Wednesday, 31 March 2010

Serendipity: Tamils and Terror Australis

The three Tamil men accused of terrorism by the AFP

Today three Tamil men walked free from the Supreme Court after defeating serious terror charges under the Criminal Code, and pleading guilty to the minor charge of providing funding to an organisation listed under the Charter of the United Nations Act.

It was an extraordinary case, and highlights the dangers in our terror laws. My own role in the case was as lead counsel for the defence, especially during the Criminal Code aspects of the trial.

Once my involvement was completed, I wrote the following article for Overland which was published today.

On 1 May 2007, the Australian Federal Police (AFP) used the Commonwealth Criminal Code to charge three prominent members of the Australian Tamil community with serious offences, including being members of a terrorist organisation, namely, the Liberation Tigers for Tamil Eelam (LTTE or Tamil Tigers). The charges carried penalties of twenty-five years jail.

The background was as follows. In February 2002, the LTTE and the government of Sri Lanka signed a ceasefire overseen by a Norwegian peace-keeping force. The situation remained fragile and there was considerable distrust on both sides, but the government no longer proscribed the LTTE as a terrorist organisation. On Boxing Day 2004, the Asian tsunami hit the coast of Sri Lanka, particularly devastating the Tamil-controlled coastline. Humanitarian aid was desperately needed but the Sri Lankan government refused to permit any foreign aid to go direct into Tamil Eelam. It decreed instead that all assistance needed go through the government, a procedure that would have caused tragic delays.

Major aid organisations defied the instructions and delivered aid directly to the LTTE, which they found to be far more efficient than the government. Indeed, in the Tamil-controlled parts of Sri Lanka, aid agencies dealt exclusively with the LTTE.

In the meantime, the Tamil community around the world began raising funds. Much of this was directed through the Tamil Rehabilitation Organisation, which had an office in Colombo and operated openly in Sri Lanka.

Seventeen days after the tsunami struck, the Sri Lankan High Commissioner in Canberra formally complained to the AFP that Tamils in Australia were raising money for tsunami aid that was being diverted to the LTTE for terrorist activities.

It remains surprising that any credence was given to the allegations. With aid of any kind only just reaching Sri Lanka, it is hard to see what evidence could underpin allegations of material funnelled to terrorist activity. In any case, the complaint was clearly made in furtherance of the conflict between the Sri Lankan government and the LTTE.

In Sri Lanka, the Tamil community constitutes a large majority in the northern part of the island, but a small minority in the country overall. Tamils are a distinct people: they are culturally different from the dominant Sinhalese, have a different heritage, speak a different language and most have a different religion. Prior to colonisation by the Portuguese and then the British, the Tamils had their own separate kingdom on the island.

The Sinhalese have a proud Buddhist tradition. The daughter of the great Indian emperor Asoka brought a shoot of the Bodhi Tree (under which the Buddha obtained enlightenment) from India to Sri Lanka, and 2500 years later it still stands – the oldest documented tree planted by humans in the world. A tooth of the Buddha, recovered from the ashes of his funeral pyre, is venerated in the Temple of the Tooth in Kandy. Most Tamils, by contrast, are Hindu.
During the colonial period, the Tamils were generally better educated and formed the backbone of the civil administration. This permitted resentments against them to grow.

Independence was granted in 1947, just as in India. But whereas India was partitioned, Sri Lanka was not. As a result, the Tamils became a permanent minority in the new nation. Racist laws against the Tamils were enacted almost immediately. Those whose families had been brought to Sri Lanka by the British during colonial times – often more than a century earlier – were deported to India, a country they and their families had never known.

To win government, a political party needed to court the majority Sinhalese vote, and a process of parties outbidding each other in the demonisation of the Tamils ensued. The measures adopted against the Tamils became increasingly discriminatory, to the point where they were effectively denied tertiary education altogether and even tuition in their own language. Politicians whipped up pogroms in which thousands died, often with the police looking on or participating, and systematic ‘disappearances’ of Tamils were common.

