The Julian Moti Saga

I haven't published anything about the Moti saga before because it is not directly relevant to Fiji, but he is Fiji-born and the case does ask serious questions about Australia's rather heavy hand in Pacific affairs.  
      O'Connor's article was published on a socialist website which would immediately make it suspect for some readers, though why it should be more suspect than an opinion piece from another perspective, I really do not know.  
     But then, I've lost a lot of faith in the so-called independent and balanced media since I started this blog three years ago. Happy reading. Croz

Australian High Court concludes hearing into Julian Moti appeal

By Patrick O’Connor
5 August 2011
A two-day Australian High Court hearing into the case of former Solomon Islands attorney general Julian Moti concluded yesterday. The seven justices heard further allegations of serious violations of the rule of the law by the Australian government in the South Pacific, but, as is usual, the court will not issue its decision on the matter for several weeks.

Moti, an Australian citizen and international and constitutional lawyer, alleges that the Australian government’s attempt to prosecute him on child sex charges that were discharged by the courts of Vanuatu in the late 1990s is an unlawful abuse of the judicial system. He maintains that his opposition to Canberra’s predatory operations in the Solomons and neighbouring states triggered a political vendetta that culminated in his forcible removal from Solomon Islands and arrest in Australia on December 27, 2007.

Discussion in the High Court yesterday again centred on the role played by Australian police and diplomatic officials in Moti’s extraction—or “kidnapping”, as his counsel stated—from the Solomons. Moti was nominally deported by the Solomon Islands’ government of Prime Minister Derek Sikua, installed after his predecessor Manasseh Sogavare fell victim to a provocative regime-change campaign orchestrated in Canberra.

The Australian High Court heard overwhelming evidence indicating that the so-called deportation was in blatant violation of Solomons’ law. Moti’s counsel, Ian Barker QC, maintained that the Australian government was complicit in this illegal activity, and that the deportation was in fact a “disguised extradition.” Because of this, Barker argued, the attempted prosecution of Moti must be permanently barred in order to uphold the rule of law and the integrity of the Australian courts.

The Commonwealth prosecutors attempted to prevent any scrutiny of the Australian government’s role in colluding with Moti’s illegal removal from the Solomons. They argued that firstly, no Australian court could rule on a matter of Solomons’ law or the legality of the conduct of the Solomons’ government, and secondly, in line with the “act of state doctrine”, the overseas activities of the Australian executive ought not be subject to domestic judicial review. The High Court, however, indicated that it agreed with neither of these positions.

John Agius for the Commonwealth Director of Public Prosecutions was on the defensive for much of yesterday’s proceedings.

Shortly after Agius began his presentation to the court, Justices Kenneth Hayne and Susan Crennan interrupted to insist that before determining whether Australian authorities had colluded or connived with an unlawful deportation, it was first necessary to assess the legality of Moti’s removal under Solomon Islands’ law, i.e., whether, as Justice Kenneth Hayne said, the “removal of Mr. Moti was a removal with power or without.”

Agius was also challenged to explain why Australian authorities issued visas and travel documents to Moti and the two Solomons’ officials, a police officer and immigration official, who accompanied him on the plane to Australia.

Moti’s counsel argued that the provision of these documents was evidence of Canberra’s active involvement in the “deportation”, contrary to the prosecution’s position that the Solomons’ government bore sole and independent responsibility. On Wednesday, the High Court heard that Moti was issued a travel document without requesting or paying for one, in apparent violation of the Australian Passport Act, and that the two Solomons’ officials were issued travel visas by the Australian High Commission in Honiara after they signed blank forms that were filled in by an Australian official.

Ian Barker noted that it was highly improper for a deportee to be accompanied by security officials. “I have not read or heard anything in this case suggesting why it was necessary for him [Moti] to be accompanied by two Solomon Islands’ law enforcement officers,” he explained. “He was not infirm, he was not incapacitated, he was not going to be a danger to the aircraft, he did not ask to be accompanied on the trip. So he was compulsorily accompanied by two men who were, in effect, gaolers. They were an adornment to a sham extradition.”

