SMH editorial on AG's dept complaint against Adams J
AUSTRALIA'S security establishment, having been weighed in the balance and found wanting, now wants to place its heavy hand on one side of the balance, to tilt it in its favour. That is the conclusion Australians would be entitled to draw from yesterday's Herald report that the head of the federal Attorney-General's Department has complained to the NSW Judicial Commission about Justice Michael Adams's verdict in the case of Izhar ul-Haque. As we have already stated, the decision of Justice Adams of the NSW Supreme Court in the ul-Haque case showed the legal system operating as intended. His judgment revealed that Australian Security Intelligence Organisation was using the charges against Mr ul-Haque as a threat to induce him to become their spy. Justice Adams was rightly scathing about the illegality of the ASIO agents' behaviour during Mr ul-Haque's arrest and interrogation. It appears that His Honour's decision, and the clarity of his views, forcefully expressed, about their cavalier approach to due process, have perturbed the security establishment - not just ASIO but also the Federal Police and, it appears, senior bureaucrats in the Attorney-General's Department, which oversees both agencies.
They appear, though, not to be worried, as they should be, by content of the judge's criticisms, but by the fact that he dared to make them at all. Instead of insisting Australia's security agencies observe the law, the head of the Attorney-General's Department, Robert Cornall, is seeking to punish the judge who pointed out how they had broken it. Is this an attempt to cow the judiciary, in security-related cases, into toeing the line and suspending the rules in the interest of national security? It would not be surprising if it were. The Commissioner of the Federal Police, Mick Keelty, has already suggested courts need to change their attitude to evidence if crimes, particularly acts of terrorism, are to be prevented - rather than punished after they have happened.
Robert Cornall is one confused spook.
Here he is making sense as recently as 7 December 2007:
My final point is about trust.
I think it is self-evident that the public needs to have trust in the fairness of our anti-terrorism laws and the integrity of the agencies which implement them.
Public trust is also an essential precondition to the effective operation of all of those areas of counter-terrorism policy that require community participation or cooperation.
The importance of trust was highlighted by Mr Jonathan Evans, the Director of MI5, in a speech he made in Manchester on 5 November 2007.
Mr Evans said: Public trust is becoming an increasingly important issue for many organisations, both private and public. My Service is no exception, and we need to ensure that our work is sufficiently understood. Although our operations must remain secret for them to be successful, we have a responsibility to keep the public informed about the threats they face and what we are doing to counter them12.
This point was reinforced by the British High Commissioner in her speech last week. Mrs Liddell said:
Our police have a crucial role to play in earning the trust of the public. Successful prosecutions give police and intelligence services a moral licence to pursue terrorists and to impose necessary burdens on the public to enable them to do so.
These comments support the proposition that one of the major responsibilities of Government and all of the agencies involved in implementing our anti-terrorism policies is to earn and maintain public trust.
Agencies such as the Inspector-General of Intelligence and Security, the Australian Commissioner for Law Enforcement Integrity and the Commonwealth Ombudsman will, through the discharge of their supervisory duties, play an important part in achieving that goal.
Viewed through a rather distorted lens, Cornall's comments you've quoted aren't inconsistent with his actions against Adams J; whose judgment received substantial publicity and held ASIO and their conveniently-anonymous agents up to richly deserved ridicule and condemnation. This would have presumably caused a right-minded observer to trust ASIO less, and rightly so.
With a rather perverted, in-this-post-9-11-environment world view, it is not blatantly illegal behaviour by security agencies that undermines public trust, it is the fact that the public knows of that blatantly illegal behaviour which undermines public trust. To maintain public trust, it isn't necessary that ASIO and their ilk stop breaking the law, only that people, especially the judiciary, stop saying that they're breaking the law.
Thankfully, we're not (yet) in a position where people who undermine public trust in these agencies, by calling 'shenanigans' on their behaviour, can be locked up. We have suffered through laws in the past, which allowed for political prosecutions (persecutions) of people who allegedly attempted to influence public opinion or the opinion of any section of the public (in Australia or elsewhere) in a manner likely to be ‘prejudicial to the defence of the Commonwealth, or the efficient prosecution of the war'. Roger Douglas has a good discussion of this in his article Law, War and Liberty: The World War II Subversion Prosecutions; see also Birch v Allen [1942] HCA 17; 65 CLR 621.
It was a shameful period for civil liberties in Australia -- people circulating petitions against the war found themselves facing criminal charges. Thankfully, the outcome of these cases might be different in modern times, since the High Court has recognised an implied freedom of speech on political matters in the Constitution. However, how that implied freedom interacts with the national security of the Commonwealth hasn't been examined, and it might not survive the clash.
I'm waiting for someone in authority (less likely now that Labor are in charge) to make the leap in reasoning necessary to decide that 'embarrassing ASIO' is detrimental to Australia's national security, 'there ought to be a law', etc.
We don't know the substance of Cornall's complaint; such complaints are purportedly secret. Except that in this case, someone, presumably Cornall, leaked the complaint to the press. While this may have been intended to send a message to the judiciary, it has undoubtedly been more effective at undermining the 'public trust' that Cornall is so worried about. His complaint makes the AG's department, and the Commonwealth security apparatus in general appear to be petty and vindictive; having been caught red-handed, flouting the laws they are supposed to enforce, in a puerile attempt at payback they try to make life difficult for the person who caught them.
Perhaps Cornall should have himself arrested?