“A State cannot claim to be operating under the rule of law unless laws are administered fairly, rationally, predictably, consistently and impartially.”
(Chief Justice Spigelman, as he then was, in an Address given on 20 March 2003 at the International Legal Services Advisory Council Conference Sydney)
Ann Applebaum in Gulag: A History reminds us that the rule of law requires that an individual is punished only for what he does, not for who he is or with whom he is associated.
Mark Robertson, barrister made the following comment in, “A disregard of the law” (TIA 41 (No. 11), June 2007:
“Applebaum refers to Josef Statins slippery technique of claiming to protect the community from “enemies of the people”, “wreckers” and “saboteurs”. She cites Hannah Arendt’s description of this technique, being to create “objective opponents” or “objective enemies” whose identity changes according to the prevailing circumstances.”
Yesterday I placed on the GoPetition website a petition calling for a Royal Commission into the Australian Federal Police (AFP). Regular readers of Blak and Black will no doubt be aware of the reasons behind why I believe that a Royal Commission into the AFP is necessary, for others who may be considering signing the petition, which I encourage everyone to do, what follows is a brief summary of my arguments in favour of holding a Royal Commission into the AFP.
The Australian Federal Police have been involved in a number of high profile prosecutions that have led to the conviction and/or incarceration of a number of innocent victims, including:
1. Capt. Fred Martens who spent nearly three years in gaol after having been convicted of having unlawful sexual intercourse with a minor in PNG, a crime which is punishable in Australia, under Australia’s Child Sex Tourism Laws, which are contained in Divisions 272 and 273 of the Criminal Code Act 1995. After having spent nearly three years of his life in gaol, during which time his young daughter died in PNG because he unable to pay for medical assistance for her, the Queensland Court of Appeal quashed Capt. Marten’s conviction, noting that:
The records have always existed and have now been produced. It is a poor reflection upon the two organisations (the CDPP and the AFP) that one should have failed to find them (AFP), and denied their existence, and the other (CDPP) object to their use in the reference on the ground that the petitioner should have obtained them earlier.
Capt. Martens continues in his efforts to be compensated for the injustice that the AFP meted out to him. To their great discredit, the AFP are availing themselves of the full arsenal of legal tactics available to a litigant with unlimited government money behind them avoid liability for the damage their unwarranted prosecution of Capt. Martens caused him.
2. Miss Jill Courtney, a young woman in the spring of her youth, who spent nearly two years on remand on terrorism related charges. A statement of claim lodged in the NSW Supreme Court says Ms Courtney’s arrest in 2006 was “without justification or reasonable excuse and was motivated by malicious intent”. She is suing for false arrest and imprisonment and seeks exemplary damages.
She was charged and pleaded not guilty to conspiring to plant a bomb, possibly in Kings Cross, to murder persons unknown. The conspiracy case relied on tapped phone calls. However, after a 12-day hearing in 2008 in the NSW Supreme Court, Justice Peter Hidden directed the jury to acquit her.
He said the evidence against her was “deficient” and the content of phone taps could never have risen “above the level of suspicion”.
He also said he was satisfied it had not been reasonable to institute the proceedings and awarded costs to Ms Courtney.
Her statement of claim names three defendants – the state of NSW, the Commonwealth of Australia and Duncan Glenn Tchakalian, an Australian federal Police officer who was involved in her arrest.
3. Dr Muhamed Haneef, who worked as a registrar at Gold Coast Hospital in Australia, was arrested at the Brisbane airport on July 2, 2007, after his phone SIM was linked to the terror-strike on the Glasgow International Airport in Britain.
He was detained for nearly a fortnight before being charged by the AFP with supporting a terror network. Haneef denied the charges and fought the case. The entire issue snowballed into a controversy as the Australian authorities realised that they had bungled the probe.
The charges against him were dropped on the grounds of insufficient evidence. Later, a committee headed by former NSW Supreme Court judge John Clarke, which was asked to probe the case, confirmed Haneef was not involved in the terror strike.
Haneef then pressed for compensation on the grounds of false imprisonment, being charged with terrorism-related offences, damaging his reputation both inside Australia and overseas, causing loss of earnings, stagnating career prospects and causing emotional stress to him and his family
According to Australian media reports, the Australian Federal Police (AFP) and the government had spent more than $8 million on issues directly related to its bungled handling of Haneef’s case. Added to the $8 million the AFP cost the Australian taxpayer in pursuing false allegations against Dr Haneef, is the reputed $1.8 million he received in compensation, again from the Australian tax payer.
