Civil Liberties Australiaspacer

CLA Editorial Team

 

By Jennifer Ashton, Director of Civil Liberties Australia

There are about 1111 people left in long-term limbo because we as a nation have failed for years to meet our international commitments.

They are ‘imprisoned’ on islands from which there they have no immediate hope of physical or mental escape, surrounded by a sea of continuing uncertainty.

Australia signed the 1951 Convention on Refugees – which means that Australia has agreed to abide by its provisions.

One basic tenet is the right of a person to seek asylum: that is to try to claim refugee status. All countries which signed the Refugees Convention are obliged to assess such claims. The convention accepts that, as these people may be fleeing persecution, they may not arrive in a conventional manner. For example they may arrive by boat without visas.

Not all countries have signed the Refugee Convention, which means that they do not have a mechanism to recognize refugees. None of Thailand, Malaysia or Indonesia, all transit countries on the way to Australia, have signed (or “acceded” in the formal language), and thus asylum seekers must move to a country where their claims can be assessed. In the whole of the South Asia/South East Asia region, only Australia, Cambodia and the Philippines have acceded.

A person who claims asylum is known as an “asylum seeker”. The asylum seeker undergoes a refugee status determination, conducted by the government of the country in which they claim asylum.

If they meet the grounds for being a refugee – that is, they can prove individual persecution on the grounds of race, religion, nationality, political opinion or membership of a particular group – then they are granted refugee status. For this strict definition, it is not enough that a person has fled war, let alone environmental catastrophe.

In Australia the recognition process can take a year or more. If the asylum seeker is not granted refugee status, then there are a number of avenues of appeal, which can last up to five years! We have a responsibility to protect their physical and mental health while they are in our care.

Photo: A refugee bashed during riots inside the Australian detention centre on Manus.

 

If an asylum seeker does not meet the strict criteria for gaining refugee status (that is, they are not formally designated as “refugees”) they are no longer of concern to the asylum country government. That government has no obligation to protect these people.

They may return to their own country (or in some cases, disappear into the country where they claimed asylum). The International Organisation of Migration (IOM) has a worldwide scheme to help these people return to their home country.

Given the large increase in asylum seekers arriving in Australia from 2010, (48,909 arrived by boat between 2010 and 2013: previously the average had been under 200 a year) the government modified this framework in substantial ways, including mandatory detention and by introducing offshore processing. The UN High Commissioner for Refugees has been critical of these modifications.

Who is now in offshore detention? The figures don’t quite add up, but here goes…According to DIBP* statistics, in “regional processing centres” there are currently (as of September 2017 when the latest statistics were released) 1111 people who have been granted refugees status still in long-term limbo on remote islands by a government and legally committed, under international convention, to process their claims:

  • 742 “transferees” on Manus, and
  • 369 on Nauru.

In total Australia has transferred 2125 people to Manus (770) and Nauru (1355) since 2013. Of these, some 624 have voluntarily returned to their own country.

  • on Manus 253 people failed to achieve refugee status;
  • on Nauru, there were 154 (some of whom have presumably returned to their home country).

Some of the numerical discrepancy will be due to deaths, transfers to Australia for medical reasons, etc.

There are three main countries of resettlement throughout the world with a regular intake quota– the USA (40-80,000 persons), Canada (15,000) and Australia (15,000). Between them, they accept well over 90% of resettled refugees. All other resettlement countries take less than 1000 resettlement cases each annually.

In fairness, some of these countries receive many more applications for refugee status from people who have already entered the country. Sweden, for example has a resettlement quota of 750 annually, but in 2016 also received 29,000 applications for asylum from new arrivals made when they were in Sweden.

The process of resettlement is not fast. In reality, it is painfully slow.

For example, in September 2015 the then Prime Minister Tony Abbott announced that Australia would accept 12,000 Syrian/Iraqi refugees on an emergency basis. That intake has just concluded two years later, in October 2017.   According to US government websites, processing time for resettlement to the USA usually takes 18-24 months from initial referral.

Processing is orderly: a country plans in advance how many and from where it will accept refugees. The relevant Department seeks approval in advance from their parliament of numbers and geographical composition of intake and consequent budget for each year. Parliamentary approval is the political step in what is otherwise a regular bureaucratic procedure. Planning also includes identifying the regional resources required for processing. For example; Canada and the USA accept refugees from Central Asia, such as Uzbekistan and Tajikistan, and schedule regular screening missions there. Australia does not have an intake from that region. Once a resettlement country has made a commitment to accept a certain group of refugees, it is extremely unusual for this commitment to change. 

– UNHCR photo

Refugees refused resettlement with family members

All resettlement countries agree that refugees should be resettled where they have “nuclear family members” (relatives, in simple English), as this retains family unity and helps with integration. So both the UNHCR and the USA were extremely surprised that even men on Manus or Nauru who had wives, children, brothers or sisters in Australia are not being allowed to settle here.

For processing to the United States, all refugees must be interviewed by US personnel to verify their refugee status. They are then subject to vetting and they are checked against data bases of multiple federal intelligence, security, and law enforcement agencies, including the National Counterterrorism Center, the FBI Terrorist Screening Center, and the Departments of Homeland Security, State, and Defense, to determine whether there are security concerns.

As a side note, Rohingyas have inadvertently been one of the more problematic groups to process against these checks, because they share a very limited number of names. There is thus a good chance that their (shared) names will score a hit against a list of known undesirables.

