Julian Moti

Story by Susan Merrell

Aussies not aiding Solomon Islands to uphold the rule of law

Canberra: In Australia’s High Court last week, Justice Heydon, one of seven judges hearing the appeal of former Attorney General Julian Moti, conceded that although Moti’s 2007 illegal deportation from the Solomon Islands was a decision of the Solomon Islands’ government, Australia failed to fulfil its mandated role (under RAMSI).

“We [Australia] went to the Solomon Islands in order to restore the rule of law,” he said.

“What happened on 27 December [the illegal deportation] did not involve the Australian Government participating in a process of restoring the rule of law.”

Moti was in court appealing for a permanent stay of prosecution as redress for Australia’s alleged abuse of executive process – i.e. deportation, in contravention of a court restraining order that gave him 7 days to appeal.

Also in court both days observing proceedings was Solomon Islands High Commissioner BerakiJino.

The 2007 deportation led directly to Moti’s subsequent arrest in Brisbane and brought him wrongfully into the jurisdiction of the Australian courts.

Ian Barker QC for Moti, argued the Australian authorities ‘connived and colluded’ with the Solomon Islands government to effect what counsel described as an “abduction.”

Commonwealth Director of Public Prosecutions (CDPP) argued to the contrary that Australia was rightfully disinterested in the internal processes of another sovereign governmentand evidence was led includingofficial emails to Australian personnel in Honiara telling them to maintain the correct protocol and not become involved in the Solomon Islands deportation process.

However, there was competing evidence that these directives weren’t obeyed – including correspondence by AFP officers and other officials discussing and making arrangements for the departure of Moti via deportation.

Canberra’s wrongful involvement was further highlighted by a travel document emanating from the Australian High Commission, issued via instructions from the Australian capital.

It was issued without the request of Moti and was the document that facilitated the deportation.

The Justices questioned whether the Australian authorities could and should have denied supply of this document as they were aware of the illegality of the process it would serve.

CDPP argued that the Australian authorities, in issuing the document,were acting on legal advice from the Solomon Islands that the deportation was legal.

In response, Justice Heydon said the legal reasoning behind the advice was ‘laughable’ and furthermore that the Australian authorities had never accepted the veracity of that advice “for a moment.”

Justice Susan Kiefel, commented that given that the Australian authorities had the choice to deny issuance of the document, especially as they knew it was to carry out an illegal activity – that “…in that exercise of choice there may be the collusion.”

With the full bench of the High Court not calling for any evidence from the Commonwealth Director of Public Prosecutions (CDPP) on the second ground of appeal – the excessive payments to witnesses, making it likely that this ground will be thrown out – Moti’s case will be decided on Australia’s inappropriate’collusion’ in the unlawful deportation process.

The court reserved its judgment and a verdict is expected in the coming months.

Should the appeal be upheld, Moti will be granted the permanent stay of prosecution if not, the court case emanating from the 2006 charges of child-sex tourism from an alleged statutory rape in Vanuatu in 1997 will go ahead.

First published in the Solomon Star – Monday 8 August