X Post- Croz Walsh's Blog : Fiji has moved on and Australia must play by the n...

Croz's blog post:  highlighted an opinion piece by Michael O'Keefe published in 'The Australian' December 29, 2011.

Some of the points raised by Michael O'Keefe do echo the sentiments raised by Matthew Hill in a 2010 paper titled: "A Velvet Glove? Coercion, and the Australian Response to the 2006 Fijian Coup".

 

Club Em Designs

X-Post from WSWS: Julian Moti Case

The excerpt:

Australian High Court blocks frame-up charges against Moti

By Patrick O’Connor
8 December 2011

The Australian government suffered a significant blow yesterday, with a High Court ruling in favour of former Solomon Islands’ Attorney General Julian Moti. In a 6-to-1 majority decision, the court permanently barred any criminal prosecution of Moti on trumped-up statutory rape charges. It found that further prosecution of the charges would amount to an abuse of judicial process, because the Australian government had consciously colluded in Moti’s illegal removal from the Solomons in December 2007.

The judgement marks the collapse of Canberra’s protracted legal vendetta against Moti. Successive Liberal and Labor governments—working with the Australian Federal Police and the Australian diplomatic corps in the South Pacific—attempted to destroy Moti’s professional standing and political influence in the region and have him imprisoned for years because he was regarded as an impediment to the interests of Australian imperialism. From a Melanesian nationalist standpoint, Moti, an expert in international and constitutional law, had worked to uphold the national sovereignty and international legal rights of the small South Pacific states. This came into conflict with Canberra’s aggressive drive, backed by the US, to maintain its regional hegemony amid China’s rising influence.

Patrick O'Connor On Julian Moti Case

"The judgement marks the collapse of Canberra’s protracted legal vendetta against Moti. Successive Liberal and Labor governments—working with the Australian Federal Police and the Australian diplomatic corps in the South Pacific—attempted to destroy Moti’s professional standing and political influence in the region and have him imprisoned for years because he was regarded as an impediment to the interests of Australian imperialism [...]
The Australian government feared that Moti would use his legal experience and expertise to mount a challenge in the Solomons’ and international courts to RAMSI, exposing its highly dubious legal underpinnings."

In 2004, Australian authorities dredged up fabricated sexual assault allegations against Moti that had already been dismissed by Vanuatu courts. The Australian government’s interest in the charges was politically motivated from the very beginning. Internal memos, diplomatic cables, and emails—only made public because of Moti’s subsequent fight in the Australian courts—revealed that the then Australian High Commissioner to Solomon Islands, Patrick Cole, demanded an Australian Federal Police (AFP) investigation to assist his efforts to prevent Moti’s appointment as the Solomons’ attorney general. Cole was desperate to prevent any challenge to Australia’s neo-colonial intervention force, the Regional Assistance Mission to Solomon Islands (RAMSI).

The initial allegations were levelled against Moti in 1997 in Vanuatu. Charges were quickly thrown out of court in the pre-trial stage, due to the contradictory and demonstrably false evidence presented by the alleged victim and her family. Last March, the father of the alleged victim confessed, just three days before he died of a heart attack, that the allegations were false and maliciously motivated. He accused the AFP of intimidating his family and offering financial inducements. These allegations have never been investigated. The Australian media has maintained a blackout on the confession—with the exception of SBS Radio, not a single outlet has referred to the father’s statement.

The AFP’s investigation into Moti, named “Operation Rouge”, became the vehicle for his removal from the Solomon Islands in December 2007, after Prime Minister Manasseh Sogavare was finally removed from office following a protracted destabilisation campaign mounted by the Australian government. Moti has always maintained that his extraction from the Solomons was illegal—amounting to a kidnapping or rendition—and that the Australian judicial system was therefore bound, in accordance with established precepts of international and common law, to refuse to permit the further prosecution of the charges.

The High Court has now agreed. It noted that the so-called deportation was executed in violation of Moti’s right to appeal the order within seven days of its issuance and also in defiance of a specific order issued by a Solomons’ magistrate prohibiting Moti’s detention and removal from the country. Australian authorities knew this, but nevertheless issued Moti with the necessary travel documentation, without his knowledge or permission.

The High Court explained: “First, Australian officials (both in Honiara and in Canberra) knew that the senior representative of Australia in Honiara at the time (the Acting High Commissioner) was of opinion that the appellant’s [Moti’s] deportation was not lawful. Second, the Acting High Commissioner’s opinion was obviously right. Third, despite the expression of this opinion, and its obviously being right, Australian officials facilitated the unlawful deportation of the appellant by supplying a travel document relating to him (and travel documents for those who would accompany him) at a time when it was known that the documents would be used to effect the unlawful deportation.”

On this basis, the court concluded that the maintenance of proceedings against Moti would constitute an “abuse of process of the court” and therefore had to be permanently quashed.

Justice Dyson Heydon issued a minority opinion, arguing against the established legal principle that courts ought to refuse to prosecute someone who has been kidnapped or illegally removed from a foreign jurisdiction by government authorities. Heydon insisted that prosecutions ought to be permitted regardless of how the defendant is brought before the court. The chilling opinion effectively sought to sanction rendition. It pointed to the deeply anti-democratic conceptions that are widely held in the legal and political elite and promoted under the banner of the so-called war on terror.

The majority High Court decision overturned the previous judgements of the lower courts that adjudicated on the Moti case.

In December 2009, the Queensland Supreme Court issued a permanent bar on the attempted prosecution, on the basis of the extraordinary AFP payments to the alleged victim and her family. Between February 2008 and November 2009 about $150,000 was paid—a sum far in excess of regular subsistence witness payments. Payments were repeatedly escalated as the alleged victim threatened to withdraw from the case and go to the media to expose how she was being used to advance the Australian government’s political interests. The Queensland Supreme Court said these payments had brought “the administration of justice into disrepute”—but at the same time insisted that it could not adjudicate on the legality of Moti’s removal from the Solomons’ because this was a foreign jurisdiction.

In July 2010, the Queensland Supreme Court of Appeal reinstated the charges against Moti, dismissing concerns over both the AFP payments and the legality of the lawyer’s removal from the Solomons.

The High Court has now insisted that the so-called witness payments were not illegal and had not been used to procure evidence from prosecution witnesses. It added that any improprieties could be raised in the course of a trial to challenge the credibility of witness testimony, but did not warrant a stay of proceedings. This finding appears to establish a dangerous precedent. Permitting a trial even when enormous sums of money are provided by the AFP to procure testimony, if not evidence, creates a potential incentive for individuals to fabricate allegations against Australian citizens visiting or living in the region, especially those identified as opponents of the government.

The High Court ruling on the illegality of the Australian government’s actions in December 2007 is nevertheless very significant. Canberra’s unlawful targeting of the Solomons’ attorney general points to the fraudulent basis for the entire RAMSI intervention. In 2003, the Australian government deployed soldiers, police, and government and legal officials as part of an indefinite takeover of the Solomons’ state apparatus. This was promoted as a “humanitarian” mission, centrally aimed at re-establishing the rule of law in the country, following years of low-level communal conflict. Yet the Australian government has repeatedly demonstrated contempt for the law in the Solomon Islands and across the South Pacific.

The High Court made no attempt to answer the obvious question raised by its assessment of what happened in December 2007: Why did the Australian government so blatantly break the law in order to get Moti out of the Solomons?

The illegal extraction was the culmination of a 20-month campaign waged by Canberra against the Sogavare government and its attorney general, Julian Moti. By December 2007, the Australian government was desperate to get Moti out of the Solomons, using whatever means at its disposal. After becoming prime minister in May 2006, Sogavare attempted to lessen RAMSI’s control over the country’s public finances, and he also called on the intervention force to outline its “exit strategy” from the country. Both moves were furiously denounced by the then Howard government, and the destabilisation campaign began.

Moti’s close relations with Sogavare were another factor in Canberra’s drive to force “regime change” in Honiara. The Australian government feared that Moti would use his legal experience and expertise to mount a challenge in the Solomons’ and international courts to RAMSI, exposing its highly dubious legal underpinnings. Moti was also an important participant in the Solomons government’s efforts to convene an official Commission of Inquiry into rioting that destroyed much of Honiara in April 2006, just before Sogavare became prime minister. There is substantial evidence indicating that the violence was instigated by RAMSI forces, which were then deliberately stood down in order to allow the destruction to unfold. Canberra denounced the proposed investigation and witch hunted everyone involved in it. Former Australian Federal Court Justice Marcus Einfeld had been appointed chairman of the Commission of Inquiry—but was forced to resign after becoming subject to a well-timed government and media vilification campaign over a perjury incident related to an unpaid speeding fine.

