One can't help but feel a certain sense of unreality when reading that nine men can gang-rape a ten year old girl and get away without so much as a slap on the wrist. In light of the attention given to child sexual abuse crisis in indigenous communities (which was used by the previous government as a justification for sending troops into the NT) it is extraordinary that a Crown prosecutor would not even make submissions requesting custodial sentences for the rapists (aged between 14 and 26), some with previous criminal records.
In light of the DPP's failure to pursue justice for the victim, it is hardly surprising that the court handed down what appear to be ludicrously lenient sentences, including not recording convictions (I am not familiar with the practice in criminal cases, but it would seem anomalous for a court to impose a sentence more severe than that sought by the prosecution). Even so, Judge Bradley's comments that the victim "was not forced" and "probably agreed to have sex" with the perpetrators reveals a staggeringly inappropriate approach to a child-rape case. A ten year old child is by definition unable to "agree" or consent to have sex with anyone for the very reason that makes the crime of child rape so heinous - because she is a child whose developmental stage is such as to disable her from making the choice, because she is incapable of understanding the nature of the act. That being so, talking about her "agreement" to have sex with nine men is nothing short of reprehensible.
Furthermore, how is it relevant that the victim was not "forced"? Force is not an element of the crime of rape and lack of force does not detract from the seriousness of the crime. How does the rape of someone who does not need to be physically forced because she does not understand what is being done to her merit any less condemnation than use of brute force to secure the victim's submission? Is a victim who is coerced into non-consensual sex by means other than physical force any less deserving of protection? Must she put up a physical fight or risk a judge (or a prosecutor) saying that she asked for it, that her rape was not all that serious? Must the rapists slap around a ten year old child as well as fuck her before they are considered sufficiently blameworthy to merit a conviction?
The legal system is not well adapted to dealing with the crime of rape because of the problematic notion of consent, but one would expect that gang rape of a child would not raise such problems. However when a judge makes remarks like those made by Judge Bradley and when a prosecutor does not even bother to ask for a sentence to match the crime, it is clear that even when dealing with child rape the legal system is plagued by inappropriate attitudes.
Incidentally, while I think that Judge Bradley's remarks deserve strong criticism, I believe that the calls for her sacking are inappropriate (as is the behaviour of journalists who appear to have followed her to her home seeking comment on the sentences). Independence of the judiciary is one of the most sacred aspects of our justice system (and rightly so - just consider what occurs in the systems where that independence has been lost) and that independence cannot be maintained if judges are at risk of sacking because their judgments upset the community. The correct remedy for such judicial error is the appellate process, which in our adversarial system ought to have been invoked by the prosecution. When the prosecution does not do its job, one can hardly be surprised that a miscarriage of justice occurs. In the present case the miscarriage of justice is particularly repugnant, but it is not an excuse for making inroads into the principles of judicial independence.
December 10th, 2007
Posted by
Unsilenced |
Law, Women, Indigenous people |
2 comments
What does a single mother in US have to do to be fined USD$220,000? Defraud a bunch of grandmas? Abuse her child? Start a riot? No, just download and share 24 songs.
Jammie Thomas, one of almost 30,000 people sued or prosecuted by records companies, chose to fight the charges rather than be pushed around by corporate bullies. Having spent over USD$60,000 in legal fees fighting the case, she was nonetheless found guilty of the heinous crime of sharing music and fined almost USD$10,000 per song. Yes, what she did was illegal. However, one of the integral aspects of criminal law is proportionality - the sanction must be proportionate to the crime. It is difficult to escape the conclusion that this is not the case here. When law is used by a multi-billion dollar industry, concerned only with its own profits, to persecute minor infringements for the sake of making making an example of a few law breakers in order to instill fear in millions of others, the legal actions are more harmful than illegal ones. Misuse of law for purposes that have nothing to do with achieving justice is quite offensive.
To top it all of, such measures are quite futile. For every file sharer the records industry prosecutes, there are thousands more who will never be caught and who may be quite content to play the odds. It is safety in numbers. There are so many copyright law breakers that the odds of an individual getting prosecuted are very small. No matter how much money the records industry wastes prosecuting single mothers for downloading two dozen songs, it will not empty an ocean of downloaders with a tea spoon. No matter how many P2Ps it closes down, new ones will emerge. Technology evolved massively in the last two decades, but the industry stubbornly refuses to evolve with it. Instead of devising constructive ways to reduce illegal music sharing, for example by providing access to cheap, easy legal downloads, that are not infected with digital rights management software which plays havoc with the users' computers, the industry is intent on fighting the inevitable. Instead of rising to the challenge of technology, they prefer to use the law as a tool for bullying the users of technology in the hope of turning back the tide. They think they can do it because they are big, powerful and ruthless.
