Civil Liberties Australiaspacer

CLA Editorial Team

 

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

 

 

 

Why does Donald Trump’s popularity remains solid among his supporters? Until 2015, it was the mainstream news media (MSN) that made or unmade parties and political leaders in democratic nations. The MSN expressed its abhorrence of Trump as soon as he announced his candidacy for the presidency of the USA. Interestingly, Trump had an equally powerful instrument at hand to tell the world his simplistic ideas in short soundbites intelligible to his constituency: Twitter. Trump outwitted the MSN and even the powerful Hillary Clinton by using his Twitter messages. While Clinton spent hundreds of millions of dollars on ads in the MSN, Trump used dirt-cheap Twitter to tell millions of followers his policies or views on airy nothing. His followers lapped this up with great delight. Who wouldn’t love and feel proud to receive a personal message on their device from the future president himself?

– Bill Mathew, CLA member, Melbourne Vic

 

By Jyoti Haikerwal

Patents protect our intellectual property, but who is going to protect our health?

Patents in the medical field are very common in Australia and around the world. Patent protection has been awarded over many things – surgical and medical equipment as well as pharmaceuticals (i.e. medicines). However, patents can be awarded, not just over ‘things’ but a ‘method’ of doing something, and this is an area which still remains unresolved even after a series of High Court of Australia decisions.

Should patents be awarded over medical, diagnostic or surgical techniques (MDST), that is, over the very way surgeons and doctors practise their medicine?

In Australia, section 18 of the Patents Act 1990 – as interpreted by the courts – sets out what can be patented and what cannot. Medical methods already seem patent-eligible. In 2013, the High Court considered in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (Apotex) that section 18 of the Patents Act 1990 (Cth) could be interpreted to allow a patent over a method of applying a treatment cream for psoriasis, and therefore established the prospect of MDST patents. Note, this patent was over the method of applying to cream to treat a medical condition – not a patent over the medicinal cream itself. 

But what is wrong with having MDST patent protection?

The right to health is a fundamental human right. Australia is party to a number of international human rights treaties that define and encompass the right to health. However, as with all human rights in Australia, there is no nationwide law enshrining that right. Even in the ACT and Victoria, which have their own Charters of Human Rights, the right to health is not specifically protected.

The right to health has been defined by the UN Committee on Economic Social and Cultural Rights as the right to be able to access the ‘highest attainable health’, rather than the right to be healthy. The right to health encompasses an entitlement that each human being has access to a health care system that exhibits equality and affordability in the standard of care to be delivered.

Despite the lack of a national Charter of Human Rights, it may be argued that the right to health in Australia is manifested in Medicare’s principles which promote access to the health care system free of charge for those in medical need and equitable access to clinical services. Currently Medicare provides universal access to free health, via public hospitals, and subsidised medicines and outpatient services via the Pharmaceutical Benefits Scheme (PBS) and the Medical Benefits Scheme.

The potential danger of patents (which are in reality monopolies) to the right to health can be seen in their impact on the PBS. The PBS is described as a scheme which ‘ensures timely access to medicines that Australians need, at a cost individuals and the community can afford.’

However, because of the costs patent-holders can charge for their medicines, adding new medicines to the PBS increases the cost of the PBS: meaning either the community has to pay more, or that fewer new drugs are listed (and, even if listed, only available for a small number of people who might benefit from the drug). This is an example of patents limiting patient access to the healthcare system.

Because MDST cover not just treatments but ways of achieving, delivering and/or performing a treatment, were they patented, not only would they affect us as users of the healthcare system, but they would also affect our medical practitioners. Not all doctors could afford to buy a licence to perform the necessary diagnosis to tell you what was wrong with you; not all surgeons would be able to buy the necessary licence to then treat you.

Unable to afford consultations                                                                                             

MDST patents would mean that you as a patient might be unable to afford consultations with the necessary practitioners (i.e. those who hold the right licences). Even if you could, you might not be able to seek a second medical opinion – perhaps because, as with gene patents, only one company would hold the diagnostic patent.

