04 Jun 2012
Wednesday 30 May 2012 – Budget Estimates – Foreign Affairs Defence and Trade Committee
Wikileaks & Mr. Assange
Senator LUDLAM: I wanted to firstly put a question to the minister about coming into a job like this where suddenly the entire planet is on your desk and demanding your attention. Where does the issue of Julian Assange and WikiLeaks fit in your schedule? When were you first briefed on that matter after you took office?
Senator Bob Carr: The focus the department brought to that case is that Julian Assange has been given and will continue to be given full consular support. That principle would apply to any other Australian in his position. I think it is fair to say, given the nature of the charges he is facing, that is the only issue that arises for us. I think I am accurate in saying that.
Senator LUDLAM: When were you first briefed on that matter?
Senator Bob Carr: I cannot recall, but I know I had information-I am pretty certain I recall having a briefing note given me before I faced the Senate for the first time.
Senator LUDLAM: Okay. Mr Richardson, do you want to add anything?
Mr Richardson : Yes, simply to confirm what the minister said: it was part of the minister’s incoming brief, so he had that before he stood up in the Senate.
Senator Bob Carr: I can be more specific. The government provided Mr Assange with a high level of consular support. There were two visits when he was in detention, between the 19th and 15 December 2010. There was attendance at all court hearings. There was assistance to his family-for example, a prison visit for his mother and contact with his lawyers. He was bailed on 16 December 2010. Since then he has not sought consular assistance. But I understand that diplomats have continued to reiterate offers of support, most recently through his lawyers on May 25, 2012. We cannot interfere with UK and Swedish legal processes but our post in London has monitored the case closely and our post in Stockholm has sought and obtained assurances he will receive due process if he is extradited.
Senator LUDLAM: Minister, within the realms of what you are able to do within privacy considerations, what can you tell us about that contact with his legal counsel on the 25th, just this week?
Senator Bob Carr: I would need to take that question on notice.
Senator LUDLAM: Minister, no doubt you would be aware that at six or 6.30 or thereabouts our time this afternoon there should be a finding by the UK Supreme Court. Have you been briefed specifically on that matter and potential consequences of that judgment?
Senator Bob Carr: I understand that, if the appeal is successful, Sweden cannot immediately issue an arrest warrant from a judge. Under Swedish law only prosecutors are authorised to issue arrests warrants following a valid court order. If his appeal is unsuccessful, if his appeal fails, Mr Assange can make an application to the European Court of Human Rights-
Senator LUDLAM: That is correct.
Senator Bob Carr: arguing that his human rights might have been infringed. This could be pursued from the UK or Sweden. To halt extradition he would need to make a separate application to the European Court of Human Rights. This is a reference to rule 39, and that is generally used when a person is at risk of physical harm if extradition were to be carried out. Swedish authorities would collect and escort Mr Assange from the UK to Sweden if the process of extradition were to proceed and that would have to occur within 10 days of extradition being ordered. A Swedish court will determine whether he would be held on remand and whether there would be restrictions on his detention related to visits, contact with other prisoners and so on. I understand a high proportion of prisoners are held with restrictions. He will be entitled to meet with his legal representative and consular officials.
Senator LUDLAM: Thank you, Minister. Is it your understanding, based on that briefing that you have there, that if his appeal were unsuccessful and he is then subject to extradition, those further avenues of appeal to European courts would not actually prevent his extradition, so those appeals could still be afoot while he was being moved from one country to another?
Senator Bob Carr: I think he would need to make a separate application to the European Court of Human Rights arguing that he would be at risk of physical harm.
Senator LUDLAM: Okay, you did cover that. Minister, my question was whether you had been briefed, so I think we can take that as a yes-you have got relevant material right in front of you there. What can you tell us about the existence or otherwise of a sealed indictment issued by the United States Department of Justice, which would presumably come with an extradition order back to the United States?
Senator Bob Carr: We have seen no evidence that such a sealed indictment exists.
Senator LUDLAM: Have you sought such evidence?
Senator BOB CARR: We have not sought evidence, but we have seen no evidence that it exists.
Senator LUDLAM: Well, of course you haven’t.