Another check is character. Any criminal convictions will result in an adverse vetting. If a refugee has a communicable disease (such as tuberculosis), chronic mental illness or substance addiction, a waiver has to be sought for their admission to the USA.

The USA develops a resettlement pipeline such that there are sufficient candidates to meet quotas each financial year (for the USA the FY finishes at the end of September, hence the recent hurry to resettle the first 54 refugees – promised to Australia – before October 2017).

In practice, the USA has always had trouble filling its total quota. Thus there are almost inevitably carry-over places available for all refugees who meet their criteria.

In short, I am not concerned about the USA commitment to Australia to resettle as many of the refugees on Manus or Nauru as pass their vetting. They have not given an exact number because, until all checks are completed, they don’t know a final total. PM Malcolm Turnbull has quoted a figure of “up to 1250”.

However, my worries are:

  1. the number of refugees who will be permanently separated from immediate family members already living in Australia (though possibly small in number, this is a major blow to people who wanted to join relatives already here);
  2. refugees who do not meet USA criteria;
  3. the length of time it may take to process applications, prolonging refugee stress/trauma in an increasingly untenable situation (some people claiming refugee status have already been four years in limbo, detained in prison-like facilities); and
  4. the fate of those who have been found not to be refugees. Iranians must be interviewed by their embassy in Canberra to determine whether their return is voluntary. (Iranian officials will not travel to Manus and Nauru and Australia refuses the refugees admission to Australia. Afghanistan does not accept unwilling returnees).

Just in case you think Australia has a big problem with the number of refugees, there are:

  • 14,000 refugees and asylum seekers whose lives are on hold in Indonesia,
  • 1 million Rohingyas living suspended lives under duress in Bangladesh,
  • 5 million Syrians have fled their country, and
  • 5 million refugees in the world (half of them under 18 years of age).

Australia used to boast about welcoming migrants and refugees, absorbing their cultures and becoming a bigger and better nation because of them. In just two decades, we have trashed that great reputation and become known and emulated by right-wing regimes for our cruelty.

* Department of Immigration and Border Protection

ENDS

Jennifer Ashton OAM, a Director of Civil Liberties Australia, is a former Director of Resettlement Operations for UNHCR, where she worked for the past two decades before retiring. In recent years, she has been recalled twice in emergencies to Geneva to direct planning/staffing for urgent Middle East relief projects set up by UNHCR. Earlier in her career she worked with the then AusAID and with Australian NGOs, including in Cambodia (work for which she was awarded the OAM). She was also based for two years in Myanmar on UNAIDS programs.

 

David Eastman was convicted in 1995 of the murder of Assistant Commissioner of Police Colin Winchester. On August 22, 2014, the conviction was quashed and a new trial ordered, by which time Eastman had served almost 20 years of a sentence of life imprisonment. The DPP is proceeding with the retrial. The costs of the retrial are reported by the Canberra Times as something of the order of $27 million. The ACT Budget sets aside $5.103 million for the trial in the current year and in addition $3.028 million is allocated to the Office of the DPP, an undisclosed portion of which relates to the Eastman prosecution.

Why is the DPP proceeding? There are three possible outcomes.

1) Eastman is convicted. As he is now 72 and has already served the best part of a life sentence surely a court is likely to impose no further penalty.

2) Eastman is acquitted. That would raise significant compensation questions which would likely be very costly.

3) A jury cannot agree, in which case there must be a retrial or a discontinuance of the prosecution.

How does the continuance of this case justify its costs? Why is the DPP persisting with the prosecution in light of the above facts?

– G. A. Stretton SC, Canberra (a member of the Canberra Bar)

 

Nov 2017 newsletter: CLA calls for total overhaul in ‘Rebirth of the Nation’

The citizenship-politician crisis is warning and opportunity that it’s time for a complete overhaul of Australia’s Constitution, two centuries after its drafting. We need a new ‘founding deed’.

And the new basic document to facilitate a ‘rebirth of the nation’ should incorporate a Bill of Rights, Civil Liberties Australia says.

Other items in this issue include:

  • Medical students back euthanasia
  • NZ to get Criminal Cases Review Commission: Australia next?
  • New refugee class action may be equally costly
  • Nationalism bigger risk than terrorism: Greste
  • ASEAN summit won’t discuss civil liberties
  • Forensic scientists, prosecutors, lie to court
  • Could this happen in Australia under S-S marriage laws?
  • Quebec opts for full facial disclosure

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Senator David Fawcett
Chair
Select Committee on the Exposure Draft of the
Marriage Amendment (Same-Sex Marriage) Bill
Department of the Senate
PO Box 6100
Canberra ACT 2600         By email: mailto:samesex.marriage.sen@aph.gov.au

Dear Senator Fawcett

Thank you for your invitation to provide a submission addressing the Select Committee’s inquiry into the Commonwealth Government’s exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill (“the Bill”).

Civil Liberties Australia (CLA) supports amendment of the Marriage Act (“the Act”) to provide for same-sex marriage in Australia. This submission does not set out the reasons for this support. Instead, as requested in your letter of invitation, we have specifically addressed below the terms of reference of the Select Committee’s inquiry.

Suffice it to say, however, that CLA cannot see any convincing argument for Australian law to maintain a discrimination against same-sex couples in relation to marriage. CLA urges the Parliament to amend the Act without delay and without recourse to an unnecessary and expensive (and potentially divisive) national plebiscite.

