Recently in big brother Category
The Sydney Morning Herald reports that the NSW Judicial Commission has rejected a complaint made by the head bureaucrat at the AG's department against a NSW judicial officer who found in a judgment that ASIO officers had unlawfully kidnapped and falsely imprisoned a suspect in a 'terrorism' case.
The news article, which gives details on the content of the complaint, says the complaint alleges that Adams J had made 'unjustified findings' which 'reflect adversely and very unfairly on the officers', and that '[t]he lack of concern the judge has shown for due process and natural justice in his comments about the officers' actions stand in complete contrast to the great care he took to determine that the officers had not complied with the applicable requirements.'
The grounds of the complaint are, and always were, bogus. Adams J's findings were entirely justified, there was plenty of evidence to support them. If those findings reflect adversely on the officers involved, then perhaps ASIO should stop kidnapping people. It should also be borne in mind that the identities of the ASIO officers were suppressed in the judgment -- all that the world at large knows is that ASIO officers B14 and B15 broke the law. Only people within ASIO or other government agencies who know the identities of B14 and B15 would know that they are the individuals who kidnapped Ul-Haque, and they're not likely to care.
As for the natural justice claim, even the news media can see the holes in that argument:
The news article, which gives details on the content of the complaint, says the complaint alleges that Adams J had made 'unjustified findings' which 'reflect adversely and very unfairly on the officers', and that '[t]he lack of concern the judge has shown for due process and natural justice in his comments about the officers' actions stand in complete contrast to the great care he took to determine that the officers had not complied with the applicable requirements.'
The grounds of the complaint are, and always were, bogus. Adams J's findings were entirely justified, there was plenty of evidence to support them. If those findings reflect adversely on the officers involved, then perhaps ASIO should stop kidnapping people. It should also be borne in mind that the identities of the ASIO officers were suppressed in the judgment -- all that the world at large knows is that ASIO officers B14 and B15 broke the law. Only people within ASIO or other government agencies who know the identities of B14 and B15 would know that they are the individuals who kidnapped Ul-Haque, and they're not likely to care.
As for the natural justice claim, even the news media can see the holes in that argument:
Late last year, the ASIO director-general, Paul O'Sullivan, complained the agents had not had a chance to rebut the charges. But the two ASIO officers - known as B15 and B16 - had in fact given evidence to Justice Adams, who found their testimony unconvincing and, at times, untruthful.They forgot to mention 'evasive', 'dishonest', and the other choice terms used by Adams J to describe the ASIO officer's evidence.
Today's issue of the 'Communications Day' newsletter (a very expensive trade newsletter, which has kindly given me a free trial subscription, because god knows I couldn't afford to buy it) contains a story which reads in part:
What Conroy describes as 'hysteria' has largely been the product of comments attributed to him and his spokespeople. A fair reading of those comments (e.g. 'filtering'; protecting children; blocking 'inappropriate' or 'offensive' content; the very use of the term 'clean feed'; etc) supports the inference that what Labor are proposing is a very wide-ranging filtering system based on content analysis of Internet material, rather than a more minimal solution such as a blacklist of confirmed child pornography. Indeed, the ability to 'opt-out' seems to be a key part of Labor's scheme -- and why on earth would they allow people to opt out of a blacklisting system that only targeted child pornography or other illegal content?
A fair reading of everything that Conroy and his spokespeople have said to date supports the conclusion that Labor have a much broader censorship scheme in mind -- one that could employ content analysis filtering which would block access to offensive/inappropriate material unless opted-out of. If this is in fact not what Labor have in mind, then their comments are equivocal at best, and at worst have unnecessarily caused the hysteria that they're now trying to quell.
Which brings me to my next point: if what me, EFA, and the media have been saying is 'hysteria', then why doesn't Conroy set the record straight now? If they know what they're proposing, intending, or considering implementing, why wait six weeks to tell us? The delay in announcing further details about their intentions will create the perception, rightly or wrongly, that they don't yet know what their intentions are. And if this is true, perhaps they shouldn't be making sweeping statements to the media which suggest a worst-case scenario?
In the absence of firm, announced details about Labor's intentions, the only thing that their critics can respond to is their comments to the media. The best way to quell the alleged hysteria is to release the details, and release them now. Then Labor's various critics can address the details of their plans, rather than what can be inferred from their published sound-bites.