And so were the dinosaurs…before they all died out.
October 7th, 2007
Posted by
Unsilenced |
Law, Internet and technology |
2 comments
After a four week ordeal, Mohamed Haneef has finally left Australia. Kevin Andrews refused to reinstate his visa, but allowed him to go back to India. This "generosity" comes at a price - Haneef is free to leave only on the condition that he doesn't talk to the media or allow his picture to be taken. The government is clearly hoping that if Haneef leaves quickly and quietly the whole affair and the government's role in it will be forgotten.
The Haneef affair should be remembered, not because it is undoubtedly a source of acute embarrassment to the government, but because it demonstrates the dangers of overzealous anti-terrorism laws, combined with the willingness of the government (with the blessing of the opposition and most of the electorate) to undermine the rule of law and trample civil rights in its "war on terror" (or more accurately in its attempt to make political mileage out of the "war on terror"). Ruddock may have the gall to say "I think that what we have seen is that the system worked as was intended", but what we have seen is the failure of "the system" to do what it is supposed to do - ensure that in our pursuit of the guilty we protect the innocent.
Civil rights, separation of powers and the rule of law are core Australian values, they are there to protect everyone one of us. Dismantling them to go after suspected terrorists puts us all in danger. I think this rationale was best described by Robert Bolt in his play about Sir Thomas More - "A man for all seasons":
Roper: … you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
In our haste to get after the Devil of terrorism we have allowed our government to cut down laws protecting our civil rights, to undermine the rule of law and the separation of powers. When you add into the mix the political interests involved and the pressures resulting from them, standing upright in the winds is becoming increasingly more difficult, and the Haneef affair is a good illustration of the results that follow.
Haneef was arrested in the thoroughly suspicious act of trying to board a plane to India, where his wife had just given birth, without having a return ticket and while looking Muslim. After being held and questioned for two weeks, while his lawyers weren't even given enough information to know what the evidence against him was, Haneef was charged under section 102.7(2) of the Criminal Code Act 1995 (Cth):
102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
This provision was included in the Criminal Code as part of a host of anti-terrorism measures hastily legislated by the government. So hastily in fact that the legislation does not even define what "support" or "resources" mean. Quite extraordinary for an offence that carries such severe penalty. In the case of Haneef it was decided that providing a SIM card to a relative, who later happened to be charged with concealing knowledge of a terrorist act, was sufficient to charge him with the offence.
To add to the peril of undefined nature of the offence, bail can only be granted for a person charged with a "terrorism offence" in "exceptional circumstances". Nonetheless, a Brisbane magistrate ordered that Haneef be released on a reasonably low ($10,000) bail. What happened as an immediate consequence of that decision is perhaps the best clearest illustration of the government "cut[ing] a great road through the law" - the executive intervened to subvert the court decision and keep Haneef incarcerated using the migration powers.
Government interference in the process of justice is the greatest threat to the rule of law and to the protection of our civil liberties. Failure to maintain a strict separation of powers between the executive and judicial arms means that political interests of the government are allowed to take the place of justice. It means that decisions affecting our rights a liberties are made not in the open forum of the courtroom, after presentation and consideration of the various arguments, but in the secretive confines of a ministerial office (in this case Kevin Andrews'), based on one sided information, without an opportunity for argument or appellate scrutiny.
The fact that the government was able to take that measure with not a whisper of protest from the Opposition and very little concern on part of the electorate demonstrates just how much danger the rule of law is in when it comes to anti-terrorism measures. An individual accused of a terrorism offence may find himself deprived of all the normal protections that the law gives a person (and lets remember that the person is innocent unless they are proven guilty).
Lets recall that at the same time stories were circulating in the media, fueled by various statements made by the AFP and the government: that Haneef the SIM card was to be used to set off the bomb, that the SIM card was found in the burning vehicle at Glasgow, that Haneef lived, worked and associated with the UK terrorists and so must have known what they were up to, etc. All these allegations have now been proven to be false. Ruddock was publicly stating that courts should be prevented from granting bail for terrorism offences altogether (the implication being that people as clearly guilty as Haneef should not be released) and Andrews was hinting that there is "secret" evidence, known only to the AFP and himself, that must prove Haneef's guilt.
