The Shanghai trial of Rio Tinto iron ore negotiator Stern Hu and his colleagues Liu Caikui, Ge Mingqiang and Wang Yong, on charges of bribery, has been given plenty of media attention in Australia in the past week. Coverage has been focused on the vagaries of the Chinese justice system, its secretiveness and the fact that it does not, in the eyes of many, measure up to Australian legal practice. But such a sense of triumphalism on the part of Australia should be tempered by the reality that elements of its much vaunted English common-law tradition are also less than transparent and fair to an accused person. Much of the criticism in Australian political and media circles has focused on the fact that parts of the Hu trial were held in secret, and that Australia was denied consular access to Hu, an Australian citizen, when the court was in closed session. Greg Sheridan, writing in The Australian, went so far as to assert that 'every serious observer knows that there is no integrity in the Chinese legal system'. There is no doubt that China's legal system is open to corruption and politicisation. But, for Australians to complain about secrecy and closed courts in the Rio Tinto case is to conveniently ignore the fact that, under post-September 11 anti-terrorism laws, similarly draconian procedures are available to prosecutors and courts in Australia. In the past decade, these procedures have been invoked in a number of terrorism cases in Australia. And what are they? By invoking a claim of 'national security', government lawyers can produce secret material in affidavits that can be kept from defence lawyers. Judges and magistrates are allowed to have access to this secret material, however, and can make decisions based on it without having to give the person charged or being investigated a chance to respond. The Australian government can also be represented in any terrorism trial and can prevent defence lawyers from asking questions without getting the written approval of the attorney general if the question is deemed to be entering into the territory of 'national security'. Courts can be closed to the public in terrorism cases, again where government lawyers invoke national security issues. And access to evidence can be restricted to lawyers who agree to undergo rigorous national security checks. National security is so broadly defined - it simply means 'Australia's defence, security, international relations or law enforcement interests' - that it allows plenty of scope for government lawyers to turn Australian court hearings into secret trials. Australia's anti-terror laws also allow for control orders, which curtail the movement of people, to be made against individuals even though they have not been charged with a crime. These orders can be made on an interim basis without the person targeted by the order being present in court or having any knowledge of the hearing. They are simply made on the evidence of police and security agencies. One Australian judge has said of the national security laws 'procedural fairness is reduced, in practical terms, to nothingness'. And even in commercial disputes, courts sometimes throw a suppression order over proceedings so they are secret. As the Sydney Morning Herald reported recently, a Rio Tinto subsidiary was involved in one such case in 2002 where it prevented details of its diamond mining business being reported by the media. In short, the legal systems of such democratic countries as Australia, the United States, Britain and Canada - which have all invoked similar laws in the past 10 years - are no paragons of transparency and fairness in dealing with sensitive matters. Solemn lectures from Australian commentators and politicians about the foibles of China's legal processes are immediately undermined by virtue of the fact that secrecy is something that both systems have in common when it comes to matters of what might be broadly described as the 'national interest'. Greg Barns is a former political adviser to the Australian government and is a lawyer specialising in criminal law and human rights
