Civil Liberties Australiaspacer

Systems Admin

 
Regardless of DNA ‘breakthroughs’ in criminal investigations, we still have an archaic habit in Perth of shaking someone whom the police have decided is a suspect like a piece of rag until he (or she) is in shreds.  Lloyd Rayney and his children have suffered the murder of a wife and mother.  By all accounts the family had an impeccable history of service to the city of Perth and their local community.  They were (and still are) modest, humble and intelligent.  If Corryn could speak, her first thoughts would be for the care and welfare of her family.  The systematic destruction of her innocent husband physically, mentally, emotionally and socially over many years would be her worst nightmare.
 
The public were informed that Mr Rayney was the main and only suspect in his wife’s murder.  We were also told the murder occurred in the family’s home.  We were even informed that the purpose of these announcements was to apply so much pressure on Mr Rayney that he would ‘crack’.  Can you imagine how you (an innocent family man, or woman) might react?  Would you spill the beans and confess (as Beamish did) or would you feel so persecuted you could barely function?
 
Clearly Mr Rayney has no intention of confessing to a crime he didn’t do – he has been proven innocent by the legal system, not so the police and their culture and behaviours.  Clearly the police lacked evidence but they and the state are protecting their ‘self-righteousness’ corner to try to save face.  Too bad if an entire family is destroyed in the process, after one parent has been murdered and the police have been unable to find the murderer(s).  I have sat back for 10 years reading the updates of the case with an increasingly heavy heart
 
It occurred to me this morning that I was spectating an ancient arena of Christians being mauled and eaten alive for entertainment by the state.
 
Perth, please stop this appalling fiasco of ‘justice’.  We already stand accountable for a mistake of shameful proportions.  Stop being passive spectators in the sport of ‘spot the murderer’.  So many men in Western Australia have been wrongly convicted and sent to prison for years with barely an apology.  It is time to apologise to Mr Rayney and assist him and his loyal daughters back on their feet.  It is a small price to pay…and the least we can do.
 
– Margaret Howkins, CLA member, Maylands WA
 

NICNAT needs to fly high in Canberra

The Australian Public Service Commissioner, John Lloyd (photo), has this month confirmed there’s an urgent need for a new federal integrity body.

In the first submission to the committee of parliament inquiring into the issue, dated March 2017 and basically updating the PSC’s submission of a year ago, Mr Lloyd has made these statements:

  • “Only” (Mr Lloyd’s word) 228 people were sacked, out of 1866 misconduct investigations, Mr Lloyd writes. CLA says that’s 12%.
  • Of the 717 cases finalised under the PS Commission’s Code of Conduct investigations, 106 public servants behaved corruptly. CLA says that’s 15%.
  • “Only” (Mr Lloyd’s word) 4% of public service employees have seen someone acting corruptly, Mr Lloyd says. That’s a huge number, CLA says.

Given there’s about 155,000 public servants, the “4% corrupt sightings” means there’s probably about 6000 public servants who have been seen to be acting corruptly.

If Mr Lloyd is catching only 334 of them (228 plus 106), he needs help urgently to clean up a public service which, by his own admission, is more than just a little bit corrupt.

Looks like Mr Lloyd has adequately made out the case for why there needs to be a high-flying NICNAT…that is, a New Integrity Commission NATionally.

In fact, on Mr Lloyd’s figures, two NICNATS might be needed, one just for the public service, and one for the other crooks sucking on the teats of the nation.

Public Service Commissioner John Lloyd’s submission

ENDS

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/National_Integrity_Commission/IntegrityCommissionSen/Submissions

 

By Alex Newton*
A parliamentary inquiry in Australia is about to investigate whether we should have a slavery law and, if so, what form it should take. Alex Newton analyses the US and UK versions.

With an estimated 46 million people living in slavery around the world, and 90% of these victims being exploited in the private economy, it is no surprise that the pressure on companies to prevent and manage the risk of human rights violations in their supply chains is intensifying.

The critical legislation on this issue is California’s Transparency in Supply Chains Act 2010 (TSCA) and the United Kingdom’s Modern Slavery Act 2015 (MSA).

US federal legislation is also in the pipeline, with the Business Supply Chain Transparency on Trafficking and Slavery Bill 2015 currently before the House Committee on Financial Services. If enacted, it will require companies to make similar disclosures to those required under the TSCA.

However, at this stage, it is unclear how effective all of this legislation will be to combat the enormous challenge posed by slavery and human trafficking in complex, global supply chains that are often labyrinthine and dispersed in nature.

 

 

 

LEFT: Protest outside Parliament in the UK by Anti-Slavery International. It is estimated there are 13,000 slaves in the UK: pro rata, there would be about 5000 slaves in Australia. The Australian government is considering a new law to cover slavery here.

 

 

What does the legislation require? Who is affected?

Both the MSA and the TSCA require companies to report on the steps they have taken to eradicate slavery and human trafficking in their supply chains, or to disclose if they are not taking such steps. Notably, neither requires a company to report on the possibility of slave labour actually existing in its supply chain.

This was confirmed by a series of class action lawsuits brought in 2015 under the TSCA against Hershey’s, Mars and Nestlé. Finding in favour of the companies, the Court ruled that the law requires companies to report on their efforts to prevent slavery and human trafficking in their supply chains; not to disclose individual instances where they may have encountered it, to change their anti-trafficking policies or to implement policies if none are in place.

Which companies are affected?

The TSCA applies to any retail seller or manufacturer doing business in California that has an annual worldwide gross receipt of more than $100m. The MSA potentially covers any company supplying goods or services, operating in the UK with an annual global turnover exceeding £36m. Significantly, companies headquartered or registered outside the UK or California, respectively, may still have obligations under the legislation. While the TSCA affects about 3200 companies, the MSA applies to approximately 12,000 UK and non-UK companies. (figures in local currency in each case)

How effective are the Acts likely to be?