Oh, and while we're on the topic of hysteria, ad hominem attacks such as "if people equate freedom of speech with watching child pornography, then the Rudd Labor Government is going to disagree" aren't conducive to productive, reasoned debate, and arguably qualify as hysteria themselves.
Conroy promises to douse internet filter concernsThis raises a number of interesting points.
Communications minister Stephen Conroy will move to quell hysteria over internet content filtering plans and outline a full policy development strategy in late February.
...
Conroy's office confirmed yesterday that the minister will delay making more detail available until the IIA general meeting on February 21. He is expected to elaborate on ACMA's filtering trial to begin shortly in Tasmania, as well as a consultation and implementation timeline.
What Conroy describes as 'hysteria' has largely been the product of comments attributed to him and his spokespeople. A fair reading of those comments (e.g. 'filtering'; protecting children; blocking 'inappropriate' or 'offensive' content; the very use of the term 'clean feed'; etc) supports the inference that what Labor are proposing is a very wide-ranging filtering system based on content analysis of Internet material, rather than a more minimal solution such as a blacklist of confirmed child pornography. Indeed, the ability to 'opt-out' seems to be a key part of Labor's scheme -- and why on earth would they allow people to opt out of a blacklisting system that only targeted child pornography or other illegal content?
A fair reading of everything that Conroy and his spokespeople have said to date supports the conclusion that Labor have a much broader censorship scheme in mind -- one that could employ content analysis filtering which would block access to offensive/inappropriate material unless opted-out of. If this is in fact not what Labor have in mind, then their comments are equivocal at best, and at worst have unnecessarily caused the hysteria that they're now trying to quell.
Which brings me to my next point: if what me, EFA, and the media have been saying is 'hysteria', then why doesn't Conroy set the record straight now? If they know what they're proposing, intending, or considering implementing, why wait six weeks to tell us? The delay in announcing further details about their intentions will create the perception, rightly or wrongly, that they don't yet know what their intentions are. And if this is true, perhaps they shouldn't be making sweeping statements to the media which suggest a worst-case scenario?
In the absence of firm, announced details about Labor's intentions, the only thing that their critics can respond to is their comments to the media. The best way to quell the alleged hysteria is to release the details, and release them now. Then Labor's various critics can address the details of their plans, rather than what can be inferred from their published sound-bites.
Oh, and while we're on the topic of hysteria, ad hominem attacks such as "if people equate freedom of speech with watching child pornography, then the Rudd Labor Government is going to disagree" aren't conducive to productive, reasoned debate, and arguably qualify as hysteria themselves.
It's pretty sad when an Australian political debate starts looking like an episode of South Park, but that's what is happening at the moment. Conroy's (fairly transparent) attempts to make Labor's Internet censorship plans bulletproof by playing the 'child pornography' card are having some effect, at least amongst 'save the children' campaigners.
The article Filters needed to battle child porn, appearing in yesterday's Australian IT, and written by Bernadette McMenamin, the CEO of 'Child Wise', begins: [emphasis added throughout]
Supporting freedom of speech as I do, I support McMenamin's right to express her opinion on this important issue, as it is my right to respond by labelling her position even more extreme and fanatical than those of the non-decent human beings (such as myself) that she is attacking.
McMenamin's position seems to be that the government should do anything which might have the effect of reducing the trade in child pornography, regardless of whether it will be effective, whether it is technically possible, the monetary cost, the practical consequences, and the cost to the civil liberties of every person living in Australia. A weighing of the benefits against the costs isn't required; we're talking about children here! If you don't support it, then you hate children.
Which brings me back to South Park. In episode 30 of South Park, called 'Gnomes', a television advertisement is aired in favour of Proposition 10 on a forthcoming public balot. Proposition 10 would kick a giant chain of coffee stores (Harbucks) out of town, and the South Park kids are enlisted for pro-proposition 10 propaganda. I couldn't find a video of the advert, but the audio is available here (have a listen!).
The TV ad concludes with 'Prop 10 is about children. Vote yes on prop 10, or else you hate children. You don't hate children.... do you?'
This is what McMenamin's argument boils down to. If you oppose Labor's censorship plans, you're in favor of child pornography, therefore you're a despicable human being and hate children. I think perhaps she needs to realise that Labor's proposal is not about child pornography, and accept that playing the 'child pornography' card does not exempt any proposal from an evaluation on its merits and weighing of the benefits against the costs.