4. In December 2007 Mr Julian Moti QC the former Attorney-general of the Solomon Islands was kidnapped by the Australian Government and forcibly returned to Australia to face Child Sex Tourism related charges. These charges are the same charges arising out of the same accusations which the independent courts of another sovereign country, Vanuatu, had already heard, determined and thrown out more than 13 years ago.
The actual reasons behind the Australian Government’s pursuit of Moti have little, if anything, to do with justice for his alleged victim and everything to do with Australia’s neo-colonial ambitions in the Pacific. For confirmation of this assertion one need look no further than to the alleged victim herself.
On 26 December 2007 (the day before Moti was kidnapped from his home in Honiara and despatched to Brisbane), the woman who the AFP has recruited as the alleged “victim” of the child sex tourism charges against Moti sent an SMS message to her AFP “minder” in Brisbane, Federal Agent Sally MacDonald. That message was reproduced in its entirety in MacDonald’s sworn statement filed in the Queensland Supreme Court. It was an ultimatum to the AFP that unless the Australian Government met her demands to relocate her and her entire family to Australia and place them in a witness protection program she would:
“… denounce that I may have been used as a tool by the Australian Government for political and neo colonial reasons … The aim of all this was to put in the Government of your choice in the Solomons. Consequently I lost everything.”
This text message raises a number of significant issues. The first is the obvious implication that the author herself, by her own admission, has been used as a political pawn by the Australian Government to further its own interests in the Pacific. The other and equally important issue, is that the language used in this text message is rather sophisticated, perhaps too sophisticated, for a young woman living on a remote Pacific island who has admittedly never had any formal education. This brings into question the veracity of the original allegations against Moti and the issue of who drove those allegations in the first place.
Further, the AFP have exhibited questionable conduct in their dealings with the Bali Nine and Ms. Schapelle Corby, both drug related matters involving Indonesia. Earlier this month, a NSW Supreme Court jury found that former AFP officer and senior investigator with the NSW Crime Commission Mark Standen, 54, conspired to import at least 300kg ($120 million worth) of pseudoephedrine and took part in the supply of 300kg of the substance. He was also convicted of conspiring to pervert the course of justice. Not bad for a day’s work, if you can get away with it, which in Standen’s case he didn’t … at least this time!
Over the course of the Standen trial the NSW Supreme Court heard evidence about systemic corruption within the AFP, corruption that I have been banging on about on Blak and Black for quite some time now.
The murder of Australian Mr Drew Grant at the Freeport Mine in West Papua and the subsequent allegations that evidence contained within the victim’s body was tampered with while in the custody of Australian authorities points to possible corruption within Australia’s international security services, including the AFP.
The ongoing human rights abuses in West Papua being carried out by Detachment 88, which is trained and funded by the AFP, highlights the need for greater accountability within the AFP in its dealings with police and foreign security services.
Detachment 88?s major facility at the Jakarta Centre for Law Enforcement Co-operation was established in 2004 with almost $40 million of Australian funding. According to its website, most of the counter-terrorism seminars at the Centre are run by the AFP and according to The Department of Foreign Affairs and Trade 2009/10 annual report, it is a major beneficiary of $16.3 million in annual funding allocated to the AFP to combat terrorism in south-east Asia.
Further, the AFP badge is proudly displayed on the cover page of the Jakarta Centre for Law Enforcement Co-operation’s website, noted as being one of two affiliates to the centre, the other affiliate being the Indonesian National Police.
The Age reported on October 19, 2010 in an article headed Indonesian security agencies ‘below Australian standard’ that a former head of the Australian Security Intelligence Organisation, Mr. Richardson, made the following observation about Detachment 88:
“In working with Indonesian agencies you can get tension between the responsibility you think you owe to your own citizens … and the conduct of some Indonesian agencies that are not up to our standard,” he said. ”We make [the] representations we think we should and condemn human rights abuses.”
“We make [the] representations we think we should and condemn human rights abuses.” But we still fund them to the tune of $16.3 million dollars a year. Well Mr. Richardson, is that not hypocrisy? So it’s apparently OK to support a foreign police unit that is accused of torturing its own citizens, so long as Australia doesn’t get its hands dirty. What you are actually saying is that the human rights of Indonesian nationals are worth less than the human rights of Australians.
