Andrew Hastie

The decision on Tuesday by Liberal MP Andrew Hastie to name Australian citizen and businessman Chau Chak Wing as an unindicted co-conspirator in a US court prosecution, was in defiance of US Department of Justice guidelines and showed a contemptuous disregard for Chau’s rights. Don’t be surprised if you hear that Hastie is requested to give evidence before a US court and asked to explain his actions.   

Hastie, the chair of the parliamentary intelligence and security committee says that Chau is in fact “Co-Conspirator 3 or CC-3” in a case concerning the alleged bribery of former president of the UN General Assembly John Ashe. A recent meeting with US intelligence officials led him to confirm that CC-3 is Chau.

Leaving aside the diplomatic foolishness of Hastie’s actions and his dismissal of Chau’s rights, there are other serious problems with his attention-grabbing speech.

Labeling an unindicted co-conspirator is a practice used in the US, whereby a person is named as part of a criminal conspiracy but is not formally charged with any offence. Such a beast does not exist in Australia, and for good reason; it has been routinely criticised by US courts as being grossly unfair, as people named in this way cannot give evidence or clear their name. In 1975, the US Fifth Circuit Court of Appeals, one of the leading courts in the US court system, approved a statement made by the Florida Supreme Court, which colourfully described the problem with the practice:

The medieval practice of subjecting a person suspected of crime to the rack and other forms of torture is universally condemned; and we see little difference in subjecting a person to the torture of public condemnation, loss of reputation, and blacklisting in their chosen profession … The person so condemned is just as defenseless as the medieval prisoner and the victim of the lynch mob …

The practice is frowned upon so much that the US Department of Justice has issued guidelines that prevent the naming of people in this situation. The US Attorney’s Manual states:

In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments … Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfil any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with ‘another person or persons known.’

In other words, what Hastie has done is blatantly in breach this wisdom. There was no “significant justification” for doing so.

What is also troubling is that it appears officials of the FBI or some other law enforcement or intelligence agency have also broken their own guidelines in providing the information to Hastie.

Sure, Hastie is not a US attorney, but Hastie is a legislator who should uphold the rule of the law and be particularly cautious in trashing the reputation of others who cannot defend themselves publicly. Now to see if Chau’s lawyers subpoena Hastie, compelling his attendance in court for a “please explain”.