When Haneef's lawyers took a page out of the government's book and released a transcript of his interview, they were publicly and viciously condemned by government ministers, including Howard who contended that now Haneef wouldn't be able to have a fair trial (you don't say!) and Ruddock who was threatening to have Stephen Keim QC prosecuted for daring to release a document with the potential to counter the misinformation leaked by the government.
Haneef is now free in spite of the "system", not because of it. He is free because because his legal team had the courage to fight the government in its own arena of public opinion, rather than their traditional arena of the courtroom, because release of Haneef's interview allowed public scrutiny of the gaps in evidence, because of heightened media interest and because, unlike the cowardly stance adopted by Rudd, Peter Beattie continually questioned the process. A bit of luck probably helped too.
Consider the situation: an individual is charged with a very serious offence, the scope of the offence is not clear, his legal team are not given access to all the information required to defend him, he is being held by virtue of a ministerial decision which cannot be appealed on merits and in relation to which he was not given the right to be heard, he is being vilified in the media by the same government that has locked him up and his lawyers are being personally attacked by the government for daring to defend him. So much for natural justice, so much for presumption of innocence and so much for the rule of law.
Every one of us can become that individual, because we have allowed the government to undermine the rights and values that are there to protect us all. This is the true danger of anti-terrorism measures - the protections for the innocent have been dismantled. Before we allow our leaders to continue cutting the road through the law, we should ask what will protect us from the winds. And our leaders would do well to ask themselves whether undermining public confidence in anti-terrorism laws advances Australia's fight against terrorism.
July 29th, 2007
Posted by
Unsilenced |
Australian politics, Law, Human rights, Howard government, Terrorism and war on terror |
one comment
I am in the process of writing a post about what the dangers of overzealous anti-terrorism measures as illustrated by the Haneef case. But before that post is complete, it is worth commenting on responsibility of the various actors in the Haneef fiasco and the hypocrisy of denial of that responsibility by the government.
A government that is responsible for a mistake or a bad situation is not necessarily unfit to govern. Of course it depends on the nature of the mistake and the government's role in it, but we have to face the reality that mistakes, and sometimes serious mistakes, can and do happen. A government which makes a mistake, admits it, learns from it and does what needs to be done to correct the situation is not a bad government by reason of the error alone.
On the other hand, a government which is responsible (wholly or in part) for a mistake or a bad situation and does not admit its responsibility, instead blaming anyone or anything it can, is not fit to govern. Not because it is responsible for a situation, but because it is unwilling to be what a government in a democracy must be - responsible.
In the wake of the collapse of case against Dr. Haneef, the Howard government sought to distance itself from the fiasco, blaming anyone and anything it could point a finger at.
Let's take a look at some of the government's outrageous attempts to duck responsibility:
1. "We didn't detain him"
Perhaps the best example is the statement by Howard "The detention of the man was undertaken by the police and not at the request or direction or encouragement of the Government".
How stupid does Howard think we are? Haneef was granted bail and was to be released, until the government (via one of its ministers - Kevin Andrews) intervened and used its immigration powers to detain Haneef. I do not propose to repeat my previously expressed views about Andrews' action, but given that this action was taken, and apparently taken after discussions between Andrews and other members of the government, it is extraordinary that Howard would say that the government was not responsible for Haneef's detention! In fact, Haneef is still being detained (in residential detention), solely because of the government's action to revoke his visa.
2. We weren't involved at all - blame the AFP and the DPP
In a variation on the above theme, Howard and Downer joined forces to claim that the AFP and the DPP operated entirely independently and the government was not in any way involved in the prosecution of Haneef.
Immediately after making the "we didn't detain him" statement, Howard went on to say that "the case was prepared and presented by the Director of [Public] Prosecutions, I think that the right thing now is for those two men to explain the process and explain the reasons" and Downer added "These institutions operate at arm's length from the Government and they always should and they always have."
Yes, the AFP stuffed up (do I dare mention the additions to the diary?). The DPP stuffed up as one of their prosecutors incorrectly told the court that Haneef's SIM card was found in the burning vehicle at Glasgow Airport and that he resided with the London terror suspects. Yes, those two institutions should operate at arm's length from the government, but that's not what happened here - the government may not have conducted the investigation itself, but it was certainly involved. It became involved when it decided to make political mileage out of the whole affair.
