97 Quite rightly, the accused regarded ASIO and the AFP as arms of the state. He quite rightly assumed that they were acting together. The notion that he would be likely to reason that the AFP would not tell ASIO about the extent of his cooperation is fanciful. It would also have been utterly mistaken. Not only did the AFP disclose what he had said to ASIO, but both organizations were aware that this was consistent with what he had said to ASIO on 6 and 7 November. Ordinary reason – quite apart from the accused’s evidence – leads to the conclusion that there could be no confidence either that the cautions would be taken as realistically describing his actual position or that his agreements at the end were honestly answered.
98 The evidence of the ASIO conduct, considered alone, would be sufficient to establish oppressive conduct within the section. But the oppression was continued, in my view, by the conduct of the AFP. Mr Gordge’s presence at the interviews was a clear signal to the accused of the inextricable link between ASIO and the AFP and an implicit reminder that he should not depart from anything already said. The conversations with him at the end of the interview on 7 November and when he came to AFP headquarters on 10 November continued the thrust of the message communicated by ASIO at the first meeting: co-operate or else.
(Adams J in R v Ul-Haque  NSWSC 1251)
What is the purpose of criminal law?
We can begin to tackle this issue by distinguishing two radically different ways of conceptualising criminal law. We might decide, in the end, that a plausible account will have to draw on both kinds of conception, but we can usefully begin by contrasting simple, pure versions of each.
One conception is instrumental. The criminal law is a technique or instrument that can be used to serve various possible ends. We are justified in maintaining a system of criminal law if it is an efficient technique for achieving worthwhile ends; its structure and content should then be determined by asking how it can serve those ends most efficiently.
What worthwhile ends could a system of criminal law serve? We cannot simply say that it should prevent or reduce crime, since without the criminal law there would be no crimes—no conduct would count as criminal. However, a number of plausible goals could be posited, reflecting a range of views both about human goods and about the proper roles and functions of the state. The American Model Penal Code, for instance, declares that:
The general purposes of the provisions governing the definition of offenses are:
a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests [s. 1.01(1)].
We begin with a set of individual and public interests that merit protection, given their role in human welfare: they can be protected by various methods, including various state activities. A system of criminal law makes its distinctive contribution to their protection by forbidding and thus preventing conduct that threatens substantial harm to them. German criminal law theory posits a similar starting point: a set of individual and collective Rechtsgüter (a Rechtsgut is a good which the law properly recognises as being necessary for social peace or for individual well-being, and as therefore meriting legal protection) which the criminal law protects against conduct that seriously threatens them (see Roxin 2006: 8-47; for critical discussion of the utility of the idea of Rechtsgüter see Wohlers et al 2003). As I will discuss in a later post, it is not yet clear whether or how individual, as distinct from public, or collective interests should figure in an account of the protective aims of the criminal law and some accounts certainly emphasise the collective dimension. Thus on Walker’s ‘pragmatic’ account, the criminal law should aim to further the “smooth functioning of society and the preservation of order” (Walker 1980: 18, quoting Devlin 1965: 5)—collective or shared goods which provide essential preconditions for individual flourishing.
Two aspects of such instrumentalist accounts are worth noting here. First, they typically limit the criminal law’s concern to serious harms to the specified kinds of interest that cannot be otherwise prevented; thus the Model Penal Code refers to “substantial harm”, and German theorists argue that criminal law should be used only as a last resort against seriously harmful conduct (see Roxin 2006: 45-7; also, more generally, Husak 2004; Jareborg 2005). This kind of limitation can itself be rationalised in instrumental terms. The criminal law is a blunt and oppressive technique, which impinges seriously on the interests of those who are subjected to its coercive attention: not just those who are convicted and punished, but also those who are caught up in police investigations, or who are tried and acquitted. A consequentialist calculus of costs and benefits is therefore unlikely to favour its use unless it is the only feasible method of preventing quite serious harm.
Second, the Model Penal Code also limits the criminal law’s concern to conduct that “unjustifiably and inexcusably inflicts or threatens substantial harm” (see lso Feinberg 1984: 31-6); and most criminal codes include similar limitations. The ‘unjustifiably’ limit might still be justified instrumentally; we should not want to prevent conduct that justifiably causes harm. Some theorists argue that we can also justify the ‘inexcusably’ limit in instrumental terms (e.g. Braithwaite & Pettit 1990): that the criminal law’s goals are not efficiently served by criminalising faultless or excusable conduct. Others, however, ground this limit in a non-instrumental side-constraint on the aim of harm-prevention: a purely instrumentalist theory cannot justify criminalising only culpable conduct; we must instead appeal to a non-instrumentalist demand of justice, that those who lack fault should not be liable to criminal punishment (see Hart 1968: 17-24, 28-53).