It is still early days, particularly for the MSA, as statements are only compulsory in relation to financial years ending on or after 31 March 2016. (The UK government encourages reporting within six months of the financial year end.) Nonetheless, serious concerns have been raised about whether it has real teeth. Section 54 of the Act says a company may simply state that it has taken no such steps if it chooses not to publish a statement under the MSA.

It is concerning that, of those companies that have published statements so far, many have failed to comply with the Act’s requirements. According to Ergon Associates, which analysed more than 230 statements by companies, about 40% have not been signed by a director and about a third cannot be accessed via a link easily found on the organisation’s homepage (both of which are required under the MSA). Also, there is no monetary or criminal penalty for companies’ non-compliance. Instead, civil proceedings for an injunction can be brought against a company by the Secretary of State.

The Business & Human Rights Resource Centre has created a registry of statements to benchmark companies’ policies and practices. Currently it contains more than 760 statements. Similarly, the TSCA has been criticised for lacking strength and transparency. It requires companies subject to it to disclose its efforts to eradicate slavery and human trafficking only in its direct supply chain. This obligation is more circumscribed than that under the MSA, and is likely to be a real deficiency given the dispersed and expansive nature of most modern supply chains.

Another criticism of the TSCA is that it does not specify how often a business is required to update its statement. Given the very fluid and dynamic nature of supply chains, this omission is problematic and is inconsistent with the well-accepted principle that human rights due diligence should be regular and ongoing. Further, it does not require that the names of the companies subject to it be made public.

In 2015 Know the Chain, a resource for businesses and investors to understand and address forced labour abuses in their supply chains, reported that only 31% of the corporations required to comply with the TSCA had a disclosure statement available that complied with all the requirements of the Act.

What does this mean for business?

Human rights violations in corporate supply chains are an expanding area of legal and reputational risk that business should seek to manage proactively.

While the MSA and TSCA have been criticised, they nevertheless have shone the light of public scrutiny on corporate supply chains and, in many instances, have highlighted abuses that were previously hidden.

Business should identify areas of particular risk for slavery and human trafficking; implement effective and ongoing human rights due diligence processes and remedies; and seek continuously to improve its oversight and understanding of supply chain risks.

ENDS

* Alex Newton is founder and principal of a boutique consultancy, advising corporations, governments and NGOs on a wide range of matters related to responsible business, human rights, risk management and anti-corruption. alex@alexnewton.com.au
This article appeared first on the Ethical Corporation website: http://tinyurl.com/ze8uaw7
Parliamentary inquiry in Australia: Website: http://tinyurl.com/z9w29ju Submissions are due by 28 April 2017

 

By Jennifer Ashton
At the pleasant venue of the National Museum, 65 community and human rights-based organisations met in an all-day conference with the peak government departments to discuss a range of issues relating to Australia’s international and domestic policies on human rights.

The meeting in Canberra on 9 Feb 2017 started with information updates from the Department of Foreign Affairs and Trade on:

  • Human Rights Council 2016 (the UN body)
  • Australia’s Human Rights Council Campaign (for a seat on that body, vote in Oct 2017)
  • Bilateral engagement
  • International thematic meetings
  • UN General Assembly Third Committee 2016
  • Universal Periodic Review 2015 actions/progress in 2016 (these are reviews of every nation in turn, on their human rights performance over the past three years)

The Minister for Foreign Affairs, the Attorney General and a Human Rights Commissioner addressed the meeting. The announcement by Attorney-General George Brandis that the government would finally ratify OPCAT* by December 2017, after consultations with States, was welcomed by community organisation representatives. Foreign Minister Julie Bishop talked of the inherent human rights concept inherited from Thomas Paine.

* Optional Protocol for the Convention Against Torture.

 

Photo of the NGOs-DFAT-AGD conference in session, 9 Feb 2017, National Museum of Australia, Canberra. Former Director of Civil Liberties Australia, Amanda Alford, is in centre foreground.

The new Human Rights Commission representative, Ed Santow, said that the role of OPCAT should be to identify problems before they become catastrophic. His speech was subsequently published in The Guardian. Some of the human rights organisations that work closely with the Australian Human Rights Commission report that Ed is the favoured candidate for the position to be vacated by Gillian Trigg in May. No questions were taken on any of these presentations and a number of NGOs noted that it was not clear whether there would be monitoring access to Manus or Nauru facilities, once Australia has ratified OPCAT.

Plenary discussions followed on business and human rights (not much discussion was generated and the conclusion was that the process is as important as an outcome. There was some talk of business and human rights being incorporated in the Bali Process. Some NGOs stressed that trade unions-workers should be considered) and the rights of indigenous peoples, both of which are part of the policy platform of the Australian candidacy for the HRC.

There were a number of representatives from indigenous groups. Two very articulate young indigenous women who work at DFAT spoke of their experience; one in the Permanent Mission in Geneva on human rights, the other in incorporating indigenous issues (as has been done with gender, for example) into all elements of DFAT policy/practice

The final discussions on the development of a new Foreign Policy White Paper and a more general discussion providing a forum for each of a disparate group of NGOs from Assyrian Christians, to disability activists to death penalty abolitionists to anti-slavers – to Civil Liberties Australia – to present their views.

Much of the day’s discussion was taken up in consideration of Australia’s campaign for membership of the Human Rights Council (2018 – 2020), and the associated “Pledge” material. DFAT introduced their policy statement on their candidature and invited comment/discussion.

The consensus of the meeting was that these pledges lack specificity and do nor signal new initiatives to substantially improve human rights law and policy. Australia will be competing against France and Spain for two seats on the Human Rights Council in the Group of Western European and other States.

Polarisation is becoming stronger

One of the reasons given for Australia’s bid to join the 47-member HRC is a need to contest anti-democratic and anti-rights influences of repressive governments, who are joined in the so-called Like Minded Group, and who are forcing votes on resolutions antipathetic to liberal values. The LMG attack established norms and rights and distrust civil society. Polarisation between ideologies is becoming stronger.