Unsurprisingly, none of these issues was canvassed in the High Court’s judgement. Even in its focus on the illegal facilitation of Moti’s extraction from the Solomons in December 2007, the court dealt only with the issuing of travel documents. The High Court insisted that it was “not necessary” to examine the activities of AFP agent Peter Bond. The police officer played an extraordinary role in Honiara immediately prior to Moti’s expulsion to Australia. Bond, according to the evidence presented by Moti’s counsel, participated in high level Solomons’ government meetings convened to organise the so-called deportation, personally fast tracked visas and travel documents for everyone involved in the Moti flight, assured the Solomons’ police commissioner that the lawyer’s removal was legal, directed a Solomons’ immigration officer to “do it quickly because the plane would be waiting”, and finally made sure that AFP officers would be waiting to arrest Moti in Australia the moment his plane landed.


In a statement to the World Socialist Web Site after the High Court judgement, Moti said: “The rule of law has finally prevailed over Australian executive lawlessness. The sole objective of the Australian government and its prosecuting authorities was to discredit, demonise and humiliate me. It was in Australia’s ‘national interest’ that I be removed from my official post—and continuing influence in the Pacific region—at any cost. ‘Operation Rouge’ was the codename devised for the Australian government’s mission to criminally accuse, capture, kidnap, remove, eliminate and silence a dissident Australian who dared to challenge Australian imperialism in the South Seas.”


The High Court ruling is an important vindication of Moti’s determined struggle against the Australian government’s vendetta. Enormous pressure has been brought to bear on him and his family. For the last four years he has been unable to work or claim any form of income support. He has lived without a passport or driver’s licence, and been forced to comply with unnecessary and onerous bail conditions, including regularly reporting to the local police station. He has nevertheless waged an expensive and protracted legal battle to expose the unlawful acts committed by the Australian government against him. In doing so, he has brought to light important documentation exposing the filthy operations of RAMSI and the Australian government in the Solomons that would otherwise never have been made public.

Moti is now reportedly considering his options in pressing for compensation from the Australian and Solomon Islands’ governments. He is also, according to barrister Roger de Robillard, considering calling for an official inquiry similar to those into the illegal deportation of Australian national Vivian Alvarez Solon to the Philippines in 2003 and the unlawful detention of Cornelia Rau in a refugee detention centre in 2004-05.

Archive video interview of Julian Moti by Sarah Ferguson from Channel 9.


Related posts

Club Em Designs

Epoch of Incredulity 2.0

Check out the new dynamic view of SiFM from Blogger App.

In a follow up from earlier SIFM post, 

Queen Elizabeth will be touring Australia and  among her main list of priorities, is to re-affirm the waning diplomatic standing of the insignificant Commonwealth, in today's multi-polar world of sovereign credit downgrades and euro-zone currency crisis.

Some of the 1 percent will meet in Australia, against the back drop of an increasing number of global protests by individuals against Wall Street crony capitalism, the growing financial divide between the haves and have nots. Another rallying cry, is also an appeal to end the destructive military industrial complex , identify the banks which fund these entities and the wars they create.

Amnesty International UK investigates the role of UK banks in funding the 'booming business' (video below)




Chalmers Johnson speaks on Military Industrial Complex (video below).

Protestors march through the streets of Berlin during a demonstration to support the ' Occupy Wall Street' -movement Saturday Oct. 15, 2011. Protestors gathered at many major European cities Saturday to join in demonstrations against corruption, capitalism and austerity measures. (Maja Hitij)

People take a part in a demostration as they march towards Puerta del Sol square in solidarity action for the worldwide protest dubbed "Occupy the City" in Madrid on Saturday, Oct. 15, 2011. The organizers of the Occupy Wall Street announced on their website that protesters will demonstrate in concert over 951 cities in 82 countries. (Arturo Rodriguez)

Protesters march during a "March of the outraged" in Santiago, Chile, Saturday Oct. 15, 2011. The gathering in the capital of Santiago was one of dozens of global protests launched Saturday in support of the Occupy Wall Street movement. (Aliosha Marquez)

Solomon Star Newspaper
"
Documents revealed Mr Castles had refused to obey the then Prime Minister’s orders.
“The failure, negligence and refusal to follow Sir Allen’s directions were because Mr Castles was an ‘AFP appointee’ as such an employee of the Australian government,” documents revealed.
“Therefore, Mr Castles was only answerable to the Australian government although he was the RSIPF police commissioner.”

Mr Castles disobedience to Sir Allen was a breach of section 43 (4) of the country’s Constitution.

Documents revealed RAMSI, the Australian government, and the former police commissioner in this regard has breached the Solomon Islands Constitution as a sovereign country.
"

Readers should be reminded of Australia's role in Libya as pointed out by  SiFM post, and highlighted by a post in the Interpreter . There is growing outrage in the Responsibility to Protect (R2P) doctrine, as addressed in Foreign Policy Journal article:

Critics of the Responsibility to Protect (R2P) and interventionism in general have long accused international humanitarian action of being a form of imperialism cloaked in humanitarianism. The BRIC/IBSA countries (Brazil, Russia, India, China, and South Africa; hereafter referred to as BRICS) are beginning to unite around this skepticism, countering western enthusiasm [...]

The BRICS countries have determined that humanitarianism should not compromise the sovereignty of individual states and should not restrict the rights of governments over domestic matters. This stance, of course, directly contradicts the new humanitarian basis of American foreign policy.

Land Destroyer post highlighted the Lies Behind the Humantarian Crisis:

[J]ustification for a "humanitarian war" where self-serving foreign interests masquerading as "international institutions" arrange for a disgruntled opposition vying for power whom they are supporting, funding, arming, and whose leaders they are harboring, to manage the perception of a given conflict to provide a predictably slanted pretext for "international intervention.

Color Revolutions post echoed the same sentiments:

Time and again, such indignation, sincere or calculating, has been used to justify or to cover up the crimes of the Western powers: the slave trade, the extermination of indigenous peoples and the systematic stealing of land and resources. This attitude of righteous indignation continues to this day and is at the root of the claim that the West has a “right to intervene” and a “right to protect”, while turning a blind eye to oppressive regimes considered “our friends”, to endless militarization and wars, and to massive exploitation of labor and resources.

The West should learn from its past history. What would that mean concretely? Well, first of all, guaranteeing the strict respect for international law on the part of Western powers, implementing the UN resolutions concerning Israel, dismantling the worldwide US empire of bases as well as NATO, ceasing all threats concerning the unilateral use of force, lifting unilateral sanctions, in particular the embargo against Cuba, stopping all interference in the internal affairs of other States, in particular all operations of “democracy promotion”, “color” revolutions, and the exploitation of the politics of minorities. This necessary respect for national sovereignty means that the ultimate sovereign of each nation state is the people of that state, whose right to replace unjust governments cannot be taken over by supposedly benevolent outsiders.

Next, we could use our overblown military budgets (NATO countries account for 70 per cent of world military expenses) to implement a form of global Keynesianism: instead of demanding "balanced budgets" in the developing world, we should use the resources wasted on our military to finance massive investments in education, health care and development. If this sounds utopian, it is not more so than the belief that a stable world will emerge from the way our current “war on terror” is being carried out.

There are much similarities in the R2P ideology- its multiple levels of fashionable nonsense, wrapped in diplo-speak of humanitarian bombing and the RAMSI treaty applied in the Solomon Islands, which is closely examined in a recent post by Blak and Black  cross posted here:

Australia in the Solomons: A case study in 21st Century Gunboat Diplomacy

Posted on October 19, 2011 by Bakchos

 

The main purpose of Blak and Black is to attempt to bring to the world’s attention the hypocrisy and racism that inform contemporary Australian society.
While Australia’s treatment of its Aboriginal and Torres Strait Islander (“ATSI”) population affords ample testimony to the white supremacist attitudes of Australia’s so-called political, intellectual and cultural elites, a fact that the world community seems happy to ignore, as being nothing more than an Australian ‘domestic’ issue.

Australia’s neo-colonial and racist attitudes to the indigenous peoples of the Pacific cannot continue to be ignored by a world community that claims to aspire to an international society in which racism, bigotry and white supremacist attitudes have no place. It is with this in mind that I offer the following analysis of Australia’s racism and white supremacist attitudes to the indigenous people of the Solomon Islands.