Tamils began a violent military insurgency in the 1970s. It included conventional warfare but also featured measures such as suicide bombing, generally directed against political leaders opposed to the Tamil cause. The Tamils sought a separate homeland, Tamil Eelam, in the north of the island – and for decades, in fact, they ruled such a homeland. The LTTE led the insurgency although there were other groupings, sometimes in alliance with the LTTE, sometimes separate.

The government of Sri Lanka has one of the worst human rights records in the world. Anyone interfering with its rule is at risk of extrajudicial murder. Many journalists and editors – even those of Sinhalese background – have been killed.

Clearly, Australia should not have permitted its resources to be diverted to assist in a civil war. Nonetheless, the AFP embarked on a multi-million-dollar spending odyssey in response to the Sri Lankan High Commissioner’s complaint, including multiple overseas trips by several officers. According to answers produced in parliament, the AFP spent no less than $5 271 706.91 on its investigation.

The Australian Attorney-General has the controversial power under the Criminal Code to list an organisation as terrorist. Both the current and previous incumbents have considered proscribing the LTTE but declined to do so, even after considering material that went well beyond evidence admissible in court. In fact, the LTTE are not proscribed in most countries around the world.

Members of the Tamil community, accordingly, thought they were entitled to deal with the LTTE – which was, after all, the de facto government of their homeland. Nonetheless – even though the Attorney-General had never listed the LTTE as a terrorist organisation, and even though at the time of the alleged offences the LTTE was not proscribed as terrorist even in Sri Lanka – the AFP set out to prosecute, under the Criminal Code, those men alleged to have sent aid to the LTTE.

The burden of the prosecution case was that the accused sent money to the LTTE (there were other allegations, but this was the central one). The prosecution said it did not matter if that money was for the purpose of charity – the Act makes no exception for such circumstances. Not surprisingly, when the charges were laid, major international aid organisations immediately feared that they too would be subject to criminal charges. After all, they had done exactly the same thing as the accused men. Privately, the authorities reassured these organisations that they would not be charged. That reassurance, of course, itself raises a serious issue about the rule of law: where a law is so broad that it is a matter for the subjective choice of police or prosecutors as to who will be charged, it can be (as it was in this case) applied selectively.

The prosecution set out to prove that the LTTE was a terrorist organisation under the Criminal Code. To do so, they had to prove that it was responsible for terrorist acts.

Normally, the foreign policy of Australia is a matter of some delicacy, but the terror laws handed power to make substantive decisions – in this case, the attitude of our country to a civil war in Sri Lanka – to police, something which no responsible government should countenance. Once the police were permitted to view that conflict through the lens of terrorism, it had a major impact on our foreign relations concerning an important issue.

To establish that the LTTE was a terrorist organisation, the prosecution sought to adduce primary evidence of violent acts in Sri Lanka, such as suicide bombings, and then call experts to opine that the acts were attributable to the LTTE. The process posed significant problems for our criminal justice system. The accused had no personal knowledge of these highly prejudicial violent events, and yet the evidence was to be led against them in a trial before a jury.

Furthermore, the government of Sri Lanka was at war with the LTTE. Every witness from Sri Lanka was in some way engaged in that war on behalf of the government. No witness statement was provided without the express approval and authority of the Sri Lankan government. All the evidence was vetted by the Sri Lankan Solicitor General, who conferred with and coached the Sri Lankan witnesses. He then claimed legal professional privilege for his discussions (since he was a witness himself).

None of the normal safeguards for a police investigation in Australia were available. It was clear that not all relevant evidence had been brought forward, as the accused and their representatives could not safely travel to Sri Lanka to gather evidence or examine the evidence relied upon by the prosecution and no documents or records could be subpoenaed.

The legal process required an Australian jury to assess the complex workings of the Sri Lankan political situation, and then pass judgement on it. They were required to assess evidence about controversial events in Sri Lanka when they had none of the cultural background normally necessary for such judgements.