DFAT was also very clear that no government can be perfect, as the 300 recommendations against the Australian Universal Period Review (of Australia’s HR performance) update of 2016 attests, but that it was important to be transparent and admit short-comings. Unfortunately a website designed to monitor Australia’s progress against these recommendations is still being developed by the AG and may not be running until the middle of the year. The vote will be taken in New York in October 2017.

There was a general concern that DFAT is being increasingly tilted towards a trade orientation, and mention was made of the decreased Australian aid budget. DFAT pointed out that there is financial austerity and that it will lose 500 jobs, so cautioned against grand schemes. Several interventions concerned treatment of refugees/asylum seekers but DFAT made it clear that they cannot change domestic policy.

The Council On The Ageing (COTA) was present, advocating for development of a UN Convention on the Rights of Older Persons. To date the Australian Government had been an active participant in UN talks but remained unconvinced that a new legal instrument was necessary, as there is already a range of existing international human rights treaties that provide protection for all people. Many countries share this view, including the US.

A number of themes emerged from the range of legal groups, which can be encapsulated in the Civil Liberties Australia presentation. CLA would like to see a government pledge commitment to review the legal justice system, whistleblower protection and review of FOI laws. The government should work with the states to repeal draconian anti-protest laws and abolish gag orders of people working at detention centres. It should also retreat from its practice of undermining the work of the Australian Human Rights Commission. CLA like others, welcomed the end of the Trans Pacific Partnership agreement, by an edict of President Trump. Finally, the government should work to implement a national Bill of Rights so that Australian can finally enjoy some legally enforceable rights and freedoms.

These sorts of forums are not easy (as anyone who has worked on NGO consultations can attest) but discussions were conducted in a cordial and constructive atmosphere. The calibre, commitment, resolve and capabilities of the participants are an impressive source of intelligence for DFAT and the Attorney-General’s Department.

ENDS

* Jennifer Ashton, who attended on behalf of the Association of Former International Civil Servants, Canberra, and who is also a Director of Civil Liberties Australia. This report is an amalgam of her report on the event and that of CLA President, Dr Kristine Klugman.

 

By Felicity Gerry QC*
The Kim Jong-nam assassination at Kuala Lumpur International Airport, Malaysia, on 13 Feb 2017 raises the need for reconsidering the laws and framework to deal with human trafficking.

Australia has criminal laws to prosecute human traffickers and policy to protect human trafficking victims – but nothing to protect human trafficking victims who are coerced, deceived or otherwise exploited into committing crime.

The Foreign Affairs and Aid Sub-Committee of the Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade has commenced an inquiry into whether Australia should adopt national legislation to combat modern slavery, comparable to the United Kingdom’s Modern Slavery Act 2015. Submissions are due by 28 April April. Website: http://tinyurl.com/z9w29ju

Australia has an opportunity to create comprehensive legislation far better than the UK Modern Slavery Act which limits protection to certain offences and creates no similar protection for those affected by domestic coercion. The UK Act creates no framework for appeals and no investigatory system for defendants or those who wish to appeal as their status as a human trafficking victim was not dealt with at trial.

By contrast, Indonesia has mandatory protection for human trafficking victims and it is this legislation that was instrumental in securing a temporary reprieve for Mary Jane Velsoso who was on death row with Australians Chan and Sukumaran (as featured in ABC’s Foreign Correspondent here http://www.abc.net.au/foreign/content/2015/s4269268.htm )

These issues are brought into focus by the assassination this month of the half-brother of North Korean leader Kim Jong Un at Malaysia airport by women squirting poisoned pens. News items suggest they thought they were part of a prank, were paid a limited fee and may have been from such a disadvantaged background that they were exploited.

This raises issues of substantive law around their intention to kill when they committed the assault and any operative deception might be relevant to those issues.

It is also important is to consider the effect of the UN human trafficking protocol which defines trafficking to include

the ….recruitment of persons…by means of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation….

Trafficking in human beings for the purpose of criminal exploitation is an increasingly significant phenomenon with victims being exploited through a variety of criminal activities. UN Guiding principles are that trafficked victims who commit crime should not be prosecuted or, if they are, should not be punished.

Malaysia’s 2007 Anti-Trafficking in Persons Act prohibits all forms of human trafficking and the government has made some efforts to protect victims, including providing trafficking victims immunity from immigration offenses and raising public awareness. Whether there is protection for those committing assault resulting in death is not so clear.

Some allowed, some not

The issue is topical in the UK since on 9 February 2017 (four days before the assassination) the Court of Appeal of England and Wales considered conjoined appeals and applications (R v VSJ 2017 EWCA Crim 36) by several appellants who appealed out of time on the basis that they should never have been prosecuted for drug trafficking because they were victims of human trafficking. The Modern Slavery Act did not apply. Some appeals were allowed and some were not.

The willingness of the Appeal court to entertain post-conviction appeals is good. The approach was essentially to consider whether, had the full facts been known, there would have been a decision not to prosecute on the basis that it would not have been in the public interest to charge a human trafficking victim who committed the crime. Those appeals that were successful saw convictions quashed effectively as a form of abuse of process where the available evidence was credible.

However, the court refused to develop the common law on duress and the prosecution, responding to these appeals, failed to concede any of the cases, many of which depended on the appellant’s account as there is no system post-conviction for investigating nationally and transnationally.

In addition, the UK judgment maintained draconian sentencing in some of the appeals without apparently considering the gender issues and appeared to suggest that a man of 40 was unlikely to be trafficked, which research shows is not correct.

In the context of killing, more importantly the court suggested (and counsel apparently conceded) that there may be some crimes that will always be too serious to engage in human trafficking defences. Since these were drugs cases, the implication is that a human trafficking victim would be denied protection where there was a killing.

This is clearly erroneous. In international law child soldiers are not prosecuted – and ‘following orders’ can be recognised in sentencing – so there is no circumstance in which it is inappropriate to consider duress or coercion or even deception in the context of non-prosecution or non-punishment.

