Download PDF

ATTORNEY GENERAL:-GENERAL THE HON PHILIP RUDDOCK MP

TRANSCRIPT

Parliament House, Canberra ACT 2600  Telephone (02) 6277 7300  Fax (02) 6273 4102 www.ag.gov.au/ag

Date: 7 February 2007

Location: Parliament House

Topic: ACT Civil Partnerships Bill, David Hicks Family Court decision

Attorney General:

Yesterday in response to correspondence I’d received from the Minister - the Attorney of the ACT in relation to its Civil Unions legislation - I indicated to the Attorney that while a number of changes had been made there still remained significant issues that likened the civil unions to marriage that the Commonwealth found unacceptable.

My view in that was reinforced this morning listening to the ABC radio here in the Australian Capital Territory, where on two occasions the Attorney in justifying measures that were included in the Civil Unions Bill specifically referred to the Marriage Act and likened the arrangements in the Marriage Act for a ceremony to those that he was seeking to put in place in the Australian Capital Territory for civil unions.

I won’t detail all of the matters that I think are marriage-like in the ACT Civil Unions Bill, but it does include provisions for a ceremony - a notice of the ceremony. It includes also like-arrangements for minors that are included in the Marriage Act. The civil unions could have been simply arrangements for adults but they were specifically modified to include those who were below the age of 18 years where parental consent, or the consent of a court, was obtained.

I think it’s foolish for him to argue that this is a matter for the ACT to deal with because it’s not a marriage, but when he specifically continues to include in it provisions that liken the arrangements to marriage, and - as his own statements made clear - were quite intentional.

I thought I might mention two other matters to you. The first relates to a decision in the Family Court in Queensland involving Justice Carmody. The Judge when asked to comment on the decision made it clear that parties ought to read his judgement. He can’t speak separately on those issues. But I notice a number of people whom

Attorney General Transcript 2

you might normally describe as expert offering views about what decision the Judge should have reached.

It seems to me that the only appropriate course for those who are critical of the Judgment, particularly if they’re parties, is to appeal the decision. That is the means by which these issues are dealt with.

Secondly, if there are people who believe they have expert advice and weren’t called they should offer themselves to the parties to see whether that expert advice might be able to be utilised.

The second matter I wanted to comment on related, I think, to the quite disparaging remarks [made] of the Prime Minister yesterday in the parliament where he was accused of not acknowledging a mistake. One thing I thought was clear was that the Prime Minister from time to time - it only happens rarely - acknowledges mistakes when made. He went back into the parliament to correct something that was misheard.

What I’ve noticed is what the person who wanted to draw certain inferences himself regularly fails to do is to correct the record. I’ll only use two examples, but I notice the Shadow Attorney has asserted that Mamdouh Habib was the subject of a Control order. At no time has Mamdouh Habib been the subject of a Control order.

He also picked up some arguments from the United States which have now been corrected, that the United States Military Commission arrangements did not reflect a codification of existing law in the United States but constituted retrospective legislation. I notice even Major Mori has now corrected himself in relation to that matter and argues that it wasn’t a codification that was in precisely the same form.

I don’t notice that Mr Thomson has acknowledged his own errors in relation to these matters, but it’s clear that he was in error. He could correct them and he seems to criticise others when they have corrected a statement, but is unwilling to admit his own errors.

Journalist:

Some of your Liberal colleagues agree with Mr Thomson. They don’t know about the codification of Hicks’ charges.

Attorney General:

Well I think there are some people who, and Mr Thomson evidenced this, who haven’t informed themselves. Look, I can’t speak for my colleagues in relation to what steps they take to inform themselves on these matters, but it is certainly the case that we have received advice from the United States that the laws were known

Attorney General Transcript 3

in the United States from as early as 1994 - that is material assistance to a terrorist organisation - and I think that occurred in the context of the Oklahoma bombing.

A number of American academics have written about those matters, and those who want to inform themselves might look at what Major Mori has most recently had to say himself.

Sometimes people pick up these arguments and run with them without doing their own research and I would encourage everybody to always check as best they can the authenticity of remarks offered, particularly by those who are sometimes barracking for a particular outcome.

Journalist:

Is it correct that the Prime Minister yesterday told the Party Room that Australia could have David Hicks returned if we simply asked America to do so?

Attorney General:

Well I think it’s quite clear that we do have a special relationship with the United States and while any decision that would be taken would be taken by the United States, it’s reasonable to assume that if the Prime Minister made such a request there would be a high probability that people would want to accede to it.

The Prime Minister made clear - as I think the Opposition has made clear - that there should be accountability for actions that people take. It’s always been the case that on the advice from the expert body, the Director of Public Prosecutions - on available evidence - that Mr Hicks could not be prosecuted in Australia.

