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Bar Talk
18 October, 2006  
The attorney general scares us

President Bush has just signed the Military Commissions Act into law. Apart from Alberto Gonzales, Philip Ruddock alone among western AGs condones the Cuban gulag and its trial procedures. Here NSW barristers Ian Barker and Robert Toner put Ruddock’s conduct regarding Guantanamo Bay and David Hicks into context

imageWhat is it about the federal attorney general Philip Ruddock and David Hicks? Given Ruddock’s position you might think that Hicks must be amongst the most dangerous terrorists on the planet.

This is the attorney who, apart from Alberto Gonzales, is alone amongst his fellows in the western world in consistently supporting the concept of the concentration camp at Guantanamo Bay and the proposed manifestly unfair procedures to try an Australian citizen.

Never once has he (nor anyone else in our government) publicly criticised the incarceration of Hicks. Over the years we have been told time and time again that trial by military tribunal will be fair, notwithstanding that the law was struck down by the United States Federal District Court and the Supreme Court as being repugnant to the United States constitution because it violated basic rights.

Its reproduction by Congress does not make it any fairer. Why is it that our attorney general cannot bring himself to demand that Hicks be repatriated? Why can he not utter one word of public protest about it all? Can he not see that the ritual to be played out at Guantanamo Bay would not be permitted if those on trial were American citizens?

Indeed, America would never permit one of its own to be so imprisoned by another country. There are no American citizens imprisoned at Guantanamo. It would be illegal under United States law. But it does not worry Australia.

No one in our government will engage on the issue of Guantanamo Bay, or the robust publicity expressed views of the United Kingdom. The contrast is startling:

  • “I would have to say I regard this as a monstrous failure of justice.” (Lord Steyn, November 23, 2003.)
  • “Guantanamo Bay is an affront to democracy.” (The British Lord Chancellor Lord Falconer [pictured], to an imageAustralian audience in August 2006.)
  • “Either the men detained should be tried in accordance with standards we regard as fair and in accordance with international standards, or they should be returned to this country.” (British Attorney General Lord Goldsmith on January 11, 2005.)

    The Americans could give the British Government no such guarantee, so the UK demanded the repatriation of its citizens. They went home. Pity about Hicks.

    Ruddock’s conduct regarding Hicks should be put in context.

    Consider his views of our right as individuals to protection against arbitrary arrest. The so-called counter terrorism laws are the most repressive laws outside war time in the history of Australia.

    Who would have thought that an Australian government would sponsor legislation that enabled a secret intelligence service to apply to arrest and take into secret custody and interrogate a person even if he or she is not suspected of any offence?

    Who would have thought we would see the day of the control order, whereby the citizen’s rights of movement and communication may be arbitrarily controlled even if he or she is not suspected of any offence?

    Ruddock assures us that one of the safeguards in all this is the discretion of the attorney general: We can trust him always to act fairly. This is truly ironic. This is the attorney who is determined to retain the vicious sedition provisions of the Criminal Code, a potential direct impediment to free speech, notwithstanding the recommendations of the Law Reform Commission and the almost unanimous opposition of the Australian press and legal profession.

    Ruddock declines to utter a single word of criticism about America’s use of torture in interrogation, whether at Guantanamo Bay or Abu Ghraib or elsewhere. His contribution to the debate is to proclaim that sleep deprivation may not be torture, at the same time suggesting that admissions made under such conditions may be admitted as valid evidence.

    imageSuch a concept is foreign to our concept of free and voluntary confessions.

    Another example of unfairness in the proposed military tribunals (there are many) is that a person may be convicted on evidence he does not even hear, or know about. That is of no consequence to our attorney.

    Indeed, he has enshrined such a law in Australia’s odious National Security Information (Criminal and Civil Proceedings) Act.

    He is steadily trespassing on areas of law previously thought to be within the exclusive province of the federal judiciary, not the executive.

    This attorney general scares us.

    Ian Barker QC
    Robert Toner SC


Reader Comments

Posted by: Jason Spinak
Date: October 19, 2006, 9:42 pm

Excellent recapitulation of the A-G's efforts in undermining the rule of law. Equally scary perhaps is that his actions seem to have the support of the electorate.
Posted by: Julian Burnside
Date: October 26, 2006, 12:30 am

I agree with this assessment It is also worth remembering that Mr Ruddock, in his capacity as minister for Immigration, oversaw the cruellest excesses of the treatment of refugees this country has ever seen. Despite his record, he still wears the Amnesty badge. Either he is a hypocrite or he is deranged. Either way, we are in real trouble. Julian Burnside