Rather than consider creating DPP guidance or the role that abuse of process can play or choosing to follow the limited scope of The Modern Slavery Act, Australia (through the parliamentary inquiry) has an opportunity to create a transnational human trafficking framework for investigation at any stage and mandatory criteria to apply to decisions not to prosecute or punish victims of human trafficking who commit crime.

ENDS

* Felicity Gerry QC is admitted in England and Australia and has had ad hoc admission in Hong Kong and Gibraltar. She specializes in serious and complex crime, often with an international element. She led the defence team in R v Jogee, the ground breaking appeal in the UK Supreme Court which corrected the law on complicity and held that the form of accessorial liability known as ‘joint enterprise’ was an erroneous tangent of law and the wrongly decided Chan Kam-shing (Hong Kong) 2016. She was Solicitors Journal Legal Personality of the Year for 2016. In 2014 she assisted lawyers for Filipina Mary Jane Veloso who was temporarily reprieved from execution in Indonesia after raising her status as a victim of human trafficking.

Felicity is Adjunct Fellow at Western Sydney University where she lectures in Terrorism, Cybercrime and Sexual Offending and also a Senior Lecturer at Charles Darwin University where she leads an Indigenous justice Exoneration Project. She researches on women & law, technology & law and reforming justice systems. She has recently published three chapters in Human Trafficking: Emerging Legal Issues and Applications (2017) on the Mary Jane Veloso Case, Using Digital Technologies to Combat Human Trafficking: Privacy Implications and Gender Issues in Human Trafficking: Empowering Women and Girls Through Awareness and Law. She is a member of Civil Liberties Australia.

This article is taken in part from a lecture Felicity is due to deliver in Hong
Kong in March, and a similar blog in Criminal Law and Justice Weekly.

Felicity Gerry QC   fgerryqc@carmelitechambers.co.uk

DARWIN:
felicity.gerry@cdu.edu.au
fgerry@williamforster.com
Website: http://www.felicitygerry.com

 

AG Brandis has promised to ratify the torture convention, thus opening up detention centres to inspection, by the end of the year. CLA fervently hopes he keeps his promise. Ratifying OPCAT, the international torture and jails convention, would introduce an independent inspection regime, offering the chance to slice through the shroud of secrecy around adult and junior jails, as well as possibly stimulating better education and learning of life skills for inmates to aid their rehabilitation.

In other news, CLA has decided to keep a close eye on developments in the genes area, in relation to health, privacy and discrimination. Soon genes technology will come to dominate a healthy life, and we should prepare new principles, guidelines and possibly laws, CLA believes.

  • Government has no idea about your data
  • High Court to rule whether 1971 conviction was wrong
  • Major improvements in treaty negotiations recommended
  • Foreign Minister Bishop blows whistle on her own government
  • AFP ‘fined’ $200,000 for unlawful seizure
  • ‘Alternative fact’: born to be un-free
  • Who judges the judges?
  • Dutch run out of prisoners
  • Court records should be kept permanently
  • Toddlers kill more Americans than terrorists

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No, this is not about certain less than courageous senior bureaucrats who define the public interest solely in terms of assisting politicians to save their skins at the ballot box: it is engaging you on the threats to society posed by Unmanned Aerial Vehicles (UAVs), to use the approved TLA (three letter acronym).

The use of UAVs or drones, which not only fly but can be submersible or land-based, is continuing to expand mightily. UAV technology is proving very attractive to governments, especially for remotely-controlled attacks and covert surveillance, as the drone pilot is comfortably located at a home base with no exposure to personal danger such as injury or capture on the battlefield.

The US Air Force has considered bravery awards for drone pilots, even if they are merely stationed at a desk with computer monitor and joystick drinking soda, and return home to their families, blinking in the sudden outdoors sunlight, after every shift.

Many suppliers in the defence and security aerospace sector are dedicating significant resources to expanding their presence in the burgeoning drone market. The models and types of drones, and their payloads, capabilities and sensor technology, are becoming more varied. Additional drone capabilities also increase the range of tasks they can perform, including morally and legally questionable uses such as extra-judicial execution of non-combatants in the various pursuits known collectively as the “war” on terror.

Drones are now configured with anti-tank and anti-aircraft missiles and laser guided bombs. As well as armaments, sensors including closed circuit television cameras, infra red detection, and acoustic…and radar can be fitted for surveillance. Widely available, inexpensive ‘’hobby’’ drones now come equipped with high resolution cameras able to stream live video back to the operator or pilot, and to digitally record images. Artificial intelligence has potential for armed drones to make independent decisions based on computer algorithms, with no human intervention.

‘’Outsourcing’’ such decisions must be prevented, and governments must be held directly accountable for the use, and abuse, of such technology.

The market for drone technology is predicted to exceed $27.5 billion annually by 2022. As drones are a new weaponry and surveillance threat, predictably the threat must be countered with anti-drone drones: that market is expected to represent sales of $1.5 billion by 2022.

The Australian Government, through the Air 7000 defence capability plan but also for tasks such as border protection and surveillance, is committed to increasing the use of drones, with seven MQ-4C Triton models featuring a wingspan of almost 40 metres and 28-hour flying time slated for acquisition. 

The MQ-4C Triton: Northrop Grumman photo.

New technology creates opportunities, but also new threats, including hacking or spoofing of drone command and control protocols to divert them from the assigned mission.

As with all technology, drones have no moral or ethical values or beliefs. Drones can be used for beneficial purposes, such as delivering books or pizza, or to wage war, commit murder, and spy.

The performance and uses of the hardware, firmware and software are dictated by the weakest link, namely the “wetware” (human operators), reinforcing the old cynical observation ‘’what is the most dangerous part of a car? The nut behind the wheel’’.

The social, ethical, legal and regulatory framework is scrambling to keep pace with drone technology, and will require sustained attention to avoid extremely unwelcome and undesirable consequences, akin to the rise of the machines foretold in science fiction (e.g. the Terminator movies).