Distribution of child pornography is an abhorrent crime, to be sure, but even accused child pornographers enjoy the same civil liberties as every other person in this country. If you subscribe to McMenamin's theory that no price is too high to reduce the prevalence of child pornography, perhaps we should do away with some other civil liberties while we're at it. After all, people accused of child pornography offences don't really deserve the right to a presumption of innocence. Making the government prove their case beyond all reasonable doubt isn't really necessary, and requiring the police to have search warrants before they kick in somebody's door looking for child pornography is just unnecessary paperwork. This is about saving the children! Sacrifices need to be made! I don't understand how any decent human being could support a child pornographer being innocent until proven guilty!
As I conclude this little exercise of my free speech rights, rights which McMenamin, Conroy, and their ilk seem only too happy to sacrifice on the altar of 'saving the children', I'll point out that McMenamin's own website -- www.childwise.net -- would probably be blocked by the automated content filters that she is so keen to force upon the rest of us. It contains references to delightful terms such as 'child prostitution', 'child pornography', 'child porn', 'sex with children', 'pedophile', 'child sex tourism', 'sex trafficking', 'child sex trade', and so forth. Content filters aren't good at determining context; such as telling the difference between a website which is promoting 'child sex tourism' and a website which opposes it.
But I'm sure that having her own website blocked to most Australians is a small price to pay. After all, this is about saving the children, people!
The article Filters needed to battle child porn, appearing in yesterday's Australian IT, and written by Bernadette McMenamin, the CEO of 'Child Wise', begins: [emphasis added throughout]
IT is beyond belief that some representatives of the Australian internet service provider industry are reluctant to install filters that would prevent access to child pornography.There you have it. If you oppose Labor's plan, you are not a decent human being, or you might be an 'extreme civil rights group' (I'm guessing she means EFA), or you care more about profits than the protection of children. If not for the fact that I'm a fairly thick-skinned individual, who happens to care about civil liberties such as freedom of speech, I'd probably sue McMenamin for defamation.
Surely any decent person would do all they can to protect children. However there exists a small but vocal group in Australia which is opposed to the federal Government's proposal to introduce mandatory ISP filtering to block child pornography and other illegal content.
...
In 2005 the United States National Center for Missing and Exploited Children revealed that 40 per cent of arrested child pornography possessors sexually abused children. The most disturbing trend is that the demand for sexual images of babies and toddlers and images of children being sexually tortured is increasing. This is the reality and I cannot comprehend how any decent human could oppose any initiative that aims to curb this evil trade.
...
So what could possibly be the arguments against ISP filtering from elements of the ISP industry and extreme civil rights groups. Well they have stated that it may "slow down the internet", "is expensive to use" and the clean feed system which is being used in the United Kingdom has faults, despite blocking access to hundreds of thousands of child pornography images. Do they care more about profits than the protection of children?
Supporting freedom of speech as I do, I support McMenamin's right to express her opinion on this important issue, as it is my right to respond by labelling her position even more extreme and fanatical than those of the non-decent human beings (such as myself) that she is attacking.
McMenamin's position seems to be that the government should do anything which might have the effect of reducing the trade in child pornography, regardless of whether it will be effective, whether it is technically possible, the monetary cost, the practical consequences, and the cost to the civil liberties of every person living in Australia. A weighing of the benefits against the costs isn't required; we're talking about children here! If you don't support it, then you hate children.
Which brings me back to South Park. In episode 30 of South Park, called 'Gnomes', a television advertisement is aired in favour of Proposition 10 on a forthcoming public balot. Proposition 10 would kick a giant chain of coffee stores (Harbucks) out of town, and the South Park kids are enlisted for pro-proposition 10 propaganda. I couldn't find a video of the advert, but the audio is available here (have a listen!).
The TV ad concludes with 'Prop 10 is about children. Vote yes on prop 10, or else you hate children. You don't hate children.... do you?'
This is what McMenamin's argument boils down to. If you oppose Labor's censorship plans, you're in favor of child pornography, therefore you're a despicable human being and hate children. I think perhaps she needs to realise that Labor's proposal is not about child pornography, and accept that playing the 'child pornography' card does not exempt any proposal from an evaluation on its merits and weighing of the benefits against the costs.
