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What the Fiji Sun refused to publish: Dodgy Australians and Kiwis abroad 16 June 2012.


[When I, a Fiji citizen, was recently attacked in a full-page the Fiji Sun article by a non-citizen, I requested a “right of reply”.  The Editor initially agreed to a short piece which I sent (see below).  The Editor eventually decided not to publish it, without any explanation to me.]

Dodgy Australians and Kiwis abroad

Professor Wadan Narsey

  The Australian Government’s failed attempt to charge Julian Moti for “Child Sex Offences outside Australia”, raises a wider legal question regarding Australian and NZ citizens who commit, or aid and abet other illegal activities in foreign countries.

Under the Australian Criminal Code Act 1995 (Division 272 and 273), Australian citizens, residents and corporations may be charged for Child Sex Offences or child pornography or child abuse material, even if committed outside Australia.

The offences also include “benefiting from, encouraging or preparing for sexual offences against children outside Australia”.

The logic behind this legislation is quite sensible: Australian citizens are not only entitled to the protection of the state in Australia and abroad, but are also required to be responsible when abroad, to follow the laws of the host country, and of Australia, and not engage in child sex activities which are illegal in Australia.

So why does Australia not have comparable legislation for other illegal activities abroad, which would be considered criminal, if committed in Australia?

FNPF’s foreign consultants

  One consultant was from a prominent Australian firm, hired by FNPF to provide technical assistance on the reforms of the FNPF Act, and the other was from a NZ university, hired by FNPF to develop actuarial and data analysis capacity.

It is quite acceptable if these consultants’ role had been only to offer technical consultancy services to FNPF, for lawful policy formulation and implementation.

But these consultants put out a media statement (on 17 Dec 2011) which effectively justified a Regime Decree whose very legality was being challenged in the High Court through the Burness/Shameem case.

The consultants alleged (Myth 2 about the proposed FNPF reform) that the FNPF was “not breaking contracts with pensioners”; but paying the pensioners an annuity because the “Minister” decided what annuity they should receive under the “old Act”, and when the “old Act” was “abolished” by the 2012 Military Decree, then the pensioners’ entitlement also vanished.  They claimed “The legal correctness of this analysis has been confirmed by the Solicitor General”.

The issue is not whether their interpretation was correct or incorrect.  The real issue is whether they were in contempt of the Fiji High Court, which had already accepted that case, and set a date for the hearing, to decide that very issue.

Consultants’ employers abroad

  There is a much broader issue here for the Australian and NZ governments, whose companies operate under illegal regimes abroad, whether in Fiji or elsewhere.

The Australian consultant for FNPF worked for a global company with offices all over the world, and whose website prides itself on “unparalleled regulatory credibility and insight”, presumably also counting on independent judiciaries to adjudicate any disputes they might have with governments.  The other worked for a reputable NZ university.

Why were these foreign citizens justifying a Regime’s Decree which effectively eroded pensioners’ basic human right to personal property; removed the pensioners’ legal case already before the High Court thereby denying their basic human right to take their just grievances to court, compromised the independence of the judiciary and the High Court judge hearing the case; and why were they willingly taking part in media campaign by FNPF, knowing that all opposing statements by the pensioners’ lawyer, academics, and even letters from aggrieved pensioners, were being censored in the Fiji media?

The pensioners’ lawyer (Dr Shaista Shameem) was reported (on the Fiji Pensioners’ Website) as being “certain that neither (the consultants) nor indeed the Solicitor General … would be allowed to get away with this type of blatant abuse of power in their own countries, namely Australia and New Zealand”.  She noted that “The NZ Law Society has already commented on Decree No 51 as purposely interfering with the power of a judge to decide a case already in the High Court.”

So the real question is, why do Australia and NZ not have laws that discourage such unethical behavior by their own citizens’ abroad which would not be allowed in Australia or NZ (as they do with respect to child sex offenders)?

It is contradictory also that Australia and NZ at the same time impose sanctions on ordinary Fiji soldiers’ relatives (such as rugby and netball players), who cannot be held responsible for the actions of their relatives, while refusing to apply any sanctions on their own citizens helping illegal activities abroad.

Unfortunately undesirable activities by Australian and NZ citizens in Fiji are not isolated cases.

Many took key employment positions in the judiciary, civil service, statutory corporations and boards, perhaps excusable when the Gates, Pathik and Byrne 2008 judgment gave them some semblance of legality.  But that all ended with the watershed 2009 Court of Appeal judgment.

Yet many continued to implement the draconian media censorship, some assist with the judicial implementation of military decrees which undermine basic human rights; and some help to deny Fiji citizens their property rights in Fiji, while enjoying all these rights themselves in Australia and NZ.

Of course, it would be difficult to prove in a court of law that they are “aiding and abetting criminal activities”, in some clear way.

But it would at least give those Fiji citizens and foreigners whose property rights have been hurt in Fiji by the actions of Australian and NZ citizens, and who are prevented from seeking legal redress in Fiji, an avenue to seek redress in Australian and NZ courts, against the assets of those doing them harm in Fiji.

Just the existence of such Australian and NZ legislation would discourage their own citizens from supporting illegal activities abroad which, in resource rich countries like PNG, West Papua Solomon Islands, and Fiji, have a very real possibility of  worsening the “arc of instability” that is already a nightmare for Australian foreign policy.

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