As it happens, the LTTE has been listed as a terrorist organisation in Australia – not by the Attorney-General but by the then Foreign Minister, Mr Downer. The United Nations has never listed the LTTE as terrorist, but did call for the freezing of the assets of terrorists. So, using legislation to give effect to UN resolutions (The Charter of the United Nations Act), Downer listed the LTTE as an organisation that should have its assets frozen. It then became a little-known offence, carrying five years imprisonment, to make an asset available to the LTTE. This much less serious alternative charge was added some months after the three Tamils were initially charged under the Criminal Code.

In the end, after months of legal manoeuvring, which all but bankrupted the accused men, the DPP dropped the most serious charges under the Criminal Code. The accused men pleaded guilty to these lesser charges, with the final outcome on 31 March 2010 - when they all received sentences which allowed them to walk free from court.

Last year, as the civil war came to an end, Sri Lankan government troops indiscriminately shelled hundreds of thousands of Tamil civilians trapped in a small area. On 18 May, Tamil leaders, seeking to prevent further bloodshed, arranged with international mediators that they would carry white flags and give themselves up. When they did so, they were murdered in cold blood.

In fact, throughout the war’s closing stages, Sri Lankan forces extrajudicially executed many surrendering Tamils. Film showing naked Tamils with their hands and feet bound behind them being shot dead by Sri Lankan troops has been declared genuine by Philip Alston, UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

General Fonseka, then commander of the Sri Lankan armed forces (and failed aspirant for the nation’s presidency), has said that his troops were ordered to kill any Tiger leaders attempting to surrender. The orders came, he said, from Defence Secretary Gotabaya Rajapaksa – the brother of the current Sri Lankan president. Both Rajapaksa (who has US citizenship) and Fonseka (who has a US green card) are currently under investigation in the US for war crimes and genocide. Shortly after he lost the presidential election, Fonseka was arrested by Sri Lankan government forces.

Now that the decades-old civil war is over, hundreds of thousands of Tamils remain behind barbed wire in unsanitary concentration camps. Many risk perilous voyages to other countries – including Australia.

Not surprisingly, there is tension in Australia between the expatriate Tamil community and the expatriate Sinhalese community. Both sides consider themselves wronged and misunderstood. For the Australian legal system to take sides in a dispute like this inevitably exacerbates those tensions. Recently, ASIO has delivered adverse security assessments in relation to some Tamil refugees – presumably because they had links with the LTTE, although the process lacks the transparency it should have in a democracy. ASIO’s value judgement as to which side of a foreign conflict should be regarded as ‘terrorist’ should not prevent Australia fulfilling its obligations under the UN Refugee Convention.

The Tamil community here has been regularly raided by security personnel. They have generally come to Australia to escape the danger in their homeland at the hands of security personnel, and the trauma occasioned by these raids cannot be overstated. The Tamil community is also acutely conscious of the humanitarian crisis affecting their people in their homeland, and yet they are disempowered in relation to supplying aid themselves.

In the end, the anti-terrorism laws that we have passed, and the large agencies which have been staffed to enforce them, have resulted in Australia taking sides with war criminals and adding to the misery of a terrible humanitarian crisis.

We expect more than this from our governments.

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Monday, 29 March 2010

Why the CPRS is worse than nothing

Solar Concentrator Array - see the website of Beyond Zero Emissions

Some commentators say that it’s hypocritical of the Greens to vote against Labor's Carbon Pollution Reduction Scheme (CPRS). The line they run is that the CPRS may not be perfect, but it is a step in the right direction - better than nothing.

Have these commentators read the legislation, or have they merely confined their research to the government's spin? There is no way the Greens will support this CPRS because it is a "continue polluting regardless scheme" and will make the climate crisis worse.