Religious freedom

The terms of reference for this inquiry suggest that the proposed new exemptions in the Bill are designed to “prevent encroachment” on religious freedom as a result of same-sex marriages. CLA’s purpose is to stand up for the fundamental rights and liberties of Australians – and religious freedom is one of these core liberties. However, CLA does not accept that same-sex marriage presents any risk of encroaching on religious freedom.

As such, CLA does not support the exemptions as proposed in the draft Bill.

CLA is a strong supporter of religious liberty as it has been traditionally understood and widely accepted. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) summarises this freedom as:

  • the ability to believe in the God or Gods of one’s own choice, or in no God whatsoever, without interference or risk of persecution, and
  • an ability to practise the core tenets of that religion, either individually or together with others holding similar beliefs.

We do not accept that the marriage of same-sex couples in any way encroaches upon the religious freedom of another person. Put simply, the marriage of a same-sex couple does not affect anyone else’s ability to hold their beliefs or practice their religion.

There has been an argument – mostly put forward in the context of the same-sex marriage debate – to radically expand the meaning of religious freedom. Under this argument, religious freedom requires the secular law of the land (and commercial practice) to bend to accommodate religiously-inspired prejudices or codes of conduct even where those laws do not in any way affect religious beliefs or practices.

Thus, so the argument goes, business operators must be given special dispensation to operate businesses in ways that conform to their interpretation of the doctrine of their particular religion, even though operating a business has nothing to do with belief in a god or the performance of rituals.

This argument goes against the ICCPR which explicitly states that freedom to manifest one’s religion or beliefs may be limited by law where this is necessary to protect the fundamental rights and freedoms of others or to achieve other public policy objectives. CLA strongly believes that laws against discrimination on the basis of sexual orientation fall squarely within the realm of laws that are necessary in this regard.

It also goes against Australian practice where the High Court, for example in the Scientology case, said “canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion”. Unlike in theocracies such as Iran, in Australia religious doctrine does not dictate the secular law.

With these comments in mind, CLA believes the proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations are poorly thought out. They have the potential to lead to unforeseen negative consequences and take Australian law in directions that are contrary to our secular and non-discriminatory traditions.

We believe that the overall intent of the Australian Constitution is quite clear, and provides sound guidance for approaching any proposed law where the outcome could be discrimination against people undertaking same-sex marriage:

  1. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 116 of the Constitution will not permit a new right, under the proposed law, which would impose “religious observance” as a barrier in commercial terms to the traditional rights of people planning to marry (re choice of apparel, cakes, limousines and other niceties of ceremony).

(1) Ministers of Religion

It is not clear why section 47 of the current Marriage Act requires amendment in the way proposed in the Bill. The current sub-section 47(a) already allows ministers of religion to refuse to solemnise any marriage.

This section presumably allows ministers of religion to refuse, for example, to solemnise marriages on the basis of the religion (or lack of religion) of the couple intending to marry. Thus, Catholic priests would be under no legal compulsion to officiate at the weddings of Protestant or Muslim couples.

There is no justification therefore for singling out same-sex marriage for a special exemption as per the proposed new sub-section 47(3) of the Bill.

The purpose of amending the Marriage Act with this Bill should be to confer equal rights on same-sex couples as are currently enjoyed by other couples. In addition, it should provide for equal dignity of same-sex couples – a dignity that has been too long denied in this country by the Marriage Act and historically by other laws and regulations at the state and federal level.

It would be a perverse outcome if the language of the amendment explicitly singled out same-sex marriage because of supposed “injury to religious susceptibilities” of others.

(2) Marriage celebrant

The effect of the proposed new sub-sections 47A(1) and 47A(2) of the Bill is that marriage celebrants would be able to refuse to solemnise any marriage and for any reason. It is not clear why such a wide new exemption is necessary. Leaving aside the question of same-sex marriage, CLA is not aware of instances where marriage celebrants are being forced by the current Marriage Act to participate in marriage ceremonies where they would rather not. And, if such a wide exemption is being proposed, what then is the justification for specifically singling out same-sex marriage in sub-sections 47A(1)(a) and 47A(1)(b)?

If the Parliament decides that marriage celebrants should be allowed to refuse to solemnise any marriages as and when they please in line with the proposed sub-section 47A(2), there is no reason to single out same-sex marriages for a special exemption. CLA therefore recommends that sub-sections 47A(1)(a) and 47A(1)(b) be deleted. As per our comments above, singling out same-sex marriages in this way detracts from the equal dignity of these relationships and therefore defeats one of the central purposes of the Bill.

Furthermore, in the event that the broad exemption set out in the proposed section 47A is established, CLA recommends that the law makes clear that any public official acting as a marriage celebrant as part of his or her official duties should not be entitled to this exemption. The role of a public official is to implement the law, not to pick and choose which laws they will implement.

Australia does not need to follow in the path of the United States where, in the name of religious freedom, some argued that an official in the state of Kentucky, Kim Davis, could hold an official position and draw a salary from the public but still pick and choose which laws she would implement and for which people.

(3) Religious bodies and organisations

CLA does not accept that the exemption proposed in section 47B of the Bill is warranted.

For example, CLA is not aware that religious bodies like churches, temples or mosques have been obliged under current law to make their facilities available to persons, or for the purposes of ceremonies, that do not conform to the religious principles of that body. For example, are churches required by law to make their church halls available for Hindu weddings or other Hindu ceremonies?

Why then is a special exemption required for same-sex marriages?