The hardest hit would likely be those living in the regions, with rural community medical centres unlikely to have sufficient funds to purchase patent licences. If access to patents meant the ability to practice up to date medicine, MDST patents could encourage doctors to move away from rural areas to practice in places, such as cities, where advanced techniques and access to specialist programs were available.

Patenting MDST would limit clinician freedom and restrict the growth of the medical profession. Right now, in Australia, medicine is a profession that is about knowledge sharing and wanting to help better people’s lives.

The modern Hippocratic Oath even includes the phrase ‘gladly share such knowledge as is mine with those who are to follow’ and AMA Code of Ethics (which practitioners rely on) highlights that there is a duty to pass on knowledge to colleagues and keep their skills up to date.

Australia is a signatory to multi-lateral and bi-lateral trade agreements that expressly state that human and animals MDSTs can be excluded from patent.

With Australia being a signatory to the Doha agreement, which encourages States to use intellectual property ‘flexibilities to protect the public health”, it is confusing why Australian law is progressing towards limiting our right to health by suggesting MDSTs can be patentable.

Parliament could easily amend section 18 of the Patents Act to exclude MDST – as has happened in many countries.

Australia needs to reassess which is more important to Australians: protection over intellectual property, or protection of the right of Australians to access affordable and universal health.

Australians need to advocate for their human rights and realise that their right to health may be impacted if judicial interpretations of section 18 of the Patents Act keep progressing as they have been.

We the Australian people are responsible for being acutely aware of, and actively protecting, our right to health, because at the moment the courts, the parliament and the government are not providing that security for us.

ENDS

– Jyoti Haikerwal is a Law student at ANU, who in July 2017 completed an internship with Civil Liberties Australia in which she analysed the situation in relation to legal developments in the fields of gene technology and practices, and patents and their interaction with people’s lives, insurance needs and superannuation.

 

By Prof George Williams and Daniel Reynolds

Australia’s record of human rights protection in areas such as Indigenous people, asylum seekers and freedom of speech are perennial topics of debate. The focus of these discussions is now shifting to whether Australia can take steps to establish a stronger legal framework for protecting human rights.

One reason for this is Australia is in the final stages of defending its record in a bid to secure a seat on the UN Human Rights Council. Another is that Australia’s recent experience on human rights is beset with deep flaws and inconsistencies.

Concerns have been raised about whether human rights are adequately protected in the wake of reports of mistreatment of juvenile detainees in the Northern Territory, the endemic issue of elder abuse, and the startling prevalence of modern slavery in Australia.

Each of these issues has prompted federal inquiries. And there are still many more human rights issues that have not moved the government to act. These include the treatment of asylum seekers at regional processing centres, and the inexplicable jailing, sometimes for up to ten years, of people charged with crimes for which they are deemed unfit to stand trial because they suffer from mental illness.

‘Regressing on almost every front’

The outgoing president of the Australian Human Rights Commission, Gillian Triggs, was right when she said Australia’s human rights record is “regressing on almost every front”.

Another disturbing trend is the speed with which Australian parliaments are enacting laws that diminish human rights. In 2016, the chief justice of the New South Wales Supreme Court, Tom Bathurst, found 52 examples of laws in that state alone that impinged on the presumption of innocence.

In February 2017, the Institute of Public Affairs think-tank identified 307 laws that infringed just four rights: the presumption of innocence, natural justice, the right to silence, and the privilege against self-incrimination. Another 2016 study found 350 current laws that infringe democratic rights such as freedom of speech.

Against this backdrop, many argue the time has come for Australia to adopt a national charter of rights. Australia is the only democratic nation in the world without such a national law.

The idea has been gaining traction, particularly at the state and territory level. The Queensland government recently announced it would enact a human rights act, based on the ACT and Victorian models, which have been in force for 13 and 11 years respectively. There are also pushes for NSW and Tasmania to adopt such legislation.