Distribution of child pornography is an abhorrent crime, to be sure, but even accused child pornographers enjoy the same civil liberties as every other person in this country. If you subscribe to McMenamin's theory that no price is too high to reduce the prevalence of child pornography, perhaps we should do away with some other civil liberties while we're at it. After all, people accused of child pornography offences don't really deserve the right to a presumption of innocence. Making the government prove their case beyond all reasonable doubt isn't really necessary, and requiring the police to have search warrants before they kick in somebody's door looking for child pornography is just unnecessary paperwork. This is about saving the children! Sacrifices need to be made! I don't understand how any decent human being could support a child pornographer being innocent until proven guilty!
As I conclude this little exercise of my free speech rights, rights which McMenamin, Conroy, and their ilk seem only too happy to sacrifice on the altar of 'saving the children', I'll point out that McMenamin's own website -- www.childwise.net -- would probably be blocked by the automated content filters that she is so keen to force upon the rest of us. It contains references to delightful terms such as 'child prostitution', 'child pornography', 'child porn', 'sex with children', 'pedophile', 'child sex tourism', 'sex trafficking', 'child sex trade', and so forth. Content filters aren't good at determining context; such as telling the difference between a website which is promoting 'child sex tourism' and a website which opposes it.
But I'm sure that having her own website blocked to most Australians is a small price to pay. After all, this is about saving the children, people!
It's been a busy week.
The media have gone into a feeding frenzy over Labor's election commitment to 'save the children' by forcing ISP-based Internet filtering upon everybody in the country, unless they specifically opt out of it. Nothing in particular seems to have precipitated this feeding frenzy. I have it on good faith from Senator Conroy's office that there have been no new announcements (apart from some new comments to the media equating freedom of speech with watching child pornography), and nothing has changed since they announced this before the election. It looks like one journo decided to write a follow-up article, which started a chain-reaction of scathing scorn and condemnation.
I find it somewhat amusing how media outlets feed of each other in this way. For instance, I can pretty much guarantee that if I'm quoted in the Sydney Morning Herald about anything remotely topical and newsworthy, I'll be getting phone calls from ABC radio stations throughout the country wanting to do interviews. It's somewhat ironic that an EFA media release doesn't have the impact that one story on smh.com.au does.
Anyhow, the media are really laying the boot into Labor's plans. They weren't this critical back in 1999 when the Coalition were proposing more or less the same thing. Perhaps with FOI becoming a waste of time and money, civil liberties increasingly going down the tubes, and the growth of a culture of secrecy at the Commonwealth level, the media outlets are taking the adverse potential of this scheme seriously.
A random assortment of media coverage:
The media have gone into a feeding frenzy over Labor's election commitment to 'save the children' by forcing ISP-based Internet filtering upon everybody in the country, unless they specifically opt out of it. Nothing in particular seems to have precipitated this feeding frenzy. I have it on good faith from Senator Conroy's office that there have been no new announcements (apart from some new comments to the media equating freedom of speech with watching child pornography), and nothing has changed since they announced this before the election. It looks like one journo decided to write a follow-up article, which started a chain-reaction of scathing scorn and condemnation.
I find it somewhat amusing how media outlets feed of each other in this way. For instance, I can pretty much guarantee that if I'm quoted in the Sydney Morning Herald about anything remotely topical and newsworthy, I'll be getting phone calls from ABC radio stations throughout the country wanting to do interviews. It's somewhat ironic that an EFA media release doesn't have the impact that one story on smh.com.au does.
Anyhow, the media are really laying the boot into Labor's plans. They weren't this critical back in 1999 when the Coalition were proposing more or less the same thing. Perhaps with FOI becoming a waste of time and money, civil liberties increasingly going down the tubes, and the growth of a culture of secrecy at the Commonwealth level, the media outlets are taking the adverse potential of this scheme seriously.
A random assortment of media coverage:
ITWire, New Australian Government tries totalitarian Net censorshipEFA's press release is here and an earlier analysis of their policy is here.