If the Parliament decides that churches, temples, mosques or other religious facilities require specific exemption in law to allow them to refuse to make their premises available for ceremonies that do not accord with their faiths, this can be provided for in the proposed new sub-section 47(B)(3). With this wide exemption, there is no need to single out same-sex marriages for a special exemption as per the proposed new sub-section 47B(1). As per our comments above, singling out same-sex marriages in this way detracts from the equal dignity of these relationships and therefore defeats one of the central purposes of the Bill.

Furthermore, it is not clear from the Bill what definition will apply to “religious bodies or organisations”. CLA strongly recommends that any such exemption apply narrowly to churches, temples, mosques and other institutions that specifically exist as a venue for worship and religious teachings and ceremonies.

As set out above, CLA rejects suggestions that businesses should be entitled to some form of religious exemption. Again, CLA holds the traditional view that religious freedom applies to one’s religious beliefs and practices, not to the operation of businesses. It does not entitle a person to expect that the law of the land applying to business practices or other public activities will bend to accommodate their religious doctrines where the rights and welfare of other people are affected.

Australia has a lamentable history in taking away people’s rights and dignity based on the colour of their skin, their race, their religion and their sexual orientation. In providing for marriage equality, CLA urges the Select Committee and the Parliament not to establish new grounds for discrimination.

 

Yours Truly

 

 

 

 

Dr Kristine Klugman OAM                                                   Tuesday 10 January 2017

President

 

 

Lead author: Rajan Venkataraman; associate author: Bill Rowlings

 

Media release, Civil Liberties Australia, 18 Oct 2017

Civil Liberties Australia welcomes the decision today by the High Court in support of the personal freedoms of Australians.

Freedom of expression, including in the form of protest, is fundamental to a healthy democracy where ideas are contested.

The laws adopted by the Tasmanian Government were over-the-top and unnecessary and sought to stifle the rights of ordinary Tasmanians to protest about things that affect them and their communities.

 

Photo: Bob Brown and Jennifer Hoyt…together, they took a challenge to the protest laws to the High Court, and won.

 

 

 

 

In striking down the anti-protest laws today, the High Court has illustrated the real need for a Tasmanian Human Rights Act (THRA).

If a THRA was in place in 2014 when the Tasmanian Liberals came to power after 16 years in opposition, they would have had a human rights benchmark to measure their policies against. The THRA would have helped the Government avoid the mess it finds itself in today. The new Cabinet developing the laws would have been able to assess the human rights implications and steer towards a safer model.

Instead of having the benefit of this advice early in the process, they now have the very public and very clear verdict of the High Court that what they did contravenes the right to political communication. Not only would a THRA protect the community from the excesses of government but it would help protect the government from itself.

The campaign for a Tasmanian Human Rights Act has attracted 890 Tasmanian signatures and the support of 19 organisations. The campaign will use the High Court’s ruling as a clear example of the need for human rights laws.

CLA calls on state election candidates to declare now that they will protect Tasmanians’ right to free speech by introducing a Human Rights Act in 2018.

Further comment:
Richard Griggs, Tasmanian Director of Civil Liberties Australia

BACKGROUND – The High Court found today as follows: “Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the C’wlth Constitution.” http://eresources.hcourt.gov.au/showCase/2017/HCA/43

 

By CLA Vice-President Timothy Vines*

The High Court’s reasons for rejecting the Wilkie/AME claims over the same-sex marriage plebiscite appear to be a clear case of the institution forgetting its own raison d’etre.

It leaves our Parliament at the mercy of the government of the day, with no impartial umpire to turn to when its rights and powers are transgressed.

Beneath the passionate public debate over the merits of the same sex marriage (SSM) ‘postal survey’, the High Court’s decision was actually about one of the most important elements of Parliamentary democracy and the doctrine of the Separation of Powers: namely, that the Crown/government must go “cap in hand” to the peoples’ representatives (Parliament) to get approval to spend the peoples’ money.

The English considered this principle so fundamental that they fought a civil war over it in the 17th Century and the reigning English monarch lost his head as a result. (Illustration shows the beheading of Charles I on 30 Jan 1649 at Whitehall in London).

Australia’s Constitution entrenches this principle with two explicit provisions:

  • the first which says that there is only one ‘consolidated’ fund into which all the money collected by the national government must go (ie no secret stashes); and
  • that any withdrawal from this Consolidated Revenue Fund by the Government must be authorised by a law passed by Parliament (called an ‘appropriation’). You might have heard of the largest annual appropriation law: it’s commonly called ‘the Budget’.

So, when Parliament voted down the SSM plebiscite (twice!) you’d think that would be it. No authorisation from Parliament, no appropriation.

Ahh but, as they say, this One Weird Budget Trick™ can help governments get around a pesky Parliament. And, unlike most tricks and life-hacks, this one now comes with the High Court of Australia’s tick of approval.

Its decision seriously weakens the principle that Parliament is the ultimate custodian of the nation’s money and abrogates the High Court’s responsibility as umpire in maintaining the balance of power between the Parliament and Executive.

This was one of the dangers that led independent Member for Denison, Andrew Wilkie, and Australian Marriage Equality Ltd, to separately claim that Finance Minister Matthias Cormann exceeded his powers when allocating federal money for the SSM postal vote.

