Download Word2CN BREAKFAST SHOW
Monday, 5 February 2007
ROSS SOLLY: Well, after five years of investigations, Australian David Hicks was charged on the weekend with providing material support for terrorism and attempted murder. Now, as you may have heard, there is some suggestion—a bit of confusion—that these may in fact be retrospective laws which ... of course, the Australian government was unwilling to entertain to try and bring David Hicks home to be tried here in Australia.
Philip Ruddock is the federal Attorney-General and he joins us this morning. Good morning, Mr Ruddock.
PHILIP RUDDOCK: Morning, Ross.
ROSS SOLLY: Are you comfortable with the way this has unfolded over the weekend?
PHILIP RUDDOCK: I’m uncomfortable with, I think, a good deal of misrepresentation as to what is in fact happening, and I note in the program AM , there was the American prosecutor interviewed on this very subject of retrospectivity and he made it clear that the offence of material assistance to a terrorist organisation was an offence known to American law and that in the military commission process it was merely codified in order that it could be dealt with before the commission.
ROSS SOLLY: Well, in fact, my understanding is that that law came in after the Oklahoma bombings.
PHILIP RUDDOCK: Well, I think the point is that there have been convictions in the United States in relation to material support and that point was made as well. And so we’ve got this furphy running that the particular charges are retrospective. It would have been, in my view, the case if they had proceeded with the charge of conspiracy because conspiracy was struck down by the United States Supreme Court and it was re-enacted. I think that is quite different to a codification of an existing law.
ROSS SOLLY: It seems from the comments, yes, attributed to yourself and to the Prime Minister over the weekend, your initial response was, though, that these may well have been retrospective laws.
PHILIP RUDDOCK: No, I think the Prime Minister’s response was quite clear: we want these issues to be dealt with as quickly as possible. And in relation to retrospectivity, we have consistently made the point that we were not prepared to make unlawful something that had not been a breach of our law when Hicks was abroad and, in other words, we weren’t prepared to retrospectively legislate for criminal offences. And we would have made that point to the United States but they haven’t brought a conspiracy charge. They have brought charges in relation to matters that I think everybody would understand are matters of law. Attempted murder is something that we understand. Material support, I think to a terrorist organisation, has all the hallmarks of what we would know as aiding and abetting. But they’ve made it clear that within their law—and it’s their judgement. I mean, it’s not ours. If Mori wants to challenge it as a retrospective law, he’s entitled to, before the military commission process, and there is an appeal system right up to the American Supreme Court.
So our view is that this trial needs to be moved on as quickly as possible. The issues need to be dealt with and we’ve always made the point that there is a presumption of innocence and he’s entitled to that. He’s entitled to be charged, the evidence heard and then a judgement can be formed.
ROSS SOLLY: Have you been briefed, by the way, from the authorities in America putting a bit more flesh on the bone, so to speak, of what these charges actually relate to?
PHILIP RUDDOCK: Well, I have not been prepared to canvass the evidence and I don’t think it’s appropriate that evidence should be canvassed.
ROSS SOLLY: But do you know what form this material support for terrorism took?
PHILIP RUDDOCK: I know what the charge is and I think any comment on the evidence would be quite inappropriate.
ROSS SOLLY: And you’re quite convinced, then, having heard on AM and from who you have spoken to that these aren’t retrospective laws even though, I think, just looking at a quote from the Prime Minister yesterday, he said: I don’t equate what the US is doing with a passage of a retrospective criminal law in Australia. There seems to be some confusion over the weekend.
PHILIP RUDDOCK: I think the words, ‘I don’t equate it with retrospective laws’ means that he’s saying he doesn’t equate this law as being retrospective. I mean, people put different interpretations on it but I think that’s the reality of the situation. The advice I had received—and I had received advice on this—was that the law was not retrospective; it was a mere codification of law that was already known in the American legal system.
ROSS SOLLY: Of course, it is in your’s and the government’s interests to say that, though, given the strong stance that you’ve taken in the past about using retrospective laws and in fact using that as a reason not to bring David Hicks home initially.
PHILIP RUDDOCK: I would have argued against a charge in relation to conspiracy on the basis that the conspiracy matters had been struck down by the United States Supreme Court and it was a new law that was enacted. I would not argue against codification of an existing law, and I’ve been assured that there were existing laws and this is a mere codification.
Now, if it’s going to be argued, it can be argued before the commission process and it can be argued right up to the Supreme Court of the United States. I’m not a specialist in American law but it seemed on the explanation that was given to me, quite clear, that this was a codification.
ROSS SOLLY: As Attorney-General, are you happy with the fact ... okay, now the charges have been laid, it’s taken five years, well, first of all, after five year’s investigations, these are the strongest charges they can find against David Hicks?
PHILIP RUDDOCK: Well, I think a charge that carries a life sentence: attempted murder, a charge of materially assisting a terrorist organisation are serious charges. Now, in relation to the way in which the issues are dealt with and the delay that has occurred, we have been complaining about the time that it has taken. But I think it is important ...
ROSS SOLLY: Some might suggest ‘not loudly enough’ though.
