Upholding freedom of speech, human rights and the rule of law

If I were the Attorney-General, I would protect Julian Assange, not just because of who he is, but because he is an Australian citizen at risk. I would recognise the opportunity – politically and more importantly, ethically and legally – to break from the shameful example set by Prime Minister Julia Gillard and my predecessor, former Attorney-General Robert McClelland. I would take a leaf out of Kevin Rudd’s book in respecting legal principles and equal protection for all Australians. Not only because it is the right thing to do, but because my political survival may depend upon it. If I were the new Attorney-General, I would want to distance myself as quickly as possible from the unprincipled approach that Gillard and McClelland took, where national sovereignty and the protection of Australians abroad has been sacrificed to US interests. A real friend of the US will, at times, criticise, as all friends must. This kind of unprincipled, slavish approach to leadership, characteristic of Gillard’s time in office, is the cause of her current strife.

If I were the Attorney-General, I would observe that while Gillard bent to US pressure and wrongfully accused a fellow Australian citizen of illegal conduct and McClelland pondered cancelling Assange’s passport, Rudd, as Foreign Minister, laid the blame with the US and its inadequate protection of diplomatic correspondence. Rudd told Gillard and McClelland to back off: Julian Assange is entitled to any and all of the support any Australian citizen overseas can expect. Party politics aside, Rudd was right.

If I were the Attorney-General I would recognise that Julian Assange is one of us and deserves our protection. He is surely as worthy of our protection as cause celebre Schapelle Corby, for whom former Attorney-General, Philip Ruddock, sent senior criminal lawyers to Indonesia on our government’s behalf to arrange her legal defence because, to quote one of the lawyers, “the fact is, she is an Australian national in trouble overseas, and the consequences are extremely severe, so there just wasn't any hesitation”. Assange is surely as worthy of our protection as the “Bali boy”, who having admitted to drug possession, received a personal phone call from Prime Minister Gillard and the highest level of consular assistance. The difference is, of course, that Assange has not received anywhere near that level of consular support. Quite the opposite. Despite having spent more than 440 days under house arrest, Assange has not been charged with a crime in any country.

If I were the Attorney-General I would consider how I would feel if it were my son or brother or friend in Assange’s position. Would I feel satisfied with our government’s response? I think not.

If I were Nicola Roxon, the Attorney-General, I would be greatly concerned that Assange, one of the most decorated figures in the field of Australian journalism, is facing potential extradition and prosecution in the US for his work. Assange has been awarded the Sydney Peace Prize Medal and the Walkley for Most Outstanding Contribution to Journalism. Assange was also awarded the Sam Adams Award for Integrity, judged by a group of retired US army and intelligence personnel (awarded to Assange for revealing the true extent of indiscriminate death and destruction in Iraq and Afghanistan). I would recognize, and want to rectify, the damage to Australia’s international reputation by our failure to acknowledge – and protect – our most celebrated contributor to journalism. If I were the Attorney-General, I would be mindful of the impact that my failure to act would have on free speech in Australia and around the world.

If I were the Attorney-General, I would understand the legality of WikiLeaks’ and Assange’s actions. I would acknowledge the correct legal analysis provided by fellow lawyers in Parliament, Malcolm Turnbull and Shadow Attorney-General, George Brandis, namely, that the publication of classified material of foreign powers – even friendly foreign powers – is not a crime in Australia; nor is it a crime in the United States. I would act in accordance with the legal advice of my own department: the Australian Federal Police concluded Assange had committed no crime.

If I were the Attorney-General I would recognise that, together with the Foreign Minister, the reality is that Assange is my responsibility and without my full support decisive action cannot be taken. I would look to the treatment of WikiLeaks’ alleged source, Bradley Manning, who has been kept in inhumane and degrading conditions for more than 18 months pending trial and would reflect on the international outrage this has caused.

If I were the Attorney-General, I would look to the US treatment of David Hicks - held for years without charge - and I would be proud of my role in campaigning to bring him home. (As shadow Attorney-General, Roxon urged the Howard government “to take urgent action to protect this Australian citizen that they have so far neglected for such a long period of time”.) If I were the Attorney-General, I would maintain my principles more so in government than in opposition: if I can go in to bat for Hicks, then I can go to bat for Assange. I would be baffled at the negligence of our government – and my predecessor McClelland, in refusing to ask even basic questions of the US, UK and Swedish authorities about the legal situation Assange finds himself in. I would ponder the term “the rule of law”, knowing the treatment Assange will receive in the US – and the international condemnation our government will receive for its failure to prevent it.

If I were the Attorney-General, I would consider the ALP’s position going into the next election. Rudd’s stand on WikiLeaks identifies the mood of the electorate. Gillard’s position on Assange and WikiLeaks has seen more votes lost to both the Greens and the Coalition. Votes Gillard, Roxon – and the ALP – cannot afford to lose.

Ultimately, if I were the Attorney-General, I would be moved by what is lawful, right and just. But I am not the Attorney-General – Nicola Roxon is.

That’s just what I’d do.

Jennifer Robinson is a London-based human rights lawyer who advises Julian Assange and WikiLeaks.