A series of emails and diplomatic cables sent by Australian officials in Honiara to Canberra just before Moti was removed from the Solomons made clear that everybody involved understood that the “deportation” was illegal. A magistrate’s order prohibited the deportation, and Moti had seven days to appeal under the Solomons’ Deportation Act before the deportation could be lawfully executed. The Australian High Commission in Honiara knew all this—yet instead of protesting against the serious violation of the rights of an Australian citizen, it rushed to issue travel documents, facilitating the unlawful deportation.

Justice John Heydon made the significant observation yesterday: “We went into the Solomon Islands in order to restore the rule of law. What happened on 27 December did not involve the Australian government participating in a process of restoring the rule of law.”

Agius responded by insisting that “we did not go into the Solomon Islands to make their sovereign decisions for them.” Justice Heydon replied: “But we did things without which their sovereign decisions could not have come to pass in the way they were planning them.”

The Commonwealth prosecutor declared that the Solomons’ government had insisted at the time that their deportation proceedings against Moti were lawful. Justice Heydon again interjected to note that this was based on “rather laughable reasoning”, and had never been accepted by Australian diplomatic officials in Honiara.

Agius elaborated at length on the supposed sovereignty of the Solomon Islands and its government, and the alleged impropriety of any Australian official objecting to or even questioning its “sovereign” right to illegally deport an Australian citizen.

The position that the Solomons is a sovereign country is utterly absurd. In reality, “sovereignty” is nothing but a convenient legal fiction maintained by Canberra. The Australian-led intervention force the Regional Assistance Mission to Solomon Islands (RAMSI) has dominated the impoverished country ever since it began operations in mid-2003, taking effective control over the state apparatus, including the courts and prisons, police, finance and other government departments, central bank, and other institutions.

From the outset, RAMSI was driven by Canberra’s concern to advance its economic and geo-strategic interests throughout the South Pacific against rival powers, especially China.. The Australian government has paid lip service to the “sovereignty” of its Solomons’ counterpart only when pliant, pro-RAMSI political figures are in power. When Manasseh Sogavare became prime minister in May 2006 and made a number of policy decisions that cut across Australian and RAMSI interests he was subjected to a highly provocative and unlawful campaign waged by Canberra that aimed at destabilising and bringing down his government..

Moti’s counsel further challenged the prosecution’s argument that Australian authorities had no choice but to issue travel documents for Moti and his two “gaolers”, given the “sovereign” decision to deport. He noted that under the Sogavare government, Canberra refused to issue travel documents to Solomons’ parliamentarians as a punitive measure designed to encourage government members to switch to the opposition. Barker cited an internal Australian diplomatic memo that read: “[A]s a major gesture if Sikua is successful and in the light of what SIG [Solomon Islands’ government] does about Julian Moti, we should announce the end of our visa restriction policy.” In other words, Barker concluded, “they had no hesitation at all in declining visas as a matter of political expediency.”

Agius yesterday outlined several arguments aimed at giving the High Court some means of dismissing Moti’s case despite the clear evidence of Australian connivance in illegal breaches of his rights. He first maintained that even if it were the case that issuing Moti and the two Solomons’ officials with travel documents amounted to facilitating an illegal deportation, this conduct was not grave enough to warrant quashing the prosecution of Moti.

The prosecution then maintained that the High Court needed to conduct a “balancing exercise”, weighing the evidence of Australian government complicity in an illegal breach of Moti’s rights against the “public interest” in allowing the sexual assault allegations to be resolved in a trial. Agius elaborated on the age of the alleged victim and other features of the allegations, a tactic apparently aimed at placing pressure on the judges to permit a trial to proceed. This appeared to get short shrift, however, with Justice Susan Kiefel immediately noting that “a breach of rule of law principles might weigh rather heavily against the public interest in a trial being conducted where that is being breached.”