As stated previously, my next post will be about institutional racism and systemic bias in the Australia’s criminal justice system. Something the indigenous peoples of the Pacific can look forward to, unless they stand up to Australia, exporting its systemic racism and corruption to them under the pretext of bring the ‘rule of law’ to the developing nations of the Pacific.

In international politics, gunboat diplomacy refers to the pursuit of foreign policy objectives with the aid of conspicuous displays of military power — implying or constituting a direct threat of warfare, should terms not be agreeable to the superior force.

The term comes from the period of colonial imperialism, where the European powers would intimidate other states into granting trade or other concessions (unequal treaties) through a demonstration of their superior military power. A country negotiating with a European power would notice that a warship or fleet of ships had appeared off its coast. The mere sight of such power almost always had a considerable effect, and it was rarely necessary for such boats to use other measures, such as demonstrations of cannon fire.

Gunboat diplomacy is considered a form of hegemony. As the United States became a military power in the first decade of the 20th century, the Rooseveltian version of gunboat diplomacy, ‘big stick diplomacy’, was partially superseded by ‘dollar diplomacy’: replacing the big stick with the “juicy carrot” of American private investment.

It is this mixture of ‘big stick diplomacy’ combined with ‘dollar diplomacy’ that a racist and white supremacist Australia is using to cajole the increasingly nominally sovereign states of the Pacific into toeing Canberra’s line.
Australia has always maintained the argument that its role in the Solomon Islands is about peace keeping and has nothing to do with power projection, or attempts to influence opinion in a foreign capital, but is purely altruistic in nature and is aimed at restoring peace, order and good government to the people of the Solomon Islands. So what is the reality?

The Facilitation Act 2003

The Facilitation Act (“FA”) is an Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga and was signed on the 24th May 2003. The purpose of the FA was to pave the way for the deployment, by the signatories to the FA, of armed forces, police and other personal to Solomon Islands.

The FA facilitated the formulation of the Regional Assistance Mission to Solomon Islands (RAMSI).
On 4th July 2003, Sir John Laply the then Governor-General of the Solomon Islands made a formal request for assistance under the provisions of the FA. This then led to the passing of the Facilitation of International Assistance Act 2003 (“FIAA”) (No.1 of 2003). The Agreement signed on the 24th May 2003 was incorporated as part of the Act.

The FIAA sets out the mechanisms under which RAMSI is to operate in the Solomon Islands. Section 6 of the FA gives RAMSI the same powers granted to the Solomon Islands Police under the Police Act. However unlike the Solomon Islands Police, Section 17 of the FIAA grants immune from legal proceedings for RAMSI personnel along with tax exempt status.

The issues of immunity from prosecution and tax exempt status bring into focus the concept of unequal treaties and national sovereignty. National sovereignty has at its heart, accountability.
One of the first national sovereignty issues we encounter when considering the role of RAMSI in the Solomon Islands is that of national or sovereign accountability. Under the FIAA the Participating Police Force (“PPF”) is accountable to the Deputy Police Commissioner who is a senior Australian Police Officer.

The FIAA is silent on whether the Deputy Police Commissioner should resign his/her Australian commission before acceding to the post of Deputy Police Commissioner of the Solomon Islands. If the Deputy Police Commissioner is allowed to accede to that post without first resigning their Australian commission, a parallel line of accountability is created within a sovereign state. Is this constitutionally sound?

This parallel line of accountability in turn gives rise to the question of immunity. Under the Solomon Islands Constitution, an aggrieved party may apply to the High Court for redress for the contravention of his/her fundamental rights. Section 18 (1) provides:

…if any person alleges that any of the [human rights provisions] of this Constitution has been, is being or is likely to be contravened in relation to him for, in the case of a person who is detained, if any other person alleges such contravention in relation to the detained then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

If a situation arises where a member of RAMSI is alleged to have violated the fundamental rights of a citizen of the Solomon Islands, the courts would be powerless to act, unless RAMSI waives its immunity, which in turn raises the question: is the immunity provision in the FIAA consistent with the Solomon Islands Constitution?

Together with the immunity and tax exempt provisions granted to RAMSI under the FIAA it is worth giving some thought to what the legal personality of RAMSI actually is. As discussed in Blak and Black’s article The wisdom of Miles Jordana: Hidden in plain sight, there has been no formal United Nations Security Council endorsement of RAMSI, beyond a media statement in 2003 from the President of the UN Security Council at the time of the initial intervention.
UN Press release SC/7853, 26 August 2003, Press Statement on Solomon Islands by Security Council President Fayssal Mekdad (Syria), reads in part:

“The members of the Security Council welcome warmly the collective action of the countries of the Pacific Islands Forum to support the people of the Solomon Islands in their quest for the restoration of law and order and stability.

The members of the Security Council welcome the leadership exerted by Australia and New Zealand, in close partnership with other countries in the region in this regard. They hope that this important regional initiative will quickly lead to the restoration of normalcy and national harmony in the Solomon Islands and that it will facilitate a peace-building process and economic recovery. They encourage all parties to cooperate in promoting these objectives and to renounce the use of armed force and violence to settle their differences.”

The reality is that RAMSI has no legal personality. In the event that Australian RAMSI personnel are accused of violating the fundamental rights of a citizen of the Solomon Islands it is likely, because of RAMSI’s lack of legal personality that Australia would plead sovereign immunity under international law.

These fundamental legal issues were first raised by Mr Julian Moti QC in his capacity as Attorney-General of the Solomon Islands and eventually became a point of contention between Australia and the Sogavare Government. Ultimately Moti’s views on the constitutional irregularities of RAMSI led to the Australian orchestrated downfall of the Sogavare Government and Moti’s illegal rendition to Australia on what can only be described as trumped-up child sex tourism charges.

The reason Mont’s views have become relevant again is that following the 2006 riots in Honiara RAMSI police arrested and charged two members of the SI Parliament, Charles Dausabea and Nelson Ne’e, both of whom stood trial on charges alleging that they orchestrated the riots in April 2006. Former SI Foreign Minister Alex Bartlett (who had a large number of charges against him) also stood trial. This issues that ultimately lead to the 2006 riots have been more fully explored in my article AFP accused of fabricating evidence, yet again!

During the trial of Bartlett, Dausabea and Ne’e, the Solomon Islands High Court heard about written agreements that the then Solomon Islands Police Commissioner, Shane Castles (an Australian Federal Police officer on secondment to the Solomon Islands Police), made with two crucial prosecution witnesses. Pursuant to these agreements the witnesses received significant financial and other assistance on the condition they kept the agreements secret and gave evidence in Court only in accordance with their police statements.

The agreements were in a form that violated judicial rulings on such matters and attempts to keep them secret clearly violated Solomon Islands law governing disclosure of relevant information to defence lawyers.

Following their acquittal in the criminal cases brought by RAMSI, Bartlett, Dausabea and Ne’e commenced civil actions against the Solomon Islands Government for malicious prosecution. As part of that process lawyers representing the three applicants sought to subpoena records from RAMSI and the Australian Government regarding the 2006 riots. As predicted by Moti when he was Attorney-General for the Solomon Islands, as soon as Australia and RAMSI were called to account by the Solomon Islands High Court for their actions in the Solomon Islands, the Australian Government announced that it was invoking its right to immunity from prosecution pursuant to the provisions found in section 17 of the FIAA.

The implications for the ‘rule of law’ and an individual’s right to justice in the Solomon Islands, following Australian invocation of the immunity provisions of the FIAA are obvious. In response to Australia’s invocation of the immunity provisions of the FIAA, the Lawyer representing Bartlett, Dausabea and Ne’e, Mr Charles Ashley made an application in the Solomon Islands High Court on 14th October challenging the constitutional validity of the FIAA.

S.i.F.M
"Hypocrisy has its own elegant symmetry. Australia's hypocrisy with regard to neo-colonialism, hegemonic aspirations in the Pacific has its mirror-like symmetry.

However, those particular lines of symmetry are no longer linear but radial; when one takes into account the global occurrences of the same destructive template by different Western nations, as if acting in concert controlled by a single goal of full spectrum dominance. "

According to documents filed in the Solomon Islands High Court the applicants are seeking the following reliefs against the Australian government as the first defendant and the Special Coordinator of RAMSI as the second defendant:

• The then Police Commissioner Shane Castles was subjected to the direction of the Australian Government and RAMSI and not the Solomon Islands Government which was a breach of subsection (5) of 43 of the Solomon Islands Constitution.