These developments raise the questions: if a charter or human rights act was to be enacted at the national level, what would it look like? And how would it protect human rights?

Our new book, A Charter of Rights for Australia, discusses what such a charter would look like at the national level, and explains how it could benefit Australians.

The starting point should not be a constitutionally entrenched bill of rights in the vein of the US Bill of Rights. Instead, a charter of rights for Australia should be enacted by parliament as ordinary legislation. This would have the advantage of flexibility: future parliaments would be able to update the charter as needed to match changing community values and expectations.

A charter of rights in this form would not transfer sovereignty from parliament to the courts, and would not give courts the power to strike down laws. Rather, following the models adopted in the ACT, Victoria and the UK, the courts’ role should be modest, limited to functions such as endeavouring to interpret legislation consistently with human rights, and identifying laws that breach human rights and which parliament should consider again.

Focus on parliament making good laws

This model puts the focus on improving human rights protection by way of parliament making good laws and government agencies applying those laws fairly.

One useful feature of the ACT and Victoria charters is that parliamentary committees scrutinise proposed laws for compatibility with human rights prior to being passed. For example, in 2014 alone, the ACT government moved almost 100 amendments to seven bills in response to comments and suggestions made by its human rights parliamentary committee.

The existence of a charter of rights can make it more likely that human rights concerns are raised – and fixed – before a law is passed.

The primary responsibility for ensuring human rights are protected under a charter should fall to the government, rather than the courts. The Australian Federal Police, for example, would have day-to-day responsibility for applying human rights in protecting the community from crime and safeguarding the rights of the accused.

This would mean that if the police chose to detain you as part of an anti-terrorism operation, it would be their responsibility to ensure you are treated humanely while detained. And the charter would provide for consequences should they fall short.

Finally, like instruments such as the Universal Declaration of Human Rights, a charter of rights could also have a symbolic force that would promote important values like freedom, community responsibility and cultural diversity.

One of the most important contributions a charter of rights can make is not the benefit it brings to the small number of people who succeed in invoking rights in court. Rather, its main value lies in how it can be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless.

ENDS

George Williams is Dean, Anthony Mason Professor and Scientia Professor, UNSW Law School. He is a member of Civil Liberties Australia. Daniel Reynolds researches legal issues with Prof Williams at the UNSW Law School. They are joint authors of a new book, A Charter of Rights for Australia (4th edition), available from UNSW Press. 9781742235431, 232pp, RRP $34.99. This article appeared first on The Conversation http://tinyurl.com/y849m7lo

Further reading: Australia doesn’t have a constitutional right protecting freedom of the person – it needs one

 

Now that a bipartisan approach to fixed-term elections is on the cards, here are some suggestions for those thinking about it:

  1. A scheduled election every February 29.
  2. Election day as a public holiday; we could call it the Democracy Day Holiday.
  3. Delete one of the anachronistic public holidays to make way for election day.
  4. If the scheduled-elected government falls before the next scheduled election, hold an interim election but the interim-elected government only serves until the next scheduled election.
  5. Since we would be changing the constitution anyway, go the whole hog and make all elections double dissolution elections and have all members and senators start and finish their term of office at the same time.

– John F.Simmons, CLA member, Kambah ACT

 

One of the pivotal events in contemporary European history seems to have largely bypassed Australia. The event is the constitutional crisis in Poland. Simply put: last week, Poland’s parliament lower and upper house passed three laws that would have given total control of the Supreme Court, and the appointment and firing of judges, to the government. A step to dictatorship.

When the government’s intentions became known, massive anti-government protests took place throughout Poland and major capitals – nearly all attracting extensive international media coverage. But not in Australia.  In fact, there was hardly any Australian newspaper coverage and limited exposure by the ABC and the commercial channels. I find this omission disturbing and, frankly, irresponsible.

