NSW Supreme Court solicitor Peter Kemp: Letter to Australian Prime Minister Julia Gillard
By Peter Kemp, Solicitor of the Supreme Court of NSW, 2010-12-04
Dear Prime Minister
From the Sydney Morning Herald I note you made a comment of "illegal" on the matter of Mr Assange in relation to the ongoing leaks of US diplomatic cables.
Previously your colleague and Attorney General the Honourable McClelland announced an investigation of possible criminality by Mr Assange.
As a lawyer and citizen I find this most disturbing, particularly so when a brief perusal of the Commonwealth Criminal Code shows that liability arises under the Espionage provisions, for example, only when it is the Commonwealth's "secrets" that are disclosed and that there must be intent to damage the Commonwealth.
Likewise under Treason law, there must be an intent to assist an enemy. Clearly, and reinforced by publicly available material such as Professor Saul's excellent article:
http://www.theage.com.au/opinion/society-and-culture/dont-cry-over-wikil...
...Julian Assange has almost certainly committed no crime under Australian law in relation to his involvement in Wikileaks.
I join with Professor Saul also in asking you Prime Minister why has there been no public complaint to the US about both Secretaries of State Condaleeza Rice and Hillary Clinton being in major breach of International law ie UN Covenants, by making orders to spy on UN personnel, including the Secretary General, to include theft of their credit card details and communication passwords. Perhaps the Attorney General should investigate this clear prima facie evidence of crime (likely against Australian diplomats as well), rather than he attempts to prosecute the messenger of those crimes.
It is also disturbing that no Australian official has castigated Sweden for the shameful treatment Mr Assange has received ie his human rights abused, in that he has not been charged and served with papers in the English language regarding the evidence against him of alleged sexual offences. This is contrary to Article 6 of the European Covenant on Human Rights to which Sweden is a signatory nation.
Those offences remain unclear and the Swedish prosecutor Ms Ny appears to be making up the law as she wants. It appears now, by Ms Ny's interpretation that when consensual sex occurs but if a condom breaks, the male party is liable to 2 years imprisonment for sexual assault. All this information is publicly available.
An Australian citizen is apparently being singled out for "special treatment" Prime Minister. There are legitimate concerns among citizens here that his treatment by the Swedes is connected to US interests which are against the activities of Wikileaks, and you will note the strident, outrageous (and illegal) calls inciting violence against him in the US in demands for his assassination, by senior influential US politicians.
Granted that in western political circles, Mr Assange is not flavour of the month, but what he is doing in my opinion, and in the opinion of many here and abroad, is vitally necessary to expose American foreign policy failures and potential war crimes and crimes against humanity--not for the purpose of damaging US interests but to make them accountable.
While we have close and a good relationship with the US, there is no doubt that US influence and power is declining. That we appear to be still posturing, (given that declining power and a new paradigm of privately enforced accountability) to the US on the issue of Wikileaks is, Prime Minister, deeply disappointing.
Yours Faithfully
Peter Kemp.
SA Supreme Court solicitor Darren Bailey: Letter to Australian Prime Minister
By Darren Bailey, Barrister and Solicitor of the Supreme Court of South Australia
Submitted on 04 December 2010
Subject: Julian Assange
Dear Prime Minister,
I wish to strongly associate myself with the letter addressed to you from NSW Supreme Court solicitor Peter Kemp, dated 4 December 2010, concerning the treatment of Mr Julian Assange.
His rights as an Australian citizen are clearly being infringed and should be vigorously protected "though the heavens may fall". As this nation's Prime Minister, and as a lawyer yourself, you ought to know this fact far better than your official statements would indicate.
Please address this issue as a matter of urgency. Demonstrate that to be an Australian citizen actually counts for something.
Sincerely,
Darren Bailey
Solicitor of the Supreme Court of South Australia
(Please find our previous features linked below)
By Greg Barns, barrister and director of the Australian Lawyers Alliance, 2010-12-01
Here’s a theory, and a plausible one at that. The Gillard government is getting pressure from Washington to close down Wikileaks founder Julian Assange because he is an Australian citizen. So Attorney-General Robert McClelland announces yesterday that he has asked the Australian Federal Police to see if Mr. Assange can have the book thrown at him and have his passport cancelled.
Mr. McClelland’s decision amounts to little more than posturing. This is because Mr. Assange would appear to have committed no crime under Australia’s suite of laws on disclosure of sensitive state information.
Yesterday the ABC’S Brisbane morning show presenter Madonna King exposed the weakness of McClelland’s position.
McClelland told King that the “law enforcement agencies are looking separately at the issue as to whether any Australian criminal laws have been breached and if so the appropriate course of action to take in response to that.”
Then there was this exchange:
MADONNA KING: Well what could be a criminal law that possibly could have been breached? I’m just thinking what is the crime here?
ROBERT McClelland: The crimes potentially relate to the publication of national security sensitive material, in circumstances where that is intentionally done knowing the sensitivity of it. There are other specific offenses relating to the publishing of details concerning certain places and so forth. So they’re the sort of issues that the police are looking at.
MADONNA KING: But don’t you have a big jurisdictional problem there? The leaks are coming from the United States but that’s a crime under Australian law. How do you actually do that?