• A declaration that in breaching subsection (5) of section 43, the Australian Government or the Special Coordinator of RAMSI are not entitled to any claim of immunity under the provisions of the Facilitation Act of 2003; and

• A finding that actions by the Australian government and Special Coordinator of RAMSI not to disclose documents to the High Court is in breach of the Claimants right to a fair hearing as provided for under subsection (8) of section 10 of the Solomon Islands Constitution; and

• An order directing the defendants to release the required documents relating to the April Riots to the incumbent Police Commissioner; and

• A declaration by the Facilitation Act does not absolve the Australian Government and RAMSI from liability to pay compensation for contravention of fundamental rights and freedoms of individuals under Chapter 2 of the Constitution;

• A finding that the arrest, detention and prosecution of the three MPs in connection with the riots has breached Claimants rights and freedoms;

• An order damages must be paid by the defendants for breaching the Claimants fundamental rights and freedoms under Chapter 2 of the Constitution; and

• Findings and recommendations of the 2006 April Riots Commission of Inquiry against the defendants must be accepted;

• An order for compensation to be assessed if not agreed

• An order for costs on an indemnity basis; and

• Any further or other orders the court deems fair and just.

As RAMSI lacks a legal personality, it is likely that Australia will plead sovereign immunity at international law. If this happens, the wrong parties will be without any form of legal redress for the wrongs inflicted on them By the Australian Government, the Australian Federal Police and RAMSI.

How is this consistent with Australia’s altruistic claim that it is sole purpose for being in the Solomon Islands is to bring the ‘rule of law’ to one of its struggling neighbours? To my mind, the actions of Australia to date in the Solomon Islands reek of nothing more than the neo-colonial aspirations of an arrogant, white supremacist, neo-colonial, third rate power.
Will you sign the petition calling for a Royal Commission into the Australian Federal Police?

Island Business article reports on 3 Solomon Islands Members of Parliaments (MPs) and their constitutional case.

Former MPs file constitutional case against Australian govt

Three former Solomon Islands Member of Parliaments (MPs) who were wrongly accused for their roles in the 2006 April riots have applied for a constitutional case against the Australian government and RAMSI.

Wed, 19 Oct 2011

HONIARA, Solomon Islands (SOLOMON STAR) ---- Three former Solomon Islands Member of Parliaments (MPs) who were wrongly accused for their roles in the 2006 April riots have applied for a constitutional case against the Australian government and RAMSI.

Lawyer representing the three MPs, Charles Ashley filed the case in the High Court on Friday last week after RAMSI and the Australian government refused to submit documents to court in relation to the April riots.

This is a follow up of the civil case by the three former MPs Alex Bartlett, Charles Dausabea and Nelson Ne’e against the Government for malicious prosecution.

RAMSI and the Australian Government are not parties to the case but were required by the court to produce documents relating to the riot.

However, their legal representative Andrew Radclyffe wrote to the High Court last month claiming immunity that they were not required to answer to the court because they were protected by the Facilitation Act of 2003; which was accepted by the court.

The Facilitation Act states that no law can supersede the Act except the country’s constitution.

Therefore, Ashley wrote to Radclyffe advising them that his clients would be taking on a constitutional case against RAMSI and the Australian government.

The constitutional case involved sections of the constitution in relation to the Police Act, the Commission of Enquiry Act and the Facilitation Act.

The claimants have named the Australian government as the first defendant and the Special Coordinator of RAMSI as the second defendant.

Solomon Star article adds another layer of abuse in Australia's neo-colonial imperial agenda in the Pacific via leaked documents.

Secrets of Australia’s political agenda in SI leaked

Wednesday, 19 October 2011 10:29

TOP secret information has emerged in Honiara outlining the Australian government and RAMSI’s negligence; thus breaching the country’s Constitution which led to the 2006 April Riots.

Documents obtained by The Solomon Star also revealed that the Australian government had in the past appointed several key figures in the Solomon Islands Government sector to facilitate their political agenda in the country.
 
Two key figures that emerged from the report were former police commissioner Shane Castles and former Australian High Commissioner Patrick Cole.

Documents revealed the then Police Commissioner Shane Castles received directions from the Australian government not to dispatch a riot squad to calm the situation during the 2006 April Riots.
It was disclosed this was the Australian government’s way of signalling its opposition to China’s growing influence in the Pacific; and in this instance to allow looting and burning to take place to get rid of the Chinese populace in Honiara.

The documents revealed that Mr Castles appointment as police commissioner was also dictated by the Australian government so that he could work in partnership with then Australia High Commissioner Patrick Cole.

“They were both tasked by the Australian government to successful carry out Canberra’s political agenda in the Solomon Islands,” documents revealed.

“And there are fears the increase number of Australian advisors and appointees in the Government are placed there to carry out Australia’s secret agenda in the Solomon Islands.”
In mid-2004, it was revealed the Australian government through High Commissioner Cole pressured the European Union representative in the Solomon Islands not to commit itself to funding the then police commissioner William Morrell, a British national, when his contracts expired in 2005.

“In March 2005, Morrell’s contract expired and the EU advised then Prime Minister Sir Allen Kemakeza that EU will not be funding Morrell’s Police Commissioner’s post anymore,” documents revealed.

“On the 4th of March, former High Commissioner Cole sat as an interviewing panel member to interview candidates for the new police chief post and advised Sir Allen that Shane Castles was the suitable candidate.” But it was revealed Sir Allen informed the panel that his Government’s choice was Mr Morrell and not Mr Castles.

The Australian government in return threatened not to fund Mr Morrell if he was re-appointed but they would only fund Mr Castles if appointed, it was revealed.
“On the 18th March 2005, Sir Allen advised the Prison and Police Services Commission to appoint Shane Castles as the new police commissioner,” documents highlighted.

The Australian government on April 11 2005 then proposed to the Solomon Islands Government that Mr Castles be appointed under section 40 of the Australian Federal Police Act 1979 for two years. This was accepted by the former Kemakeza government as Canberra had also proposed to meet the full costs of their new police commissioner candidate.

Therefore, by virtue of section 40 of the Australian Federal Police Act, Mr Castles being an ‘AFP appointee’ must not disobey or fail to carry out directions, instructions or orders given to him by the Australian police commissioner, RAMSI or the Australian government.
Mr Castles must only act on instructions from Australia although he was the police commissioner of the Royal Solomon Islands Police Force (RSIPF).

This was a total breach of the Solomon Islands Constitution section 43 (5) which stated that ‘the RSIPF police commissioner, in the exercise of his responsibilities and powers with respect to the use and control of the RSIPF shall not be subjected to the direction or control of any person or authority.

Prior to the 2006 April Riots it was also revealed Sir Allen had given general directions to Mr Castles to make sure police are prepared to maintain public safety and public order during the election of the new Prime Minister.
Documents revealed Mr Castles had refused to obey the then Prime Minister’s orders.
“The failure, negligence and refusal to follow Sir Allen’s directions were because Mr Castles was an ‘AFP appointee’ as such an employee of the Australian government,” documents revealed.
“Therefore, Mr Castles was only answerable to the Australian government although he was the RSIPF police commissioner.”
Mr Castles disobedience to Sir Allen was a breach of section 43 (4) of the country’s Constitution.
Documents revealed RAMSI, the Australian government, and the former police commissioner in this regard has breached the Solomon Islands Constitution as a sovereign country.
“At no time Mr Castles requested for AFP back up although he knew the RSIPF were ill prepared and handicapped to maintain such situations.”

The Australian government and RAMSI were also later claimed to have bribed certain people to fabricate false statements against three former Members of Parliaments as instigators of the riots.
The trio Alex Bartlett, Charles Dausabea and Nelson Ne’e were arrested, detained and prosecuted but later acquitted of all charges.

They are currently applying for a constitutional case against the Australian government and RAMSI and a separate court battle with the National Government for malicious prosecution.

By DOUGLAS MARAU

According to Julie Metz, Hypocrisy has its own elegant symmetry. Australia's hypocrisy with regard to neo-colonialism, hegemonic aspirations in the Pacific has its mirror-like symmetry. However, those particular lines of symmetry are no longer linear but radial; when one takes into account the global occurrences of the same destructive template by different Western nations, as if acting in concert controlled by a single goal of full spectrum dominance. 
 