There's no room for complacency or playing politics on this issue. Here in Victoria, we have now had 13 years of above average temperatures and below average rainfall. There has never been a run like this before. According to the Bureau of Meteorology, the average mean temperature of Victoria is now 1 degree warmer than in 1950, and up to 2 degrees warmer than 50 years before that – the equivalent of moving the entire state 400 kilometers closer to the equator.

We all know that the targets in the CPRS are scandalous – they’ve been set by polluters, not by scientists. Even the UN Bali Convention on climate change in 2008 flagged modest targets of 25% to 40%. We have thumbed our nose at the world by adopting a derisory 5%.

The compensation paid to big carbon under this scheme is huge – a reasonable estimate is more than $20 billion. It will be the only new source of revenue to run at a loss.

What do we get for that massive outlay of cash? According to treasury modelling – nothing. We get no reduction in emissions at all in Australia – the little we get will all be imported because there's no limit on overseas offsets!

There won't be a single coal fired power station closing down under this scheme. So why are we doing it? It's because the organized lobbying of big coal has been successful.

The CPRS gives free permits to coal power over the first 5 years. This provides windfall profits to polluters and encourages dirty coal power to continue.
The CPRS actually encourages the growth of highly polluting Energy Intensive Trade Exposed (EITE) industries (such as aluminium smelters) by allocating them 25% of permits free of charge, increasing to 45% by 2020. This is in direct conflict with the recommendations in Garnaut's final report.

The worst part about this scheme has had very little coverage. Once this CPRS is set up, future governments can’t really change it. This is because this scheme makes permission to pollute (a social evil) a property right.

Remember the film “The Castle”? Under our Constitution (see s 51(xxxi)) the federal government can’t acquire property except on "just terms". This means that any future government which wants to take away these rights - or diminish their value - will have to pay huge sums in compensation to the polluters.

The coal industry and their lobbyists are digging a hole they can’t get out of, and they won’t stop digging. They are quite happy to drag us down into the graveyard made by their coal mines – so long as they can clutch their their riches as they go down.

According to Kevin Rudd, the climate crisis is the great moral challenge of our age. So give us real leadership to confront it. Leadership does not mean doing no more and no less than the rest of the world – although in fact we are doing less.
Australia is uniquely placed to take a lead in solving the climate crisis. On the one hand we have 40% of the world's coal exports and we are one of the highest per capita emitters of greenhouse gas. On the other hand, we could cut our greenhouse emissions significantly overnight by stopping native forest logging, and we have abundant resources of sunshine and wind, and other renewables.

We can stop burning coal and meet our power needs from renewable resources. The answers are practical and affordable – and they are inspiring.

Let's ditch this CPRS, and adopt the positive alternative of a carbon tax. And let's start funding the transition to renewable energy - something we are uniquely placed to achieve.

For the sake of our children and the planet, we must make these changes - or have other, far more uncomfortable changes, forced on us.

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Saturday, 27 March 2010

Unaccountable Power: the case of Scott Parkin

Have you noticed the criticisms of the Chinese legal system by many commentators in relation to the Stern Hu case? Many of those criticisms are justified, but Australia’s legal system all too often fails to be open and accountable – especially when it comes to challenging government power.

On 10th September 2005, I had just finished speaking at a United Nations Association function when the phone rang. Could I provide some urgent advice? A young man on his way to a peace workshop had just been spirited off the streets of Brunswick.

Scott Parkin, a non-violent peace activist visiting from the United States, was hauled off Sydney Road Brunswick by police, taken to jail, held incommunicado, and then flown out of Australia. He was presented with an $11,700 bill for his custody and his flight, as well as that of the two security officials who accompanied him. He was said to be a “security risk”. He was such a security risk that once he reached the United States he was released into the community as a free man.

Scott had embarrassed Halliburton because of his non-violent street theatre against their role in the Iraq war, but there was no suggestion of any offence or any breach of the terms of his visa. We simply do not know on what grounds he was silenced. Nor does he.

