedom".

Yet there are no independent judges; no rules of evidence and no viable appellate system. The control is by the President and the Secretary of Defense who have already referred to the detainees at Guantanamo as "Killers".

Article 14 of the International Covenant on Civil and Political Rights require competent, impartial and independent tribunals.

The English Government, senior English judges, the English Attorney-General and professional associations around the world have condemned this process as unfair including every bar association and law society in Australia and, of course including the American Bar Association.

There are no American citizens in Guantanamo. They were separately dealt with in the US itself.

I have since written two reports from the point of view of a civilian criminal lawyer.

In my opinion, the Military Commission is disgraceful chapter in the life of the United States military justice process and despite some changes to process at Guantanamo it is likely to remain so.

Unlike Schapelle Corby, David Hicks has little or no tabloid appeal.

However, presumed innocent, he has been in gaol for nearly 4 years.

When the Australian government is challenged about that and as to why they condone this absence of fairness at Guantanamo by their response they invite analysis, not of that issue but of what Hicks is alleged to have done and perhaps even of what he might have done, such predictions underlining the government’s protective role.

The defence of him as a human being and the devastating effect of such incarceration and unfairness are left to his family and his lawyer.

The unspoken formula is that if the conduct can be portrayed as relevantly bad enough and linked to the fear the community feel then the unfairness is of no consequence.

Apart from his time spent in custody, the fundamental unfairness of his situation is that he is to be tried by body which answers to the Executive of the US Government masquerading as a criminal justice system.

He is not be tried anything that resembles an independent judiciary.

Some of the trappings are featured but none of the substance.

And this from a country that wishes to impose its values on the countries of the rest of the world or at least those judged by the US to be most in need.

However, one must conscious of another benefit of generating an atmosphere of fear.

When the electorate is scared enough, criticism of the protecting government becomes un-Australian or, particularly at present, anti-American.

To describe President Bush as an incompetent, dishonest leader whose seduction of our present government on the war in Iraq is sickening (which is my opinion) carries both labels.

For my own part I am content to wear them.

But in this atmosphere it is important for the political opportunist to blur the real issue and find a basis to criticise the critic or dissenter.

For example, at a point where former High Court judge Mary Gaudron expressed her concern about the military commission process, the government response was a pejorative comment about arm-chairs despite the fact that she was commenting on the release of emails from within the Office of the Prosecutor at Gitmo asserting that in the opinion of some of them, the process was rigged.

For our conservative federal government, continuing opportunities to capitalise on an apprehensive community are too good to miss.

Senior ministers have all boarded the bandwagon.

With US Presidential approval ("you are either with us or against us") there is now a freedom to accelerate the "them and us" approach to relations between cultural groups in the community.

For lawyers, important rights and attitudes to civil liberties are now at stake. It is not the just the loss of particular rights but the attitude developed to those who would try to protect them.

Despite the fear we must strengthen our judgment and maintain our perspective — there are very difficult times ahead.

As Martin Luther King said from prison in 1963:

Injustice anywhere is a threat to justice everywhere.