Club Em Designs

Epoch of Incredulity- AFP Sins Of Omission In The Solomon Islands.

Australian Federal Police (AFP) accused of Solomons fraud, this particular case (video posted below) with reoccurring themes deduced by Blak and Black posting on the disturbing series of malfeasance under the banner of Regional Assistance Mission to Solomon Islands (“RAMSI”)treaty.                                                                                                                                                                                                                                         The excerpt of Blak and Back post (Hat tip) crossed posted here:

The wisdom of Miles Jordana: Hidden in plain sight
Posted on September 12, 2011 by Charon

The following is a modified version of an article which first appeared in the Fiji Sun on 12 September, 2011 and which Blak and Black has linked to since publishing the following article. The Fiji Sun article was subsequently copied and published by the Solomon Star on 14 September 2011. I gratefully acknowledge the Fiji Sun as being the major source for what follows.


Miles Jordana, in focus.

As the High Court of Australia deliberates its decision in the long-running Julian Moti Affair, three high ranking Australian public servants must worry whether they have done themselves a disservice by ruining the career of the former Attorney-General of Solomon Islands and his ascendant Melanesian constituency.

They are Miles Jordana – of “Children Overboard” fame, who became the fall guy for former Australian Prime Minister John Howard; Federal Agent Peter Bond who became the fall guy for former Australian Federal Police Commissioner Mick Keelty; and finally Patrick Cole who became the fall guy for former Australian Foreign Minister Alexander Downer.

Over the last six months or so I have written and published extensively on the careers of the latter two fall guys – Bond and Cole. However, Miles Jordana has remained in the shadows, a man of mystery hiding in plain if shadowed sight. It is time to correct this oversight.

Blak and Black

"One of the justifications used by European colonial powers when they began colonizing other peoples lands was that they were bringing the ‘rule of law’ to the “savages” of the Southern Hemisphere.
This is the same argument that Australia used when it established RAMSI and when it has intervened in the sovereign affairs of other near neighbors such as Papua New Guinea and Timor-Leste. How can a country that so disregards the ‘rule of law’ within its own borders claim to be in a position to export it to others?
"

Jordana has been and remains an important player in the affairs of the Pacific region. He was the architect of the Regional Assistance Mission to Solomon Islands (“RAMSI”) treaty and was the author of the legal advice that facilitated the unlawful removal and rendition to Australia of the former Attorney-General of Solomon Islands, Julian Moti QC.

While ruminating on the fate of these three fall guys, I realised that I have reached that point in my life where the Tanakh takes on a more immediate relevance and so demands a more thorough investigation. As I was reading my Tanakh the other evening I came to the account in 1 Kings 3: the two women plead their case, the sword is suspended over the child, and then Solomon grants the child a last-minute reprieve, resolving the case as he determines the identity of the true mother.

But a tragic loose-end is usually forgotten as the story is remembered today, that being of the second child, who was accidentally smothered by its mother and scarcely acknowledged after its death. This child is largely forgotten partly because our understanding of the story is based on one particular version of the biblical text the Masoretic Bible. The dead child has more of a presence in other ancient versions of the biblical text.

So it is with the wondrous career of Miles Jordana.

When one reads the published curriculum vitae of Jordana one wonders how a man with a largely forgotten background has managed to rise to the dizzying heights of a Deputy Secretary with the Commonwealth Attorney-General’s Department (“AGD”), not a mean feat by any standards. So, in order to shed some much deserved light of the forgotten career of the AGD’s own Miles Jordana I have decided to look beyond the Masoretic Bible of the Australian press to find the real Miles Jordana.

Jordana becomes Howard’s fall guy

“Lord, how this world is given to lying. Quite so, Falstaff, but there is lying and lying.”

Miles Jordana first rose to prominence during the so-called “Children Overboard Affair” when he was point man for Prime Minister John Howard on the issue. Readers will probably recall that day in 2001 when Howard and his team threw truth and the ‘rule of law’ to the wind in favour of political expediency, which is just another term for corruption.

For those who don’t recall the incident let me refresh your memories. In the early afternoon of 6 October 2001, a southbound wooden hulled “Suspected Illegal Entry Vessel” designated SIEV 4, carrying 223 asylum seekers and believed to be operated by “people smugglers”, was intercepted by HMAS Adelaide 100 nautical miles (190 km) north of Christmas Island and then sunk. The next day, which was the day before the issue of writs for the 2001 Australian Federal Election, Australian Immigration Minister Philip Ruddock announced that passengers of SIEV 4 had thrown children overboard. This claim was later repeated by other senior government ministers including Defence Minister Peter Reith and Prime Minister Howard.

Shortly after the rumors about asylum seekers throwing their children overboard began to circulate in the Australian press and almost a month before the 2001 Australian Federal Elections, Miles Jordana was told that photographs purporting to show asylum seekers throwing their children overboard were misrepresented.

Children Overboard misrepresentation – the timeline – compiled after first Senate enquiry

• 8 Oct 2001: Katrina Edwards – first assistant secretary of Department of Prime Minister and Cabinet – testifies that Jordana rang her asking for more material on the children who were thrown overboard such as their age and the number who went into the water. Jordana was sent a number of reports. No report ever came from Defence that mentioned children being thrown overboard.

• 10 Oct 2001: Jordana received a copy of the Taskforce “Talking Points” for the 10th October which stated, “15 suspected authorised arrivals either jumped or were thrown overboard by other suspected unauthorised arrivals.” No mention of children.

• 7 Nov 2001: Miles Jordana calls Jenny Bryant on 7th Nov to “refresh” Howard’s memory for National Press Club Address. Bryant says she supplied Jordana with reports from 8th Oct: DFAT SITREP 59. – HDHQ OP GABERDINE/OP RELEX 0800 BRIEF 8 Oct 2001. Jordana later tells Bryant they were not much help to him in preparing for Howard’s speech (probably because neither mentioned children being thrown overboard).

• 7 Nov 2001: Miles Jordana told by PM’s People Smuggling Taskforce chief Jane Halton that she has heard there are doubts about the photos and that they did not represent the children overboard incident. According to Halton, Jordana said that the Prime Minister’s Office already knew about the photos and they had it under control. The next day, The Australian reports that HMAS Adelaide sailors claim no children were thrown overboard. Asked at the Press Club about the claim, Howard dismisses it as hearsay on hearsay. He ignores a question on whether the photos were wrong. He reads from an Office of National Assessments (“ONA”) report that says children were thrown overboard.

• 7 – 8 Nov 2001: ONA report attachment warns Howard that the report he subsequently uses at the Press Club on 8 November 2001 is flawed. Attachment is sent with ONA report to Howard, but Howard claims Miles Jordana separated the two documents, only gave him the reports, and didn’t tell him about its flaws. ONA rings Jordana again on 9 Nov concerned about the way the ONA report is being used in the media. Once again Jordana does nothing to clear the record.

What is certain, is that Jordana was told unequivocally that the photos were of the sinking of the refugee boat on 8 October – the day after the Government said the children overboard incident occurred. What is fact, is that the Government never corrected the misrepresentation or conceded that the event had never happened, until after the 10 November election which returned Howard as Prime Minister for a third term.

The account of Jordana’s role shows that one of Howard’s closest confidants was aware of serious misgivings almost a month earlier, although it remains unclear whether this was passed on to the Prime Minister.

What is most revealing about the Children Overboard Affair is the fragility of the public service in the face of both ministers and more perniciously, ministerial staffers, which leads to clear failings in accountability structures and mechanisms.

Howard refused to allow Jordana to give evidence at either of the two Senate Enquiries into the Children Overboard Affair; the Australian public has never been given the opportunity to test the veracity of Howard’s statements. If Howard is correct and Jordana failed to properly brief him, this would be negligence of a high order. So what became of Jordana who so negligently advised Howard?

Jordana directs Australia’s national security

After so negligently advising Howard on the Children Overboard Affair, Jordana was appointed head of the National Security Division of the Department of Prime Minister and Cabinet (“DPMC”), which was responsible for providing whole-of-government advice to the Prime Minister and his office on national security issues and on defence and intelligence matters. In addition, the division provided secretariat and policy support to the National Counter-Terrorism Committee and the Australian Government Counter-Terrorism Policy Committee.

In his role overseeing the National Security Division of DPMC, Jordana became the architect of the Regional Assistance Mission to Solomon Islands (“RAMSI”) and the Pooh-Bah (my apologies to Messrs Gilbert and Sullivan for so desecrating the Mikado) of Australia’s neo-colonial expansion into the Asia-Pacific region.