Added to the possible human rights abuses committed against Indonesian nationals with the assistance of Australian money and equipment, should be the large number of refugees who died in the sinking of the SEIV X and the SIEV 221 and the ongoing allegations that the AFP, through its agents, may have been involved in criminal conduct resulting in the deaths of these refugees needs to be investigated at the highest level.
Compounding these sad events are allegations from Portugal that Australian military intelligence personnel were involved in fomenting unrest in Timor-Leste, in order to further Australia’s political and commercial interests in the region. This lends weight to a suggestion that the AFP has become politicised and is being used as an instrument of terror, to pervert the rule of law, in order to further Australia’s neo-colonial interests in the region.
The murder of Mr Colin Winchester and the death of Ms Audrey Fagan, both senior AFP officers attached to ACT Policing (a command of the AFP) at the time of their deaths, must raise questions about why the smallest policing command in Australia has witnessed the deaths of two of its most senior officers in controversial circumstances. It is interesting to note that prior to the commencement his duties with ACT Policing and his subsequent murder, Mr Colin Winchester was involved in investigating drug importation as part of his role with the AFP.
It’s for these and many other reasons that can found by perusing the articles on Blak and Black that I believe that it is necessary to hold a Royal Commission into the AFP.
The Request for a Royal Commission petition
To the Honorable Speaker and Members of the House of Representatives assembled in Parliament:
We, the undersigned petitioners, citizens and residents of the Australian Commonwealth and concerned citizens and residents in areas in which the Australia Federal Police (AFP) operate (in their own right or as part of an international contingent) in a policing or investigative or security role, request from the House of Representatives that they establish as a matter of the highest priority a Royal Commission into the role and actions of the AFP, with particular, but not exclusive reference to John Howard’s term as Prime Minister of Australia and Mick Keelty’s term as Commissioner of the AFP. Your petitioners request that the terms of reference in which the AFP are identified include its agents, commands or international arms, including ACT Policing and the Regional Assistance Mission to the Solomon Islands (RAMSI). We ask the House to ensure that this inquiry includes investigations into:
1. The role of the AFP, their agents, informants or others equipped or paid by them, into the sinking of the SIEV X and the SIEV 221;
2. The role of the AFP, their agents, informants or others equipped or paid by them, in the foment of unrest in Timor-Leste, with particular, but not exclusive reference to the 2006 Dili riots;
3. The role of the AFP in the Pacific islands, including their agents, informants or others equipped or paid by them, with specific reference to the conduct of RAMSI in the Solomon Islands and the conduct of the AFP in PNG; and
4. Whether members of the AFP:
a) directly or indirectly, or whether by direct or indirect contact with Tentara Nasional Indonesia (TNI) or Detachment 88, has been involved in human riots violations in any Indonesian province;
b) were involved in moving, disguising or destroying evidence relating to the murder of Drew Grant near the Freeport mine in West Papua;
c) have abused Australia’s sex tourism legislation to target opponents, or perceived opponents of Australia’s commercial or political interests in the Asia-Pacific region;
d) concealed or otherwise manipulated evidence relating to the deaths of Colin Winchester and/or Audrey Fagan;
e) concealed or otherwise manipulated evidence relating to allegations of criminal activity within the ACT Department of Treasury, or were involved in inappropriate or illegal conduct when investigating and prosecuting any former or present ACT Department of Treasury official between May 2002 and the present;
f) have been influenced by a member of any parliament of Australia, however described, into pursuing charges against citizens of Australia that it would otherwise not have pursued;
g) have directly or indirectly been involved in covering up crimes at the direction of any member of any Australian parliament, however described;
h) directly or indirectly, have been involved in the importation of illegal drugs into Australia;
i) have ever sold illegal drugs in Australia in which they had been involved in the importation or manufacture;
j) have ever put onto the streets drugs that they had seized as a result of it’s policing operations;
k) directly or indirectly, have been involved with the illegal importation of guns into Australia;
l) have ever refused to investigate a complaint made by an Indigenous Australian against a non-Indigenous Australian based solely on ethnicity.
We request that the Inquiry also address accountability mechanisms and remedies, compensation, etc available for persons who have suffered violations of human rights by the AFP.