Grotesque WikiLeaks overreaction undermines rule of law

Why Gillard’s attack on Assange made me ashamed of the Australian Government.

Jualian Assange: Persona non grata.

Let me be perfectly clear at the outset that I have deep misgivings about Julian Assange’s stated motivations for his actions, about the actions themselves, and about the potential effects of the WikiLeaks revelations on international relations. I can’t declare myself a supporter of leaking this kind of information, nor of publishing the same. But I most certainly cannot support the way Assange and WikiLeaks have been attacked by senior government figures.

The American perspective on this is somewhat different to our own because of the constitutional litigiousness that forms part of the American political process. In any case, my concerns are principally parochial as far as this comment is concerned. In Australia a consideration of the government’s response to the latest WikiLeaks revelations doesn’t need to get past the test of the rule of law.

Notionally Westminster democracy has been based on an explicit recognition that the executive, parliament and the judiciary are bound by law just as much as the ordinary citizen, thus acting as a principal check on tyranny since that principle was written into the 1689 Bill of Rights in England. The principle underpins everything that is valuable about our common law system and carries the strongest guarantee that the liberty of citizens cannot be infringed arbitrarily by the state. Put another way, the rule of law makes summary or arbitrary persecution and condemnation unlawful. According to that principle Assange and WikiLeaks should either be charged with an offence under law or left alone to pursue their lawful business.

If there is any argument that the WikiLeaks activities are so unprecedented that no law has yet been created to prevent their asserted undesirable consequences, the principle of the rule of law demands that new laws be created to deal with these circumstances, but that these cannot be applied retrospectively.

In other words, charge Assange and/or WikiLeaks or shut up.

For the Prime Minister of this country to so crassly abuse her power as to try and condemn Assange by media is an indictment of her character, of the degradation of the office of Prime Minister, and of the present government that should have any half-way morally responsible parliamentarian cringing with embarrassment, if only for being too cowardly to contradict the PM on behalf of Australia and in the eyes of the world.

It is difficult to find adequate comparisons outside known tyrannies like Iran or China for Gillard’s actions, though the historical precedent of the American McCarthyist anti-communist witch-hunts of the 1950s and the disgrace of the Menzies Government revoking Australian journalist Wilfred Burchett’s passport in the same decade come to mind; as a nation we seem to have learnt nothing from these perversions of our much vaunted free and democratic system.

I say ‘we’ because Gillard is hardly the only one guilty of this tyrannical abuse of power. In case the word tyranny seems clichéd or extreme, let’s recall that it means the ‘cruel and arbitrary exercise of power’. To condemn a man without due legal process, and to consider making him stateless seems an unusually cruel punuishment, delivered arbitrarily by our PM outside and pre-emptive of due legal process. No charge has been laid against Assange or WikiLeaks in Australia under Australian law. It is not, never has been, and never should be the prerogative of the PM or any other politician to conduct trial and condemnation by media no matter what public or personal opinion suggests.

The only appropriate comment from our PM on the matter should have been that the matter had been referred to the Attorney General for consideration. Her decision to pass public judgement ensures only that if any charges are ever laid, Assange’s lawyers will have grounds to argue he can never receive a fair trial anywhere in Australia after having been pre-emptively found guilty of an unstated misdeed by the PM. How can such grotesquely irresponsible behaviour ever be retracted or nullified?

Possibly worse than the serious abrogation of her duty to comport herself with the dignity of her office was the deafening silence from other politicians, and from media commentators about her abuse of power. All those who know better but remained silent today are collaborators in that tyranny and guilty of subverting Australian democracy by their silence; that much should have emerged as the lesson of Nuremberg in the 1940s. Moreover, if any internet hosting companies or network providers have acted or will act, except by legal compulsion, to censor WikiLeaks, they too should be seen, and treated, as collaborators.

Gillard: debasing the office.
Gillard: debasing the office.

Perhaps most disappointing about the entire affair is that I cannot honestly say it came as a surprise. The Rudd Gillard Labor Party has shown itself entirely comfortable with the Rudd philosophy of rule by autocratic fiat outlined in his essays, and most particularly in the sinister Rudd-Conroy internet censorship regime that is still on the table despite being so deeply flawed that the otherwise implacable foes, the Greens and the Liberal/National Coalition, joined in opposition to it since its inception as a legislative proposal.

One can only wonder whether the censorship regime, had it been in place, would not have been used instantly to shut down the WikiLeaks sites in Australia without any legal process whatsoever, and despite the repeated claims by Labor that the regime was aimed only at child pornography. Given the scant regard the PM has for the rule of law, how could she or any other politician be trusted to refrain from arbitrary censorship of any and all information without due process once the mechanism for doing so exists in law?

The whole spectacle of Gillard’s thoroughly undignified conduct unfolding in the news media didn’t quite make me ashamed of being an Australian, but it certainly made me ashamed of being governed by as a feckless and loutish a bunch as those who endorsed this subversion of our freedoms.

As a consequence of these conclusions, and in light of my earlier comment on WikiLeaks, I think it’s already too late to prevent a full and public analysis of the leaked documents. The only appropriate action for the Australian government now is to seek expert opinion on whether our security has been lax, and if so, what we can do about it. Assange should not be persecuted any further.

As an aside, I think it’s quite obvious that the material released so far might be embarrassing for key figures in many states around the world, but nothing in the leaked documents is really all that surprising. You’d have to pretty naïve to believe that governments don’t routinely spy on each other, or that sensible Arabs, like anyone else, don’t want lunatics in Iran to possess nuclear weapons. Surprise, surprise.

It seems that the Americans, who appear to be the most embarrassed about the leaked information, do not have laws that make Assange guilty of anything — not even bad manners.

It is still not clear whether any of the diplomatic cables leaked originated from an Australian source, or cited an Australian spokesperson. However, if our diplomatic corps is half as incompetent and careless as our PM, the chances are that all Australian diplomatic cables are already routinely intercepted and yawned at derisively by low-level intelligence clerks in Tehran and Beijing well before they are ever read and ignored by their intended recipients in Canberra.

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