Here are just a few examples of the government's involvement: publicly supporting extended detention of Haneef and the AFP handling of the matter, declaring Haneef to be of "bad character" and stating that he will be deported even if found not guilty, locking him up after he was granted bail, publicly attacking and threatening Haneef's lawyers for releasing a transcript of the interview (which they were entitled to release), putting pressure on the AFP and the DPP, implying that anti-terrorism laws may need to be strengthened (presumably to better deal with vicious SIM-card sharing doctors), etc.
Had the case succeeded, the government would not doubt be quick to claim responsibility and boast about the success of its anti-terrorism measures. But while it it happy to take credit for success, it won't take any responsibility for its part in the prosecution which has now been revealed as a sham.
3. The Opposition are to blame because they supported us
This has got to be the most amusing attempt to duck responsibility - Andrews blamed the Opposition for supporting the government on Haneef. That's right - Labor rather than the government are to blame because they didn't oppose the government's actions!
There can be little doubt that the Opposition deserves criticism (and a lot of it) for its supine, unprincipled and cowardly position during the entire affair. It's "me to" attitude on everything from extended detention to supporting Andrews' outrageous use of migration detention powers means that it deserves almost as much blame as the government.
Nonetheless, Andrews' suggestion is quite extraordinary, not least because it is not too hard to predict what the government would have done if Labor had some guts and stood up to it. Without a doubt Howard would have painted Labor as soft on terrorism, putting Australian lives at risk and trying to bring about the complete destruction of Australia. Consider the government's response to Peter Beattie's criticism of the AFP investigation (incidentally, Beattie deserves praised for doing what the federal Labor did not dare to do). Howard's response to Rudd would no doubt have been even more extreme and would have allowed Howard to score some much needed political points.
Let's contrast the government's failure to accept responsibility with other actors in this drama:
The government's lack of integrity, as evidenced by it playing the blame game, may be contrasted with the actions of others in the Haneef fiasco. Let's start with Damien Bugg, the Director of Public Prosecutions, who reviewed the case, admitted that a mistake has been made and took appropriate steps to remedy the mistake. That was his job, but it must have taken a lot of guts given how political the case is.
The government's actions may also be contrasted with that of Stephen Keim SC, whose decision to release a transcript of Haneef's interview probably significantly contributed to the speed with which the case unravelled. Keim immediately took responsibility for releasing the transcript to the media and stood his ground despite vicious criticism and threat of criminal sanctions by the government. Keim (and Haneef's solicitor, Russo) should be commended for having the integrity and courage that our government obviously lacks.
Without a doubt, the blame game will continue for some time. Perhaps we should take the opportunity to consider whether a government which cannot act with integrity and which cannot take responsibility for its failures is a government that we should return in the next election.
July 28th, 2007
Posted by
Unsilenced |
Law, Howard government, Rudd and Labor, Terrorism and war on terror, Misconduct in politics |
one comment
Ruddock's apparent response to an opinion piece in the Australian regarding flaws in the process of selecting federal judges could not have been published at a worse time. Given that the government has just subverted judicial process and undermined the rule of law by locking up Haneef after he'd been granted bail, Ruddock's "opinion" piece, provocatively titled "Protection from judicial rule", appears all the more hypocritical.
Much of Ruddock's article is a rant against what he calls "judicial activism". His definition of judicial activism is "judges trying to apply "contemporary values", "the contemporary needs and aspirations of society", "the relatively permanent values of the Australian community", and all the other attempts to substitute subjective preferences for the rule of law". If his argument is that judges should have no regard to community values or the framework in which the laws that they apply and make (in the case of common law) operate, the argument is plainly misguided. He also deliberately refrains from mentioning in which exercises of judicial power these so-called "subjective preferences" are, in his opinion, impermissible. Is he referring to statutory interpretation, Constitutional interpretation, common law, equity? Or is he merely taking pot shots?
It is inappropriate for the Attorney General to make generalised and vague attacks on judges who he perceives as "activists". Even if it was not inappropriate, a newspaper article is certainly not the forum for any considered criticisms. It suggests that what is intended is a mere publicity stunt that does not allow for elaboration or proper debate. For example, one aspect of his argument that begs further examination is whether he includes judges having reference to (objective and well established) international human rights norms under his blanket claims of "activism". If he does, his argument that "activism" involves substituting "subjective preference for the rule of law" fails and is exposed for what it is - a hypocritical attack by a member of the government that defines justice as a decision in its favour and "judicial activism" as anything that doesn't deliver the outcomes it desires.