Mr Richardson : And we have talked to the US. The US is aware of our expectations in respect of due process, but when we say we have seen no evidence that such a sealed indictment exists we are not using neat bureaucratic words to avoid an answer. I know there are claims out there, but we are simply not aware of the existence of such an indictment. We have talked to the US about these matters, and we are simply not aware of the existence of such a sealed indictment.
Senator LUDLAM: Have you asked whether such a document exists, of your colleagues either in the DOJ or the state department?
Mr Richardson : We have had discussions, of which I cannot go into the detail, but none of the discussions we have had-
Senator LUDLAM: It is a pretty simple question: have you asked? You have seen rumours, you have seen speculation, you have seen reports. But did you ask?
Mr Richardson : As I said, we do not know of any evidence of the existence of such. We have obviously asked the US; we have talked about it. But we are not aware of any evidence that such a sealed indictment exists.
Senator LUDLAM: You are making it sound a bit forensic. I am just putting to you whether you have asked your colleagues whether such a document exists.
Mr Richardson : We have made inquiries about all of that.
Senator LUDLAM: What were the responses to those inquiries?
Mr Richardson : I am not prepared to go into the detail of the discussions we have had.
Senator LUDLAM: Why is that?
Mr Richardson : They were confidential. I can simply say that we are not aware of any sealed indictment and we are not aware of any evidence of the existence of a sealed indictment.
Senator LUDLAM: Mr Richardson-or Minister; if I stray into politics I will trust you to answer the question-were you aware of the release of quite an abundance of material from the US private security firm Stratfor, some months ago now, which contained explicit reference to such a document?
Mr Richardson : I am certainly aware of that. That was released, I think, out of Texas, from memory.
Senator LUDLAM: On the WikiLeaks website.
Mr Richardson : Yes.
Senator LUDLAM: Indeed. So did that release-you would not call it evidence, but it is certainly a release of material indicating that such a document exists-cause you to go back to your US colleagues and make inquiries?
Mr Richardson : It is release of material claiming the existence of it. We have talked to the United States since then, and I refer back to my earlier answers.
Senator LUDLAM: Does the Australian government have any contingencies, or have you put anything in place, in the event that Mr Assange is served with an extradition warrant back to the United States-tonight, our time?
Mr Richardson : Due process would need to be followed. I do not believe it would be possible for Mr Assange to be whizzed out of the UK tonight-
Senator LUDLAM: No, not whizzed, but served-
Mr Richardson : First of all, what is before the UK courts is the question of whether he can be extradited to Sweden.
Senator LUDLAM: That is an unrelated matter.
Mr Richardson : No. It is related, because if he wins that appeal, even if the US were to lodge an immediate request, due process would have to follow. If the US, through its own legal processes, were to seek such an extradition, that would be a matter that they would pursue with the UK, and due process between the UK and the US would have to follow. We cannot prevent that.
Senator LUDLAM: He is an Australian citizen.
Mr Richardson : He may be an Australian citizen, but we do not control what the US government does or does not do in the context of its legal process, just as we cannot determine the outcome of the appeal before the UK courts.
Senator LUDLAM: This is our great and powerful ally, the United States. Has your department done its due diligence so that we know what to expect tonight, depending on the outcome of the Supreme Court findings? Are you satisfied that the government has made itself aware of the facts?
Senator Bob Carr: I can answer that. We have no advice that the US has an intention to extradite Mr Assange.
Senator LUDLAM: Have you sought such advice?
Senator Bob Carr: We have discussed the case with the US, and nothing we have been told suggests that the US has such an intention. The US is aware of our expectation of due process, if they do decide to take legal action. And we understand that the United Kingdom’s agreement to extradite would also be required. That probably answers your question.
Senator LUDLAM: While we are on the subject of due process, one of the other matters that came forward in the Stratfor releases was the intention by this private security firm that contracts to the United States government to shop Mr Assange and his colleagues through serial legal jurisdictions and tie him up in legal processes until the end of time, effectively. Whether he ends up in prison or not is kind of beside the point. Are you confident that due process is being followed in this case?
Senator Bob Carr: I do not think the US can be sheeted with the responsibility for the process underway in Sweden.
Senator LUDLAM: That was not actually the question I put to you.
