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Tuesday, 1 April 2008

Pine Gap 4 and the law

Interesting exploration on the ABC Law Report program this morning on the legal fall out from the prosecution launched against the Pine Gap 4 following their attempt to conduct a citizen's inspection of the site.

The Northern Territory Court of Criminal Appeal quashed their convictions.

Ron Merkel who argued the case for the Pine Gap4 in the Court of Criminal Appeal observed:

The real problem there is that if the Commonwealth want to institute a prosecution, raising as one of the central elements of an offence a trespass on a defence facility, it throws open the question of whether it was in fact a defence facility, that is, something necessary for the purposes of defence of Australia. If it does that, it has to allow the accused to challenge that fact if there is a bona fide dispute about those matters, which there clearly was in the present case. If it wishes to use public interest immunity, the problem is it can't really have it both ways; it may be able to claim public interest immunity, but if that prevents the fair trial of an accused of an offence, then the court in those circumstances may be prepared to stay the prosecution permanently, because there can't be a fair trial. But this case never really got to that stage because of the trial judge's approach to the facts which took it away from the jury.

Damien Carrick: Bryan Law, you're planning to go back to Pine Gap on Anzac Day later this month. What do you think will happen to you there? You've had one rumble with the law; do you think you'll be charged again?

Bryan Law: Well, we'll be challenging the government to charge us under the Defence Special Undertakings Act and put some of these legal issues to challenge again. I would expect to see a heavier police presence this time and a more constructively thought out security response from Pine Gap. We've invited the Minister for Defence, Joel Fitzgibbon, to have a dialogue with us about the role of Pine Gap; we haven't received a response from that. But realistically I'm expecting the government to back down. I think that they won't touch the DSU legislation again with a 40-foot pole, and that we'll be charged under the Crimes Act with minor offences of trespass, and let off with fines.

Damien Carrick: They won't charge you under the Defence Special Undertakings Act 1952 because what's just been decided, or just been made clear in the judgments, that if they do then they will have to establish for the court that Pine Gap is a prohibited area necessary to the defence of the Commonwealth, and they'd have to then go in and talk about, articulate, argue, tell the court what it's role is and how it fulfils that brief.

Bryan Law: Yes, we would be able to bring into the court documents created by the government discussing the role and function of Pine Gap, and that would be the first time those documents would come before the Australian people for public attention. If we could get those documents out into the light of day, we would get a decent public discussion about the role and function of Pine Gap and my guess is that within ten years it would have changed dramatically.

Damien Carrick: So the irony here is that you'd love to be charged under this what you describe as 'draconian legislation' because it would offer you a platform to discuss and debate the role of Pine Gap in a public forum.

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