The drone technology, and wide availability at relatively low cost, has potential to create a society where citizens conduct their daily business inside the equivalent of a giant eye, or ear, especially when combined with other intrusive technology such as the indiscriminate capture of metadata from computer networks by authorities who claim to be protecting us, but are in actuality treating all citizens as potential suspects.

The use and regulation of drones has important and salient potential adverse implications for civil liberties and privacy, and abuse and misuse must be prevented. This poses a major challenge for legislators and regulators, and will require sustained vigilance, given the proven tendency of governments across the globe to display no hesitation when introducing draconian provisions to limit civil liberties and freedom, claiming we will be safe and protected.

In reality, the greatest threat to civil liberties and freedom are governments who believe citizens exist to serve them, not vice versa. This truism is well illustrated by dictatorial campaigns to tax and ban behaviour disapproved by elites, and predictable mission creep (for example, why is police-security metadata provided to organisations such as the RSPCA?)

Those in power would do well to remember that an ethical and fair approach would involve rejecting the adage that the entire aim of practical politics is to create a series of hobgoblins, all of them imaginary, so the population clamours to be led to safety (with thanks to H L Mencken) when considering further encroachments on personal freedom using technology such as drones.

To reverse the catchphrase of the Borg from Star Trek, resistance is not futile.

ENDS

 

Why do taxi drivers and uber drivers have less rights than other Australians ? Unlike the rest of the Australian population we have to collect, administer and send off GST payments even though most of us earn way under the 75.000 ceiling amount. To me and any fair minded person this is a civil liberty issue. Why are we treated differently than every other Australian. I would love to have your opinion on this issue. – Spencer Turner

 

A short history of the sinister City of London Corporation

By Evan Whitton

This is the first of three pieces under the general rubric: England: The Unlucky Country. The other two are short histories of sinister English politics and law. Since we use English law, Australia is also an unlucky country. We inherit our ‘hands off’, untouchables approach to bankers, lawyers, etc – Citymen – from “Mother England”.

England is effectively two countries: England proper and the almost unknown City of London Corporation, referred to here as The City.

Tax expert Nicholas Shaxson wrote in The New Statesman (24 February 2011):

The City’s “elsewhere’ status … stems from a simple formula: over centuries, sovereigns and governments have sought City loans, and in exchange the City has extracted privileges and freedoms from rules and laws”.

ABOVE: Sir John Boothman Studdard, an accountant, was Lord Mayor of the City of London (and Admiral of the Port of London) in 2006-7. Here he waves from the City’s coach.

Lord Glasman, an academic, wrote in The Financial Times (29 September 2014) that the Romans were “the City’s founders”. England was part of the Roman Empire from 43 AD until the empire collapsed on 4 September 476. In the Dark Ages (c. 500-c. 1500), England and West Europe succumbed to superstition.

The City’s “modern period” dates from 1066, when William the Conqueror “came friendly” and let the City keep its ancient rights. Lord Glasman said The City described itself in 1191 as a “commune” which “taxed itself, judged itself and governed itself”.

Magna Carta (June 1215) says: “ … the city of London shall have/enjoy its ancient liberties by land as well as by water..”

The City is said to have financed Henry V’s trip to France in 1415 which resulted in his surprise win at Agincourt.

During the reign of Queen Elizabeth I (1558-1603), The City began to use a lobbyist/enforcer, the Remembrancer. I like to think Her Majesty asked him: “Are you the muscle?”

The City was not above treason and murder. Lord Glasman said Stuart kings (1603-88) sought to impose their authority on the City, and that “one [attempt] led to the execution of the king”. The executioner separated Charles I’s head from his body on 30 January 1649.

Lord Glasman said King (1660-85) Charles II also tried to make The City subordinate to the monarchy. For some reason, the City did not get Charles but fixed his brother, James II: he was forced to abdicate in 1688. A Dutchman, Willem of Orange, was imported. He and his wife, May, James’s daughter, became joint monarchs as William (III) and Mary. He was known in Scotland and Ireland as King Billy.

The payoff for The City people came in 1690; they got a new Charter which proclaimed noisily and at length:

“… the mayor, commonalty and citizens of London shall for ever hereafter  … have and enjoy all their rights, gifts, charters, grants, liberties, privileges, franchises, customs, usages, constitutions, prescriptions, immunities, markets, duties, tolls, lands, tenements, estates and hereditaments whatsoever.”

The City seems to have helped to make London what it is. Shaxson said in April 2016:

“London is the epicentre of so much of the sleaze that happens in the world. Usually there will be links to the City of London [Corporation], to UK law firms, to UK accountancy firms, and to UK banks.”

Shaxson noted that The City has “a private fund built up over the last eight centuries, which, among many other things, helps buy off dissent. Only part of it is visible: the Freedom of Information Act applies solely to [The City’s] mundane functions as a local authority or police authority. Its assets are beyond proper democratic scrutiny.”

Queen needs OK to enter

Queen Elizabeth II cannot enter the City without permission.

Shaxson: “She meets a red cord raised by City police at Temple Bar, and then engages in a col­ourful ceremony involving the lord mayor, his sword, assorted aldermen and sheriffs, and a character called the Remembrancer …”

Shaxson said the Remembrancer is “the City’s official lobbyist in Parliament, sitting opposite the Speaker, and is ‘charged with maintaining and enhancing the City’s status and ensuring that its established rights are safeguarded’.” The Remembrancer’s office “watches out for political dissent against the City and lobbies on financial matters”.

After 2000 years, the secret and sinister City tells us much about England…and not a little about Australia.

ENDS

Evan Whitton studied History at the University of Queensland, and won the Walkley Award for Journalism five times. The text of his eighth non-fiction book, Our Corrupt Legal System, can be seen at a section of a site run by legal academic Dr. Bob Moles: netk.net.au/Whitton/OCLS.pdf

BACKGROUND: The City is known as the ‘Square Mile’. It is 1.12 sq mi (2.90 km2). Throughout the 19th century, the City was the world’s primary business centre. London came top in the Worldwide Centres of Commerce Index, published in 2008. The City has a resident population of about 7000 (2011) but more than 300,000 people commute to work there, mainly in the financial services sector. The legal profession forms a major component of the northern and western sides of the City, especially in the Temple and Chancery Lane areas where the Inns of Court are located, of which two—Inner Temple and Middle Temple—fall within the City of London boundary.