Cormann and the Coalition government had found a way round having Parliament vote the money to conduct the poll. They plucked funds from the ‘emergency’ allocation bucket set aside in each annual Budget for the Finance Minister to use for ‘urgent’ and ‘unforeseen’ events. You might assume that this emergency fund would be used for, well, emergencies. But it has been raided over the years by the Coalition and Labor governments to fund things from sports halls to the Australian Ballet and the Centre for Rowing Excellence in New Town Bay, Tasmania. Like beauty, ‘urgent’ is in the eye of the beholder.

The government believed it had a major catastrophe on its hands: it couldn’t get its plebiscite legislation through parliament but had to do something about SSM. Its needs were “urgent” so it put its hands in the emergency bucket.

Trickery trumps will of the people

Not so fast, said Wilkie and AME, the government should not be permitted to use trickery to defeat the clear will of the parliament – twice the Parliament has voted down the idea of the plebiscite, now the government is playing the emergency card to trump “the will of the people”.

Here is where we would expect the High Court, the constitutional guardian and watchdog of the boundaries between each branch of government, to step in and adjudicate the law. But alas, the High Court seems to have washed its hands of responsibility.

The High Court decided to leave the Parliament at the mercy of the Executive (ie, the PM and top Ministers in the government) when it comes to safeguarding how money is spent.

The High Court essentially said (at para 91) that if Parliament wants to limit what the government spends money on in the name of “urgency”, then it is up to Parliament to do so, not the High Court.

Which seems to forget what actually led to the SSM postal survey and High Court case in the first place: Parliament voted down the plebiscite twice and wouldn’t have supported a new bill to fund the postal survey. But the government could fund it anyway using the emergency fund included in the main budget bill passed back in May.

The High Court said this was fine because Parliament allowed this budget trick to exist in the first place and Parliament could remove it in the future. This seems logical. It is certainly a nice clean ‘legal’ reading.

But it seems to ignore the inherent imbalance between Parliament and the Executive branches of government in Australia’s ‘Westminster’ system. In Australia (and the UK/NZ/Canada – but not USA) the Executive controls the lower House of Parliament. Moreover, political parties demand iron-clad support from their members so this one House of Parliament is essentially unable to check the government of the day.

Meanwhile the other House, the Senate, can’t (doesn’t have the constitutional power to) amend a budget bill, only block it (as per the 1975 Constitutional crisis). Ever since that 1975 kerfuffle, the ALP has vowed to never block the main appropriation Bill, which means the Senate will never have the numbers to force a change to this newly-endorsed budget trick.

Except in the event of a hung Parliament (where the government of the day doesn’t control the lower house), Parliament will never get back control and be able to place further conditions on this One Weird Trick to prevent any future government from spending money on initiatives that have been explicitly disavowed by the Parliament.

In short, the High Court said that if Parliament and the government have a dispute over their powers, it is for the Hich Court to sort mattersout. Never mind that, in the game of life, it’s not a level playing field or that surely the role of the High Court entrenched in the Constitution is to arbitrate such disputes.

Match result: Executive 6, Parliament 0 (High Court WO = forfeit by WalkOver)

Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40 (28 September 2017)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2017/40.html

* Tim Vines is Vice-President of Civil Liberties Australia. He is currently completing a PhD in Law at the Australian National University.

 

The government, fresh from ringing itself in a steel-fenced citadel, has announced proposed new legal protection to stop fictitious bodies taking over control of the nation. Meanwhile, the politicians meant to safeguard our Constitution are using weird logic to try to safeguard their own positions of power.

Other items in this issue include:

  • Politicians try to twist law to suit themselves
  • Gene developments make new law more urgent
  • Committee proposes better, more rewarding whistleblower protection
  • Should the Senate pass these laws?
  • What you c’n and c’n’t say on a sandwich board
  • Saga set for public run in new stage show
  • Worker has right to private email sex discussion
  • Lobbying adds to cost of drugs

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After much anticipation the letter arrived. I opened it and read the question a first time.

I then wasted time, yelling abuse across the room and acting like a schoolyard bully by calling out childish names. At one point I nearly had to remove myself from the room. My lap dogs seemed amused.

After reading the question a second time I sat doing nothing from four minutes apart from ringing a bell.

I then locked the lounge room door to tick one box. Having performed the duties required of a politician, I resumed my normal adult demeanour.

I now look forward to receiving, in the mail, my parliamentary entitlement.

– Jeff Bradley, CLA member, Isaacs ACT

 
So, Australia & East Timor have reached a “confidential” agreement on a new maritime boundary & how they will jointly develop billions of oil & gas reserves in the Timor Sea … maybe, possibly, perhaps, we’ll see … (“Australia and East Timor strike ‘landmark’ deal to end Greater Sunrise dispute”, Canberra Times, 3 September 2017). I wonder if the new “friendship” also announced between the two nations will be sealed by a public apology from the Australian government for its treacherous behaviour in trying to facilitate the theft of resources from our youngest neighbour for the commercial benefit of private sector interests?
And if such an apology is ever forthcoming, will it extend to the East Timorese government’s legal representative in Australia, Mr Bernard Collaery, whose offices were searched & documents wrongfully seized during a raid authorised by the same individual who had previously authorised the illegal bugging operation? And in the new climate of goodwill between the former protagonists, will the Australian government return the passport of the former ASIS employee who exposed the illegal espionage perpetrated by our “intelligence” agencies?
And finally, now that the dispute between the two nations is allegedly resolved, is it too much to hope that those responsible for bringing our nation into disrepute will be held accountable?
– John Richardson, CLA member, Wallagoot NSW
 

Independent MHR Andrew Wilkie launches a new bid for a national Bill of Rights in Parliament, even as ASIS and other spooks demonstrate increasing control over ordinary Australians. The spooks control passports and overseas travel, even whether you can make submissions to parliamentary committees, one analyst claims. Meanwhile, Australian Border Force is rotting from the inside out, the Australian Federal Police say.