On the other issue of contention in Moti’s appeal—the legality of the extraordinary cash payments issued to the so-called witnesses—Agius was told that the court did not need to hear the prosecution on the matter.

When Moti’s counsel spoke about the payments, several judges asked why the question of excessive witness payments could not be examined in the course of a criminal trial, rather than requiring a permanent stay of proceedings. In December 2009 the Queensland Supreme Court found that the payments were “an affront to the public conscience” and that, despite public interest considerations in allowing a trial, a permanent stay of proceedings was necessary because “the seriousness of the abuse of process would not be acknowledged appropriately by any other order.”

In his closing reply to the Commonwealth’s arguments, Ian Barker raised a very significant incident that occurred in late 2006. The Solomon Islands’ solicitor general at the time, Nathan Moshinsky, issued legal advice that Moti could not be extradited from the Solomons. This was because extradition proceedings normally require an alleged offence to meet the condition of “double criminality”—i.e., the alleged offence is a crime both in the country issuing the extradition request and in the country to which the request is issued. In the Moti case, however, there was no double criminality because Solomon Islands had no equivalent legislation to Australia’s extraterritorial child sex tourism laws. As a consequence, Australian authorities had an enormous incentive to press for Moti to be deported, rather than commence extradition proceedings.

Ian Barker added that Australian officials did not accept Moshinsky’s advice. Moti’s counsel cited a letter forwarded by the attorney general in Canberra to Moshinsky, “suggesting a more persuasive alternative interpretation that could be considered.” This episode contradicted Agius’s argument that with Moti’s so-called deportation, “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 [because] it would have amounted to meddling in their affairs.”

A notable feature of the High Court proceedings was the continued media blackout on the Moti case. The ABC was the only outlet to have journalists cover the High Court hearing, with the Murdoch media and Fairfax newspapers boycotting the event. The Australian media played a filthy role in 2006 and 2007, promoting Canberra’s provocations against the Sogavare government and acting as the Australian government’s mouthpiece regarding the sexual assault allegations against Moti. The details of these charges were made front-page news at the time—but now when damning evidence has emerged of Australian government illegality in the South Pacific there is a deafening silence.


Heavy handed South Seas rendition said…
The Julian Moti story (Saga suggests something 'worthy' - it is a disgraceful episode)is of absolute relevance to Fiji. Why would one think it is not?

This apparent hounding of a person for deeds allegedly long past, which on the testimony of a dying man are not fully correct in substance, should concern us all in Fiji and in the wider Pacific Region. A more unseemly, co-ercive and purportedly fascist handling of events can scarcely be imagined? It would provide the template for many a future novel and it is still to be finally 'put to bed'.

There is one salient caveat: unseemly, possibly criminal sexual conduct may give rise to all manner of unfortunate events which embrace 'innocent others'. The Caesar's Wife adage applies here: it pays handsomely to be always above suspicion especially when holding powerful positions.
Nive said…
This story is absolutely relevant to Fiji. It demonstrates very clearly that Australia will do absolutely anything to have "its own people on the ground calling the shots" in the region. Moti was known to oppose the RAMSI intervention. Bainimarama threw out the Australian Police Commissioner, Andrew Hughes. The hardline Australian policy against the Fijian govt is because of the removal of Hughes, and not because it wants to see democracy restored in Fiji.
It is good that Fiji is looking toward north for support.
Please do keep up with this story. I know mush of this has been said before, but we really need to rub this well and truly into Australian govt's face. This attitude that Australia has been pursuing for years has to stop.
sara'ssista said…
@ heavy and nive...the irony is clearly lost on you that you support the only military regime in the pacific.The same regime that spits out decrees on a whim and then even their own AG 'doesn't know anything about it'.This would the law and order that is working so well in fiji that Croz is so enthusiastic about. Given the paranoia this regime has towards any sign of dissent or any elected person by any organisation that doesn't sing carefully from the same regime hymn sheet i am curious about the feigned concern for aus role in the region. They are the biggest and most powerful in the region, but if you think china is more comfortable example then by all means go for it, let them pick up the bills, and take their tourists too, not exactly known for their free spending ways in the top hotels. Bring on the union embargo i say then lets see who squeals first.
Humble Pie said…
@ sara'ssista