Court out by sexism

 Posted by on 12 February 2017  No Responses »
 

By Ben Aulich*

At the end of the American presidential election, I felt an overwhelming sense of relief. Relief, that I can stop hearing about it. It’s bad enough hearing the rhetoric of our own politicians, but having to go outside our borders to hear more seemed too much.

I was surprised, however, to understand the negative effect the result had on many of the lawyers at my firm, in particular the female lawyers.

After expressing my surprise at the result to one of my female Senior Associates, I was met with the answer, “Why would you worry about the result? You are a white, middle class male.”

There it was…’male’. I immediately thought to myself, “What difference does my gender make to how I feel about the result?” It’s 2017, and there are good numbers of females in our profession.

The comment however, gave me cause to think a little more about the situation for females in the legal profession, and to conduct my own “Google” and anecdotal research. In Canberra, we have 2 of 5 judges who are female (including the Chief Justice), and 4 of 7 Magistrates (including the Chief Magistrate) who are female. It all seemed OK.

However, it appears our profession may not have its house in order about this issue like I first thought. The statistics show that in Australia, female lawyers, on average, earn approximately 64% of what male lawyers do. A pay gap of over 35% is not an enviable one.

Every one of my female lawyers had a sexist horror story:

  • clients focusing solely on their chests,
  • clients ordering coffee from them as if they were merely in conference for catering purposes, and
  • even a Queen’s Counsel commenting that a female lawyer involvement in a matter was merely to ‘pretty the place up’. Needless to say, there were no more briefs for him.

The most recent story was where a potential client called and demanded to speak to “a man” because he wanted to appeal a decision made by a female Magistrate – partly because he had a problem with women having “that sort of power”. This is not an exaggeration. I refused to take his call or act for him (there are at least some people I am not prepared to act for!).

These are more extreme examples, but my female lawyers have disclosed to me that it is the regular, subtle differences in the way they are dealt with and treated by seemingly intelligent, well-educated people, that highlights a deeply embedded sexism in our profession.

Law firms are generally conservative and inflexible. Being a slave to the billable hour like many law firms are, there is a perception that if lawyers are not in front of their computers or in court, profit will suffer. If this is the mindset, then how on earth are females in the legal profession supposed to compete?

At least 4 of my female lawyers who have children are set up at home, have flexible working hours, early days and days not in the office so that they can manage work around their families. These lawyers are some of the most productive people I have the pleasure of working with.

Of the 13 lawyers we have at our firms, 8 are female, 2 of 4 are directors/partners and 3 of 4 are Senior Associates. We also have 4 of 4 female paralegals and both Practice Managers are female.

We did not structure our workplace like this deliberately, rather those people were the best performers for the role AND we allowed them some flexibility to manage their careers and families. Perhaps, in part, this is why they took the job, and are still with us – some for many years now.

My parents recently visited my offices. A rare visit from them in business hours. As parents seem to do, they formed the view it was most appropriate to ‘inspect’ my workplace, walking each of the 3 floors our offices occupy and meeting our lawyers and staff. They did not say much at all, until my Mum opened a freezer in one of our kitchens. There, she discovered it was full of frozen breast milk. She beamed and said “Good boy, I’m so proud of you”.

I’m sorry if this sounds like I’m preaching, I don’t mean to. In truth, I am not as blameless and progressive in relation to the issue of sexism as I would like.

Sexism is fraught and hard to talk about, so often we don’t. So, if there’s one positive about Donald Trump’s election, it is bringing this issue to the front of my mind.

 

– * Ben Aulich, Managing Partner, Aulich & Co lawyers, Canberra ACT

(Note: Ben Aulich is a member of Civil Liberties Australia).

This article appeared first in the ACT Bar Association journal.

 

By a special correspondent

For months before the last federal election in 2016 I was immobilised after surgery and had lots of time on my hands. I began using Facebook (FB), an important, but not the only, means of online communication known as “social media”.

I am writing this short article with people like myself in mind after discussions with some people over a pleasant summertime lunch. People who grew up to value privacy, civil liberties, strong democratic traditions and, in many cases, whose fathers battled fascism in WWII.

So if you are young and reading this forgive my recital of the obvious. Largely, this is for people who don’t know much about FB.

With FB one can accept the “settings” as is, or spend considerable time adjusting for “privacy”. I was surprised at the extent to which many FB “friends” accepted the stock standard settings and exposed themselves (and their FB friends) to open public scrutiny.

I adjusted my settings to ensure maximum privacy and decided early on not to post any personal information or photographs.

What I had to accept in signing up were the most onerous terms giving FB access to my personal details arising from my use of the facility.

”Big Brother” fears of government intrusion into personal life pale in comparison to what we give away to Mark Zuckerberg, FB CEO – and of course any police, security or spy agencies, domestic or foreign, gaining legal or illegal access to the data. FB knows everything. When it’s in use, for how long, what one reads, ones reaction to posts by others and any comment.

If ever our democracy falls to despotism it will be FB and its like that facilitate the round up and internment of dissidents. (But then if you write to newspapers about public issues of controversy or belong to a political party or activist group I guess you are within the sights anyway).

FB has some wonderful features. One can “save” articles for future reading or reference. Post photographs or short videos of public events or demonstrations. Attach You Tube songs to express opinions or just share the joy of music. Be reminded of people’s birthdays.

In the main I made friends on FB with people and colleagues I know in real life. Some friends used the service to engage others with aspects of their real lives – holiday travels, bushwalks, exercise sessions, meals, restaurants and family events. Many however suited me perfectly. They posted articles of interest to me about politics sourced from wide and diverse writers and publishers. I revelled in the free and ready access to news and opinion. I ignored the ads, trending news feeds and suggested posts.