RAMSI was created under the Agreement between the Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa, and Tonga concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order and security. It came into force in Australia on 24 July 2003, following an agreement executed in Townsville on the same day. The Agreement continues indefinitely, with Australian financial support reportedly exceeding one billion dollars during the first five years of RAMSI’s operations.

The legal status of RAMSI was and remains problematic, which has been an issue of contention between the Solomon Islands Government (“SIG”) and the major donor countries Australia and New Zealand on several occasions, most notably when Manasseh Sogavare was the Prime Minister of Solomon Islands and Julian Moti QC, the SIG’s Attorney General.

On the issue of legality, there has been no formal United Nations Security Council endorsement of RAMSI, beyond a media statement in 2003 from the President of the UN Security Council at the time of the initial intervention.

According to the Press Statement on Solomon Islands by Security Council President Fayssal Mekdad (Syria), UN Press release SC/7853, 26 August 2003:

“The members of the Security Council welcome warmly the collective action of the countries of the Pacific Islands Forum to support the people of the Solomon Islands in their quest for the restoration of law and order and stability. The members of the Security Council welcome the leadership exerted by Australia and New Zealand, in close partnership with other countries in the region in this regard. They hope that this important regional initiative will quickly lead to the restoration of normalcy and national harmony in the Solomon Islands and that it will facilitate a peace-building process and economic recovery. They encourage all parties to cooperate in promoting these objectives and to renounce the use of armed force and violence to settle their differences.”

It was the lack of formal United Nations endorsement and perceived Australian self-interest, in the form of ‘boomerang aid’, that was at the heart of the friction between the Sogavare Government and Australia. Sogavare had expressed his determination to replace foreign officials in the SIG with nationals, as a way of promoting homegrown nation building.

This friction came to a head when Sogavare decided to appoint Fiji-born Australian lawyer Julian Moti QC as the SIG’s Attorney-General. From the moment of his appointment as Attorney-General Australia had desired to ‘rid’ the Solomons of Moti, because he was seen to be an impediment to the proper workings of the RAMSI Agreement and for other reasons they wanted him out. Australia saw him as an impediment to Australia’s neo-colonial interests, so the long-dead and buried prosecution in Vanuatu was revived to discredit Moti and obstruct his access to the office of the Attorney-General of the Solomon Islands. That was the subject of careful and considered thought by Australia from 2004 to 2007. There was a segment of the Solomon Islands parliament who held the same view and when a change of government came about in 2007, that is when the plans to deport him were hatched and executed.


Jordana targets Moti

Jordana came from obscurity and rose to prominence riding the wave of the Children Overboard Affair, an affair – scandal is perhaps a more appropriate word – in which he became Howard’s fall guy and was rewarded with the Pooh-Bah of national security for his sacrifice.

What Moti meant for Jordana was the premature end of RAMSI as well as the prospect of mainland China’s encroachment into the Australian-protected territory of Solomon Islands which was being quietly charted by Moti. The premature end of RAMSI would also oblige Australia to pay out certain RAMSI related contracts, an obligation that over the remaining six years from June 2007 to June 2013 could run into many hundreds of millions, if not billions, of dollars. A scandal of that magnitude would require a head and not just any head; it would claim the head of none other than the Pooh-Bah himself.

How to save the Pooh-Bah’s head? Depose the Attorney-General and it would be business as usual. From the time Moti was nominated by Sogavare to be the SIG’s Attorney-General his days were numbered as he potentially stood between Jordana and his next promotion. Perhaps more concerning for Howard, Moti became a bigger and bigger obstacle to Australia’s neo-colonial ambitions as his ideological influence grew in Melanesia.

A major issue impacting on Jordana’s plans was that the SIG’s Solicitor-General at that time was none other than the RAMSI-appointed Melbourne silk Nathan Moshinsky, who seems to have been professionally troubled about the legalities of extraditing Moti to Australia. His concerns stemmed from two core issues that rendered Moti non-prosecutable and therefore, non-extraditable: dual criminality and the Solomon Islands statute of limitations. Australia then removed all the stops in an effort to change Moshinsky’s mind.

At this point it is worth considering the exchange between Moti’s barrister Ian Barker QC and the bench during the hearing of Moti’s appeal in the High Court of Australiaon 3 – 4 August:

“Also my friend has said several times, and it is in the submissions, that it would have been improper for the Australians to have given advice to the Solomon Islands and that they had to go along without the benefit of Australian advice, it would have amounted to meddling in their affairs, but the evidence is quite to the contrary because when Mr Moshinski [sic], the Solomon Islands Solicitor-General, advised that the extradition could not succeed, Australia did its best to talk him out of it. I will take you, if I may, to volume 2, page 730, the last paragraph of that letter. It is again to Mr Bond and it is dated 16 October 2006:

Urgent advice is now required from AGD – that is the Attorney-General’s Department, of course – that may influence Mr Moshinsky’s position. I request that a copy of the aforementioned Cable be obtained – Then if we go to page 732, the last paragraph in that passage:

We were preparing a written response to the Acting Attorney-General of the Solomons indicating that we do not agree with his interpretation of Solomon Islands extradition law and its application –

Again, that is referred to at pages 882 and 883 of the same volume. Page 883, just below line 10:

23 Oct 06 –Australian Attorney-General forwarded a letter to Mr Moschinsky [sic] suggesting a more persuasive alternative interpretation that could be considered. (My emphasis)

Jordana’s “more persuasive alternative interpretation”

The more persuasive alternative interpretation referred to above was actually signed off by none other than Miles Jordana. At that time Jordana was a Deputy Secretary in the Australian Attorney-General’s Department and head of the National Security and Criminal Justice Group. What is interesting about the choice of person to sign the more persuasive alternative interpretation is that at the time Jordana signed this advice, both the Commonwealth Department of Public Prosecutions (“CDPP”) in the person of Patricia Summerell and the AGD’s in the person of Joanne Blackburn had officers who specialized in extradition. Why didn’t either of these officers sign the more persuasive alternative interpretation?

While I’m prepared to accept that in a public service that had become increasingly politicized under Howard a fall guy could still achieve the dizzying heights of a Deputy Secretary responsible for National Security and Criminal Justice, I wonder what expertise a non-practising, non-academic and non-specialist lawyer could possibly offer as a more persuasive alternative interpretation to the Solicitor-General of a sovereign state on a matter beyond the scope of his portfolio? For someone who had no standing and qualifications to express any legal opinion on Solomon Islands law, how Jordana could even venture a more persuasive alternative interpretation of that law is astonishing.

What is of even more interest and concern is the covering e-mail that accompanied the more persuasive alternative interpretation sent to Moshinsky. The e-mail reads:

“For file, Miles Jordana only wanted to send the Moshinsky letter he signed if senior officers in DFAT, and the Minister were happy for it to go. As you can see from the file notes, a FAS [First Assistant Secretary ]in DFAT approved the letter, but it was not ultimately sent because Greg Mole did not want it to go.”

That e-mail was followed later in the day by one advising a number of interested parties that the letter containing the more persuasive alternative interpretation was going to be sent. It was sent by Anthony Seebach, Director Extradition, International Crime Cooperation Branch and reads:

I just wanted to confirm that the letter signed by Miles Jordana on Friday evening will be sent to Mr Nathan Moshinsky, Acting Attorney of Solomon Islands, this afternoon. The letter responds to Mr Moshinsky’s concerns about the application of Solomon Islands extradition law to the Moti case. That is, based on his interpretation of the legislation, the Solomon Islands may not be able to act on Australia’s provisional arrest request. The letter from Miles suggests there is a persuasive alternative interpretation that could be considered.

Greg Mole, the Chief of Staff for the Australian Attorney-General probably didn’t know that Nathan Moshinsky was not the Acting Attorney General of Solomon Islands but merely its Solicitor -General.Even so, he wasn’t comfortable about sending the letter, the FAS in DFAT who approved the letter wouldn’t sign it, the signatures of the officers in the CDPP and AGD who specialized in extradition law and practice don’t appear anywhere on the letter, but it was signed by Miles Jordana. Why? I have asked this question in the form of a Freedom of Information (“FOI”) request to the AGD. I’m still waiting for a response!

Jordana’s opinion: food for thought

What appears to have happened is that the more persuasive alternative interpretation became a hot potato that nobody wanted to sign, because there were concerns about the accuracy and impartiality of Jordana’s approach.