The Australian, Net-nanny state worth watching
AFP, Australia's plans to filter Internet under fire
Australian IT, Labor online strategy slammed
Al Jazeera (yes, seriously), Rudd's 'clean web' plan criticised
The Courier Mail, Censorship must be left to parents
ITWire, One small but significant step towards Internet censorship
Scopical, Plan to filter Australian internet a 'dud' says EFA
IT News, EFA attacks Labor's 'clean-feed' Internet proposal
Today's Sydney Morning Herald has an editorial piece on the complaint against Justice Adams which I blogged about yesterday. It reads, in part:
AUSTRALIA'S security establishment, having been weighed in the balance and found wanting, now wants to place its heavy hand on one side of the balance, to tilt it in its favour. That is the conclusion Australians would be entitled to draw from yesterday's Herald report that the head of the federal Attorney-General's Department has complained to the NSW Judicial Commission about Justice Michael Adams's verdict in the case of Izhar ul-Haque. As we have already stated, the decision of Justice Adams of the NSW Supreme Court in the ul-Haque case showed the legal system operating as intended. His judgment revealed that Australian Security Intelligence Organisation was using the charges against Mr ul-Haque as a threat to induce him to become their spy. Justice Adams was rightly scathing about the illegality of the ASIO agents' behaviour during Mr ul-Haque's arrest and interrogation. It appears that His Honour's decision, and the clarity of his views, forcefully expressed, about their cavalier approach to due process, have perturbed the security establishment - not just ASIO but also the Federal Police and, it appears, senior bureaucrats in the Attorney-General's Department, which oversees both agencies.
They appear, though, not to be worried, as they should be, by content of the judge's criticisms, but by the fact that he dared to make them at all. Instead of insisting Australia's security agencies observe the law, the head of the Attorney-General's Department, Robert Cornall, is seeking to punish the judge who pointed out how they had broken it. Is this an attempt to cow the judiciary, in security-related cases, into toeing the line and suspending the rules in the interest of national security? It would not be surprising if it were. The Commissioner of the Federal Police, Mick Keelty, has already suggested courts need to change their attitude to evidence if crimes, particularly acts of terrorism, are to be prevented - rather than punished after they have happened.
The Sydney Morning Herald reports that 'Australia's top legal bureaucrat', the secretary of the Attorney-General's Department, had made a formal complaint to the Judicial Commission of NSW against Justice Michael Adams.
Adams J is the judge who previously held that two ASIO agents had unlawfully kidnapped and falsely imprisoned a young Sydney medical student who was suspected of terrorism offences.
This comes after the head of ASIO publicly defended the behavior of the officers involved 'by saying the agency has had to adapt to new laws after September 11.' Stuff and nonsense. Adams J held that the ASIO officers knew what they were doing was illegal and they did it anyway.
I'm not surprised that O'Sullivan is defending the jackbooted thugs he employs, but I am surprised that he hasn't come up with some more plausible excuses. Playing the 9/11 card is just weak.
Adams J is the judge who previously held that two ASIO agents had unlawfully kidnapped and falsely imprisoned a young Sydney medical student who was suspected of terrorism offences.
This comes after the head of ASIO publicly defended the behavior of the officers involved 'by saying the agency has had to adapt to new laws after September 11.' Stuff and nonsense. Adams J held that the ASIO officers knew what they were doing was illegal and they did it anyway.
I'm not surprised that O'Sullivan is defending the jackbooted thugs he employs, but I am surprised that he hasn't come up with some more plausible excuses. Playing the 9/11 card is just weak.
The Sydney Morning Herald reports that recently declassified documents show that former FBI Director J Edgar Hoover submitted a plan to the White House, 12 days after the Korean war began, to suspend habeas corpus and arrest 12,000 people whom he suspected of disloyalty, and put them in 'permanent detention' in military prisons.
97% of the people on the list were American citizens. The arrests were to be proclaimed by then-president Truman to be necessary to 'protect the country against treason, espionage and sabotage.'
Hoover obviously wasn't a big fan of the bill of rights.
97% of the people on the list were American citizens. The arrests were to be proclaimed by then-president Truman to be necessary to 'protect the country against treason, espionage and sabotage.'
Hoover obviously wasn't a big fan of the bill of rights.
'ReputationDefender' offer a service to, amongst other things, 'find out everything that's being said about you online and get rid of the content you don't like.'
Pity that it's a scam.
'Powered by Search & Destroy', their service 'scour[s] the internet to dig up every possible piece of information about you, and then we present it to you in an interactive monthly report,' and '[n]ext we DESTROY. You can select the content from your report that you don't like. This is where we go to work for you. Our trained and expert online reputation specialists use an array of techniques developed in-house to correct and/or completely remove the selected unwanted content from the web.' (Emphasis added)
Their services are based on a false premise - that it's possible for them to 'destroy' content posted on third-party websites. Their website is deliberately vague on how they supposedly do this, but it's not at all clear to me how they can 'destroy' other people's content without criminal computer crime being involved.
