5 November and the Gunpowder Plot

5 November 1605: The Gunpowder Plot

 

Those of us old enough to remember “Cracker Night” will associate it with the name of Guy Fawkes. Some might remember that Guy Fawkes’ name is synonymous with the Gunpowder Plot. Very few indeed will recognise that the Gunpowder Plot was the 17th Century equivalent of September 11.

It is a pity that the Gunpowder Plot has slipped from popular memory. It has striking parallels with contemporary events, both in its origins and in its consequences. Just a few years before the Gunpowder Plot, Francis Bacon wrote that “[h]istories make men wise …”. Our response to September 11 might have been wiser if only we had read history more carefully.

The last years of the reign of Elizabeth I were marked by increased persecution of Roman Catholics in England. Recusants were fined for not attending the Protestant churches, and the recusant fines had become a significant source of revenue. Catholic priests – especially Jesuits – were persecuted terribly, and many were put to death for their faith.

As Elizabeth’s health failed the question of succession had not been settled. Among the several possible candidates to succeed her was James VI of Scotland. He was Protestant, but the son of Mary Queen of Scots, the Catholic daughter of James V of Scotland. Mary had been put to death by Elizabeth in 1587. James was married to Anne of Denmark. She was born a Lutheran but had converted to Catholicism. This made James’ position on religion decidedly ambiguous.

Many high-placed Englishmen established contact with James in advance of Elizabeth’s death, in order to test the ground. Among these was Thomas Percy, a recusant and protégé of the Earl of Northumberland. He returned from Scotland with enthusiastic accounts of the religious toleration James would introduce. Sir Robert Cecil, the Queen’s trusted adviser, also ascertained that James was not inclined to persecute the Catholics so long as they “lived quietly”. Thus it was that, when James VI of Scotland succeeded as James I of England there was real hope that the time of religious persecution would end.

The hopes engendered by Thomas Percy’s account and James’ ambivalent correspondence were not realised. By 1605, things had become markedly worse and more anti-Catholic legislation was expected.
The Gunpowder Plot

Robert Catesby was the son of a rich Warwickshire family. He was 30 years old at the time of James’ coronation. His father had been persecuted under Elizabeth. He was intelligent, pious, conscientious and (by all accounts) charismatic. Frustrated by the absence of real reform, he conceived the idea of destroying at a single stroke the Royal family and the Parliament which had passed the harsh, anti-papist laws. For this purpose he proposed to blow-up the Parliament at its opening, when the Royal family would be present. In March 1604, he recruited Thomas Winter and John Wright. Others were drawn into the conspiracy. In May, Thomas Percy and Guido Fawkes joined.

In July 1604, new anti-Catholic legislation was passed by Parliament. In January 1605 John Grant, Robert Winter and Thomas Bates joined the plot; in September Sir Everard Digby, Ambrose Rookwood and Francis Tresham joined.

Apart from the folly of the entire enterprise, it was probably the introduction of Francis Tresham which brought the plot down. The conspirators had arranged to store 36 barrels of gunpowder in an apartment adjacent to the Hall of Parliament. The recall of Parliament had been postponed several times, but was eventually fixed for Tuesday, 5 November. Someone – apparently Francis Tresham – wrote a cryptic letter to Lord Monteagle, advising him to absent himself from the opening of Parliament. Monteagle was a Roman Catholic, married to Tresham’s sister. But instead of heeding the warning, Monteagle took it to Robert Cecil. In due time, the Parliament building was searched, Guido Fawkes was discovered and the plot was undone.

Fawkes was taken into custody as the other conspirators fled from London. Under the law of the time, torture was illegal. However in exercise of the royal prerogative King James personally authorised the use of torture to discover the identity of the other conspirators. His letter of authority, dated 6 November 1605 reads in part:

“The gentler tortours are to be first used unto him et sic per gradus ad majora tenditur [and thus by degrees to the worst] and so God speed your goode worke”.

The gentler torture was the manacles: Fawkes was hung from a wall by iron manacles tightly bound around his wrist, with his feet above the ground. This has a physiological effect similar to crucifixion. The worst torture was the rack. This involved lying the victim on a horizontal frame and binding cords around his wrists and ankles. These cords were wound around rollers at each end of the frame. By use of winches, the rollers slowly wound in the cords, thus stretching the victim until the major joints came apart. It is accounted the most excruciating form of non-lethal treatment yet devised.