Why was the more persuasive alternative interpretation eventually signed by a Deputy Secretary with no specialist qualifications who headed an unrelated branch within AGD? Why was that opinion on a sensitive matter of national sovereignty for SIG to remain confidential only to Moshinsky, an Australian-funded official and not supposed to be distributed to his erstwhile employer, the SIG? The official answer to these questions will have to wait until I receive a response to my FOI request, however as a preliminary it is worth considering the implications for Jordana if Moti remained Attorney-General.

Moti had publicly stated his intention of lawfully terminating RAMSI’s unlawful occupation of the Solomons. This created a number of issues for Howard and Jordana. Howard didn’t want his Deputy Sheriff’s badge tarnished by being forced to back down on RAMSI, while Jordana didn’t want to be seen as the bureaucrat who wasted hundreds of millions of dollars of Australian taxpayer’s money to compensate for contractual breaches.

More importantly, if there was to be an investigation into why so much Australian taxpayer money had been paid to RAMSI-related companies in compensation for early termination, questions might be raised about the actual structure of those companies and where the real fruits of Australia’s ‘boomerang aid’ to the Solomons was really going. The potential political fallout from such an enquiry, coming on the back of the Children Overboard Affair, would have been disastrous for both Howard and Jordana. So Jordana became Howard’s fall guy once again.

Oil for Food

On 11 April 2006 John Howard made a statement to the Inquiry into certain Australian Companies in relation to the UN Oil-for-Food Programme. In that statement he identified Miles Jordana as being his Senior Advisor International from 12 April 2001 until July 2003. The issue in contention was not dissimilar to the issue in contention in the Children Overboard Affair:was Howard as Prime Minister of Australia aware of certain pertinent facts? As in the Children Overboard Affair, Howard denied all knowledge, he relied on his advisers. In this case it was his Senior Adviser International upon whom he relied.

Specifically, Howard was asked if he had read 21 cables written by officials of the Department of Foreign Affairs and Trade (“DFAT”) identified by the solicitor assisting the inquiry. The period the inquiry was particularly interested in was from 1999 to 2003. Jordana was Howard’s Senior Advisor International for three of the five years in question. Howard advised the inquiry that he did not read any of the aforementioned cables, because they were not provided to him by his Senior Advisor International.

While I’m prepared to accept that it is mere coincidence that Howard relied on the same defence, with the same alibi in both the Children Overboard Affair and the oil-for-food scandal, the defence starts to rub a bit thin by the third attempt, but that’s what public servants are useful for, aren’t they?

Weapons of Mass Destruction (“WMD”)

In late 2002, the Bush administration began soliciting support for war in Iraq using the political slogan “coalition of the willing” to refer to what later became the Multinational Force – Iraq. To back up its claim that Iraq possessed weapons of mass destruction, that administration referred to intelligence from Italy, Britain, and France detailing interactions between Saddam Hussein and the governments of Niger, Somalia, and the Democratic Republic of Congo. Specifically, Central Intelligence Agency (CIA) director George Tenet and United States Secretary of State Colin Powell both cited attempts by Hussein to obtain uranium from Niger in their September testimony before the Senate Foreign Relations Committee. At that time, using information derived from the same source, the UK government also publicly reported an attempted purchase from an (unnamed) “African country”. In December, the United States Department of State issued a fact sheet listing the alleged Niger yellowcake affair in a report entitled “Illustrative Examples of Omissions from the Iraqi Declaration to the United Nations Security Council”.

The classified documents detailing an Iraqi approach to purchase yellowcake uranium from Niger were considered dubious by some analysts in U.S. intelligence, according to news accounts. By early 2002, separate investigations by both the CIA and the US State Department had found the documents to be inaccurate. Days before the Iraq invasion, the International Atomic Energy Agency (IAEA) voiced serious doubt on the authenticity of the documents to the U.N. Security Council, judging them counterfeit.

In his January 2003 State of the Union speech, U.S. President George W. Bush said, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” This single sentence is known now as “Sixteen Words”. The administration later conceded that evidence in support of the claim was inconclusive and stated, “These sixteen words should never have been included.” The administration attributed the error to the CIA.

Most people now accept that there were no WMD’s in Iraq and the whole thing was a fairy-tale dreamed up by politicians and their spin doctors in an attempt to justify the unjustifiable. In Australia we had the same crew peddling the same spin about WMD’s as we did about Oil-for-Food, Children Overboard and Moti – Howard and Jordana.

Like the fable that is King Solomons Mines, those caverns of untold wealth hiding somewhere in Africa, the African uranium story was equally mythical, but leads to the invasion of a sovereign state – Iraq – the destruction of its regime which was antithetical to western interests and the plundering of its resources for the benefit of the invaders.

How is this injustice justified? In the same way that the Children Overboard Affair and the AWB scandal have been justified – ignorance!

Imagine for a moment that you are a defender in a criminal trial, standing in the dock, responding to questions from the prosecution and you claim ignorance of every fact presented to you. What do you think is going to happen? You’re going to be convicted. Yet, Howard and Jordana have done just that on more than one occasion and guess what, they have gotten away with it. Is this justice?

Now here’s the story, an allegation which had been debunked in public months before Howard used it as one of the justifications for going to war in Iraq. How could he possibly not have known that there was no substance to that allegation? He relied on his Senior Advisor International, who at that time was none other than one Miles Jordana!

AUSTRAC

Australian Transaction Reports and Analysis Centre (AUSTRAC) is an Australian government agency, established in 1989 under the Financial Transaction Reports Act 1988 (“FTRA”) and continued under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). Certain classes of designated services must be reported to AUSTRAC, in particular bank cash transactions (i.e. notes and coins) of $10,000 or more. AUSTRAC passes information on to other government agencies to help them act against tax evasion, organised crime, money laundering, and welfare fraud.

AUSTRAC is the last aspect of Miles Jordana’s career that I will rescue from the vagaries of the Masoretic Bible and restore to its proper place in his curriculum vitae. As Deputy Secretary National Security and Criminal Justice Group, Jordana has overall executive responsibility for AUSTRAC.

While I’m prepared to accept that Jordana did not move into the role of Deputy Secretary National Security and Criminal Justice Group until after the events that I will detail below occurred, he still has an ongoing responsibility to fully investigate the issues, which hasn’t been done, because they are politically sensitive.

In 2003 a former Commissioner for ACT Revenue reported to AUSTRAC that he had found evidence of possible illegal money transfers from the ACT Department of Treasury that potentially breached certain provisions of the FTRA. Nothing was done about this complaint or subsequent follow up complaints. It is almost inconceivable that in this age of heightened concerns about organised crime and terror, the very organisation tasked with tracing and monitoring potential criminal activity failed to act on information provided by a senior bureaucrat in another Australian jurisdiction.

The ‘rule of law’

One of the justifications used by European colonial powers when they began colonizing other peoples lands was that they were bringing the ‘rule of law’ to the “savages” of the Southern Hemisphere. This is the same argument that Australia used when it established RAMSI and when it has intervened in the sovereign affairs of other near neighbors such as Papua New Guinea and Timor-Leste. How can a country that so disregards the ‘rule of law’ within its own borders claim to be in a position to export it to others?

While there is lying and lying, any lies by senior bureaucrats, whether directly or by omission, which serve to mislead the public in order to protect their political masters or their own jobs is unacceptable. Any country that allows its bureaucrats to indulge in this type of deception cannot claim to be operating within the ‘rule of law’. More to the point, any country that allows its senior bureaucrats or politicians to engage in deception for political or personal gain should not be rewarded with the public recognition that comes with appointments to United Nations bodies, such as the Security Council.

While Miles Jordana’s career is significant because of his role as a fall guy for his political masters and the rewards he reaped by being such, he is not unique in Australia’s modern public service. Are these the standards that the developing nations of the Asia-Pacific should be asked to aspire to, or do the indigenous people of the region deserve better? I suggest that all the indigenous people of the region, including Indigenous Australians deserve better. Say no to corruption – say no to Australian interference in our traditions.

Club Em Designs

The Exception Proves The Rule.

Earlier SiFM posts regarding the Julian Moti affair. Radio Australia online article on the issue.

Julian Moti.

Finally, Moti's day

Solomon Star
TUESDAY, 02 AUGUST 2011 09:40

Senior World Socialist Web Site journalist Patrick O'Connor is the only Australian journalist to have followed the Julian  Moti court case from its beginning.  