He has challenged his treatment in the Federal Court. The Commonwealth argues that Mr Parkin and his lawyers are not allowed to see the evidence against him. They are not allowed to be in court when the government makes its submissions. And indeed, during key aspects of his hearing, his lawyers had to sit patiently outside, not able to contribute to anything that was happening. This is all permitted under the National Security Information (Criminal and Civil Proceedings) Act 2004, a certificate having been signed by the Attorney-General.

Once we reach this stage, where political repression can be unreviewed because a politician says so, we no longer have the rule of law, but the unbridled, unfettered exercise of power – the rule of the despot.

Bulldozing Freeways through Community Rights

When a freeway is proposed, the community defends the places we stand to lose.

Not many people have seen the
Major Transport Projects Facilitation Act, which has just become law in Victoria. Under this Act, the government can declare any project a “major transport project”. There is no definition of what “major” is. It could be a boat ramp. It could be a bus stop. It’s whatever the planning minister, along with the premier, think it is.

But once the government calls it a major project, the proponents can drive freeways through the rights of the community.

The Act gives decision-making power on any declared project to the Planning Minister. Community input is in some cases removed altogether. In other cases the time lines are incredibly short (often only days - to give input on projects whose documentation will run to thousands of pages) so the "right" to comment is in practice an illusion.

Many of the decisions made under this scheme will not be subject to any right of review in the Supreme Court, removing judicial oversight from important government decisions.

The most serious change, however, is in section 77 of the Act. This section requires the Minister to "have regard to" certain laws - but not to comply with them. The Minister will not have to obey these laws, just note their existence. The laws overthrown by this stroke of the pen have been built up over decades, and provide key protections to our environment.

The list of laws now cast aside in such decisions is long, but includes:

  • Coastal Management Act 1995
  • Conservation, Forests and Lands Act 1987
  • Environment Protection Act 1970
  • Flora and Fauna Guarantee Act 1988
  • Heritage Act 1995
  • National Parks Act 1995
  • Planning and Environment Act 1987
  • Water Act 1989
  • Wildlife Act 1975

So now, when a freeway is in question, the government of the day can ignore these protections and thumb its nose at the community.

Jeff Kennett, at the height of his hubris, would not have dared to propose this legislation. But now Labor has made it law.

The real damage under this Act will not occur until after this year's election. Labor won't want to upset people before they vote - but watch out afterwards.

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Friday, 26 March 2010

Windsor hotel protest today

I spoke at the protest today on the steps of Parliament about Planning Minister Justin Madden's approval of the Windows hotel development. Here is a video of my speech.

Rally to save the Windsor Hotel from development - Brian Walters SC 25 March 2010 from Marvellous Melbourne on Vimeo.

And here is a Senator Bob Brown's speech.