The Labor Party is asserting that they are not demanding that Mr Hicks be returned and freed but that he be prosecuted and he can’t be prosecuted.

Journalist:

A control order is their other option isn’t it?

Attorney General:

Well I mean that’s an interesting assertion.

Journalist:

Because that’s what they’re saying.

Attorney General:

Attorney General Transcript 4

That’s an interesting assertion and I’m glad to hear you say that’s what they’re saying because again it reflects a mistaken view as to the law. The law is clear.

The government can’t put somebody under a Control order. I can’t put somebody under a Control order. A Control order is sought by the police and determined by a judicial officer.

You can’t enter into an agreement that says ‘I’ll put you under a Control order’. You can’t assert as the Opposition if we were there we would put you under a Control order.

Journalist:

But you’d say there’s a fair chance wouldn’t you. If he’s repatriated then the police would move to put him under some supervision or something.

Attorney General:

Fair chance? You mean I should assume that a judicial officer would act as I would want?

Journalist:

He’s been a terror suspect for 5 years. Are you telling me the AFP wouldn’t just [indistinct]

Attorney General:

No I’m not. I am simply saying the law is clear. Politicians do not put people under control orders. It is a function of the judiciary, and to assume in advance an outcome is quite inappropriate where there is a clear separation of powers.

Journalist:

Are you comfortable with the US military prosecutor saying even before charges have been laid that he wants David Hicks to serve 20 years in goal? Are you comfortable with a legal system that works that way?

Attorney General:

Our system works that way.

Journalist:

Before charges have even been laid you announce the sentence?

Attorney General:

Attorney General Transcript 5

Well I don’t … no, you don’t announce the sentence. You …

Journalist:

Well he has.

Attorney General:

No he hasn’t. He’s indicated what the prosecution may seek. And a prosecution in Australia will often be invited to suggest what a penalty might be during a matter but normally those requests would be after there was a finding of guilt.

I’ve noticed that many of the participants in the American justice system seem to think that advocacy on a broader basis is compatible with separation of powers. Major Mori has been in Australia on multiple occasions arguing his case before the media in advance of any trial and I suppose one shouldn’t be surprised that others might think that they can be invited to participate in offering a rebuttal to some of those matters.

But look, I think it is clear that we ought to have an understanding of the American system and compare it to our own. What I notice is that there has been a number of commentators asserting that Mr Hicks has not yet been charged and that there is a process which has to be completed. I would simply say the charges have been sworn.

In Australia, we would say if somebody was of interest to law enforcement authorities they would be charged and those charges having been laid would be then dealt with by a committal authority. And that is a form of the process to ensure that the evidence is appropriate to the specific charges that are being brought.

It seems to me the process in the United States is exactly the same. We wanted the Americans to commence the process of charging Hicks. Those charges have been sworn. There is now a committal stage. It is a Judge Advocate recently appointed who is asked to review those charges. She cannot lay new charges but she can vary them or strike them out in the same way that a judicial officer would in Australia in committal proceedings.

I think it’s very important that while understanding that the system has to be a just one, the fact that the systems are different doesn’t mean that the sorts of arrangements that we would expect here in Australia are not replicated although they use different terminology.

Journalist:

If David Hicks was found guilty and given a prison sentence is it correct that he’d be brought back to Australia to serve out that term?

Attorney General Transcript 6

Attorney General:

Well, it is correct that we amended the prisoner exchange legislative regime to ensure that it would apply to military commissions. And we’ve taken all the necessary steps to ensure that if there were a conviction he could be returned to Australia to serve out the remainder of any sentence.

Journalist:

On the Access card issue Mr Ruddock, are you happy with the legislation as it’s presently put and do you have any concerns about it opening the way for a future government to exploit it in a Nazi-style manner?

Attorney General:

Well let me say in relation to what future governments may do, no government can bind its successors. It’s never been asserted that you can legislate now and that a new government can’t amend it. It’s always been possible. And how you characterise it is a matter for people to use what terminology they think is appropriate.

The only point I would make is that I would hope that those who seek office, if they have in mind changing legislative measures, would outline what they have in mind. In other words they get a mandate for it. If they did while I might complain about it I mightn’t … I wouldn’t be heard to question the entitlement of a government with a mandate to legislate. It’s part of our democratic system.

Journalist:

Mr Ruddock, can we expect extra security when Dick Cheney visits?

Attorney General:

Let me just finish the further question on the matter that we were dealing with and then I’ll come to you.

Journalist:

Do you expect any amendments will be necessary to the legislation?

Attorney General:

I wouldn’t foreclose legislation. I mean there is a process by which the parliament will be engaged in dealing with it. I certainly have had the opportunity, as the Attorney ,in ensuring that there are two avenues of advice available to those who are legislating in this area.