Other items in this issue include:

  • Is Australia going backwards? Treasurer called to account
  • Why do we treat refugees in a sub-human manner?
  • Kirby plumps for online courts for better access to justice
  • One state moves over police complaints, wrongful convictions
  • Support high for euthanasia law
  • AFP probes privacy…when it suits them
  • Judges thwart men’s triple-speak divorce
  • Prisons – in crisis – come under double criticism

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By Garry Stannus*

19 Aug 2017: Round about 50 were there in the little park outside the Tasmanian Parliament. Mainly locals, some from elsewhere in the state and one from the mainland.

It was the vigil for Sue:  Susan Neill-Fraser, who has now been eight years in jail, convicted of the murder of her partner, Bob Chappell, who disappeared from the Four Winds yacht on the Australia Day of 2009 or in the early morning following it.

This vigil had been on my ‘appointment’s list for two months or so, and I was pleased to catch up again with supporters of Sue down in the ‘teeth of winter’, with the snow on the mountains around Hobart quite widespread (I’m from the north).

Photo: Protester’s sign with the latest news…and a call for an independent inquiry. (Pic: Garry Stannus)

Below the mountain, it was ‘Salamanca Saturday’, and the business of the market went on nearby as it always does, rain, hail or shine. We were not there for any reason other than to acknowledge the weight of the eight years so far, the weight shared variously, of Sue Neill-Fraser’s imprisonment and we were there to affirm either or both of two issues:

  1. For some of Sue’s supporters, they know she is innocent. They know it in ways that are for some … quite informed, for others … as a result of knowing her personally, and for others … on the basis of their lifetime experiences in justice and police agencies and lastly, … a combination of all three.
  2. For others who attended – myself included – there are also the wider issues: There is a significant number of people … people who are concerned that Sue Neill-Fraser’s court trial may have miscarried, that a miscarriage of justice occurred during that trial.

That trial was conducted in the court of the (then) Justice, Alan Blow. Alan Blow is now our state’s Supreme Court Chief Justice. Also, he served as our Lieutenant-Governor and in 2014 briefly assumed the role of Governor of Tasmania following the sad death of widely respected Governor Peter Underwood. Peter Underwood too, had been a Chief Justice of our Supreme Court.

I belong to a group of Tasmanians who do not claim to know all the facts surrounding Bob Chappell’s disappearance from the Four Winds in January 2009. We regard ourselves as ‘Supporters of Sue’ because of the perceived defects in her trial. With the deadweight of legal momentum, those defects persisted to her appeal, then to her application for leave-to-appeal to the High Court.

This ‘deadweight of the law’ continued further: when the Coroner was asked to further examine the circumstances of Bob Chappell’s disappearance. Without commenting on the quality of Coroner Hay’s report, I note that the Coroner drew attention to the legal requirement to make findings that were in accord with those of the original trial. Checkmate!

Euchre is a card game in which one suite always wins. In the case of Bob Chappell’s disappearance, the legal/prosecutorial apparatus has always held the trump cards, able to ‘trump’ anything that is presented to it, reaching into the chasms of precedent when required, and seemingly overlooking it when not.

So all ‘Supporters of Sue’ believe that her trial miscarried.

Here is not the place to ask whether Alan Blow wisely – or properly—exercised his legal discretion in refusing to allow that a certain witness to be recalled. However, here is the place where we state that Susan Neill-Fraser had a right to a fair trial and that there are persistent grounds for believing that she did not receive it.

Eight years in … Justice Blow gave her 26 years … which got reduced to 23. Sue maintains her innocence which means she’s got another 15 years behind bars to go.

Confident that justice has taken place?

We in the community have a right to be confident that justice has taken place. We have a right to know when someone is imprisoned, that they have been justly convicted. I make no comment on the recent developments.

Sue’s right to a (second) appeal was begun on ‘fresh and compelling’ material gathered prior to the alleged attempts of others to pervert the course of justice. We cannot – and should not – comment on these recent matters until evidence has been presented and until the courts have decided as to the truth of the Tasmanian Police allegations.

I note that TasPol have on separate occasions stated that there is no claim that Sue Neill-Fraser was part of (or knew of) the alleged recent conspiracy, and secondly, that there is likewise no claim that Barbara Etter had any involvement in, or was party to, the alleged attempts.

My views are shared by others in this state, and wider afield. We are not confident that Susan Neill-Fraser ‘got a fair trial’. We have asked for a second appeal to be allowed, with a view to either a quashing of conviction or a retrial.

Now, given the present imbroglio, and the May request by eminent barrister Robert Richter and two others (in a private meeting) with the Premier, the acting Attorney-General and the Solicitor-General, I personally think that Richter’s suggestion of an independent inquiry into the Bob Chappell/Susan Neill-Fraser case is warranted. Not only warranted, but also required as a means of standing outside the original police investigation, of standing outside the trial and the failed appeal; required so that we have someone – some body – to stand outside this mess and to find answers that will work for all of us.

It may be the case that Richter’s approach to the three government members was based on allegedly perverse evidence. However, regardless of the outcome of the present police arrests/charges, I think that the matter has reached a stage where Richter’s request – rightly or wrongly founded – should be granted.