Under this treatment, Guido Fawkes made three confessions. The third bears a signature which hardly looks to be the work of a human hand: mute testimony to the effects of the rack.

Fawkes’ third confession led to the capture of the other conspirators. Catesby, Percy and Jack and Kit Wright were killed whilst being taken. Francis Tresham was badly wounded and died before he could be tried.

The Gunpowder Plot was the work of over-zealous extremists, isolated from their co-religionists. The Roman Catholic hierarchy in England had tried to dissuade any violence against the State. Nevertheless, when the conspirators were charged, the first name on the indictment was Father Henry Garnet, the Jesuit Superior of England. He was unquestionably innocent of the plot. But it was deemed important to pitch the Plot as a Catholic attack on England.

Those conspirators who had survived were tried on 27 January 1606 and were sentenced to be hung, drawn and quartered. Henry Garnet, who was not captured until later, was also brought to trial. His conviction was certainly unjustified, but reflects the public frenzy of anti-Catholicism which the plot had released. He was executed on 3rd May, 1606.
Divine right of kings

A key feature of the reign of James I was his belief in the divine right of Kings, and with it the unlimited scope of the sovereign prerogative. In his speech to Parliament on 21 March 1610 he said:

“Kings are justly called Gods for that they exercise a manner or resemblance of divine power upon earth. For if you will consider the attributes of God you shall see how they agree in the person of a King. God hath power to create or destroy; make or unmake at his pleasure; to give life or send death; to judge all and to be judged nor accountable to none; to raise low things and to make high things low at his pleasure. And the like power have Kings.”

(Note the echo of King Lear, written in 1605: “as flies to wanton boys are we to the Gods, they kill us for their sport”).

Even though torture was illegal in 1605, the King could order it in the exercise of the royal prerogative. Furthermore James I, and after him Charles I, insisted that the Royal prerogative entitled them to rule without Parliament and to act beyond the laws made by Parliament or to suspend those laws in particular cases as they chose. As the notion of parliamentary democracy took shape, two questions became an increasing source of tension: did the King rule under the law, or did he stand outside it; and if Parliament made a law, was the King free to dispense with it? This was one of the great constitutional questions which dominated 17th century England.

The Gunpowder conspirators had been prosecuted by Sir Edward Coke, the then Attorney-General. In his capacity as Attorney-General, Coke had been an advocate of the right of the King to dispense with the law as he saw fit. When Coke was appointed Chief Justice of the Court of Common Pleas, his views changed. He insisted that the King ruled under the law: in a famous confrontation with James I, Coke declared that “the King cannot change any part of the common law nor create any offence by proclamation which was not an offence before”.

Judicial independence was unknown in the time of James I. After many manoeuverings, James I dismissed Coke from his judicial office and Coke subsequently entered Parliament in 1620. In 1627 (the second year of the reign of Charles I) the King ordered the arrest of Sir Thomas Darnel and four others who had refused to advance a compulsory “loan” to the King. They sought habeas corpus. The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King].

Darnel’s case in 1627 prompted Coke to draft for Parliament the Petition of Right (1628). The Petition raised, with exquisite politeness, the following complaints about the King’s conduct:

he had been ordering people, like Darnel, to be jailed for failing to lend him money;
he had been billeting soldiers in private houses throughout the country against the wishes of the owners;
he had circumvented the common law by appointing commissioners to enforce martial laws and those commissioners had been summarily trying and executing “such soldiers or mariners or other desolate persons joining with them as should commit … (any) outrage or misdemeanour whatsoever …”;
he had been exempting some from the operation of the common law.

The Parliament prayed that the King “would be graciously pleased for the further comfort and safety of your people, to declare … that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm …”.
The emergence of the Rule of Law

The Petition of Right was the opening shot in the battle for the Rule of Law. The principle of the Rule of Law in a parliamentary democracy insists that the Parliament is the supreme lawmaker and that all people, including every member of the Government and the head of state, are subject to the law; it requires that the laws be enforced by independent judges appropriately skilled, enjoying security of tenure so as to free them from extraneous pressures.

The struggle for the Rule of Law was waged in various forms over the balance of the 17th Century. Charles I prorogued the Parliament which had presented the Petition of Right. He ruled without Parliament until 1640 and then called the Short Parliament which refused to grant supply and was dissolved. He called the Long Parliament in November 1640 which confronted the King and declared it illegal to levy tax without the authority of Parliament.