It's possible that their 'destroy' service really just consists of sending out nastygrams threatening to sue the pants of everyone saying anything that their clients 'don't like.' In which case, their marketing-speak contains a stack of likely contraventions of s 52, 53, and 55A of the Trade Practices Act 1974 (Cth).
A novel interpretation of s 60 might mean that their nastygram campaigns, in and of themselves, contravene the TPA. If the service they supply their customers consists of using 'undue harassment or coercion' against third parties, I think this is quite arguably 'in connection with the supply or possible supply of goods or services to a consumer', in contravention of s 60. The section doesn't say the 'undue harassment or coercion' has to be used against the customer. A bit of a stretch, granted, but hey, I said it was a novel interpretation.
Articles such as this one tend to suggest that rather than 'destroying' content that their clients want to disappear, they setup new sites containing more positive information, and use SEO techniques to ensure that the 'positive' material appears in search results before the 'negative' material. Still, this isn't 'destroying' the negative content in any way, shape or form.
The marketing for their services are based on another false premise - that you can or should be able to 'get rid of the content you don't like' on the Internet. I notice that on their FAQ they claim to respect the First Amendment, and so they don't go after the media or the government. They seem to have forgotten that the First Amendment applies to everybody in America - not just organizations with money and lawyers. Everybody else -- including but not limited to me -- is presumably fair game.
People have a right to engage in lawful speech on the Internet without organisations such as ReputationDefender threatening to sue them for saying things that their clients 'don't like'.
Their marketing to parents -- eg 'Don't let the internet ruin your child's reputation' -- seems to be little more than scaremongering. They're relying on parents' fear and ignorance about the Internet to promote an expensive (US $29.95 per "destroy") for-profit service that can't legally do what it claims to do.
Then again, I probably shouldn't criticise them. If they decide this posting harms their reputation, they'll probably just 'destroy' it.
Pity that it's a scam.
'Powered by Search & Destroy', their service 'scour[s] the internet to dig up every possible piece of information about you, and then we present it to you in an interactive monthly report,' and '[n]ext we DESTROY. You can select the content from your report that you don't like. This is where we go to work for you. Our trained and expert online reputation specialists use an array of techniques developed in-house to correct and/or completely remove the selected unwanted content from the web.' (Emphasis added)
Their services are based on a false premise - that it's possible for them to 'destroy' content posted on third-party websites. Their website is deliberately vague on how they supposedly do this, but it's not at all clear to me how they can 'destroy' other people's content without criminal computer crime being involved.
It's possible that their 'destroy' service really just consists of sending out nastygrams threatening to sue the pants of everyone saying anything that their clients 'don't like.' In which case, their marketing-speak contains a stack of likely contraventions of s 52, 53, and 55A of the Trade Practices Act 1974 (Cth).
A novel interpretation of s 60 might mean that their nastygram campaigns, in and of themselves, contravene the TPA. If the service they supply their customers consists of using 'undue harassment or coercion' against third parties, I think this is quite arguably 'in connection with the supply or possible supply of goods or services to a consumer', in contravention of s 60. The section doesn't say the 'undue harassment or coercion' has to be used against the customer. A bit of a stretch, granted, but hey, I said it was a novel interpretation.
Articles such as this one tend to suggest that rather than 'destroying' content that their clients want to disappear, they setup new sites containing more positive information, and use SEO techniques to ensure that the 'positive' material appears in search results before the 'negative' material. Still, this isn't 'destroying' the negative content in any way, shape or form.
The marketing for their services are based on another false premise - that you can or should be able to 'get rid of the content you don't like' on the Internet. I notice that on their FAQ they claim to respect the First Amendment, and so they don't go after the media or the government. They seem to have forgotten that the First Amendment applies to everybody in America - not just organizations with money and lawyers. Everybody else -- including but not limited to me -- is presumably fair game.
People have a right to engage in lawful speech on the Internet without organisations such as ReputationDefender threatening to sue them for saying things that their clients 'don't like'.