Ruddock's attempt to explain how the process of selection of judges is open and transparent is as disingenuous as his rant against "judicial activism". Consider this statement:
The most noticeable feature of the current approach for appointing judges is its accountability.
The ministers who collectively decide about appointments are all members of parliament and are all held responsible for the decisions we make. We are held accountable to the parliament, and also to the electorate. In other words, voters have the final say.
…
Cabinet makes appointments decisions in this way. First, there is consultation, both formal and informal. For High Court appointments I am obliged to consult with state attorneys-general. Apart from that, my colleagues and I are free to consult as widely or as narrowly as appropriate.
Does he really expect anyone to take this argument seriously? A decision made by government ministers in cabinet (with the associated secrecy attaching to such decisions) is hardly the model of transparency. The idea that ministers will be held accountable to the electorate for their selections of federal judges is laughable. How many people are aware of these appointments? What percentage of the electorate can name the judges of the High Court? What percentage even knows how many there are? When it comes to issues that influence voters at election time, selection of judges isn't even a blip on the political radar. As for consultation, while the A-G does have to consult with the state A-Gs, he is not obliged to pay any heed to their views and can otherwise consults or not consult as he sees fit.
But even as he attempts to convince us that the government's approach to judicial appointments is objective, balanced and inclusive (those of us who recall the government's promise to appoint "capital-C conservatives" may be pardoned for not being convinced), Ruddock himself conveniently proves that his position is little more than politically motivated hypocrisy. He gloats that "the debate about judicial activism in Australia is over" and that the number of so-called judicial activists "is drying up". This is in effect a confession that the government has been choosing its judicial appointees in accordance with a particular ideological standpoint - a hostility to progressivism.
Although he as good as confirms that the appointment process has been politicised, he nonetheless attempts to disguise the bias in government's approach by the oldest device in the book - he paints his own standpoint as neutral, allowing him to portray contrary viewpoints as deviating from the norm and therefore biased and unbalanced. But in attempting to paint his politicised approached as balanced, he fails to answer his own question: "Balanced in whose mind?"
And although Ruddock is right to say that Australia "has seen some of the very best lawyers in the common law world serve in the Australian judiciary" and to list Griffith, Isaacs, Latham, Dixon, Barwick, Kitto and Windeyer as judges who "had international reputations and contributed to the standing of the court", he deliberately omits some equally distinguished and globally recognised jurists, such as Sir Anthony Mason, Sir William Deane and Michael Kirby, all of whom Ruddock would no doubt describe as "judicial activists".
As the government is deliberately eroding civil liberties, subverting legal processes, abandoning Australian citizens to the tender mercies of the US military "justice", undermining transparency and accountability and increasing the executive power, it is not protection from "judicial rule" that Australians should be concerned about. The more pressing question is who will protect us from increasing abuses of government power or indeed from the hypocritical and misleading arguments of its ministers.
July 18th, 2007
Posted by
Unsilenced |
Australian politics, Law |
2 comments
Earlier today a magistrate ordered that Dr Haneef be released on $10,000 bail, pending his trial on charges of recklessly providing resources or support to a terrorist organisation (aka giving his cousin a SIM card that wasn't even used in the attempted attacks). Given that obtaining bail in matters concerning a "terrorism offence" is very difficult indeed, Haneef's release on bail says something about the evidence against him.
But Haneef didn't get much time to enjoy his freedom after two weeks of confinement and interrogation. Shortly after the court decision, Kevin Andrews, the Minister for Immigration cancelled Haneef's visa on "character grounds" and ordered that he be locked up in immigration detention to await his trial at the end of August.
Section 501(6) of Migration Act empowers the Ministerto cancel a visa where he believes that a non-citizen "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."
Andrews stated "In turning my mind to the information and advice provided to me by the Australian Federal Police, I have come to the conclusion, I reasonably suspect, that Doctor Haneef has or has had an association with persons involved in criminal conduct."
Naturally, "association" (which is not defined in the Act) can be guilty, for example where a person knows of their associates' criminality, or entirely innocent, such as association with a relative who unknowingly to the person happens to be a criminal. The fact that Haneef was charged with "recklessly" providing support/resources to a terrorist organisation, suggests that the AFP do not think (or cannot prove) that Haneef knew of his cousin's terrorist inclinations. Kevin Andrews refused to be drawn on the issue when questioned about it on the 7.30 Report.