The demonstrations were more than a noisy irritation with little impact and they worked. The president of Poland was pushed to veto two of the laws. In short, the Polish people won this round. Yet, many of my Polish friends and colleagues told me the saga is not over: many thought that the veto is a delaying tactic to allow the government to revert to its dictatorial practice. Worryingly they were right. I quote from Reuters web site: “Poland’s ruling Law and Justice (PiS) party is sticking to its flagship plans for ‘radical’ reform of the judiciary, despite seeing two bills vetoed by the president this week, PiS head Jaroslaw Kaczynski said on Thursday.”    Surely the Australian media has a responsibility to give some serious attention to this ongoing story.

– Howard J M Hanley, Hawker, ACT

 

By Paddy Gourley

The re-organisation of the machinery of government in July 1987 was the most significant, wide-ranging and possibly beneficial in the history of the Commonwealth.

Better concentrated around coherent and related functions, the number of departments was reduced from 28 to 18 and arranged in 16 cabinet portfolios supported in many cases by non-cabinet ministers.

The re-organisation was conceived in secrecy by the then Secretary of the Department of the Prime Minister and Cabinet and a couple of his staff. It was signed off by the Prime Minister three days after the 1987 election without apparent consultation at ministerial or official levels, something if indulged could well have killed off the whole scheme.

A new Administrative Arrangements Order was immediately issued with ministers being appointed and functions allocated to them and their departments. While the distribution of staff and resources took time, the detail of the whole deal was known on the day it was announced, Bastille Day.

The new cabinet and departmental structures were unaffected by political intrigue or the ugly empire-building aspirations of ministers and officials and were consistent with generally-accepted machinery of government principles.

On the 30th anniversary almost to the day of these momentous changes, Prime Minister Malcolm Turnbull announced an intention to create a “Home Affairs portfolio of Australia’s immigration, border protection and domestic security agencies” including “ASIO, the Australian Federal Police, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre and the Office of Transport Security.” He also outlined the government’s response to the L’Estrange-Merchant review of the Australian Intelligence Community.

CARTOON: Ministerial merry-go-round Illustration: Zhou Tao for the Shanghai Daily

While decisions on the AIC review are sound, the Prime Minister’s statements (and those of some of his ministers) on the Home Affairs proposal are rich in cliché, wishful thinking and ignorance. Such shortcomings could be excused if the proposal was meritorious; it is not.

Sensible machinery of government principles are offended, the stench of politics and empire building is abroad, there is no revised Administrative Arrangements Order and, notwithstanding the avowed urgency of security and terror risks, the new show will not come into effect for about a year.

The contrast with the much more significant 1987 changes could not be more stark. Home Affairs begins as a shambles and will likely end as one; a public administration amateur hour. It’s little wonder the reception has varied from lukewarm to puzzled to stringently adverse.

Have any of those involved in advancing the cause of the Home Affairs portfolio ever bothered to familiarise themselves with important texts on the machinery of government – the 1918 Haldane Report and the Coombs Royal Commission, for example, and the vast academic literature? If they have, they’ve ignored the lessons. It’s more likely they’ve not. The proponents of the new portfolio seem to have made it up as they’ve gone along beginning with an answer and then scrambling for justifications none of which are worth a toad’s breath.

Machinery of government literature does not provide guidance as precise as Newton’s laws of motion. Indeed, the Haldane Report cautions against the application of its dictums with “absolute rigidity.” There is also the need for purist administrative prescriptions to take into account, for example, the abilities and wishes of ministers.

Testing the proposal

Nevertheless, there’s sufficient agreement in the literature to distil principles against which the Home Affairs proposal can be tested. Let’s take a few.

First, Haldane says that functions should be allocated by “defining the field of activity in the case of each department according to the particular service it renders” rather than on the basis of “persons or classes to be dealt with.” That’s re-iterated by the Coombs Royal Commission which says that “departments should be organised around a coherent function.” The 1987 changes sought to do that with departments dealing with foreign affairs and trade, health and community services, industry services and the like rather than children, the unemployed or the ill.

