The 'justice' of a door ajar

August 25, 2004

The maxim about justice being not only done but being seen to be done is so well-worn it resembles a cliche. It is, of course, no such thing. It encompasses the cornerstone of judicial transparency, commanding that justice be open for all to see and be subject to rigorous and impartial review. The trial this week of the Australian terrorist suspect, David Hicks, by an American military commission therefore resembles a peep show.

No photographs will be allowed of Hicks, held at Guantanamo Bay's Camp X-ray for nearly three years since the US responded to September 11, 2001 attacks on New York and Washington by invading Afghanistan, where he was captured. Four of the five military officers sitting in judgement are unidentified. Only eight seats are available for the 50-odd international news reporters wishing to cover proceedings. There will be no audio broadcasts. Unlike court martials, the commission's decisions cannot be appealed to a civilian court. This prohibits review, for instance, of whether evidence allegedly obtained by torture is admissible in court. And even if Hicks is found innocent, he will not go free until a separate review panel decides he no longer is an "enemy combatant". That might be for the duration of an ill-defined war on terrorism.

None of this should surprise, of course. One US military lawyer this week forthrightly asserted that the right to a full and fair trial must be "consistent with our national security". But who decides an individual's self-evident rights must be suborned by national need? Inevitably, the process must trip an otherwise free and open society headlong into the quicksand of justice not being seen to be done.

The point of detaining 600 men and boys at a military base leased from Cuba was, according to the British jurist, Lord Steyn, "to put them beyond the rule of law, beyond the protection of any courts, and at the mercy of the victors". Until the US Supreme Court intervened two months ago and reasserted the rule of law, the clear intention was to install for these detainees a structure where judges, juries, prosecutors and defenders were all delegates of the US executive. It is yet to be clarified just how this will be changed by the Supreme Court guarantee of a "fair opportunity" for detainees "to rebut the factual assertions against them before a neutral decision-maker".

Many Australians are antipathetic to Hicks and a second Australian detainee, Mamdouh Habib. This has encouraged the Howard Government to sit on its hands for most of their detention, content to let Americans move at a tortoise pace. But the test of a government's mettle is the vigour with which it defends the rights of its least popular citizens, with which it insists everyone is entitled to be tried according to law, whatever their alleged crime. The Government has failed more than Hicks and Habib. It has failed the principles which should distinguish Australia.


Slow start, strong finish?


It has taken nearly three months, yet the State Government has only now finalised the terms of reference for its taskforce which is to recommend changes to the land rights system. The decision to launch the taskforce was taken once the Government was aware of the investigation underway by the Herald into property developments planned for Aboriginal-controlled property.

Over the past 15 years or so, Aboriginal groups have been given control of land worth as much as $3billion, as well as more than $500 million to fund their programs. Both have run into difficulties.

The State Government has been reluctant to right the wrongs that have emerged in Aboriginal affairs - reluctance that may be understandable, up to a point, given the importance of Aboriginal groups taking responsibility for their own affairs. Yet in repeated reports over the past decade, the Auditor-General has highlighted mismanagement, leaving the Government little choice but to act.

It was in late 2002 that the Herald exposed the financial difficulties of the NSW Aboriginal Lands Council, yet it took six months for an investigator to be sent in and then another six months before the Government sacked the board and appointed an administrator.

This time round, the Government has been quicker off the mark, acting once it was aware that journalists were asking hard questions. Even so, it has taken some months for the terms of reference to be finalised. And, given the frequency with which taskforces have been used to get unfavourable issues out of the limelight in the past, it is not yet clear just how serious the Government is in sorting out the problems besetting Aboriginal assets.

The taskforce is to focus on issues of governance in how Aboriginal groups manage their assets, and how to ensure that the benefits of their assets can be maximised to the benefit of all, not just the handful of representatives, which has been the pattern in many cases. Of equal importance is to ensure that the comparative wealth of some of the Aboriginal groups that have been given control of prime assets, such as coastal land, is shared with some groups with poorer resources. Real change is needed, so that the effect of these issues on Aboriginal communities around the state can be righted.