Conceptually it is difficult to understand how "associating", whatever that means, with a relative, without being aware of his criminality, automatically makes you a person of bad character. It is also difficult to reconcile Andrews' action with according Haneef the presumption of innocence that the PM spoke about. However, this is not the biggest issue with what Andrews has done.
What occurred here is a subversion of judicial process (the only process that can guarantee some sort of impartiality and objectivity in such a matter) by the executive arm of government. Not only is this branch of government, through the AFP, involved in prosecution of Haneef, it also has a vested political interest in the outcome of the proceedings - it would be quite embarrassing for the government if its crackdown on terrorism netted an innocent person. Such an eventuality would also vindicate the concerns about anti-terror laws that have been expressed by those who remain concerned about the erosion of civil liberties.
The government waited for the outcome of the bail hearing and when a desired judicial outcome was not achieved, it took matters into its own hands, exercising immigration detention powers. The purpose of those powers is to detain a person while their visa status is determined or pending deportation. Their use as a substitute for pre-trial detention smacks of illegitimate circumvention of legal process and abuse of power. The fact that Haneef's lawyers were apparently assured that such action would not be taken casts further doubts over the legitimacy of the government conduct.
Kevin Andrews' action reveals the true face of terrorism measures. Dangers lurk not only in extraordinary detention powers, restrictions on ability to obtain bail and ill-defined offences with very severe penalties, they also lurk in the readiness with which the executive branch of government subverts the protections accorded to the accused by the legal process, the willingness that it shows to ignore the doctrine of separation of powers and its ability to become the judge and jury as well as the investigator and prosecutor. Labor's support for this action suggests that this phenomenon is party-neutral. No matter what party is in power, those suspected of terrorism offences (be they attempting to blow up buildings or sharing a SIM card) will find themselves squeezed from all sides with few legal protections available to them.
July 16th, 2007
Posted by
Unsilenced |
Law, Human rights, Terrorism and war on terror |
3 comments
Australians, you have been warned! If you give your SIM card to a relative, who later turns out to be a terrorist (even if you don't know about it at the time), you can be hunted down, arrested, charged with something like recklessly providing material support for terrorism and jailed for 15 years. Everyone knows that those SIM cards have become a real rarity. They are not sold everywhere, you know! You sometimes have to walk more than 10 metres to find a store which will carry completely anonymous, pre-paid SIM cards, or phones.
Actually, it's not a laughing matter. A few days ago I wrote about the inversion of justice created by the detention powers under the anti-terrorism laws. At the time of that post, Dr Haneef had been in detention without charge for ten days as the Australian Federal Police (AFP) tried to find any evidence of his connection to the failed terrorist attacks in UK. Needless to say that if this extended detention did not lead to any charges, the AFP would have had one heck of an egg on its face. Well, this morning the AFP charged Haneef with a "terrorist offence", namely recklessly providing support for a terrorist organisation.
The offence is set out in section 102.7(2) of the Criminal Code Act 1995 (Cth):
102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
So what exactly is Haneef accused of doing to commit this crime? Well, apparently he left a SIM card to his second cousin, who was one of the failed UK terrorists. That's right - giving a SIM card to a relative, without knowing that he is a terrorist, can lend you in jail for fifteen years.
Because "support" or "resources" are not defined in the legislation, it is arguable that giving your relative a SIM card so he can get cheaper calls, can fall within the scope of the legislation. The fact that anyone can buy a SIM card or a disposable phone in most stores, so it is not much of a resource, may not matter one bit. Providing hundreds of millions of dollars to Saddam Hussein's regime does not seem to qualify though, so anyone doing that can rest easy.
The width of the provision and uncertainty of what constitutes an offence under that section is remarkable not only in light of the extremely serious penalties that attach to its breach, but also because a person charged with a "terrorism offence" can only be granted bail in "exceptional circumstances". Therefore, Haneef could spend many months in jail, waiting to find out whether giving your relative something that can be bough for a few dollars in any convenience store falls within the scope of the legislation.
Regardless of whether it does or not, the terrorism legislation clearly needs reform. Not only because it allows detention of people precisely because there is no evidence against them, but also because it is unacceptable that a legislation the breach of which attracts some of the most severe penalties in the Criminal Code is so uncertain. Without definition of what constitutes "support" or "resources" the anti-terrorism laws create a ridiculous situation where someone can spend years in jail for something as innocuous as giving a relative or a friend a commonly available item. Not only is such a situation unjust, it makes a sad joke of the serious issue of terrorism prevention.