A couple of weeks into my FB wonderment I ventured beyond my friends’ pages and decided to look at Senator Cory Bernardi’s FB page. I was gobsmacked at the raw and inflammatory reactionary articles posted by Bernardi. But what was even more arresting was the “comments” made by those who read his posts.

I was led to organisations, and questions, I had not previously considered. What was the ALA (Australian Liberty Alliance) ? Why were people preferring One Nation to the conservative Liberal/National coalition? What is Reclaim Australia? What is the United Patriots Front? Who are the Soldiers of Odin? What is the Q Society? Why are the commentators so agitated to the point of frenzy about halal foodstuffs, the construction of mosques and the Islamic religion?

Naked hatred

Most striking was the extent of the naked hatred of all things and people Islamic. I was enthralled and horrified as I followed individuals on Bernardi’s FB site to scores of separate FB “hate sites” set up and conducted by shadowy individuals and organisations.

All had a common modus operandi. An inflammatory article, photograph or racist meme was posted and then read and circulated, sometimes by thousands of supporters who signified their agreement with its content by either “liking” it , making a public comment themselves or “sharing” it with their FB friends. A common theme was that Islam is not a religion but an ideology and antipathetic to Western democracy, Christendom and civilisation. As such it deserved no protection under criminal or constitutional law.

Many of the anti-Islamic materials were sourced from US or European and UK organisations. I came across far-right Breitbart News for the first time and Steve Bannon who is now President Trump’s right hand man and ideologue.

A secondary object of derision and hatred were leftists, progressives (and centrists such as Prime Minister Turnbull and President Obama).

What follows are direct quotes from online FB pages made by separate individuals in Australia. I have the screenshots, which I forwarded to the national security authorities, in the hope that someone in those vast organisations were open to the dangers of terrorism from the right. All of the comments are taken over a two-week period in June 2016, so that they are sediments and sentiments from a closed period. I have not included the names of the individuals who made the remarks (but if they are real people and not made up names the police have their mark).

The plethora of continuing hate sites suggests that if anything the neo-fascists, racists and haters are emboldened by the Trump Republican rise to power in the US, the rise of white supremacists and the pending dissolution of the EC with extremists and neo fascists on the verge of power in Europe.

Of the Sudanese in Australia

“…these gutless Sudanese arseholes need to be killed or bashed and deported. NOTHING LESS…”

“Horrible black bastards, they all want shooting”

In relation to mosques

“Burn some more”

“Good stuff burn every single one of the cockroach barracks to the ground”

“Its a cult and all mosques should be burnt to the ground, and a complete ban on approvals for future mosques”

“Demolish the mosque, EASY.”

Of Muslims

“Click click bang no more problems”

“Shoot it”

“Seriously?? WTF!!!!!! These animals should be culled”

“THEY SHOULD ALL HAVE RED HOT POOKER (sic) SHOVED UP THEIR ARSE, SICK BASTARDS”

“Why didn’t a true patriot get in and open fire what a chance to eliminate three disgusting perverted pedophiles”

“Just bloody shoot them”

“Send the animals and their wives back to wherever comedian (sic) or dump them in the ocean. Who cares. Just destroy the lot.”

“Our govt in Australia and most countries have allowed these human pests to continue. Kill the lot.”

“Get rid of them all. Traitors.”

“Eradication is needed, they are vermin.”

Of opposing politicians, parties, activists (in Australia, UK and USA)

“Guaranteed to be reelected and then entitled to life pension is $150,000 per year for life, shoot the imbecile”

“Fuck the greens, get the guns out”

“well there killing us. its about time we started killing them”

“I would have killed the prime minister but ahwell”

“..want (sic) she should be raped??? I don’t condone this but she could use a wake up”

“Those who defend Islam and who do not stand up and speak out against it have blood on their hands and it’s time they suffer dearly for it.”

“Kill him. Seriously, someone just kill him.”

Of gays

“friends of Q must be friends of Queers right? This is the only good thing muslims do, so let them do it !”

The above-listed threats to burn, murder and rape represent an extreme end of the spectrum of opinion against Islam and the political centre to left who are seen to be their defenders. What was surprising was how many thousands of people participated on these hate sites and how freely they expressed their prejudice, loathing and ignorance.

I followed many of the individuals to their FB home pages where they had privacy settings that enabled me to see their “friends”, their “likes”, the groups or pages they liked, photographs of their families and often their places of employment. Evil can be so suburban and banal.

My one attempt to object to offensive material was rejected by FB (I suspect by an algorithm). I have had no feedback from the police or security services as to what action, if any, has been taken to investigate the threats made online

The extreme end of the spectrum includes people who expressed support for white supremacy and mass racial cleansing. Anders Behring Breivik, the Norwegian mass murderer and white supremacist, was nominated as a hero on one FB page and quoted with approval. “We, the first militant nationalists, are the first raindrops indicating that a big storm is coming” 17.12.2012

Artwork of atrocity

I have debated with myself whether to include the attached “artwork” published on the FB page of a neo fascist living in Australia. Again the police have his details.

The stylized and sophisticated artwork is worthy of close study. It is sickening. A white knight is gunning down fleeing children of multiple ethnicities. The bullets are exploding through their chests, spraying and pooling blood in all directions. Shock and horror fill the children’s faces.

What type of person would produce and then publish such atrocity? He walks our streets. What sort of person, in our gloriously diverse multicultural nation, would call for its destruction through mass execution of children and label it “The End of the Era of Multiculturalism”. He walks our streets.

He spreads his poison online, unhindered.

Remember. All that I have quoted above in this article was available on public FB sites. There are private sites and invitation only groups that the neo fascists use to organise their ranks and activity. FB is merely the public outreach; the tool for recruitment, activation and radicalisation.