The power struggle between Charles I and Parliament led to the Civil War (1642-1649) which ended with the surrender and execution of Charles I. It was followed by the Commonwealth period under Cromwell. That experiment collapsed after increasing mismanagement, and Charles II was restored to the throne, but only after issuing a promise (the Declaration of Breda) that he would meet the demands articulated in the Petition of Right 22 years earlier.

After Charles II came the truncated reign of James II and then in 1688 William of Orange and his wife Mary (daughter of King James) were offered the English crown and with it they were offered a Declaration of Rights prepared by the Parliament. This required regular, fair elections, protection of Parliamentary debates, no tax without Parliamentary consent, and the King was not to suspend or dispense with laws properly passed by the Parliament. They agreed.

Later, the Act of Settlement declared the sovereign to reign subject to the law. In the meantime, the Habeas Corpus Act had been passed, which ensured that no person could be held except by the authority of laws duly passed by the Parliament.

Thus were all the central principles of the Rule of Law put in place: the monarch is subject to the law and cannot set aside the common law or the laws passed by the Parliament; Judges are independent of the executive; no-one can be detained except as provided by law and the legality of their detention can be tested by the writ of habeas corpus.

These principles were won in the great constitutional struggles of 17th Century England. The chain of events which led to these momentous changes can be traced back to 1605 when those perceived as dangerous religious fanatics could be put to the torture on the authority of the King acting outside the law.

This tectonic shift was reflected in John Locke’s Second Treatise on Government. Published in 1689, it demolished the theory of the divine right of kings, and proposed that the only true authority of the government came from the consent of the governed. In addition, Locke reasoned that the obligation to obey the laws of the state was conditional on the state protecting person and property, and that if the sovereign breached the terms of the Social Contract, he could be overthrown.
America and the Rule of Law

Echoes of the Petition of Right and the Act of Settlement can be found in the constitutional documents of the United States. The American colonists expressly adopted Locke’s reasoning in their preamble to the Declaration of Independence:

In Congress, July 4, 1776

The Unanimous Declaration of the Thirteen United States of America

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.–We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …

The US Constitution (1789), especially the Bill of Rights, adopts the principles first demanded in the Petition of Right 160 years earlier. From the beginning, the United States of America adopted the Rule of Law as fundamental and unchangeable. But in the aftermath of September 11, it all went badly wrong.

The attack on America created, or brought into sharp focus, another form of religious animosity: not between Protestants and Catholics, but between Christians and Muslims. Like the Gunpowder Plot, September 11 was an attack of unprecedented horror, the likes of which could not have been imagined. Like the Gunpowder Plot, it was the work of a small group of religious fanatics striking at the very heart of a group seen as a religious oppressor. But there are two obvious differences: the Gunpowder Plot failed, but it set in train the events which ultimately laid the foundations of the Rule of Law in a parliamentary democracy; September 11 succeeded, and set in train events which are undermining those very foundations.

In the aftermath of September 11, America raided Afghanistan in pursuit of al Quaeda. With the help of Northern Alliance troops, they swept up tens of thousands of supposed al Quaeda operatives and sympathizers. Suspects were captured in Afghanistan, Pakistan, Saudi Arabia, Iraq and other places.

As a matter of legal principle, combatants captured in Afghanistan during the hostilities there are Prisoners of War.Otherwise they are criminal suspects. Domestic and international laws deal comprehensively with both cases. There is no ground between the two possibilities.

The regime for treatment of Prisoners of War is clear: it is established by the Geneva Convention in relation to Prisoners of War, to which USA is a party. Relevantly, it provides for:

(a) humane treatment;

(b) no interrogation beyond name, rank and serial number;

(c) release at the end of hostilities

The regime for treatment of criminal suspects is also clear:

(a) humane treatment;

(b) no obligation to answer questions;

(c) no detention without charge;

(d) prima facie entitlement to bail when charged;

(e) (importantly in these circumstances) criminal charges are generally to be dealt with in the country where the offences occurred.

In either case, and in all circumstances, there is an absolute prohibition on the use of torture. This is recognised as a universal norm of international law, and is the subject of the Convention Against Torture to which most countries, including the USA and Afghanistan, are parties.