ROBERT McClelland: No, you’re absolutely right. That’s why I said the prime agencies are United States agencies looking at the - that issue. It’s United States documentation so we will be focusing on what we can do to assist those. But at the same time I’ve asked the Australian Federal Police to specifically look at whether any Australian criminal laws have been breached.
Ms King is not a lawyer but she nailed the A-G perfectly in this exchange. The reality is that the Australian Federal Police can do nothing about an Australian citizen who is running a website out of Sweden which is the repository for American diplomatic cables. And Australia, unlike the UK, does not have an official secrets law. It has scattered throughout the Commonwealth statute books provisions relating to the unauthorised disclosure of information that relates to national security by employees, contractors and the like.
In any event, the current legal thinking in the UK and other common law countries is that leaking sensitive information per se is not necessarily an offence. The law respects the right to freedom of expression and simply because the leaked material embarrasses a government does not mean that a criminal offence has been committed.
The Gillard government and the Coalition also need to tread carefully in wanting to strip Mr Assange of his passport simply because they do not like the fact that he is embarrassing an ally. Many Australians, including politicians and journalists, are involved in the leaking of secret or highly sensitive documents. Remember back in 2004 when former Foreign Minister Alexander Downer and his office were accused of leaking a document on Iraq war whistleblower and now federal MP Andrew Wilkie to conservative columnist Andrew Bolt? Should Mr Downer and his staff, and Mr Bolt for that matter, have had their passports cancelled if they were all proven to have been involved in a leak of a sensitive document?
Julian Assange is an Australian citizen who does not deserve to be harassed by the Australian government, he has done nothing wrong.
This article appeared originally on ABC.net.au. Reprinted with the author's permission.
Letter to Australian Prime Minister Julia Gillard
By Peter Kemp, Solicitor of the Supreme Court of NSW, on 2010-12-04
Dear Prime Minister
From the Sydney Morning Herald I note you made a comment of "illegal" on the matter of Mr Assange in relation to the ongoing leaks of US diplomatic cables.
Previously your colleague and Attorney General the Honourable McClelland announced an investigation of possible criminality by Mr Assange.
As a lawyer and citizen I find this most disturbing, particularly so when a brief perusal of the Commonwealth Criminal Code shows that liability arises under the Espionage provisions, for example, only when it is the Commonwealth's "secrets" that are disclosed and that there must be intent to damage the Commonwealth.
Likewise under Treason law, there must be an intent to assist an enemy. Clearly, and reinforced by publicly available material such as Professor Saul's excellent article:
http://www.theage.com.au/opinion/society-and-culture/dont-cry-over-wikil...
...Julian Assange has almost certainly committed no crime under Australian law in relation to his involvement in Wikileaks.
I join with Professor Saul also in asking you Prime Minister why has there been no public complaint to the US about both Secretaries of State Condaleeza Rice and Hillary Clinton being in major breach of International law ie UN Covenants, by making orders to spy on UN personnel, including the Secretary General, to include theft of their credit card details and communication passwords. Perhaps the Attorney General should investigate this clear prima facie evidence of crime (likely against Australian diplomats as well), rather than he attempts to prosecute the messenger of those crimes.
It is also disturbing that no Australian official has castigated Sweden for the shameful treatment Mr Assange has received ie his human rights abused, in that he has not been charged and served with papers in the English language regarding the evidence against him of alleged sexual offences. This is contrary to Article 6 of the European Covenant on Human Rights to which Sweden is a signatory nation.
Those offences remain unclear and the Swedish prosecutor Ms Ny appears to be making up the law as she wants. It appears now, by Ms Ny's interpretation that when consensual sex occurs but if a condom breaks, the male party is liable to 2 years imprisonment for sexual assault. All this information is publicly available.
An Australian citizen is apparently being singled out for "special treatment" Prime Minister. There are legitimate concerns among citizens here that his treatment by the Swedes is connected to US interests which are against the activities of Wikileaks, and you will note the strident, outrageous (and illegal) calls inciting violence against him in the US in demands for his assassination, by senior influential US politicians.
Granted that in western political circles, Mr Assange is not flavour of the month, but what he is doing in my opinion, and in the opinion of many here and abroad, is vitally necessary to expose American foreign policy failures and potential war crimes and crimes against humanity--not for the purpose of damaging US interests but to make them accountable.
While we have close and a good relationship with the US, there is no doubt that US influence and power is declining. That we appear to be still posturing, (given that declining power and a new paradigm of privately enforced accountability) to the US on the issue of Wikileaks is, Prime Minister, deeply disappointing.
Yours Faithfully
Peter Kemp.
(Readers are encouraged contact the Australian Prime Minister here: http://www.pm.gov.au/PM_Connect/Email_your_PM)
By Darren Bailey, Barrister and Solicitor of the Supreme Court of South Australia
Submitted on 04 December 2010
Subject: Julian Assange
Dear Prime Minister,
I wish to strongly associate myself with the letter addressed to you from NSW Supreme Court solicitor Peter Kemp, dated 4 December 2010, concerning the treatment of Mr Julian Assange.
His rights as an Australian citizen are clearly being infringed and should be vigorously protected "though the heavens may fall". As this nation's Prime Minister, and as a lawyer yourself, you ought to know this fact far better than your official statements would indicate.
Please address this issue as a matter of urgency. Demonstrate that to be an Australian citizen actually counts for something.
Sincerely,
Darren Bailey
Solicitor of the Supreme Court of South Australia