PHILIP RUDDOCK: Well, some may, and I would simply say that initially it was easy to understand that when people were detained in a situation in Afghanistan where the United States was dealing with a new and novel situation post 2001, we had a situation where they had to put in place arrangements for trials. That was done and those who were likely to be charged under those arrangements challenged those laws as being unconstitutional. They were entitled to do that. The Supreme Court came to a view that they were unconstitutional but the period of time of those challenges, I think, were some two years. So there are explanations as to why some of the delay occurred. Our view has been that these matters need to be dealt with and proceeded with as expeditiously as possible.
ROSS SOLLY: Okay, now that he has been charged, and let’s assume that he goes to trial, the fact that they can use hearsay evidence, the fact that they can use coercion to extract evidence from him, as Attorney-General, are you comfortable with that?
PHILIP RUDDOCK: Well, if the evidence was purely hearsay without any other qualification, I might well be uncomfortable. But nobody ever tells you that in relation to hearsay the qualification is that it has to have probative value; it has to be believable. None of the people who talk to you about hearsay will tell you that under the rules of evidence in all of the Australian jurisdictions, and in different forms, I might say, hearsay can be admitted, and the reason is, very often, that a party who had told a person who had then died had repeated what he had been told and that’s regarded as one of the exceptions to hearsay.
Now, in the context of America, the way in which they deal with what we regard as exceptions to the hearsay rules are to test its probative value. Is it believable when you look at the manner in which the evidence has been gathered? And that’s something you never hear of of those who say: look, hearsay can be admitted.
In relation to evidence obtained by torture, there is a blanket prohibition against evidence obtained by torture. In relation to evidence that is [inaudible] by the relevant authority, the question as to whether or not it is believable also has to be asked. In other words, if you look at the way in which it was gathered, is a person likely to have said it because they’re under duress, in which case, it won’t be admitted.
ROSS SOLLY: So have you made any efforts to try and find out what they mean by ‘coercive’?
PHILIP RUDDOCK: No, my view has always been that what is ... I mean, people have sat down and tried to question me as to what I believe is coercion and sometimes put a misinterpretation on what I’ve said.
ROSS SOLLY: Are you talking about sleep deprivation?
PHILIP RUDDOCK: Well, yes, look, if you are simply without sleep, is it coercive or is it torture? My view is that if you gain it by keeping a person awake by means of some form of noise or light or even physical activity, then it might well be something that you wouldn’t admit because it is clearly obtained under duress. But simply because a person goes without sleep, my wife always cites the example of young parents. You don’t say it’s coercive or torture, you simply say: we were kept awake. It’s a bit unreasonable, isn’t it?
ROSS SOLLY: But we all know that when you’re tired you do say things that you don’t normally mean and you aren’t in full control of what you do and what you say. Surely, I mean, this is a guy who’s facing a life sentence.
PHILIP RUDDOCK: And the evidence and the way in which it is obtained, if it is not torture, if it is not torture ...
ROSS SOLLY: It’s a very murky area though, isn’t it?
PHILIP RUDDOCK: Well, it’s an area that courts have to deal with all the time in terms of establishing what the facts are, and in relation to anything that is coercive, if it is obtained in a way which makes the evidence unbelievable, it won’t be admitted.
ROSS SOLLY: This isn’t a court, though, so to speak, is it? Will they be as thorough, will they be as definite about these sorts of issues as a court might be expected to be? Will they be as determined as you hope they might be to find out what coercion means, what hearsay evidence should be accepted?
PHILIP RUDDOCK: Let me just say that the Americans, as I understand it, take their military code of justice very seriously. Courts martials are part of their regular system. They’ve established an additional form of military commission to deal with those who are not their servicemen.
ROSS SOLLY: Well, the first one they drew up, though, turned out to be far from adequate, didn’t it?
PHILIP RUDDOCK: No, it was struck down because the presidential authorisation was seen not to be sufficient and they required—and the judges averred to this when they made their decision—that it have congressional authorisation; direct, congressional authorisation, and that has now been given. So it wasn’t struck down on the basis of errors of law in relation to what constituted military commissions, it was struck down because it was unconstitutional. It had insufficient authority from the Congress. That’s why it was struck down.
But, look, let me just deal with the issue of military commissions because I don’t think anybody would say that Major Mori has been other than a fearsome advocate for Hicks, who has taken his duties very seriously. He is part of that system. I think the Americans in the American military justice system take that system very seriously. They don’t regard them as being bodies that are set up for determining people’s guilt in advance.
ROSS SOLLY: I don’t think anyone would say, though, that Major Michael Mori has been a supporter of the whole system as it ... I mean, he’s the one who’s running around now saying that these charges are retrospective. He’s the one who’s running around now saying that he hasn’t got time to prepare a defence, things like that. So that’s hardly him giving the thumbs up to the way the whole system is operating.
PHILIP RUDDOCK: I think he is, very clearly, part of the system who recognises that he has a role to fulfil and is doing it very forcefully and I simply say that if you look at the sorts of people—and Mori is one of them—who participate in the American military justice system, they take their responsibilities very seriously and would not want to come to judgements that were flawed or inappropriate.