Huge assumptions made here. All of them unjustified. As is your wont you barge on laying waste, boots and all in your immediate line of sight. Much greater care is required in this foxhole, sara'ssista lest you single handedly destroy all pathways for Peace? That outcome may never be contemplated for the sake of The Whole1. You do care about that, do you not? The Big Picture?

The ultimate peaceful outcome despite a plateful of Humble Pie?
Humble Pie said…
@ sara'ssista

Huge assumptions made here. All of them unjustified. As is your wont you barge on laying waste, boots and all in your immediate line of sight. Much greater care is required in this foxhole, sara'ssista lest you single handedly destroy all pathways for Peace? That outcome may never be contemplated for the sake of The Whole1. You do care about that, do you not? The Big Picture?

The ultimate peaceful outcome despite a plateful of Humble Pie?
Anonymous said…
I'm always suspicious of what that socialist web site says too, what is odd is the lack of interest in the matter by "real" media.

It concerns Fiji, Moti was born in Fiji, his ancestors held high office in Fiji.

It concerns the Pacific on a broader level - in the old days the predecessors in power that Australia wields would have had Moti disappear or die in a faked robbery. Now it's court proceedings of doubtful credit.

Is this the price to pay for Aussie tourism dollars
Nive said…
To Anonymous
I live in Australia and I do believe in the Australian Legal system. While the journey to justice may be long and difficult, I do believe that Moti will ultimately get justice here. Just like the Dr Haneef case.(Dr Haneef was accused of playing a part in the terror attacks in London. The Aust Fed Police did the wrong thing but the Courts gave Dr Haneef justice.)
The reason why this case is important is because it shows clearly how far and nasty the Australian govt has gone to remove anyone standing in the way of their goals, one goal being to have RAMSI in the Solomons. The other thing the Aussies are bitter about is Bainimarama throwing out Andrew Hughes.
@sarassista - I couldn't disagree with you more. You no doubt enjoyed the corrupt govts of Garase and Rabuka, both elected govts. I'm glad they are gone. I hope for democracy in Fiji under a constitution which recognises all it citizens as equal.
Anonymous said…
RAMSI was and still is, a cover for Australian "predatory operations" in the Pacific basin. RAMSI is driven by Australia's version of the Monroe Doctrine. Its goal: regime change by whatever means necessary. The interventionist impulse in the Pacific "theater" did not end with the RAMSI caper in the Solomons. Australia tried the same game in 2006 in Fiji and was rebuffed by the might of the Fijian army the leaders of which said pretty much: If you interfere in our domestic affairs we'll take you on and tech you a lesson that you will never forget." The Australians, their Black Hawk helicopter drowned in the waters of the Koro Sea ran back to Australia, their tails between their legs.. Australia ought never to be trusted by any Pacific Island government. And for that matter, neither should New Zealand. The lesson at hand is as old as Lord Palmerston's dictum of long ago: Diplomacy is not about making friends or creating enemies. It is about protecting interests. He might have linked foreign policy to diplomacy.
For Pacific island micro states to fall for the shallow promises of small gifts and silly privileges offered by Australia and New Zealand, is foolishness of a high order. For all of the military's faults in its governance of Fiji since 2006 there is one matter on which it cannot be faulted: It defended Fiji's territorial integrity and told Australia to bugger off. A job well done. If this job is undone it will reopen the door to Fiji's recolonization.

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