Turnbull says that the proposed Home Affairs portfolio is about “entrenching cooperation between agencies which has helped us thwart 12 terrorist attacks and stop 31 people smuggling ventures.” That is to say, he’s wanting an organisation based primarily on what he sees as overlapping classes of people to be dealt with – “terrorists” and refugees. It’s unlikely to work well and to apply the approach as a general principle in government administration would be disastrous.

Second, major related functions should have a stand-alone department. Since the end of the Second World War, immigration has been one of the most important Commonwealth functions and its effects have been highly consequential.

Now it’s likely to be thoroughly subordinated in the Home Affairs portfolio whose primary objective now seems more to be about keeping people out rather than getting them in. Through gritted teeth the big loser in the re-organisation, Attorney-General George Brandis, says that the Home Affairs portfolio will provide a minister “whose exclusive focus is on national security.” Really? So immigration, a nation building function, will have to fit under a minister whose exclusive focus is on “national security”.

It’s tragic that a great department, the Department of Immigration, is to have its role further distorted and its place in the scheme of things reduced by the perceived imperative of pandering to exaggerated anxieties about those who try to get into the country on rickety boats.

Third, departments should be composed of like or related functions. On this basis the merging of immigration and customs was a mistake that no amount of muttering about “border protection” can make good.

Arranging for people to migrate to Australia is an entirely different activity from seeing that appropriate duties are levied on imports and that illegal imports of goods are prevented. That may be why the Australian Export Council is reported as calling for customs and visa policy to be transferred to the Department of Foreign Affairs and Trade.

Plagued with controversy, failure

Apart from difficulties caused by the distractions of its re-organisation and the obnoxious policies it has had to implement, it’s no wonder the Department of Immigration and Border Protection, composed of functions as different as immigration and customs, has been so plagued with controversy and administrative failure. Adding a range of security functions is going to further impede the effective administration of them all.

Fourth, police and prosecutorial functions should be kept at a step removed from major activities they are likely to be required to investigate. That is why the Australian Federal Police Act has usually been administered by the Attorney-General where the AFP can more properly, independently and impartially carry out its role across the broad range of Commonwealth functions and that is why it is wrong for them now to be placed with customs and immigration.

Fifth, intelligence gathering should be kept apart from related policy functions so that policy predispositions don’t bias intelligence collection and analysis.

The CIA’s intimate involvement with decisions by President George W. Bush to invade Iraq in 2003 appears to have affected the nature of intelligence advice. The head of the CIA, a statutorily independent organisation, told the President that Saddam Hussein’s possession of weapons of mass destruction was a “slam dunk” while a British official reported back to the Blair government that in Washington intelligence “facts” were being fitted around the policy. With the best will in the world, once a government policy is set, there is a natural tendency for officials to look for “facts” to support it.

Putting distance between intelligence gathering and policy helps to minimise this risk. That is to say, it is unwise to include ASIO in the new Home Affairs organisation notwithstanding its statutory independence, especially given the capacities and inclinations of its minister-to-be Peter Dutton.

Sixth, overall government responsibilities should be spread as evenly as possible between ministers. The Home Affairs proposal goes significantly in the opposite direction.

Seventh, some observers have remarked on the apparent intention for the Attorney-General to retain his role in issuing warrants and authorisations for ASIO which will not be in his portfolio, although that’s uncertain as the Prime Minister has said that the Attorney’s role “in ASIO operations” is to be reviewed. Having the Attorney approve warrants etc may not be significant although it is a return to the bad old days, abetted by Kevin Rudd, of ministerial matrix management making for confused operations and accountability.

More could be said but it should be clear enough that the Home Affairs proposal is inconsistent with just about all usually-accepted principles of machinery of government.