ROSS SOLLY: Alright, now, so we’ve got hearsay evidence which can be used, we’ve got ...
PHILIP RUDDOCK: No, we’ve got hearsay evidence that can be used if it has probative value.
ROSS SOLLY: Okay. Coercion?
PHILIP RUDDOCK: If it has probative value.
ROSS SOLLY: Yes, and then on top that we’ve got a bloke who’s been in Guantanamo Bay for five years. Goodness knows what he’s ... I mean, there’s all sorts of debate about what his mental condition is.
PHILIP RUDDOCK: Well, that’s a matter that can be tested. As I understand it, Mori has asked for independent assessment and as the process commences, that independent assessment will be allowed to be obtained. That’s as I understand it.
ROSS SOLLY: I tell you what: he’d have to be a pretty tough bloke to have withstood all of that and still be fully across all his faculties, wouldn’t he?
PHILIP RUDDOCK: Well, there are lots of people who are held on charges who remain in jails in Australia some time before the trials are dealt with finally. And we have had cases where trials have taken up to five years before they’ve been finally resolved.
ROSS SOLLY: There seems, Attorney-General, some concerns among your backbenchers with the way this is unfolding ... I notice Bruce Baird this morning, quoted as saying he’ll be raising it tomorrow. Do you think that you’re going to cop a bit of grief from within your own party on this? I mean, people are concerned. The public seems to have turned in the past couple of months, haven’t they?
PHILIP RUDDOCK: I was interested in the discussion this morning because I think what the Americans were saying is that they felt, in the context of the debate occurring in Australia, it would have been a very one-sided debate with, largely, Mori being unchallenged in relation to the comments that he was making. I must say, from my own point of view, I think it’s better now that particularly in relation to the evidence that we allow the proceedings to be conducted and dealt with without comment. We would expect that in Australia. We don’t expect that people would be out there arguing in relation to a person who has been charged with offences about the appropriateness of it. We’d believe the court and, in this case, the tribunal ought now to get on with its job and [inaudible] in the matter.
ROSS SOLLY: Is that a warning to your backbenchers there that maybe they shouldn’t be raising this?
PHILIP RUDDOCK: No, look, it’s simply a comment that ...
ROSS SOLLY: You have got backbenchers who are concerned, though, haven’t you?
PHILIP RUDDOCK: Look, there may be questions put to me and I’ll answer them in the same way as I have to you, Ross.
ROSS SOLLY: Final question, then, for you on this issue, after all this time, five years and with the charges laid, do you believe that the Australian government, the Howard government and yourself, you’ve handled this as well as you should have?
PHILIP RUDDOCK: Well, I think if you look at terrorism, people do regard it as a very serious issue and there are laws that we have enacted. There are charges that have been brought. There are people who have been convicted in Australia. Terrorism is not an issue about which we should make light, and I don’t.
ROSS SOLLY: And reports this morning, again, I think I’ve spoken to you about this before, Attorney-General, about a plea bargain being entered to get David Hicks home. Have you heard anything about that at all? Has that come across your desk at all as an option?
PHILIP RUDDOCK: Well, it is an option but it hasn’t come across my desk. It’s an option in the American system. We don’t use plea bargains here in Australia.
ROSS SOLLY: That would be the only way, wouldn’t it, that we would David Hicks home before he faces trial in the States?
PHILIP RUDDOCK: Well, a plea bargain is where the prosecution and the defence agree that there will be a plea of guilty to a particular offence and they agree on what the penalty should be and put to the body that’s dealing with the matter.
Now, we don’t have plea bargains in Australia. They’re known to American law. Mori says, well, he doesn’t know that the prosecution wants to seek one and he’s not arguing that he wants one but it’s a process that’s known in the American legal system.
ROSS SOLLY: Alright, just on a final, totally unrelated issue in fact, our civil union laws here, in the ACT, they’ve been on your desk for sometime now. I know that the ACT government is getting a bit tetchy about this, wanting to know ...
PHILIP RUDDOC K: Are they? They haven’t told me.
ROSS SOLLY: Yes, they’re wondering what the heck’s going on. Have you cast your eye over it yet? Are you going to give it the thumbs up?
PHILIP RUDDOCK: I’ve cast my eye over it and we’ll come to a view and when we come to a view, I’ll let you know.
ROSS SOLLY: How long will that be?
PHILIP RUDDOCK: Well, these things take their time and we’ll let you know.
ROSS SOLLY: Because I believe it’s supposed to be coming out before the Assembly returns, very, very soon.
PHILIP RUDDOCK: Do you know when it returns?
ROSS SOLLY: This week, I think.
PHILIP RUDDOCK: This week, well, we’ll ...
ROSS SOLLY: Yes, it won’t be there by tomorrow, will it?
PHILIP RUDDOCK: Look, when we’re ready, we’ll let you know. Thank you, Ross.
ROSS SOLLY: Alright, Philip Ruddock, thank you. Attorney-General Philip Ruddock on 666 Breakfast .