We are entitled to have confidence in our police, to have confidence in our prosecutions and in our trial systems. At the moment, in my view, we are experiencing a ‘deadweight of the law’, the deadweight of what ‘our mates’ have decided in the past … it’s time, in my view, for a fresh, independent look at this case.

ENDS

 

Garry Stannus is a Tasmanian ’northerner’ who made a special trip down to Hobart for the rally. He is into the environment, politics, tennis, current events and social justice. He loves researching pet topics, especially legal aspects, and slow meanders on a push bike, camera across shoulder. The photo above is also his. This article appeared first in the Tasmanian Times: http://tasmaniantimes.com/

 

Consultation between Department of Foreign Affairs and Trade (DFAT) and community representatives on human rights in Vietnam, 12 July 2017

By CLA Director Jennifer Ashton

Civil Liberties Australia took part in a DFAT consultation in July with civil society representatives in the lead-up to the annual bilateral human rights dialogue with Vietnam in August 2017, the 14th such dialogue with Vietnam since the exchange began in 2002.

These and similar meetings comprise a slice of the behind-the-scenes work put in by key non-government-organisations (NGOs) which often goes unnoticed and certainly is unrewarded by the government.

Australia holds bilateral human rights dialogues with Vietnam, China and Laos. DFAT is negotiating with a fourth, yet-to-be-announced, country on establishing a similar mechanism.

The recent NGO-DFAT meeting began with the announcement that Australia was now almost assured of a place on the UN Human Rights Council. Three contenders had been battling – diplomatically – for the two seats available (France, Spain and Australia) but France withdrew its candidacy in early July.

Meeting participants came mainly from Vietnamese community groups, with NSW, Victoria and South Australia all represented, one representing a national minority, the Kampuchea Krom community of the southern delta. Other organisations attending were the National Council of Women, Reprieve (against the death penalty), the Bahai, Law Council of Australia, Civil Liberties Australia and the Australian Association of Former International Civil Servants. Both DFAT and the Human Rights Commission attended.

DFAT pointed out Vietnam has the fastest-growing economic partnership with Australia, with economics now of far more importance than technical cooperation. Australia is one of a group of countries, with Norway, USA and the EU, which conducts the human rights dialogues. They are frank, cover difficult topics and, by holding Vietnam to account, may have some influence on policy development.

Nonetheless, respect for rights in Vietnam appears to be deteriorating by way of increasing arrests, arbitrary detention, lack of freedom of expression and harassment of bloggers and human rights defenders including through physical assault and bans on international travel. However, there are some areas of at least modest improvement in LGBTI rights, women and children, religion, and early release of some political prisoners.

It is to be hoped that the rights of the elderly can be incorporated into the dialogue agenda, given that there seems to be more scope for improvement for social groups. Although there is a tradition of respect for older persons, the combined forces of modernisation and the aftermath of a two-child policy could make older persons more vulnerable than in past decades.

Each Vietnamese group had prepared detailed submissions for DFAT and reiterated the finding of continued persecution of individuals and entities. Many mentioned Mother Mushroom, a blogger who wrote parenting tips until she visited a hospital and was appalled by the treatment of those unable to pay; she was temporarily arrested in 2009 for writing about the environmental impact of a Chinese-owned bauxite mine and was finally jailed for 10 years in 2017 after trying to visit an imprisoned political activist.

There were calls for increased contact with civil society.

Photo: L to R: Voices’s representatives Giang Nguyen and Anna Nguyen with Thi Kim Lien Nguyen.

Delegates to the meeting raised the Formosa environmental disaster. A Taiwanese steel manufacturing company spilled toxic waste into the sea that resulted in massive fish death – could Australia provide assistance for the victims, including to obtain government redress? The Vietnamese Women of NSW called for a ban on fish sauce importation. For those who use fish sauce, you will be pleased to know that there is now a ‘Vietnamese’ brand being manufactured in Sydney. DFAT reaffirmed its new focus on business and human rights as a possible mechanism for broaching environmental issues.

Voice, an international NGO, brought along Mrs Nguyen Thi Kim Lien, mother of prisoner of conscience, Dinh Nguyen Kha, who is currently serving a six-year sentence for distributing pamphlets critical of the Vietnamese government. The exemplar of the suffering mother, she thanked Australia for its efforts to date. Voice called for asylum for political prisoners and noted the need for visits to prisoners.

Interestingly, the Kampuchea Krom put forward a plea for indigenous rights and spoke of desecration of monuments (the gates to their region), arrest of religious leaders and non-recognition of traditional land rights of monasteries.

After the meeting, I asked some of the participants about the Montegnards, a group of hill tribes who have been resettled in North Carolina USA. This group, which had helped the US during the Indo-China war, have been the subject of much of the documentation emanating from the USA on human rights abuse. The general feeling was that the Kampuchea Krom have yet to be recognised as an indigenous people; the Montegnards have their ethnic rights respected.

CLA and Reprieve both affirmed that common ground could be found between the more general human rights groups and those specifically focused on Vietnam.

CLA President Kristine Klugman commented on the value in NGO representatives meeting with the Vietnam delegation when they visit Australia, citing the very successful meeting with the Chinese delegation previously, when the issue of the death penalty was raised, and the Chinese stated (publically for the first time worldwide) that abolition of the death penalty is the aim of the Chinese government.

 

By Ben Aulich

For more than 100 years, the word ‘defamation’ has carried the clear understanding that the legal battleground under consideration was dominated by the mass media – newspapers, television and radio and their concurrent website publications.