Senator Bob Carr: You did talk about an intention of the US, as alleged by one source, to tie Mr Assange up in legal process.
Senator LUDLAM: It is a fairly informed source.
Senator Bob Carr: The legal process he faces at the present time involves Sweden. I am just interested in whether you believe that Sweden, in the legal process now underway and before a UK court, has been motivated by the US.
Senator LUDLAM: Are you putting a question to me, Minister?
Senator Bob Carr: I am very curious.
Senator LUDLAM: I am not sure that we can do that in here! I will be the one asking the questions, if that is all right. Minister, are you aware of the freedom of information request that I put to the department-and I acknowledge that it would have been before you took your place in here-on this matter? I think it was in November or December, or thereabouts, last year.
Senator Bob Carr: I am aware in broad terms, yes, that there is an FOI request.
Senator LUDLAM: Have you availed yourself of any information on that request, which has been delayed over a series of months?
Senator Bob Carr: I think I have signed a piece of paper related to that request. I will get advice.
Senator LUDLAM: Okay. Perhaps you could get advice on the nature of the piece of paper you have signed, and whether or not any documents will be forthcoming. I know it is extremely labour intensive blacking out page after page after page, but I would have thought that after six months it would be an appropriate time to put some of this material onto the public record.
Senator Bob Carr: We will check the record and answer the question to your satisfaction.
Mr Rowe : As you mentioned, Senator, we have your request under the FOI provisions to provide information in relation to a number of matters-including, of course, the Assange issue. As you would be aware, this is a very complex and very large request. As with previous requests in relation to other matters we have been in contact with you about the scope and the time lines for that request. We are actually engaged in processing it as expeditiously as we can. But these are very large requests in terms of the documentation, the complexities and the need to consult, under the FOI regime, third parties where necessary. Not surprisingly, it is taking some time just to work through all the documentation and get the request finalised so that we can provide it to you.
Senator LUDLAM: Thank you. And the matters that I am seeking to have released under this government’s new regime of transparency do relate to foreign policy matters, particularly our diplomatic relationship with the United States. Is it normal practice that you would seek advice from your US colleagues before releasing that material into the public domain? Is the US government clearing this material for release as well as your own department?
Mr Rowe : Under the Freedom of Information Act, as you are aware, there are provisions that we are obliged to take account of, particularly that relating to any material that relates, as I said, to a third party. In that regard it is normal practice to consult the third party about the content and the sensitivity or releasability of particular information. We are applying the act in that regard.
Senator LUDLAM: Is that kind of a yes?
Mr Rowe : Yes. We need to do that and we have the statutory obligation to take that consultation process fully into account.
Senator LUDLAM: Would the material that you are subsequently, I hope, going to release to me, to the parliament and to the public, all have been cleared by the United States government as well as the Australian government?
Mr Rowe : Not all cleared. It is where there is material such as particular communications between the Australian government and a third party, for example. Where that third party is involved in the material or it relates to that third party, we have the obligation to consult that party.
Senator LUDLAM: Minister, are you completely comfortable that the Australian government has done everything within its power-political, diplomatic and moral power-to stand up for the rights of this Australian citizen?
Senator Bob Carr: First of all, he has received-I think you would have to agree-comprehensive consular support, as we give to any citizen faced with this position. I am not sure what else you are suggesting we can do-
Senator LUDLAM: This is no ordinary-
Senator Bob Carr: about a legal action initiated in Sweden about sexual assault.
Senator LUDLAM: None of the questions I have put to you this morning have related to that, Minister, and you know very well why.
Senator Bob Carr: That is the only action he faces.
Senator LUDLAM: I would have thought it would have been. You have hinted, and Mr Richardson has as well, that you have made inquiries with your colleagues in the United States about the much deeper legal trouble that Mr Assange is potentially in.
Senator Bob Carr: Hold on. We have answered that question.
Senator LUDLAM: Not really.
Senator Bob Carr: We are not aware of any US action. The one legal action he faces is of sexual assault in Sweden. Are you suggesting we should intervene with the Swedes to argue the Swedish government should intervene to withdraw that?
Senator LUDLAM: I think you just put another question to me. I will leave it there.