Do not stand by. Do not be neutral. Neo fascism, nationalism, xenophobia, misogyny, Islamophobia, anti Semitism, bigotry and homophobia are spreading like a cancer through our body politic and the western world. Social media is facilitating its growth. Extremist politicians are using it to directly communicate lies and distortions to their millions of “followers”.

The fight is on. It is not just Islam they are after. It is the very fabric of our community that they wish to tear down.

It is the fight of your life.

ENDS

Our special correspondent is an Australian uninvolved with social media until physical injury laid him low and opened his mind to some forms of extremism lurking openly online. The danger, he says, is extremism…whether from the left or right, or from religious or anti-religious people: hate fuelled by the simplicity of online expression without responsibility is a dangerous, explosive mixture.

The article poses interesting questions: to what extent are politicians responsible for the material that appears on their Facebook page? Should politicians monitor their Facebook page and remove offensive material and/or links to offensive material?

ENDS article

 
NewsletterCLA has called on PM Turnbull and AG Brandis to launch a robust, thorough national inquiry into all aspects of the justice-legal sector, which urgently needs to modernise. There has been no better time in recent decades to hold such an inquiry,” CLA President Dr Kristine Klugman said.
New passport-airport technology will mean greater data holdings on all Australians, including facial, iris and fingerprints held in a vast central database. The move comes as even volunteers look like having to undergo extensive vetting to serve for free at the 2018 Commonwealth Games in Brisbane. The battle to try to safeguard our privacy will escalate this year, with CLA moving to bring others into its campaign to create new laws to protect our rights to our genes, and privacy in relation to our genes and dealings with bodies like insurance companies.
In other items:
  • Aboriginal death/jailing rate ‘intolerable’, says Prof Triggs
  • Nudge-nudge: police want rights to ram chased cars
  • CLA launches two-year campaign for Charter of Rights in Tasmania
  • More than 82% of Aussies want a federal anti-corruption body
  • Rights in limbo as Brits Brexit
  • President pardons female domestic violence killer
  • Massacre man pleads for his human rights
  • Police and their friends kill 30 people a day
  • Two countries escalate state executions
  • Re-learning about ‘facts’ and porkies
DOWNLOAD NEWSLETTER here:
Click Here for SINGLE COLUMN (read on screen or print out)
Click Here for TWO COLUMN version (to print out & read over lunch or a break)
 

Mr Malcolm Turnbull                                    Senator George Brandis
Prime Minister                                              Attorney-General
Parliament House                                         Parliament House
CANBERRA ACT 2600                                CANBERRA ACT 2600

Civil Liberties Australia: Australia Day letter 2017                                           26 January 2017

aust-day-2017Regularly, at least every decade or so, industry sectors in Australia come under major reform scrutiny: transport, ports, banking, unions, agriculture, education, etc. National action is taken to make whichever sector is currently under review more efficient, leading to increased national efficiency and savings or increased revenue.

However, a key industry – the justice and legal system – has never been subjected to a national, whole-of-system[1] review aimed at making Australia a more efficient, less costly, more productive, fairer, better, and more just society in relation to its laws and their administration.

We call on you both, as noted lawyers in your own right and as the nation’s leader and first law officer, to launch an independent[2] national inquiry into preparing the Australia justice and legal system for the year 2050 and beyond. We envisage a long-term (perhaps up to 7-8 years) inquiry by a group or groups tasked with investigating individual aspects of the system. There could be up to 10 such panels, we suggest, and they might have an individual “life” of from 1 to 5 years.

Civil Liberties Australia has already specified aspects of the legal and justice system that require significant analysis and change (see CLA’s ‘Better Justice’ initiative, launched 1 Jan 2016, overview document attached). Some of the CLA proposals have long lead times. For example, judicial colleges and universities will need to conceive and design courses by about 2020 so that magistrates can become better qualified with Graduate Diploma degrees, and judges with Masters degrees, by the year 2025.

As well as the CLA proposals, the Chief Justices of Australia are already inquiring into ways that federal and state courts might cooperate, despite limits that appear to be in place due to the federated nature of our legal system.

Law societies and bar associations are also bending their minds to isolated aspects of the system. Other civil liberties and human rights groups, equally, have proposed ideas for improving the system.

A good foundation for such a wide-ranging, future-oriented, national inquiry into systemic issues and opportunities was completed in 2014 by the Productivity Commission, and provided to the Treasurer, Mr Joe Hockey, on 5 Sept 2014 (and released to the public on 3 Dec 2014 [3]). The Commission was astute in identifying some of the traditional millstones holding back a thorough review – in the national interest – of the legal and justice system:

There are widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial.

Most parties require professional legal assistance in more complex matters. But the interests of lawyers and their clients do not always align. Reforms to professional regulation are required to ensure clients are better informed and have more options for selecting the tasks they want assistance with, and how they will be billed. Clients should also have independent and effective options for redress when professional standards fall short.

– Access to Justice Arrangements inquiry, Productivity Commission, December 2014 http://www.pc.gov.au/inquiries/completed/access-justice/report

Of course, the innovative investigation, known as the Freedoms Inquiry – requested of the Australian Law Reform Commission by Attorney-General Brandis on 19 May 2014, with the report delivered on 2 March 2016[4] – provides a second foundation for the new national inquiry we are proposing. As the AG said, the Freedoms Inquiry report identifies “where traditional rights, freedoms and privileges are unnecessarily compromised within the legal structure of the Commonwealth”. That structure could be vastly improved, in cooperation with the States.

The PC and ALRC reports comprise the yin and yang underpinning of a once in a lifetime opportunity to create better justice through a better legal structure and system(s) for Australia. There has been no better time in recent decades to hold such an inquiry.

We urge you to make the announcement of a detailed, national inquiry into the justice and legal system either as part of the 2017 Budget process, or before, and to set a target date to start implementing improvements stemming from the national inquiry as of 1 July 2022. Resources committed to such a national inquiry will pay for themselves hundreds of times over during the 50-100 years before such a significant, national infrastructure reform project is likely be repeated.

 

Yours truly,
Dr Kristine Klugman OAM
President

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