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Moti case highlights pitfalls of global policing

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THE decision to permanently stay sex charges against former Solomon Islands attorney-general Julian Moti has important implications for the way Australia conducts its relations, particularly with the so-called fragile states in the Southwest Pacific.

Moti, an Australian national, was facing seven counts of unlawful sexual intercourse with a 13-year-old in Vanuatu and New Caledonia in 1997, accusations for which he was already acquitted in Vanuatu.

The Australian Federal Police's decision to reopen the case in 2006 turned into a prolonged diplomatic crisis between Australia, Solomon Islands and Papua New Guinea, with then Solomon Islands prime minister Manasseh Sogavare repeatedly refusing to hand Moti over to Australian authorities. 

When the Sogavare government fell in December 2007, incoming Prime Minister Derek Sikua immediately deported Moti to Australia where he sat trial.

Regardless of how it will be perceived in the Pacific, Moti's acquittal raises important questions about how the Australian Government operates in the region and particularly the AFP's involvement in state-building operations. 

The AFP's recent expansion into international policing has not been matched by an upgrade of the agency's political accountability or transparency requirements. 

Thus, its conduct on offshore deployments remains subject to allegations of political interference.

Though Queensland Supreme Court Justice Debra Mullins thoroughly rejected Moti's lawyers' claim that the charges against their client were politically motivated, she nevertheless criticised the AFP's handling of the investigation. ‘

In particular, she drew attention to the fact that the AFP had provided financial support to the complainant and her family, describing it as an "affront to public conscience". 

Indeed, in the Pacific and particularly in Solomon Islands the Supreme Court's decision to acquit will be read as reinforcing the widely held view that the AFP's involvement in Moti's apprehension was politically motivated. 

And in politics, as always, perception is everything.

While the Moti affair is an episode the AFP would like to forget, it demonstrates the potential pitfalls that can accompany the agency's new international policing role. 

It also brings into question the suitability of a legal and regulatory framework designed in the context of domestic policing to the AFP's new international policing role.

As a police force in the Westminster tradition, the AFP has historically been independent from government and subject to Australian law. 

While Home Affairs Minister Brendan O'Connor is empowered to issue ministerial directions to shape priorities, in its day-to-day operations the AFP is autonomous. 

From 2003, however, the AFP has become a key player in the planning and implementation of Australian state-building operations in the South-West Pacific and South-East Asia, changing the name of the game. 

This expansion into international policing was cemented in 2004 with the establishment of the International Deployment Group within the AFP – a 1000 strong paramilitary force designed specifically for off-shore interventions.

Operating outside the territorial boundaries of Australian jurisdiction now clearly goes beyond the AFP's traditional law enforcement role, generating new legal, operational and political challenges. 

Yet, in these new activities the AFP has managed to retain its operational autonomy despite the massively changed circumstances in which police power is exercised.

This much was recognised by former AFP commissioner Mick Keelty, who in 2006 said that through its new state-building responsibilities his agency had entered a "foreign policy space".

In a foreign policy space, he argued, policing could easily become politicised as corrupt political and business elites and other vested interests seek to resist the establishment of functioning criminal justice systems that could jeopardise their privileged positions.

As a consequence, the Australian government has insisted that legal immunity provisions are entered into law by the legislatures of the intervened states as a precondition to deployment.

When the Papua New Guinea Supreme Court declared in 2005 that such provisions were unconstitutional, the AFP contingent of the Howard government's Enhanced Co-operation Package was hastily withdrawn. 

And when Sogavare announced his intention to set up a parliamentary commission of inquiry into the AFP's conduct during the April 2006 riots in Honiara, Keelty said the insistence on immunity was vindicated.

Regardless of whether legal immunity is operationally justified, the upshot of this arrangement is that Australian police officers are tasked with enforcing laws to which they are not accountable and with building criminal justice systems of which they are not a part. 

In fact, there are no means by which the government or people of an intervened country could hold the AFP's conduct or individual officers to account, not least because there is an almost complete lack of transparency surrounding the decision-making process within the AFP.

This lack of transparency or accountability has led to accusations of political bias. 

The decision to reopen the case against Moti, for example, was seen by many in the region as a cynical attempt to force the hand of the Sogavare government into co-operating with the Australian-led Regional Assistance Mission to Solomon Islands. 

This perception was reinforced by the fact that between 1997 and 2006 Moti had entered and left Australia numerous times without any problems, visiting family and even lecturing to law students at Bond University on the Gold Coast.

It is not that the AFP's lack of accountability has gone unnoticed. 

The Clarke commission of inquiry, which was established following the bungled investigation of Indian doctor Mohamed Haneef, has recommended in late 2008 that a special joint committee is set up in parliament to monitor the AFP, particularly in areas such as counter-terrorism and international policing in which new powers challenge the agency's established law enforcement role. 

However, despite Attorney-General Robert McLelland's in-principle adoption of the Clarke report, parliamentary supervision has not yet been established.

The Moti case, though played out in the more traditional environs of the Australian justice system, nevertheless highlights the need to establish stronger political regulation of international policing activities. 

Ideally, the AFP should be accountable to the people and governments of the countries where it operates, but since this is unlikely then at least to the Australian legislature. 

Otherwise the AFP is exercising power without responsibility and this is clearly not in the interests of Australians and Pacific islanders alike.

 

By SHAHAR HAMEIRI*
Writing in the Melbourne Age

•Dr Shahar Hameiri is a lecturer in international politics and fellow of the Asia Research Centre at Murdoch University.