Their marketing to parents -- eg 'Don't let the internet ruin your child's reputation' -- seems to be little more than scaremongering. They're relying on parents' fear and ignorance about the Internet to promote an expensive (US $29.95 per "destroy") for-profit service that can't legally do what it claims to do.
Then again, I probably shouldn't criticise them. If they decide this posting harms their reputation, they'll probably just 'destroy' it.
Many news outlets are reporting that a 'terrorist' prosecution in NSW has fallen on its arse because the court ruled evidence obtained in certain interrogations to be inadmissible, because of 'misconduct' by ASIO and the AFP. But it's only when you read the judgment -- R v Al-Haque [2007] NSWSC 1251 -- that you find out exactly how egregious the conduct of the ASIO officers was.
I encourage you to read the judgment in full. The high points are that three ASIO officers:
The list goes on. Adams J criticised (at [52]-[54]) the evidence of one of the ASIO officers involved as evasive and dishonest. His Honour found that:
The gallant men and women saving us all from terrorism just can't get a break these days. First the Victorian Court of Appeal quashed the convictions of 'Jihad' Jack Thomas, because overseas officials and a mysterious American (whom he believed to be a CIA agent) had threatened him with being shipped off to Afghanistan to be tortured by having his testicles twisted, or threatening to send people to Australia to rape his wife.
And then Mohamed Haneef gets off the hook because they had no evidence against him. Not that that little fact stopped them from telling the courts otherwise. And you never know -- maybe if they'd kept him locked up without trial for a few years, he might have confessed anyhow and saved the government the hassle of that whole 'burden of proof' and 'beyond reasonable doubt' stuff. It worked for David Hicks!
And now this. Adams J even had the gall to quote (at [60]) the judgment of that pinko commie Kirby J in Ruddock v Taylor [2005] HCA 48: ([137]-[139])
When will these pesky judges realise that the rules have changed, and that all pre-11/09/2001 authorities on the rights of individuals against the government are no longer good law? We're at war, people! Sacrifices need to be made. Civil liberties are an outdated concept, and a tyrannical surveillance state is preferable to a risk of being killed in a terrorist incident which is statistically about the same as the risk of being killed by lightning.
Maybe once Peter Faris QC has his way and the use of torture is legalised, they'll be able to get confessions from all these innocent people and make them stick. Then we can all feel safer.
(For the avoidance of doubt, the above several paragraphs are, of course, sarcasm)
I hope that Ul-Haque sues the government, and the agents who kidnapped him. I also hope that ASIO and the AFP once and for all get the message that coercing confessions is morally and legally wrong and the courts will slap them down where they do it.
But I doubt they will.
I encourage you to read the judgment in full. The high points are that three ASIO officers:
- Had no warrant for the arrest of the accused, or any lawful authority to detain him;
- Confronted the accused (a 21 year old) in the car park of a train station at night;
- Told him:
- that he 'was in serious trouble' and that 'you need to talk to us and need to talk to us now';
- that they 'were doing a very serious terrorism related investigation' and that 'we require your full cooperation';
- that they were taking him 'somewhere to have a private discussion';
- Then took the accused by car to a public park (as opposed to, say, a police station!);
- Told him:
- 'you're in a substantial amount of trouble. We are conducting a very serious terrorist investigation at the moment and that investigation has lead us to you. We have many means of investigation and we hold considerable information about you. What we now require from you is your full co-operation with ASIO in resolving the matter by being honest with us';
- 'we can do this the easy way or we can do this the hard way. Either you should co-operate with us or there'll be consequences for you, and it's in your own benefit that you keep talking to us'
The list goes on. Adams J criticised (at [52]-[54]) the evidence of one of the ASIO officers involved as evasive and dishonest. His Honour found that:
- The ASIO officers deliberately used language that suggested they had lawful authority to detain the accused and to require him to answer their questions; (at [34])
- The accused 'was intentionally given to understand that he was under an obligation to accompany the ASIO officers and answer their questions'; (at [27])
- The ASIO officers in fact detained the accused, although they knew they had no authority to do so; (at [35])
- The accused 'believed he was under arrest and that if he did not comply with what the officers asked him that they would either use physical violence or take him to a more sinister place for interrogation or otherwise do something else to his family or him'; (at [35])
- The ASIO officers committed the common-law misdemenour (or the tort) of false imprisonment, and the common-law crime of kidnapping, as well as trespass (for other conduct not described above); (at [57]-[60] and [62])
- The ASIO officers knew that their conduct was unlawful and 'were perfectly well aware that they were not entitled to detain [the accused]' and that '[t]heir conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused'; (at [61])
- 'The impropriety of B15 and B16 was intentional and calculated to produce the very admissions that were made. It was grave. There is no suggestion that the officers acted contrary to ASIO protocols and good reason for thinking that they did not.' (at [105])
The gallant men and women saving us all from terrorism just can't get a break these days. First the Victorian Court of Appeal quashed the convictions of 'Jihad' Jack Thomas, because overseas officials and a mysterious American (whom he believed to be a CIA agent) had threatened him with being shipped off to Afghanistan to be tortured by having his testicles twisted, or threatening to send people to Australia to rape his wife.