Greg Barber, MLC, Senator Bob Brown and myself at the protest


Monday, 22 March 2010

Bringing the Game into Disrepute

This article was published in Crikey on 19th March 2010

By gate crashing a parliamentary committee inquiring into the notorious email of his media adviser Peta Duke, Victoria’s Planning Minister Justin Madden has made a scandalous situation far worse.
The email, from the office of the Planning Minister to the Office of the Premier, was also sent by mistake to the ABC, and is now public. It attached a strategy document which proposed the establishment of a sham public consultation process in relation to the redevelopment of the Windsor Hotel, in order to earn the government credit with voters in an election year.
Such a document calls in question the lawfulness and integrity of planning decisions made in the Minister’s office, and it is proper that the Parliament – the representatives of the people – should investigate it to see whether there is any abuse of the power which the Parliament, through the Planning and Environment Act, has conferred on Mr Madden.
The influence of ministerial advisers has grown enormously in recent years. These advisers, or “staffers” are on the public payroll, and can have real influence on the outcome of important public decisions. There must be appropriate accountability for their actions. The Canberra Times put it well in an editorial:
Increasingly, staffers are wielding executive power in their own right, and without reference to the minister... Staffers are taking it upon themselves to decide whether advice given is passed on to ministers, and ministers, from the Prime Minister down, flatly refuse to accept any responsibility for the office if they can claim not to have been told.[1]
The Standing Committee on Finance and Public Administration summoned the media adviser to appear before it and answer questions about the document. She did not appear. Instead, the Minister sat in the witness’s chair and demanded to be questioned.
Committees of the Legislative Council, such as this one, hold the privileges of Parliament as a whole[2]. Prima facie, unless there is some good cause for her non-appearance, Peta Duke’s disobedience to her summons appears to be a violation of well-established parliamentary privileges and may be a contempt of Parliament.
Parliament enforces its own orders and can punish a person for contempt, including by imposing a fine or a term of imprisonment. Parliament does not need to go to court to get an order. It can make orders itself. It will be a matter for the Legislative Council to determine what, if any, action is taken in this respect.
Both the Attorney General, Mr Hulls and the Premier, Mr Brumby, claim that there is a long-standing convention under the Westminster system that ministerial advisers do not appear before such committees. Leaving to one side the fact that in Westminster the upper house is the House of Lords – whose members are not elected and so do not represent the people – the fact is that ministerial advisers are in no different position from any other member of the public and have no immunity from appearance before parliamentary committees.
The “Children Overboard” inquiry in the Australian Senate considered the greatly expanded role of ministerial advisers, and tabled advice from the Clerk of the Senate:
...the Senate and comparable houses of legislatures have not recognised any immunity attaching to this category of office-holders. There is also no basis for supposing that they possess any legal immunity...
That inquiry also received detailed legal advice from Bret Walker SC, which concluded:
Ministerial staff have no immunity from compulsory attendance to give evidence and produce documents to a Senate committee.
As that inquiry pointed out[3] in the 1970s the same arguments were made in an attempt to prevent public servants appearing before parliamentary committees – a practice which is now routine.
The Westminster system of government, which the Premier and the Attorney-General have cited, requires that the Executive arm of government (the Ministers and those who carry out their directions) should be accountable to the Parliament.
It appears that the Attorney General Rob Hulls either “advised” or “directed” Peta Duke not to attend the hearing: both terms have been used by the government. Any such advice or direction is a matter of serious concern.
The Attorney General should not offer legal advice to a private citizen in relation to any matter touching the government. The Attorney General is often regarded as “first law officer of the State” (Justin Madden was confused about this concept at his subsequent press conference, calling the Attorney “first law maker of the State”). It is the Attorney’s task to offer independent legal advice to the cabinet. The Attorney-General has a special responsibility to uphold the rule of law and to ensure that cabinet actions are legally and constitutionally valid.
With this responsibility to the State, the Attorney General is inevitably in a position of conflict of interest in offering any advice to a citizen in relation to the affairs of government. If such advice were given, it demonstrates that the Attorney has seriously compromised his duty to the State of Victoria.
If the Attorney used his authority to “direct” a media adviser not to obey a summons from Parliament, then Mr Hulls has committed a grave breach of his duty as Attorney General. The Ministerial adviser concerned did not work for him. He cannot provide a direction to her as her employer. He should not direct any person to disobey Parliament’s order, or to do anything which would undermine the rule of law in this way.
Mr Hulls claimed that the summons was a “denial of natural justice”. To any lawyer, the statement is ludicrous. “Natural justice” is a legal term which incorporates several principles – most notably giving a person an opportunity to be heard before making a finding touching their rights. Calling someone to give evidence is the essence of natural justice, not a violation of it.
By his crass tactics in derailing a properly constituted committee, the Minister of Planning has tried to deny the accountability of himself and his office to Parliament. The Premier and the Attorney General have supported this tactic.
This impropriety strikes at the heart of Parliamentary democracy and is a grave abuse of power.

[1] Canberra Times 11 March 2002
[2] Section 19 of the Constitution Act 1975

Chris Baxter

I've written an obituary for my good friend Chris Baxter. You can read it here.

Michael Collie, Brian Walters and Chris Baxter