He specialises in reportage on Australian involvement in the Pacific Islands for the World Socialist Web Site, and has spotlighted bias in Australian newspaper coverage of the affair.Australia's High Court will hear the appeal of Fiji-born former Solomon Islands attorney general Julian Moti.Moti has waged a five year battle against the Australian government's attempt to prosecute him on what he alleges are "politically motivated" statutory rape allegations. 

More than a decade ago, a Vanuatu court threw out sexual assault allegations against the Australian citizen.The case was only revived by Australian diplomatic officials in 2004, as part of a campaign to prevent Moti from becoming attorney general of the Solomons.The international and constitutional lawyer was regarded as an opponent of Canberra's agenda in the Pacific, including the neo-colonial intervention force, the Regional Assistance Mission to Solomon Islands (RAMSI).The Australian charges laid against Moti, based on sex tourism legislation, were used to remove him from the Solomons in December 2007, after a protracted regime change drive by Canberra resulted in Prime Minister Manasseh Sogavare losing office. 

3 YEARS WITHOUT INCOME SOURCE 

Moti was immediately arrested upon his forcible removal to Australia. For the last three and a half years he has lived without any source of income, and has been forced to comply with stringent bail conditions. He has challenged the Australian government's prosecution on the grounds that the entire case is a politically motivated and improper abuse of the judicial system, based on illegal conduct on the part of the Australian government and Australian Federal Police (AFP). 

In December 2009, the Queensland Supreme Court issued a permanent stay of proceedings, barring Moti's prosecution, on the grounds that extraordinary payments made by the AFP to the family of the alleged victim had brought "the administration of justice into disrepute" and were "an affront to the public conscience."The Commonwealth Director of Public Prosecutions (CDPP) subsequently appealed, and the decision was overturned by the Queensland Supreme Court of Appeal in July last year. Moti is now presenting the matter to the High Court for final deliberation. 

COURT TO HEAR TWO GROUNDS 

Last April, the High Court agreed to hear the case on two grounds - the so-called witness payments and the legality of Moti's removal from the Solomons in December 2007. [WSWS article]Moti's counsel has always maintained that the former attorney general's extraction to Australia was an illegal rendition or kidnapping-not, as it was formally presented, a deportation legally ordered and organised by the Solomon Islands' government-and that the Australian judiciary was obligated to refuse to put him on trial because of this. 

Under established legal precedent, courts must permanently bar a prosecution if the accused has been unlawfully transported from a foreign country. This includes cases where an ostensible deportation is actually a "disguised extradition". 

Moti argues that Australian diplomatic officials and AFP agents colluded and connived in the extraction, despite "knowing full well of the blatant illegality of what was proposed".This question was summarily dismissed by both the Queensland Supreme Court and Queensland Supreme Court of Appeal, but the High Court has made clear its interest in considering the matter. The final decision by the seven High Court judges is likely to prove a major legal landmark. 

The Commonwealth Director of Public Prosecutions maintains that the Australian courts cannot adjudicate whether Moti's removal from the Solomons in December 2007 broke that country's laws. The matter, they argue, is "not justiciable' in the Australian legal system. 

QUESTIONS OVER HONIARA CONDUCT 

In written submissions to the High Court, Moti's counsel, Ian Barker QC, challenged this argument. "It is obvious that the conduct of the Solomon Islands Government must be examined in order to determine whether Australia connived at it," he explained.Barker said that the principle of non-justiciability did not extend to conduct by a state that breaches international law, and that Moti's human rights had been violated in contravention of international law. 

The defence argues that the so-called deportation was illegal, as it was enforced in violation of a statutory right of appeal and also breached a magistrates' court order specifically prohibiting Moti's deportation. Moreover, the deportation "amounted to a disguised extradition, in the sense that it was clearly for the improper purpose of ensuring the appellant [Moti] faced charges in Australia, and involved the deliberate circumvention of extradition procedures". 

MOTI CASE SHOWS AUSSIE POWER 

The events surrounding Moti's removal from the Solomons are a microcosm of the political and judicial state of affairs under RAMSI. Canberra dispatched the intervention force in 2003 as a means of bolstering its domination of the country, and the region, against rival powers, particularly China. 

Ever since, Australian officials have maintained control of the Solomons' state apparatus-including its police, prisons, courts, and finance and other key government departments-while maintaining the legal fiction that the country and its government retain full sovereignty.With Moti's extraction, the CDPP insists that the Solomon Islands' government decided on deportation and the Australian government did nothing other than respect this sovereign decision. According to Moti's counsel, however, "Australian officials encouraged and assisted the appellant's unlawful rendition to Australia". 

As early as October 2006, Australian officials had expressed their hope that Moti would be deported from the Solomons rather than face extradition proceedings, which would likely have involved Moti making lengthy appeals. In December 2007, immediately after the installation of a new pro-Australian government in Honiara, Canberra did everything it could to facilitate the so-called deportation. 

WHAT THE HIGH COMMISSIONER SAID 

On December 17, ten days before Moti was forced out of the Solomons, Australia's senior diplomat in the country Peter Hooton told a colleague that he hoped "we can avoid making a fuss ... we all want him gone after all and it would be a shame to risk an early misunderstanding with the new government". 

AFP liaison officer in Honiara, Peter Bond, played a particularly noteworthy role. He fast tracked travel visas into Australia that he issued to the Solomons police and immigration officials who accompanied Moti on the plane to Australia. 

Australian officials also issued Moti with Australian travel documents, without his authorisation or consent. Bond attended numerous meetings held to discuss Moti's removal, which were attended by Solomons Island government members, immigration officials, and police. 

On the morning of the deportation, Moti's counsel explained in the High Court submission, Bond "passed on to the Deputy Chief Commissioner of the Solomon Islands police force, Mr Peter Marshall, 'legal advice' to the effect that the planned deportation was lawful, when he knew full well that it was not". 

'DO IT QUICKLY' 

Finally, according to a witness, Bond told a Solomons' immigration officer to "do it quickly because the plane would be waiting". He then ensured that AFP officers in Australia were waiting to arrest Moti as soon as his plane landed. Moti has asked the High Court to carefully scrutinise Bond's role in December 2007, as well as his testimony given to the Queensland Supreme Court. 

The defence has highlighted the contradiction between Bond's statement in court that he was never interested in Moti's deportation, only his extradition, and an email he sent in October 2006. This warned another AFP officer that "the removal of Moti from the Solomon Islands to Australia via deportation is now in danger of not becoming an option", and stated that if Moti became attorney general, "the consequences will be disastrous for Australians, Australian interests, and RAMSI". 

The defence submission declared: "The conclusion to draw from FA [Federal agent] Bond's evidence was that, where necessary, he was willing to lie rather than concede matters which may have put the prosecution of the appellant at risk." Moti's counsel concluded that the Australian government's complicity in Moti's unlawful removal from the Solomons went beyond acquiescence-though that itself would be enough to warrant the charges being thrown out-and was equivalent to "aiding and abetting". 

WITNESS PAYMENTS 

On the issue of the so-called witness payments, the defence submission answered the Queensland Supreme Court of Appeal finding that they did not warrant a permanent stay of proceedings because they were not illegal and also because the cash was provided after the alleged victim and her family had given statements to the AFP. Moti's counsel noted that "it is far from clear that the witness payments were legal". Moreover, an abuse of judicial process under established legal precedent may be determined on the basis of gross impropriety without necessarily also involving illegality. 

On the question of the timing of the payments, the defence submission stated: "It cannot be said that payments which induce initial co-operation are improper, while payments which secure ongoing co-operation, whatever the circumstances and whatever the price, are not... The right-thinking person would correctly perceive a link between the political genesis of the prosecution, the delay, the means by which the appellant was brought to the jurisdiction, and the extraordinary payments being made to keep the prosecution on foot." 

Last March, just three days before he died, the alleged victim's father stated that the initial allegations made against Moti had been bogus, and apologised to the former attorney general.The father also accused AFP officers of intimidating his family into co-operating with the investigation, and of coaching their testimony. [WSWS article]

By PATRICK O'CONNOR

• Susan Merrell Video interview of key witness. 
• Masalai blog posting: "Nongor Flogging A Dead Horse"
• Blak and Black post: "Disguised extradition, Bennett, Tollman and Moti".
• Croz Walsh post: "The Julian Moti Story Does Nothing for Australia's Pacific Reputation".

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