Inappropriate, ill-advised

In his announcement, the Prime Minister made much of the precedent of the UK’s Home Office. That’s an inappropriate, ill-advised and unconvincing comparison.

The UK has a unitary system of government including all those functions performed in Australia by state governments and which can conveniently be gathered into its Home Office which has evolved over perhaps hundreds of years. Moreover, in its contemporary form it hardly seems that this institution is worthy of copying or emulating, it having recently experienced a plague of scandals, adverse publicity and failure.

It’s also worth noting that a Home Affairs portfolio was not recommended in the L’Estrange-Merchant report on the AIC.

There’s been a suggestion that such a proposal would have been outside their terms of reference. Clearly it would not have been, the terms of the review requiring it to report on “how effectively the AIC [the Australian Intelligence Community] serves (and is positioned to serve)….the needs of policy makers” and “whether the AIC is structured appropriately, including in ensuring effective coordination and contestability.”

In commenting on the Home Affairs proposal, the head of the Australian Strategic Policy Institute, Peter Jennings, is reported as saying that “I don’t think the case has been as compelling as it could have been” and that the government’s decision was a “line ball call”. As the poet Pope wrote, “Damn with faint praise, assent with civil leer. And without sneering teach the rest to sneer”.

The fact is that there is no obvious compelling case for the government’s proposals. In the improbable event Jennings has one in his back pocket, let him bring it forth.

If he were to do so, he would need to deal with former Queensland National Party senator and Treasury Secretary, JO Stone who slagged off on the proposal using a quip he falsely attributed to the Roman courtier, Petronius, to the effect that “we tend to meet any new situation by re-organising, and a wonderful method it can be for creating the illusion of progress while producing confusion, inefficiency and demoralisation”. While there’s no evidence Petronius said any such thing, the sentiments are apposite.

More convincingly and a couple of thousand years after Petronius, former Public Service Board Chairman and departmental secretary, the late Peter Wilenski, referred to academic analysis of mergers and demergers in the UK Civil Service, the two major conclusions of which were:

  • that re-organisation always produces cost escalation (expressed as the iron law of prodigality), and
  • that it has little observable effect on operations (expressed as the iron law of inertia).

While these observations are hyperbolic, in the hapless circumstances of the development of the Home Affairs proposal, they stand an excellent chance of being made more credible.

If there’s a good thing, if unredeeming, in this whole business, it is that when something goes wrong on the security-terror front, everyone will know who to ask why: Peter Dutton.

If he’s true to form, however, don’t expect a straight answer or even any answer.

ENDS

Paddy Gourley is a former Canberra senior public servant, originally from Tasmania. Email: pdg@home.netspeed.com.au This article appeared first in ‘The Public Sector Informant’, a ‘supplement’ of the Canberra Times: http://tinyurl.com/y9uaukq2   It is reproduced here with the permission of the author. Also by Paddy Gourley: http://www.canberratimes.com.au/national/public-service/independent-review-of-public-administration-is-overdue–and-a-bizarre-viceregal-oath-no-one-needs-20170330-gv9r02.html

 

There’s one rule for boat arrivals, another for air arrivals: why does Australia discriminate, treating the two arrival classes differently, and why does Minister Dutton allow freeloaders to overstay in Australia for decades? Tens of thousands of people whom the Immigration Minister has “lost” live and work here, probably paying no taxes and cheating the Australian economy and people. While Minister Dutton is fixated on fewer than 2000 people on Manus and Nauru, he ignores more than 12,000 people who have been here – illegally – for more than 20 years: not to mention more than 50,000 others who have overstayed here a shorter time.

Other items in this issue include:

  • Who will be our rep on the Human Rights Council?
  • What does prison cost Australia?
  • Judges rule police must pay $90,000 security to continue their appeal
  • Indigenous communities to turn technology back on police
  • Brits to abandon fundamental rights
  • US military dispenses free weapons with no checks or controls
  • Torture epidemic in Sri Lanka
  • Youth jails becoming major problem worldwide

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