July 14th, 2007
Posted by
Unsilenced |
Law, Terrorism and war on terror |
3 comments
Usually we lock people up because there is evidence that they are guilty. Under terrorism laws this principle has been inverted.
Dr Mohamed Haneef has now been in detention for some 10 days. He has not been charged. Worse still for much of that time, his lawyers have not been told what exactly the accusations against him are. The right of the accused to know the case put against him is one of the most fundamental principles of natural justice. It is difficult to see how Haneef's lawyers can put a coherent case to the magistrate who keeps extending his detention, if they don't even know what the evidence against their client is (or if there is any, for that matter).
The anti-terrorism laws have created a situation where the federal police are allowed to keep on detaining someone precisely because they don't have enough evidence to charge him (not even prove the case against him, just charge him). One can only wonder at the incongruity of the system where it the very lack of evidence of guilt becomes the justification for continued detention.
Terrorism is a serious concern, but so are the basic civil rights and liberties. Serial killers or serial rapists cannot be treated in the way that Haneef has been, they cannot be detained without charge for almost two weeks and without being given a fair opportunity to defend themselves. Of course, in the present climate, attempted acts of terrorism create far more public fear than serial murders or similar crimes. One could easily think that it is a fair bargain to (at least apparently) gain some safety by turning a blind eye on civil rights violations. But danger comes in different forms and in our eagerness to avoid one danger we ignore another. Arbitrary and protracted detention, coercive interrogation, wrongful imprisonment or torture are all dangers that cannot be ignored simply because, for the moment, we are more scared of something else.
Those who think that they have nothing to fear if they have nothing to hide should remember the paradox of anti-terrorism laws - at the moment Haneef is being detained because there is not enough evidence against him to even charge him. And if such a paradox is acceptable in one set of laws, how long will it be before it is implemented elsewhere?
July 12th, 2007
Posted by
Unsilenced |
Law, Terrorism and war on terror, Health and Welfare |
6 comments
I was very interested to read an article in the Australian by Professor George Williams about the impact the next election will have on the composition of the High Court of Australia. With the political focus on WorkChoices, Iraq, indigenous affairs and the non-exploding car bombs in UK it is quite understandable that even those of us who usually pay attention to such things would forget that the winner of the next election will get to appoint two out of three High Court justices as Callinan, Gleeson and Kirby retire before 2009. Howard will get to replace Callinan who retires in September. Let's recall that in its first term the Howard government appointed Ian Callinan in order to begin the process of stacking the Court with "capital-C conservatives". The apparent motivation was the Wik decision, which the government (with its habit of defining justice as a decision in its favour) maligned as an example of impermissible "judicial activism". Those of us who read the decision of course know that it was backed up by solid reasoning and in no way endangered people's backyards. But I digress…
Throughout his 11 years in power Howard seized his chance to stack the Court with conservative appointees (that is not to say that any of them are in any way incapable or undeserving of appointment). Of the seven judges on the present Court, only two were appointed by a Labor government and one of them (Justice Gummow) is no less conservative that most Howard government appointees. Of course, as Williams points out, predictions about a judge's ideological leanings may prove wildly wrong. The prime example - Sir William Dean - appointed by a Liberal government and expected to be a conservative jurist, proved to be one of the most progressive (as well as one of the most brilliant) High Court justices in Australian history.
However, Williams is undoubtedly correct that the High Court after 11 years of Howard government is a very different Court to that at the start of Howard's rule. It is little wonder that Justice Kirby is fast approaching a 50% dissent rate, not through any errors of legal analysis but because of genuinely different (and I'd say often superior) perspectives.
A further term in government for the Liberal party will doubtless entrench the ideological lean of the Court for many more years to come. As Williams points out - in US this would be an election issue, in Australia it barely rates a mention. It should be an issue - we are talking about the highest court in the land, the ultimate guardian of the Australian common law and the Constitution. It's important. Even if you are not a lawyer.
July 9th, 2007
Posted by
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Law, Howard government, Australian election |
3 comments
On 26 June 2007 I had the good fortune to be present at a breakfast organised by the Maurice Blackburn Cashman Women's Law Section, where Julia Gillard was a guest speaker. The speech has now been published on Gillard's website, so I thought now is a good time to discuss it without much risk of misstatements.