Unjustifiably and inexcusably inflicts or threatens substantial harm
If we accept the United States Model Penal Code definition of criminal conduct as being conduct that “unjustifiably and inexcusably inflicts or threatens substantial harm”, how then could it be argued that the Australian Federal Police directly or indirectly communicating to a suspect that they must “co-operate or else” have not acted in a way that “unjustifiably and inexcusably inflicts or threatens substantial harm” especially when these threats are couched in very specific terms? R v Ul-Haque at Para 110:
Then [Australian Federal Police] Officer Gawel said, “Izhar, you’re a medical student and I think third year is a very important year for medical studies and you wouldn’t want to miss third year medicine would you? And we can make life very difficult for you and your family, and if you don’t co-operate with us, you’re not going to be able to continue your studies.”
Fortunately for Mr Ul-Haque, Adams J found that this conduct was oppressive and ruled that evidence gathered by the Australian Federal Police using intimidation tactics such as “co-operate or else” was inadmissible in his case. But, this leaves a much more fundamental issue unaddressed. That of, the total disregard for the ‘rule of law’, that the Australian Federal Police have demonstrated time and again since their inception in 1979.
Allegations of oppressive conduct by the Australian Federal Police are not limited to Ul-Haque case. Three witnesses involved in Julian Moti’s extraction, two Solomon Islands’ police and a former immigration official, allege that they were threatened with loss of employment if they testified in the stay of proceedings case that was heard before Justice Deborah Mullins of the Queensland Supreme Court in 2009.
Solomon Islands’ police officer Sam Kalita testified that he was appearing in defiance of a threat made by his superiors that if he testified he would be fired. Kalita accompanied Moti on the flight from Honiara to Brisbane on December 27, 2007. He further stated that, he and Selwyn Akao, the police officer who transported Moti from his Honiara residence to the airport, were confronted by the Solomon Islands Deputy Police Commissioner Walter Kola and Honiara Police Commander Nella Mosese and told that they “would be fired” if they gave evidence and were specifically directed to “stay out of the Moti case”. It needs to be remembered that the Solomons police are now being trained and equipped by RAMSI, which many see as a foreign occupying force.
The AFP and oppressive and racist conduct
Blak and Black is about exposing the hypocrisy of the Australian myth of a ‘fair go for all’ and shining a light on the entrenched and institutionalised racism that is modern Australia.
In a recent post The strange case of Bill Johnson, a study in neo-colonial hypocrisy I looked briefly at the circumstances surrounding Mr. Johnson and his involvement in an alleged plot to murder then Solomon Island’s prime Minister Sogavare. The interesting thing about this case is that it came to an end after members of the Australian Federal Police interfered in the Solomon Islands police investigation. Interference, which an outsider could only view as a further example of the Australian Federal Police meddling in the sovereignty of an independent nation in furtherance of Australia’s neo-colonial interests in the Pacific.
Before I go on it is worth noting that Mr Johnson is an Australian citizen of Anglo-European extraction, aka a ‘white’ Australian. Johnson in other words was considered ‘white’ enough to be given “diplomatic protection” and “consular assistance”. This despite the fact that one of his co-accused was none other than former Solomons police sergeant Edmund Sae,who has been on the run since escaping from a Solomons jail before he could be tried for the February 2003 assassination of former police commissioner Frederick Soaki. He is also accused of murdering a second police officer following his escape. It is believed that Mr Sae has remained in hiding in the jungles of Malaita island, where Mr Johnson had his home prior to being accused of plotting to assassinate Prime Minister Sogavare. It is also worth noting that RAMSI failed to find Mr Sae even though it had conducted several well-planned searches of the island.
It is interesting to compare the assistance given by Australia to Mr Johnson, a man accused of plotting with a double murderer to assassinate a democratically elected head of state and what happened to Julian Moti QC, who is also an Australian citizen but, of Fiji-Indian decent.