Attorney General Transcript 7

One of them is to ensure that the Privacy Commissioner was engaged in the process and the second to ensure that those who are dealing with these issues were aware of the gold standard in relation to identity issues because we don’t want people to be able to establish fraudulent identities.

So I’ve had an engagement in relation to these issues with my colleagues - the legislation in its present form. We in the Attorney General’s area believe we have been appropriately consulted and obviously we don’t foreclose further matters that might arise through a proper exposure in the legislative process to matters. We would consider amendments in this matter as we do with all legislation.

Journalist:

Can we expect any extra security arrangements when Dick Cheney comes, similar to when George W. Bush came a couple of years ago?

Attorney General:

Well I don’t talk about security arrangements. It would be quite inappropriate to foreshadow in advance what steps might be taken, other than to say we attach a great deal of importance to identifying potential risks and making appropriate arrangements given the basis of any risk assessment.

Journalist:

Just on the Civil Partnerships Bill, Simon Corbell says he has asked your government what in particular you objected to in the last law but got no response. So then when this new Bill has been put forward he said he was quite shocked that it got knocked down. Why can’t you just tell them what you objected to in the first Bill?

Attorney General:

Well, in broad terms we did. We made it clear that it was marriage-like and he made some adjustments and he could have made others. He has made it …

Journalist:

Couldn’t you just tell him what adjustments he should make?

Attorney General:

Well look, I think what you need to understand in relation to this measure is that the ACT has been pursuing the same political agenda and he made it clear that he wanted to pursue measures in which he himself in his own comments today likened to the Marriage Act.

Attorney General Transcript 8

I would have thought it was a fairly simple matter to ensure that it didn’t, it didn’t do that and it’s not for me to draft measures - to say this is how you should do it. I think they would regard it as an affront to their legislative function for the Commonwealth to presume we should tell them how to draft their laws.

Journalist:

Do you think you should have entered into discussions with him or at least let the Assembly debate build before making the announcement yesterday?

Attorney General:

Well I mean he could have provided a copy of the legislation and essentially said, before it was introduced into the parliament, do you want to talk about these things.

But he didn’t do that. He introduced his legislation and then says you tell us what you don’t like about it. Well, we’ve said we don’t like it in its present form and if it proceeds in that form there is a process by which disallowance can be considered and we foreshadowed that that’s what would happen.

I feel that my position has been strengthened by the way in which he today asserted in justifying specific provisions in it that it was to ensure that it was in line with the provisions in the Marriage Act. He is seeking to put in place arrangements for civil unions that are as close as possible as they can make it to marriage and that is the very concern that we have with it. Okay?

Journalist:

What’s wrong with a ceremony? Some people would probably see that as [indistinct]

Attorney General:

Well what’s wrong with a simple system of registration which some of the other states have put in place? There is an alternative. Look, I don’t notice most people when they enter into contractual arrangements and that’s what this is said to be, having formal ceremonies in which you have to give notice - public notice - before you embark upon them.

I mean look, I mean he made it very clear himself that he looked at the Marriage Act and said this is how it’s done and that’s what we’re going to provide.

Journalist:

Bob Brown has said that the government is using this issue as a dog-whistle issue to appeal to certain members of the electorate.

Attorney General Transcript 9

Attorney General:

Well look, the timing of this issue was determined by the ACT government, not by us. They didn’t have to introduce legislation but they did.

Journalist:

But your announcement yesterday [indistinct]

Attorney General:

No it wasn’t. I was told again on our ABC yesterday that the Legislative Assembly here in the Territory was about to resume. It was a Bill on their Notice Paper. I think the timing was relevant to that which had been set by the ACT Government. If they didn’t want it on the agenda they didn’t have to introduce a Bill. Okay?

Journalist:

Just one more question.

Attorney General:

One more question? What have I failed to deal with?

Journalist:

An update on the group Hizb ut Tahrir?

Attorney General:

Hizb ut Tahrir ? Yeah? You’re doing it very well.

Journalist:

And it’s totally unpronounceable.

Attorney General:

No it’s not.

Journalist:

And when you expect it to be finished and what will actually happen to its members [indistinct]

Attorney General:

No, I don’t direct agencies that deal with these issues. I invite them to consider it.

Attorney General Transcript 10

The Australian Federal Police and other agencies, competent agencies, are looking at those matters and when they’re ready to report they will. I won’t hide it. I mean …

Journalist:

It won’t take long?

Attorney General:

No. Sometimes these things take very long periods of time. It depends upon the availability of evidence and what matters they want to investigate and whether some of them require them to seek corroboration. I mean there are a whole lot of issues. We treat these matters very seriously. It is a serious issue to proscribe an organisation as a terrorist organisation. We have specific powers and processes that we have to go through which involves the states and territories as well as the Opposition. We don’t embark upon proscription lightly. Okay?

Media Contact: Michael Pelly 0419 278 715