I must say that Gillard is quite an impressive speaker. If the Labor party had a few more pollies like her I might have considered voting for them in the next election (although they are likely to get my vote on preferences anyway). Ok, enough small talk.
At the start of her speech, Gillard reaffirmed the Labor party's promise to reform and harmonise legislation to protect outworkers in the textile industry (most of them migrant women). She gave examples, from her work as an industrial lawyers, of these vulnerable workers being cheated of entitlements such as annual leave, redundancy, long service leave, or even wages as their unscrupulous employers frequently changed their corporate identities or closed up shop without notice. Labor's promise to reform regulation of outwork is a positive step, as is the plan to "kickstart the development and promotion of the Homeworkers’ Code of Practice and the "No Sweat Shop" label."
One of the most interesting and topical parts of Gillard's speech concerned the impact of AWAs on women in the workforce. She cited recent ABS data which showed "that women working full time on AWAs take home on average $87.40 per week less than their colleagues working on collective agreements based on their rate per hour. Women working on AWAs in casual jobs earn $94 per week less than women on collective agreements."
Women on AWAs also worked longer hours. Gillard referred to a Victorian Government report released in March which revealed "that female full-timers received 5 per cent less per week on an AWA than on a collective agreement even though they worked an additional 1.3 hours per week."
When you think about it - its not that surprising. AWAs have drastically shifted the balance of power between employer and employee. It can be expected that the greater the power imbalance, the more likely it is that the employee can be compelled to accept inferior working conditions. Unfortunately women still have less power in the workplace than men - they are more likely to be found in part-time or casual jobs because of family commitments, they are more likely to be absent from the workforce for extended periods of time to have and care for children, thus reducing their employability. They are also predominantly concentrated in lower paid, lower skilled jobs such as hospitality and retail (which incidentally are the industries that use AWAs the most), making them more "replaceable" and easier to coerce. And women sometimes lack the confidence the bargain as effectively as men (wonder if it has to do with the social conditioning that we should be sweet, non-confrontational peacemakers)
In fact, in her speech, Gillard referred to a report into women in the professions conducted by the Association of Professional Engineers, Scientists and Managers, showed that more than half of respondents reported that they were "not very confident" or "not confident at all" in negotiating good remuneration and working conditions with their employer. And these are professional women, who would be expected to be more confident in bargaining that women in non-professional employment. As Gillard pointed out this is a "truly worrying result when the existing industrial laws are predicated on individuals bargaining with their employer."
Julia Gillard talked about Labor's IR policy and parental leave policies designed to make it easier for parents to balance work and family. This policy included 12 months unpaid parental leave to each parent (which may hopefully encourage more men to take up parental leave and give them the opportunity to spend more time with their children) and flexible work arrangements for families with young children. Gillard gave an excellent response to Howard's suggestion that providing parents with more flexibility would discourage employers from hiring women.
When asked about Labor’s policy by journalist Laurie Oakes, the Prime Minister claimed that it would result in employers refusing to employ women with young children.
"You run the risk, Laurie, if you put it into legislation that some employers will avoid employing women, in particular with young children" [Prime Minister John Howard, 29 April 2007]
The Prime Minister used exactly the same argument that was used back in 1979 in connection with the Maternity Leave Test Case of that year. Since that Test Case, women’s participation has increased by more than 30 per cent.
It was a knee-jerk reaction from a man living in the past who thinks women are at the margins of our workforce and employers can simply overlook their participation. A man who fails to recognise our economy’s twin needs of skilled labour and supporting those who are bringing up the next generation.
A callous response from a man who does not even try to understand the anxiety of young women torn between the need to return to work and the desire to see their child take their first steps.
She may have also added that it is a highly hypocritical reaction from a man whose government uses family or children's interests as political slogans when it is convenient, but fails to support policies that would enable parents to spend more time with their children (and with each other) while still being able to participate in the workforce.
Gillard also spoke about other matters, such as superannuation and childcare. Just click on the link above for the whole speech. It's worth a read, as I said, it was a very good speech which I wanted to share.
I am planning to do a series of posts on WorkChoices and AWAs, so if anyone's interested, please keep visiting and, as always, thanks for reading :-)
July 7th, 2007
Posted by
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Law, Howard government, Industrial relations, Women, Family, Julia Gillard |
5 comments
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