And then Mohamed Haneef gets off the hook because they had no evidence against him. Not that that little fact stopped them from telling the courts otherwise. And you never know -- maybe if they'd kept him locked up without trial for a few years, he might have confessed anyhow and saved the government the hassle of that whole 'burden of proof' and 'beyond reasonable doubt' stuff. It worked for David Hicks!
And now this. Adams J even had the gall to quote (at [60]) the judgment of that pinko commie Kirby J in Ruddock v Taylor [2005] HCA 48: ([137]-[139])
[The tort of false imprisonment] reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement. As Fullagar J observed in Trobridge v Hardy:The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights.This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the Executive Government. It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. In Re Bolton; Ex parte Beane, Deane J explained:The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.
When will these pesky judges realise that the rules have changed, and that all pre-11/09/2001 authorities on the rights of individuals against the government are no longer good law? We're at war, people! Sacrifices need to be made. Civil liberties are an outdated concept, and a tyrannical surveillance state is preferable to a risk of being killed in a terrorist incident which is statistically about the same as the risk of being killed by lightning.
Maybe once Peter Faris QC has his way and the use of torture is legalised, they'll be able to get confessions from all these innocent people and make them stick. Then we can all feel safer.
(For the avoidance of doubt, the above several paragraphs are, of course, sarcasm)
I hope that Ul-Haque sues the government, and the agents who kidnapped him. I also hope that ASIO and the AFP once and for all get the message that coercing confessions is morally and legally wrong and the courts will slap them down where they do it.
But I doubt they will.
The farce that is the Keystone Cops Australian Federal Police's handling of the Haneef matter just won't go away, and it gets worse every time I look at it. AFP Commissioner Mick Keelty, who was previously vocal in defending the AFP's prosecution of Haneef, and equally vocal in attacking Haneef's lawyers for pointing out the gaping flaws in the AFP's case against him, has now said that he knew the case was weak.
Tony Morris QC has called for Keelty to be sacked, and I agree with him whole-heartedly. From the news.com.au article:
The fact that Keelty hasn't been sacked over the Haneef debacle is symptomatic of the reprehensible and irresponsible government we've come to enjoy under Howard's watch. Thankfully the smart money is on that watch ending in about a month's time. Hopefully Rudd will give Keelty the arse, but I wouldn't put money on it.
Tony Morris QC has called for Keelty to be sacked, and I agree with him whole-heartedly. From the news.com.au article:
"At the time, he was very vocal in the press, castigating Haneef's lawyers for disclosing the weaknesses in the prosecution case," Mr Morris said. "Now he admits that he was conscious of those weaknesses all along, and stood by and did nothing when an inaccurate version of the facts was inadvertently presented to the court.Keelty should have had the balls to quit when it was revealed that the prosecution had given completely false information to the court for the purpose of justifying Haneef's continued detention. I don't know what Keelty was thinking when he made his most recent admissions -- maybe he thinks it's better to be thought to be a compliant stooge of the commonwealth's 'war against terror', than to be thought ignorant or incompetent.
"On his own admission, as the chief law enforcement officer for the commonwealth, he was willing to allow a miscarriage of justice to proceed without taking any step to interfere - and then attacked Haneef's lawyers for their efforts to prevent that miscarriage."
The fact that Keelty hasn't been sacked over the Haneef debacle is symptomatic of the reprehensible and irresponsible government we've come to enjoy under Howard's watch. Thankfully the smart money is on that watch ending in about a month's time. Hopefully Rudd will give Keelty the arse, but I wouldn't put money on it.