The genesis of Moti’s troubles go back to late 2004, when then Australian High Commissioner to the Solomon Islands, Patrick Cole, asked the Australian Federal Police to look into criminal charges that had previously been brought and finalised in Vanuatu. Cole’s request to the Australian Federal Police coincided with Australia’s efforts to persuade the Solomons’ government to not appoint Moti as Attorney General.
Prior to this Moti had a long history as an opponent of Australian neo-colonial operations in the South Pacific. He was also identified by Australia as a potential threat to RAMSI, the Australian-dominated occupying force first deployed in 2003.
The Australian Federal Police investigation into the Vanuatu charges intensified in mid-2006, of Moti’s then pending appointment as Attorney-General, under the government of Prime Minister Manasseh Sogavare, the target of the Johnson allegations.
While Johnson who allegedly conspired with a double murderer to assassinate a democratically elected Prime Minister of a foreign state was given all the support Australia could muster, which was not insignificant given that Australia dominates RAMSI which was and remains an occupying force in the Solomon Islands. Moti by contrast, was kidnapped from his home in the Solomon Islands, marched onto an awaiting plane to be flown directly to Brisbane where he was arrested by the Australian Federal Police, on arrival.
It is interesting to note that, according to documents produced under subpoena by the Commonwealth in the Queensland Supreme Court proceedings brought by Moti, his Excellency Patrick Cole, Australian High Commissioner to Honiara at the time of the Moti affair noted that:
Some Ministers [in the Solomon Islands government] want to appoint JM [Julian Moti] to be our Attorney-General. Naturally I’m trying to block it.
How can these words be read as anything other than the actions of an imperial administrator backed by a foreign occupying force, dictating ‘desired’ political outcomes to a colonial possession?
The same source documents produced by the Commonwealth also reveal that Cole had further noted that:
“The consequences [of Moti QC being appointed Attorney-General for the Solomon Islands] could be disastrous for Australians and Australia’s interest and RAMSI”.
While Moti was being forcibly ‘chaperoned’ to Australia under the directions of the Solomons imperial master, Australian High-Commissioner Cole, who like all good imperial lackeys, was himself acting under instructions from Canberra, a senior Australian Federal Police officer in Canberra (known as “Aussie”) sent a cable to his colleague, Australian Federal Police officer Bond, in the Solomons, congratulating him on a “job almost well done”.
Colonel Roko Ului Mara
It is also interesting to note the difference in Australia’s treatment of former Fijian Army Commander Ratu Tevita Uluilakeba Mara, who was ‘rescued’ by Tongan Navy while escaping from Fiji while awaiting trial on charges of uttering seditious comments and inciting mutiny. Like the Solomons, Fiji is a sovereign state; unlike the Solomons, Fiji refuses to bend to Australia’s neo-colonial and racist aspirations in the Pacific.
While in the case of Moti and the Solomons, Australia used its imperial occupying force to force a political outcome on one of its imperial possessions. I wonder how the imperial master will respond to the extradition request Fiji has lodged with Australia for the return of Colonel Roko Ului Mara? Will Australia uphold the ‘rule of law’ or will it again resort to the ‘gunboat diplomacy’ of the 19th Century and ignore the rights of those states Australia considers part of its ‘backyard’?
Apart from any of the other issues raised in this short analysis it is beyond question that Australia has treated Moti, an Australian citizen of Fiji-Indian extraction, differently and less favourably that it has Johnson, an Australian citizen of Anglo-European extraction. This again gives rise to a question I have posited several times before on Blak and Black: who really are citizens of Australia? If Australia treats its citizens differently, dependent on racial lines, then Australia has really begun to plumb the depths of racial segregation and hypocrisy. If for no other reason, this alone, should be cause for the Pacific to turn its back on a racist Australia and embrace a more inclusive future elsewhere.
Devlin, P. (1965), The Enforcement of Morals, Oxford: Oxford University Press;
Husak, D. (2004), “The Criminal Law as a Last Resort”, Oxford Journal of Legal Studies 24: 207;
Jareborg, N. (2005), “Criminalization as Last Resort (Ultima Ratio)”, Ohio State Journal of Criminal Law 2: 521;
Roxin, C. (2006), Strafrecht Allgemeiner Teil (4th ed.), vol. 1, Munich: CH Beck;
Walker, N. (1980), Punishment, Danger and Stigma, Oxford: Blackwell;
Wohlers, W., von Hirsch, A., and Hefendehl, R. (eds.) (2003), Die Rechtsgutstheorie, Baden-Baden: Nomos Verlagsgesellschaft.