2011-02-08 UPDATE Australian attorney general responds to open letter to PM Gillard re Assange

The Australian attorney general's response to an open letter to the Australian Prime Minister Julia Gillard re Julian Assange

Australian Attorney General

[2011-02-02 Open letter to the Australian Prime Minister Julia Gillard re Julian Assange]

Dear Prime Minister

The world notes again your comments on Julian Assange reported in the Sydney Morning Herald, February 2nd 2011.

It is pleasing that you would welcome him back to Australia but your statement that the government cannot do anything to assist him in that regard is not strictly correct and springs from a factual error in you saying “They are charges and they've got to be worked through proper process.” Prime Minister, in brief these are the relevant facts and applicable law:

1) Mr Assange has not ever been charged by Sweden or anybody else.
2) The Swedish authorities have initiated an extradition process which is contrary to the European Arrest Warrant (“EAW”) system in that they want him back in Sweden for the purposes of investigation, not explicitly to charge him.
3) The EAW is a fast track extradition process between EU member states brought into effect to allow decisions to be made between EU judicial systems, not between politicians.

The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

Note Prime Minister, that UK explanatory document above extracted from EAW law says criminal prosecution, not criminal investigation, and you may recall that in Australian law, and in many other parts of the world, police can only hold a suspect for a limited time (eg NSW four hours plus time-outs) for the purposes of investigation only.

Extradition for the stated purpose of investigation only is not only an abuse of the EAW system, it is also an abuse of Mr Assange’s human rights and brings in an arguable political dimension to the prosecution itself, contrary to the EAW’s legal prohibitions.

You will also note the political dimensions of prosecutorial forum shopping in Mr Assange’s case: what one Swedish prosecutor dropped, another was pursuaded to reopen by a Swedish politician, Mr Claes Borgström.

Sweden’s prosecutor Ms Ny, according to Mr Assange’s counsel, has apparently indicated that her intention is to hold Mr Assange in Sweden for the purposes of investigation, incommunicado, which means no bail allowed and Mr Assange would be without access to visitors legal or otherwise: this apparently is a matter of her own stated policy in sexual allegation matters.

This is an intended breach of Mr Assanges’s human rights, should he be extradited, on top of another, the original breach of Swedish law, of their prosecutors releasing/confirming his name and the allegations to the Swedish media in 2010.

Prime Minister, when an Australian national’s human rights are being trampled upon abroad, citizens expect our government to say or do something about it. It is not simply a matter of letting another nation’s legal processes continue when clearly they are abusive.

It is likewise no longer a matter of pandering to the interests of the USA and allowing Australian citizens to be tortured as was Mamdouh Habib, by the recently promoted Vice President of Egypt no less, a matter that on legal suit by Mr Habib it is noted that the Australian government settled out of court recently with Commonwealth taxpayers money.

While Sweden is by no means North Korea, would the Australian government keep silent on abuse of human rights, of an Australian citizen, prepetrated by the latter?

Lastly, Prime Minister, you drew a distinction between the “moral force” of whistleblowing and indicated that Wikileaks was “not about making a moral case.”

Wikileaks supporters would invite you Prime Minister, for example, to view the video “Collateral Murder” and consider whether or not Wikileaks was making a moral case against prima facie war crimes and/or crimes against humanity.

We urge you Prime Minister to make the appropriate complaints to the Swedish government of their prosecutorial abusive treatment of Julian Assange, contrary to Swedish and European Human Rights law.

Yours Faithfully
Peter H Kemp
Solicitor of the Supreme Court of NSW.

The Prime Minister can be contacted here: