2011-03-12 The Canberra investigations of Julian Assange: Consequent inquisitions upon Julia Gillard

A whole new avenue of the Wikileaks story opened up in late November, early December 2010 when the Prime Minister of Australia said the following about Julian Assange:

It’s a grossly irresponsible thing to do and an illegal thing to do.

This writer took umbrage and responded with a letter posted here on 4th December 2011. Many others were outraged and spoke out.

Immediately prior to that, on 29th November 2010 the Federal Attorney General Robert McClelland had said:

From Australia's point of view we think there are potentially a number of criminal laws that could have been breached.

A defence taskforce which had been monitoring Wikileaks would become a "whole-of-government taskforce", Mr McClelland said.

According to the Sydney Morning Herald today 12th March 2011:

The Australian government discussed the charge of treason - the most serious of federal offences and one that carries a mandatory life sentence - when it examined the WikiLeaks matter last year.

The advice, in a departmental briefing for the Attorney-General, Robert McClelland, was among several documents published yesterday by the department in response to Senate estimates questions.

It was provided by a senior officer in the Attorney-General's Department in September, after WikiLeaks published 90,000 US military reports filed during the war in Afghanistan.

There is some uncertainty what the "advice" actually was, legal or otherwise when compared to the evidence given recently by the Attorney General's Department officers: Messrs G. McDonald, (National Security Law and Policy Division, First Assistant Secretary) and Mr Roger Wilkins (AO, Secretary Management and Accountability) in a Senate Estimates Committee meeting on 22/02/2011.

The transcript sheds some light in which mainly Senator Brandis asked a series of questions on the Wikileaks/Julian Assange matter [Pdf]

ESTIMATES (Additional Estimates)

[p.107] Senator BRANDIS—I am sure Mr Wilkins would know the answer anyway. Mr Wilkins, I want to raise with you the question of Mr Assange and WikiLeaks.

CHAIR—Sorry, can we just clarify then what program that would be?

Senator BRANDIS—Let me ask my question, please, and once the question is asked, then I am sure Mr Wilkins will be able to work out where it is to be fielded. Mr Wilkins, I want to ask you a couple of questions about Mr Assange and WikiLeaks. On 3 December the Prime Minister announced that she had established an investigative unit within the government, charged with scrutinising the leaked cables.

Mr Wilkins—What date was that?

Senator BRANDIS—3 December, as recorded in the Canberra Times on 4 December. Can you tell us if the investigative unit which the Prime Minister announced on 3 December included officers from your department?

CHAIR—Before you do that, you are going to tell me what program that is in so that I can work out which officers are coming or going?

Mr Wilkins—I do not know of any officers involved in an investigative unit.

Senator BRANDIS—So if an investigative unit in relation—

Mr Wilkins—I have not seen the report. I do not know what we are referring to.

Senator BRANDIS—All right. I might be able to find—Mr Wilkins—That is a newspaper report.I would have to check. Is it a press release?

Senator BRANDIS—It is a newspaper report of a press release. I should be able to give you the press release. But, in any event, let me read you the story: The Prime Minister Julia Gillard has established an investigative unit within government, charged with scrutinising the leaked cables. All I want to know for the moment is whether you are aware of any such unit and whether any such unit involves officers of your department.

Mr Wilkins—I am not sure that I am aware of any unit of that description.

Senator BRANDIS—Mr McDonald, do you know?

Mr Wilkins—I do not think he knows either.

Senator BRANDIS—I see a lot of activity down this end of the table.

Mr Wilkins—Yes, I know. We are trying to work out what it is that you are referring to, I think.

Senator BRANDIS—I have referred you to what was attributed to the Prime Minister in the Canberra Times.

Mr Wilkins—It might be better to ask the Department of the Prime Minister and Cabinet precisely—

Senator BRANDIS—No, Mr Wilkins—

Mr Wilkins—I have given you an answer.

Senator BRANDIS—So if such a unit were established, it did not involve any officers of your department?

Mr Wilkins—To my knowledge, no.

Senator BRANDIS—That is all right. That is a completely responsive answer. Thank you. Mr Wilkins, while we are on the WikiLeaks matter, as you are aware, the Prime Minister on 2 December said in relation to the placement of material on the WikiLeaks website by Mr Assange and those working for that organisation:

It’s a grossly irresponsible thing to do and an illegal thing to do.

That was in response directly to a question concerning Mr Assange himself.

Mr Wilkins—Who said that?

Senator BRANDIS—The Prime Minister. What I would like to know is whether your department gave any advice to government about the legality or otherwise of the conduct of Mr Assange or WikiLeaks in relation to the posting of classified information on the WikiLeaks website.

Mr Wilkins—No.

Senator BRANDIS—Thank you.

CHAIR—... Sorry, Senator Trood.

Senator TROOD—Thank you. Perhaps you could clarify something for me, Mr Wilkins, because I specifically asked the Department of the Prime Minister and Cabinet this question last night and I was advised that the Prime Minister had received a briefing from the task force on which, I must say, your department was said to be represented, and advice regarding illegality or an absence of illegality was provided by your department. That was the evidence received last night from officers of the Department of the Prime Minister and Cabinet.

Mr Wilkins—I do not know of any such advice being given to anyone on legality and my officers, so far as I have made inquiries—and I am happy to make further inquiries—do not know of it either.

Senator TROOD—I take it from that that you are contradicting the evidence provided from Prime Minister and Cabinet last night.

Mr Wilkins—No. I am just telling you what I know. I do not know what the evidence was. I have not read Hansard. That would be your interpretation.

Senator TROOD—It is not so much an interpretation, Mr Wilkins.

Mr Wilkins—I have not read Hansard, Senator Trood.

Senator TROOD—I can assure you that was the evidence we were provided with. In fact, I think I was further encouraged, injuncted, to take the matter up with your department at the appropriate time, which of course is now.

Mr Wilkins—I cannot help you.

Senator TROOD—Do you know anything about this, Mr McDonald?

Mr G McDonald—No. I think there have been a few processes in this. Clearly, when some of the first Defence stuff was released, there were some people in Defence who went through and examined the material. Then when the second lot of material came out, there was some work done, looking at what material was there. We were not part of that at all. But later in the piece, there were some policy discussions about the issues, where there were meetings in PM&C. So it may be that people are getting mixed up as to which process was occurring. But there is absolutely no question that we have not provided any advice about whether an offence has been committed or anything like that. We leave that to the police. Our job is to simply brief on what the range of laws might be, to brief on how it might affect our department. In fact, most discussion is around issues like what you need to make sure we have proper security.

Senator BRANDIS—Mr McDonald, when the Prime Minister said on 2 December that what Mr Assange had done was ‘an illegal thing to do’, a proposition from which I might say the other ministers of the government in subsequent days retreated, that statement by the Prime Minister was not based on any advice generated within the Attorney-General’s Department?

Mr G McDonald—No, it was not.

Senator BRANDIS—Thank you.


Senator BRANDIS—I might finally turn to another topic, if I may, please, Commissioner Negus. [Australian Federal Police] That is the subject of Mr Assange and WikiLeaks. Let me go back. On 29 November 2010, when asked about the conduct of Mr Julian Assange in posting on his website classified material, the Attorney-General said:

Well, again, certainly from Australia’s point of view, we think there are potentially a number of criminal laws that could have been breached by the release of this information. The Australian Federal Police are looking at that.

That is what Mr McClelland said on 29 November. On what date, please, did the Australian Federal Police commence to investigate any possible criminal offences that may have been committed by Mr Assange?

Mr Negus—I will just hand over to Deputy Commissioner Drennan, who dealt with that particular matter.

Mr Drennan—On 30 November, the AFP received a referral from the Attorney-General’s Department relating to the WikiLeaks website.

Senator BRANDIS—30 November?

Mr Drennan—That is correct.

Senator BRANDIS—So when the Attorney-General said on 29 November that the Australian Federal Police were looking at that, in fact they were not looking at it then but they were asked the following day to look at it?

Mr Drennan—The first whole-of-government task force on it was commenced on 29 November.

Senator BRANDIS—At whose initiation, please?

Mr Drennan—Prime Minister and Cabinet. They were the chair of that.

Senator BRANDIS—The Department of the Prime Minister and Cabinet—

Mr Drennan—That is right.

Senator BRANDIS—requested that the AFP join a task force to examine this matter. Is that right?

Mr Drennan—It was a departmental committee, yes, in relation to the WikiLeaks matter.

Senator BRANDIS—Going back to your previous answer, was the first request for the AFP to investigate whether an offence against Australian criminal law had been committed on 30 November?

Mr Drennan—On 30 November we received the referral from the Attorney-General’s Department.

Senator BRANDIS—What did that referral request you to do?

Mr Drennan—I do have the precise details here, but it was really to examine the release of the cables on the WikiLeaks website to see whether any Australian offences had been committed.

Senator BRANDIS—Of course, Commissioner, you do not ordinarily wait for the Attorney-General’s Department to give you a referral before you start to investigate whether or not a crime may have been committed. In the ordinary course of events you initiate that investigation yourself.

Mr Negus—Can I just correct you on that.

Senator BRANDIS—Yes.

Mr Negus—We do receive referrals from a range of agencies. We sometimes would initiate them ourselves but more often than not the AFP would respond to a referral from another department or another agency. Can I just add, too, that the letter that came to the AFP from the Attorney-General’s Department asked us to look at the continuing issues of the WikiLeaks cables and continue to examine material as it came to light to see whether any offences would be or could be identified as breaching Australian law.

Senator BRANDIS—That was the first reference, was it?

Mr Negus—As Deputy Commissioner Drennan said, there had been a task force meeting at which there was some discussion amongst a range of agencies. The formal letter arrived on 30 November, the following day.

Senator BRANDIS—Responsively to that letter of 30 November you commenced an investigation?

Mr Negus—We commenced an assessment of the material to see whether it, in our opinion, breached any Australian laws. There is a difference between an investigation and an assessment. That is all I will say.

Senator BRANDIS—So you did not commence an investigation on 30 November; you commenced an assessment?

Mr Negus—Assessment of the material that we knew at that time, to see whether it breached any Australian laws.

Senator BRANDIS—Did you, and if so on what date, advise the government of your view whether or not an offence had been committed?

Mr Drennan—On 17 December we advised the Secretary of the Attorney-General’s Department, who referred the matter to us. We also advised the Attorney-General’s office and we made a media release in relation to our findings.

Senator BRANDIS—Just summarise your findings for us in a few words.

Mr Drennan—Our findings were that we did not identify any criminal offence where Australia would have jurisdiction.

Senator BRANDIS—Was that the only time that you conveyed a view about the commission or otherwise of an offence against Australian criminal law to the government?

Mr Drennan—There were certainly discussions in the ongoing task force and, as we got closer to that date of 17 December, there were certainly discussions that, on what we had seen to date, we did not think that there would be criminal offences, but that was firmed up and finalised by the 17th.

Senator BRANDIS—So there was never a time when you had even a tentative view that a criminal offence against Australian law had been committed?

Mr Negus—It was under consideration during that entire period. Again, as you recall, there were cables being released almost on a daily basis during that period and each one of those again had to be assessed.

Senator BRANDIS—Apart from assessing the cables, by the way, did you do anything else? Did you, for example, get to grips with the question of the extent of the actual personal involvement by Mr Assange in the solicitation of the cables or the posting of the cables on the website?

Mr Negus—We attempted to obtain all the information we could from our US colleagues in regard to this. Because of the circumstances at the time, we were unsuccessful in gaining much more of an insight into what was happening.

Senator BRANDIS—The Prime Minister is a lawyer, although it is hard to discern sometimes, but on 2 December you are probably aware that she announced—

CHAIR—I hope, Senator Brandis—

Senator BRANDIS—Am I out of order?

CHAIR—I think you might need to withdraw that. It is a reflection on a sitting member of this parliament and the Prime Minister.

Senator BRANDIS—No, it is not. It is hard to discern the Prime Minister is a lawyer.

CHAIR—I think that is a reflection upon her capacity.

Senator BRANDIS—I do not.

CHAIR—I am asking you to withdraw it.

Senator BRANDIS—I will withdraw it, to indulge you, Chair.

CHAIR—Thank you. Please continue with your questions.

Senator BRANDIS—On 2 December the Prime Minister, whose legal insight is so blindingly clear to all Australian citizens—

CHAIR—You might need to withdraw that as well.

Senator BRANDIS—announced that what Mr Assange had done was ‘an illegal thing to do’. At the time the Prime Minister made that claim, the AFP had just begun its assessment. It certainly had not arrived at any conclusions about whether any Australian law had been breached by 2 December, had it?

Mr Negus—That is right.

Senator BRANDIS—And the conclusion, as you have said, Assistant Commissioner Drennan, was that there had not been. Thank you.

The overly simple question that arises from "PM&C" (Prime Minister and Cabinet) meetings, reported above, prior to the commissioning of the AFP to "assess" or "investigate" the Julian Assange leaks matter on 30th November 2010, is: did that AG Departmental "brief" allude to criminality or did the Prime Minister go solo on the "illegality" pronouncement?

Per Mr McDonald above:
But there is absolutely no question that we have not provided any advice about whether an offence has been committed or anything like that. We leave that to the police. Our job is to simply brief on what the range of laws might be, to brief on how it might affect our department.

How is it possible by the way, for a brief mentioning treason under the Commonwealth's Criminal Code to exclude the dimension of culpability, if indeed the document was a part of the PM&C material prior to the AFP doing their assessment?

Perhaps to be generous, the Prime Minister was not paying attention if there was no 'legal' brief on the culpability of Julian Assange: as the SMH reported today 12th March:

Yesterday the department played down the mention of treason, saying it was "standard information included for background purposes only"

"Consistent with the department's role, the briefing does not provide advice or indicate that these offences might apply to the WikiLeaks case or might have been committed by Mr Assange," a spokeswoman said.

In December, after WikiLeaks released 250,000 confidential US State Department cables, Mr McClelland instructed federal police to examine whether any Australian laws had been broken. The police said no Australian offence had been committed.

What can we conclude from all of this? Firstly, it appears that Julia Gillard had apparently formed a view by the 2nd December 2010 that Julian Assange was acting illegally likely founded in earlier PM&C meetings.

Without a copy of the briefing paper(s) from the Attorney General’s Department but accepting for the moment that it did not constitute legal advice on Julian Assange’s culpability under the Commonwealth’s Criminal Code (treason, espionage), the very mention of those offences in the September 2010 document prepared by a senior member of the AG’s department must have had some impact both on her views and those of the Attorney General. It was the latter on 29th November 2010 who stated …there are potentially a number of criminal laws that could have been breached.

This is however, astounding from two people trained as lawyers, when one considers the fact of an Australian citizen outside the Australian jurisdiction releasing documents whose source was solely the United States, into cyberspace, on a question of Australian law that is so simple, as I put in my first open letter to Julia Gillard published here at Wikileaks Central on 4th December 2010:

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.

As Greg Barns, barrister, put it in summary of the Canberra meeting on 2nd March 2011:

Prime Minister Gillard and others mused about cancelling Julian Assange’s passport and wasted taxpayers money on a fruitless exercise determining whether or not Assange may have committed offences under Australian law – he hasn’t and never did!

The whole exercise of Defence, the Attorney General’s department, the Prime Minister and Cabinet department and lastly the Australian Federal police investigating Assange on zero legal foundation (that any first year law student could see clearly on reading the simple paragraphs in the Criminal Code) was a disgraceful waste of taxpayers funds. Even worse, prior to the AFP’s inevitable finding, it once again prejudiced Assange’s case in any or all of his foreign legal battles. That a Prime Minister would accuse him of being a criminal, in his country of birth, without legal foundation is inexcusable.

The Attorney General’s part in all of this is likewise seriously questionable. Arguably the janitors in his department might have been able to tell him with some conviction that Julian Assange had no case to answer in Australia. That his senior advisers did not, or did and were ignored, creating the public spectacle of the AFP going through the motions of finding no case to answer, was palpably obvious to anyone with training in Australian criminal law.

This question was also informative:

BRANDIS "...Did you, for example, get to grips with the question of the extent of the actual personal involvement by Mr Assange in the solicitation of the cables or the posting of the cables on the website?

Mr Negus—We attempted to obtain all the information we could from our US colleagues in regard to this. Because of the circumstances at the time, we were unsuccessful in gaining much more of an insight into what was happening.

In December 2010, US authorities were not able to assist on questions of "solicitation" ie evidence of a conspiracy charge under US law. That would likely explain the twitter subpoenas in process now. It also reveals the intent (if not eagerness) of AFP authorities to find out what Julian Assange's foreign culpability was, which is suggestive that the instructions from the Attorney General's department were to leave no stone unturned in both domestic and US law, perhaps to see if there was some Australian connection that would expose some Australian liability, however tenuous.

Arguably Gillard and more so McClelland likely knew full well the paucity of a case in Australia, surely they cannot both be as ignorant as their actions have indicated they might be? Might they have been hoping that the AFP could find some liability? That to me is a likely explanation of the events of late 2010, given Gillard's particularly stupid statement on illegality December 2, prior to the AFP's "no case"--she wanted it to be so.

There is always that one final conclusion that has been drawn before: posturing to the USA is far more important to the Australian government than the rights of any Australian citizen. But did the posturing have more meaning behind it on this occasion?

There are three distinct possibilities: stupidity, posturing and the Machiavellian 'posturing plus'. My money is on the latter.

The 'minority report', so to speak, I leave to Senator Brandis in the event that I am giving Julia Gillard too much credit and it was all about stupidity and/or posturing pure and simple:

…the Prime Minister, whose legal insight is so blindingly clear to all Australian citizens

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