Paul Gregoire

“Australia needs a bill of rights” – Assange’s lawyer speaks out

Geoffrey Robertson QC has defended Salman Rushdie, he’s represented Julian Assange, and now he’s pushing for an Australian Bill of Rights. 

 

 

Human rights barrister Geoffrey Robertson has had an illustrious career. The Australian-born lawyer has been a tireless defender of civil rights, with a particular focus on protecting freedom of speech and expression.

In 1989, he successfully defended author Salman Rushdie against blasphemy charges relating to his novel The Satanic Verses. More recently, he represented WikiLeaks founder Julian Assange during extradition proceedings.

Today, Mr Robertson is the joint head of London’s Doughty Street Chambers, which frequently takes on cases involving human rights and civil liberties. He also serves as a Master of the Bench at Middle Temple and a recorder, as well as being a visiting professor at Queen Mary University of London.

Sydney Criminal Lawyers spoke with Geoffrey Robertson QC about his lifelong passion for defending freedom of speech, the rights of journalists to report in the public interest and the need for Australia to adopt a national bill of rights.

 

Firstly, Mr Robertson, looking back over the time you’ve spent working in the legal profession, would you say that rights such as freedom of speech and expression have been strengthened, or do rights such as these have to be continually defended?  

These rights are challenged in different ways at different times. Governments often seek to redraw the line as a result of technological change and new forms of offensive speech. But, there is a bottom line and it is still worth defending, namely that speech should be free of legal prohibition unless it is likely to cause harm.

When president of the Sydney University SRC in the ’60s, I was always railing against censorship by quoting Voltaire – “I don’t like what you say but will fight to my death for your right to say it.” These days, there is a lot of speech that I would not go to the stake for the right to utter, but I would nonetheless defend – at least, if paid a proper brief fee.

 

What was it like working on the 1971 Oz magazine obscenity trial, and what effect would you say the appeal decision had upon the establishment forces of the time that were trying to curb the emerging counterculture?

It was exciting, at age 24, to be parachuted into a leading Old Bailey case and then an important appeal. It was a battle, ultimately successful, for artistic freedom against corrupt police and a repressive establishment.

We were on the right side of history, although we could not know that at the time – it would have been a comfort, because we were up against powerful forces.

The Oz case established the right of writers and artists to shock – to wield Kafka’s ice-pick against complacency. Of course, it’s first beneficiary was Rupert Murdoch, emboldened to put nude women on page 3 of The Sun. But there were worthier results.

 

In 2006, you successfully defended the Wall Street Journal in the defamation case Jameel v Wall Street Journal Europe. The House of Lords ruled the publication had the right to publish an article as it was in the public interest to do so.

The Australian government recently passed the espionage and foreign interference bill. Critics have said the implications of these new laws are that journalists could be imprisoned for reporting on government breaches of international law.

The legislation does provide the defence of disclosing such information because the journalist reasonably believed it was in the public interest.

In your opinion, is the public interest defence enough to protect journalists for reporting on contentious policies that the Australian government carries out?

National security is in my experience a claim that is often bogus, yet the courts usually decline to examine it carefully. That must change.

It is good that there is a public interest defence for journalists, but wrong that the onus is placed on the defendant to prove it. The burden of proof is crucial, forensically, and only if the prosecution bears the onus of showing that the disclosure was not in the public interest, will this offence be fair.

Moreover, since a journalist is not guilty if he or she holds a reasonable belief that disclosure is in the public interest, it should be for the prosecution to prove either that the belief was not held or that it was not credible.

 

You’ve been a vocal critic of Australia’s asylum seeker and refugee policies. Currently, hundreds of people are still being held in detention and transit centres on Nauru and Manus Island. The government’s solution is to resettle these people in the US, although many aren’t being accepted into that country.

What are the implications of the Australian government continuing its policy of mandatory offshore detention?

Mandatory offshore detention policies have changed over the years, but they always give Australia a bad name for inhumane conduct towards people who are not criminals and who seek to claim a right of asylum.

We should not pretend that the refugee problem is unique or easily solved: see Europe, where the failure to solve it has led to the rise of populist governments with even more inhumane policies.

Australia is entitled to control its borders, but must treat refugees with humanity and due process.

 

In your latest book Rather His Own Man, you state that the case you “look on with most pride” is one involving death row inmates in Trinidad. In this 1993 case, the Privy Council found that long periods spent on death row amount to torture. And when this occurs, a death penalty must be reduced to a less severe sentence.

You were inspired to take on this case after meetings with Black Power activist Michael de Freitas, also known as Michael X, who was being held on death row in that country.

Can you explain why this case stands out the most and what the impact of the ruling has been?

Well, I was 27 and spent a week on death row in the Royal Gaol at Port of Spain, Trinidad, with a few dozen men waiting – some for years – to be hanged. We could not abolish the death penalty – it was expressly preserved in the Constitution – but torture was expressly prohibited. So, I came up with the idea, while talking with Michael X, that death row was a form of mental torture, and that those consigned to it for a lengthy period would be entitled to have their sentence commuted.

The argument was a lot more complex than that, of course, but eventually I persuaded the Law Lords in the Privy Council, in Pratt and Morgan v Jamaica, to endorse it, and their decision was followed in many countries in the Commonwealth.

I am told that the ruling has led to the release from death row of many hundreds of prisoners, and it is still being followed today. Sadly, not by Indonesia, which executes reformed prisoners, like Andrew Chan and Myuran Sukumaran, ten years after they were first placed on death row.

 

The Australian government has passed a raft of new laws over recent years in the name of national security that have been slowly eroding citizens’ civil rights.

In your 2009 book The Statute of Liberty: How Australians Can Take Back Their Rights, you put forth the case for establishing an Australian national bill of rights. What effect would enacting such a bill have on the nation?

I think it would improve the quality and comprehensibility of Australian law and would allow Australian judicial decisions to take their place in the jurisprudence of the advanced world, which is increasingly based on human rights principles.

Most importantly, it would serve to educate young people in the values we should hold dear.

 

The Human Rights Act, passed in the UK in 1998, incorporates into the nation’s laws the rights contained in the European Convention on Human Rights.

What impact has this legislation had on the UK legal system?

For the most part, it’s been highly beneficial, as I explain in The Statute of Liberty. There are few “hard cases” now: judges can do justice according to basic humanitarian standards.

There have been some clashes between freedom of speech and privacy, in which free speech came off badly, but otherwise the Bill of Rights has worked very well. Especially, in criminal cases, which are now more fair, and imbued with the “equality of arms” principle.

 

And lastly, you’ve just taken the time to reflect on your life and put it all down in words. Mr Robertson, what did you learn in the process in regard to the developments that have taken place both socially and legally over your lifetime?

Nothing much. You just must do what you think is right at the time – years later, you may look back and take some pride over how your arguments have been accepted and have contributed to social progress, although equally you may in hindsight feel embarrassment about ever having advanced them.

As a barrister, I am a taxi on the rank, up for hire by the good, the bad and the ugly, but I am a part of an adversary system that allows the law to make progress, and I can act pro bono for causes I believe are right.

 

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers, he writes for VICE and is the former news editor at Sydney’s City Hub.

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