For all of that period, the agitation for law reform has come from the proprietors of those same mass media – Fairfax, Packer and Murdoch. The issue, as they saw it, was freedom of the press – a catchcry debunked by the great American humorist AJ Liebling who noted that:

”Freedom of the press is guaranteed only to those who own one.”

Certainly, defamation law has never been entirely about the press barons’ rights. There have always been mini-media defendants: the authors of libellous letters, slanderous gossips… even graffiti taggers.

Now the Australian courts are under attack for their “lack of agility” in coming to terms with the avalanche of defamation spewed out in our social media. The claims for damages are shouldering aside conventional defamation suits and threatening to clog up the court lists.

Landing in a litigation cost-for-all

It is painfully obvious to the solicitors to whom clients bring screen-shot examples, and ask to be advised about their rights, that it simply doesn’t occur to the authors of so many Facebook and Twitter character assassinations that their hasty and often malicious comments are liable to land them in a great deal of very expensive litigation.

It’s not just at that level – there is a massive amount of actionable defamation to be found on websites that invite customers and clients to comment on their experiences with doctors, architects, lawyers, hairdressers and other businesspeople.

So, before you let fly at your neighbour about leaving his bins out all week and accuse him of bad citizenship or worse, here’s a little guidance: defamation for beginners.

The most common question posed by solicitors’ clients is whether the matter appearing on Facebook or a word-of-mouth blog is defamatory.

Usually, that is hardly the issue. Most people, including clients, can tell whether something is defamatory. The classical legal test is whether the words in issue tend to lower the aggrieved person in the opinion of reasonable members of the community – or, put simply, the question is does the post denigrate him or her?

Not the words, but the meaning

The next task for the lawyer is to formulate the meaning conveyed by the words. A plaintiff in a defamation action sues not on the words themselves, but on their meaning, and such meanings are almost invariably written between the lines. If a tweet advises readers not to leave their wallets lying around if John Smith’s in the room, the meaning on which Mr Smith’s lawyers will fight the case is that the words impute that he’s a thief.

Which brings me to the matter of imputations, or meanings. To stay with poor old John Smith, if the tweet is in the words: “Smith is a thief”, the court case will be about whether or not that simple statement is true.

More often, the words will be: “I hear that John Smith was dismissed from his employment after allegations that property had been misappropriated”; in which case the imputation is: Smith is a thief.

There is a good deal of sarcasm in social media attacks. If the words are “Of course it is not for me to say that Smith is a thief”; or even “There is no truth in the rumours that Smith is dishonest”; or perhaps “When asked whether he was a thief, Smith had no answer”, the same meaning – that Smith is a thief – will express the “act or condition” that is conveyed by the words, and for which John wants damages.

Since 2005, Australia has had the benefit of a more or less uniform law of defamation in every state and territory.

Tweets girdle the earth

Which is just as well, because a Canberra tweet is certainly going to be read in NSW, and Victoria, and even outside this country. At least the legal defences available are consequently uniform, and lawyers can advise those responsible for the publications on their chances of succeeding: substantial truth of the meaning of the words is the best defence, and applies everywhere; and the other strong defence (if it fits) of “it was my honest opinion,” or a fair comment, can be invoked in every jurisdiction.

Just a quick aside: even what is intended as a joke can be defamatory. The legal principle was established long ago that “a person shall not be allowed to murder another’s reputation in jest.”

Now some inside knowledge that may help, if you have it in mind to get square with the people next door for their offensive bin-handling. Your intended tweet: “Our neighbours are letting down the whole street with their I’m-all-right-Jack attitude” is going to be the subject of legal advice, along these lines:

  • How serious is it? A good question, because sensible advice is that some defamations are best allowed to pass through to the keeper.
  • How many people read it/saw it/heard it? Even if it’s fewer than a dozen recipients, damages for a very nasty comment could be within the $50,000-$100,000 range.
  • How long before we go to court? Time is always on the defendant’s side. The question is whether waiting one or two years is worth the worry.
  • Can I afford to sue? All litigation is expensive, and victims of defamation not infrequently have to come to an arrangement to pay their lawyers once they’ve won the case. The reality is that lawyers have to back their own judgment.
  • Will I win? This involves whether the meaning of the words can be proved substantially true, or – being false – whether the author acted reasonably in putting them out there (which won’t work for an indiscriminate publication), or whether the court can be persuaded to see them as a fair comment. That’s a great deal harder to do than most tweeters think. How is the reader to know it’s fair enough if the facts aren’t also featured in the words that appear?

Many defamation victims rush in to see their solicitors, breathing fire… but that fire dies down quickly. The best advice is often to advise to put the defamation aside for a fortnight, and then to reconsider suing. In the meantime, a solicitor’s strong letter to the offender may succeed in removing the defamation from the site. It is quite surprising how many clients decide they would rather forget it.

On the other hand, some libels are so bad, so obvious, and so indefensible that immediate action assists with the damages – because it shows the degree of hurt to feelings, and that the plaintiff did everything he or she could to obtain a retraction and apology.

Bloggers and tweeters almost never seek legal advice before they send their defamatory messages. They, obviously, are the ones who would benefit even more from a cooling-off period before they rush into print.

ENDS

Ben Aulich is a partner of Aulich Civil Law Pty Ltd, and a member of CLA. This article appeared first in the Canberra Times on 12 August 2017: http://tinyurl.com/y8n96q9u

 

 

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