Recently in government Category
In my previous posting on the Henson saga, I wrote:
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)The Sydney Morning Herald now reports that:
Online photographs used by media websites to report on the investigation into Bill Henson have been referred to the Classification Board, the Minister for Home Affairs, Bob Debus, said.
...
"Several online images of Bill Henson photographs from media websites reporting on the exhibition at the Rosyln Oxley9 gallery in Sydney have been referred to the Classification Board," he said.
They were referred to the board by the Australian Communications and Media Authority (ACMA), which investigates complaints about online content.
There's been stacks of media coverage over Bill Henson and some of his photographs, which a lot of people, Kevin Rudd included, are falling over each other to denounce as child pornography. That, and calling for Henson, the art gallery managers, and the parents of the models, to be jailed.
This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)
Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.
Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.
Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.
I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:
Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:
This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)
Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.
Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.
Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.
I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:
The models in question weren't engaged in sexual activity, or being tortured. That leaves 'plac[ing] in a sexual context', which I doubt they were. I don't think the mere fact that they were naked means they're in a 'sexual context'; arguably the intent of Parliament was to require something more than mere nudity. If they wanted to proscribe nudity, they should have said so.
- 'engaged in sexual activity';
- 'placed in a sexual context'; or
- 'is subjected to torture, cruelty, or physical abuse (whether or not in a sexual context)'.
Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:
Fairly clearly, the subjects of these photos aren't 'engaged in activity of a sexual nature', nor are they in the presence of somebody who is. If the photos were taken before the 2004 amendments commenced, I think a prosecution in reliance on s 91G will fall on its arse.
- 'the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography'; or
- 'the child is in the presence of another person engaged in such an activity for that purpose.'
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!
The Australian has a good article today about Senator Conroy's marvelous plans to censor the intarwebs, to save the children of course. Or is it about stopping child pornography? I wish they'd make up their minds.
In any case, the article is very good, but the claims made and quotes from people in it are just screaming out for rebuttal, so here is the article (indented and in italics), with my commentary dispersed throughout (not indented):
In any case, the article is very good, but the claims made and quotes from people in it are just screaming out for rebuttal, so here is the article (indented and in italics), with my commentary dispersed throughout (not indented):
BROADBAND Minister Stephen Conroy faces an uphill struggle in his plans to increase internet censorship by boosting the official blacklist from a puny 1000 web pages to many millions of banned websites.I'm not sure Conroy wants to increase the size of the official blacklist per se, I think his current plan is to force content-based filtering upon everybody.
Industry commentators say the task may be beyond the capabilities of filtering mechanisms and procedures, and it would be impossible to block all such material.I agree completely.
The scope of the problem is, however, immense. Policing child pornography alone could be beyond present capabilities.
Continue reading The Australian article on Conroy's censorship plans.
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
The Full Court of the Federal Court of Australia handed down their judgment on the Haneef appeal this morning -- Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 -- and dismissed the government's appeal with costs.
Quoting from the Court-provided summary of the judgment:
Quoting from the Court-provided summary of the judgment:
The Migration Act specifies various circumstances under which a person does not pass the character test. They include that a person has or has had "an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct".
The Minister suspected that Dr Haneef did not pass the character test because of his "association" with the Ahmeds. [Haneef's second cousins]
Justice Spender considered that the Minister had misinterpreted the character test and had applied a test that was too wide and could encompass links that could not, in his Honour's view, conceivably have had any bearing on the visa holder's character.
On the Minister's appeal to the Full Court the central issue was, again, the scope of "association" and whether the Minister had applied the incorrect test.
It was common ground on the appeal that there had to be some limits on the scope of "association", but there was disagreement between the parties as to what those limits were. The Minister argued for a wide definition, relying upon an earlier decision of a single judge of the Federal Court, and Dr Haneef's counsel argued for a narrower one.
Applying the principles of the common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected, the Full Court has agreed with Justice Spender that a narrower interpretation of "association" than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.
In a unanimous judgment, the Full Court has concluded that the "association" to which s 501(6)(b) of the Migration Act refers is one involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated. The association must be such as to have some bearing upon the person's character.
It's good news, but it's not all good news. The Coalition are out, and not before time. Ding, dong, the witch is dead, and so forth.
Howard may or may not lose his own seat -- the latest numbers from the AEC show Howard with 32,283 first preference votes, McKew with 32,852. On a two-party preferred, McKew is ~3000 votes in front, so it looks like that seat will be decided by preferences, and particularly the Green preferences.
The bad news: The Democrats got pounded even harder than the Coalition. Last night, Andrew Bartlett was remaining positive and expecting a long wait, today he seems to be conceding defeat. He blogs about this here. This is truly a tragedy for reasoned consideration of legislation in the upper house. It's also a tragedy that more people voted for each of Pauline bloody Hanson or Family First than the Democrats.
The ABC are predicting the Senate numbers thusly:
If accurate, Labor will need the support of the Greens and both Family First Senator Steve Fielding and new independent senator Nick Xenophon to pass legislation opposed by the Coalition.
As Nic Suzor points out, this will leave us particularly vulnerable to extremist hold-outs in the Senate. We could see a repeat of the Harradine years, where ill-conceived Internet censorship legislation was enacted to buy his support in other areas.
Howard may or may not lose his own seat -- the latest numbers from the AEC show Howard with 32,283 first preference votes, McKew with 32,852. On a two-party preferred, McKew is ~3000 votes in front, so it looks like that seat will be decided by preferences, and particularly the Green preferences.
The bad news: The Democrats got pounded even harder than the Coalition. Last night, Andrew Bartlett was remaining positive and expecting a long wait, today he seems to be conceding defeat. He blogs about this here. This is truly a tragedy for reasoned consideration of legislation in the upper house. It's also a tragedy that more people voted for each of Pauline bloody Hanson or Family First than the Democrats.
The ABC are predicting the Senate numbers thusly:
| Coalition | 37 |
| Labor | 32 |
| Greens | 5 |
| Family First | 1 |
| "Other" | 1 |
If accurate, Labor will need the support of the Greens and both Family First Senator Steve Fielding and new independent senator Nick Xenophon to pass legislation opposed by the Coalition.
As Nic Suzor points out, this will leave us particularly vulnerable to extremist hold-outs in the Senate. We could see a repeat of the Harradine years, where ill-conceived Internet censorship legislation was enacted to buy his support in other areas.
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.
