civil liberties: August 2007 Archives

I'm going to refrain from editorialising about this, I think the videos, pictures, and news articles speak for themselves.  Watch the video, read the news articles, decide for yourself:

Video and photographs of undercover police officers attempting to incite violence
News article: Undercover cops tried to incite violence in Montebello: union leader
News article: Quebec police admit they went undercover at Montebello protest
News article: Quebec police defend officers' actions at summit

Based on the media reports I've seen, Sydney looks like it's going to hell in a hand-basket, and all because of the APEC meeting to be held there early next month.  I question whether whatever supposed benefits to the country that result from having the APEC meeting here justifies the monetary expense, and the gross inconvenience and abrogation of the civil liberties of people living, working, and travelling through Sydney during this period.

To facilitate this interregnum of our civil liberties, the NSW government has enacted the APEC Meeting (Police Powers) Act 2007, which contains a large number of worrying provisions, including:

• The Police Minister may, by notice published in the gazette, declare any area in metropolitan Sydney a "declared area" under the act; [s 6]

• The Commissioner of Police may, by written order, declare that any part of a declared area is a "restricted area" to which further restrictions apply.  The Commissioner must take "reasonable steps" to notify the public of such an order, but need not do so if they consider it would significantly compromise security arrangements; [s 7]

• During the "APEC period" (30 August to 12 September), police may, without a warrant and seemingly without any suspicion that the person has or will commit an offence, stop and search anyone in or seeking to enter a declared or restricted area, and detain them for as long as is reasonably necessary to conduct the search; [s 12]

• Police may also give "reasonable directions" to any person or group of persons in a declared area; [s 14]

• Police have further powers in relation to restricted areas, including the power to enter and search any premises (except residential premises) without warrant; and to require the production of identification from anyone in or seeking to enter a restricted area; [ss 21 and 22]  The Sydney Morning Herald reports that police may require identification from people wanting to cross the road in some areas of the CBD.

• Entering a restricted area without "special justification" (as defined in s 37) is a criminal offence punishable by six months imprisonment. [s19]

• The Commissioner of Police can compile an excluded persons list of persons who they are satisfied "would pose serious threats to the safety of persons or property"; [s 26]

• People who are on the Commissioner's blacklist, or who refuse to comply with a "reasonable direction" under s 14, or who resist being searched, (etc) can be excluded from declared or restricted areas for the duration; [ss 24-25]

• There is a presumption against bail for certain offences. [s 31]

Slashdot have a story concerning a major outage in the "Windows Genuine Advantage" servers.  This outage resulted in a large number of genuine, legitimate installations of Microsoft Windows products incorrectly identifying themselves as "non-genuine" with a subsequent lessening of functionality [see e.g. this or this] -- presumably to encourage those damn dirty software pirates to buy a copy of the real thing.  Even though they already had.

Microsoft have dropped the ball on this one.  Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction.  No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.

If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.

The Sydney Morning Herald is carrying an excellent article on the free-speech implications of changes to law on secondary boycotts, which are dealt with in s 45D of the Trade Practices Act 1974.  Secondary boycotts got a lot of attention when Australian wool-growers sued People for the Ethical Treatment of Animals and their supporters, who were advocating boycott of Australian wool.  From that article:

No price is too high to pay to protect the Aussie woolgrower. With marked contempt for the effect it would have on freewheeling public debate, Peter Costello has introduced a little bill to clobber campaigners against the bloody business of mulesing sheep. But not only them: his strategy will snare anyone calling for customer boycotts.

So if you're asking Australians not to buy lipstick tested on caged rabbits, rugs woven by Pakistani slaves or suits made with mulesed wool, then pray your boycott calls don't succeed, for the Australian Competition and Consumer Commission is about to be given the power to sue you out of the water if they do.

Gagging public debate with such threats has been an old ambition of the Howard Government.

Not that Canberra talks in such terms. Introducing the Trade Practices Amendment (Small Business Protection) Bill 2007 last week, Costello reaffirmed his Government's "commitment to stand up for small business against thuggery and intimidation. It is vital, both for our economy and our way of life."

But Costello's bill is designed to protect businesses of any size - all the way up to BHP Billiton - not by outlawing intimidation, but by punishing persuasion.

Hurt a business simply by arguing that it's ethically repugnant to buy its products and the commission will be able to step in and sue to recover the company's lost profits. It's quite a service.

News.com.au reports that the keystone cops Australian Federal Police have complained to the Queensland Legal Services Commissioner because Haneef's lawyers are allegedly "us[ing] the media to run their case" which is said to be unprofessional and inappropriate.

Yes, how dare they leak information to the media.  That, after all, is the privilege of the executive government.  Moreover, it is the privilege of the executive to selectively leak only the parts of the evidence that support their case, while insisting that all other evidence remain confidential.  Heaven forbid that the public should know the whole truth of the matter, or that the Minister should be exposed as a fraud who has wilfully misrepresented the facts while pandering to the court of public opinion.

Misrepresenting the facts in court also seems to be another privilege of the executive; witness the "SIM card was in the Jeep" debacle.  If not for a contradictory leak in the UK, the government might still be sticking to it's original story.  I feel for the government on this point.  It's terribly hard for them to arbitrarily detain people when their lies, half-truths, and misinformation keep getting exposed.

The AFP's complaint to the Legal Services Commissioner stinks of rank hypocrisy, and echoes similar threats of disciplinary action against Major Michael Mori, the military lawyer for David Hicks.  There seems to be a trend developing here: defend alleged terrorists, by all means, but make the government look stupid at your peril.

Justice Spender of the Federal Court of Australia has today given his judgment in Haneef v Minister for Immigration and Citizenship [2007] FCA 1273.  In short, Spender J held that although the Minister applied the "association" test from Minister for Immigration & Multicultural Affairs v Chan [2001] FCA 1552, (which held that even an innocent association was sufficient to satisfy the legislative test), that that was not the correct test and that Chan was wrongly decided.

Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time.  That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.

The Commonwealth, predictably, announced within hours of the judgment that they would appeal.  I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action.  I am, of course, being sarcastic.  It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.