Unfortunately, there comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which call for extraordinary responses. Faced with very clear legal limits, President Bush stepped back to the 17th Century and acted, in substance, as James I did. He acted as if he could set aside the law and implement his own conception of right. He did so with obliging help from Department of Justice employees.

Suspects who had been rounded up during the war in Afghanistan were taken to the US naval base at Guantanamo Bay, Cuba. There they are held in cages, and are interrogated, humiliated and tortured. They are denied proper legal help. The Bush administration has argued that the American Constitution, and the American courts, have no authority in Guantanamo: that it is a legal black hole.

The basic features of the regime at Guantanamo were founded on an enabling memo from Alberto Gonzales. He advised that President Bush could declare prisoners held at Guantanamo not to be amenable to the protections of the Geneva Convention relating to Treatment of Prisoners of War (the GPW). He identified several points in favour of this position:

“Positive:

· Preserves flexibility:

As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors …

Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).

That statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban. …”

The author of the memo is unmistakably urging a path which would facilitate torture of prisoners and protect the torturers from the inconvenience of criminal charges. The author of the memo is now US Attorney-General.

Six months later Mr Jay Bybee wrote another memo to President Bush, which in substances authorises mistreatment of al Quaeda suspects. This memorandum, the existence of which was denied for several years, contains the most startling and convoluted justification of torture imaginable. Its legal reasoning is profoundly flawed. The memo says:

“it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.”

It identifies seven techniques recognised as torture, including severe beatings, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a person to watch the torture of another. It then observes that:

“While we cannot say with certainty that acts falling short of these seven would not constitute torture, . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law…For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

Here are some first hand accounts of what has been happening at Guantanamo:

“every day we were stuck in a cage of 2 meters by 2 meters. We were allowed out for 2 minutes a week to have a shower and then returned to the cage. Given the extreme heat, we sweated a lot and the area obviously began to smell. During the day we were forced to sit in the cell (we couldn’t lie down) in total silence. We couldn’t lean on the wire fence or stand up and walk around the cage.”
“very often the guards would refuse to take us to the portaloo outside and therefore people started to use the buckets in the cells. Many of the people [were] … suffering from dysentery … and simply couldn’t wait until the guards decided they would take them to the toilet. … The smell in the cell block was terrible.”
“We had the impression that at the beginning things were not carefully planned but a point came at which you could notice things changing. That appeared to be after General Miller around the end of 2002. That is when short-shackling started, loud music playing in interrogation, shaving beards and hair, putting people in cells naked, taking away people’s ‘comfort’ items, … moving some people every two hours depriving them of sleep, the use of (air conditioning). … After [General Miller] came, people would be kept [in solitary] for months and months and months. We didn’t hear anybody talking about being sexually humiliated or subjected to sexual provocation before General Miller came. After that we did.”
“… This time I was short shackled. I was left squatting for about an hour and then this Bashir came back again and he started questioning me again about the photographs and trying to get me to admit that I was in the photographs. I was telling him that if you check you will find out that I was in England during this time. After a while he left the room and I was left again in the short shackle position for several hours (I think for about 4 hours) before I was eventually taken back to the cells.”
“I was interrogated repeatedly about my presence at this meeting. … I said it wasn’t me but she kept pressing that I should admit it. She was very adamant. She said to me “I’ve put detainees here in isolation for 12 months and eventually they’ve broken. You might as well admit it now so that you don’t have to stay in isolation”.

These statements are all from the Tipton Three: three English boys who went to Afghanistan to give humanitarian aid after the Americans attacked that country. They were eventually released and sent back to Britain: they were never charged with any offence. They were there simply by mistake.

Another person later released because his capture had been “a mistake” was a 99 year old shepherd. He was incontinent. Because of his age and frailty, he could barely hobble around the camp; he was chained to a walking frame. Other inmates reported that he spent much of his time weeping.
Values at risk

It is impossible to reconcile these events with the values which are basic to our democratic system: no arrest without lawful authority (enforced by the ancient writ of habeas corpus); no arbitrary search and seizure; no prison except by authority of law; the presumption of innocence; criminal charges to be proved beyond reasonable doubt; no torture; an assumption (although not a legal right) of privacy. These values can all be traced to the events in 17th century England and equivalent events elsewhere in Europe. It is interesting to remember that most of those excesses arose from the supposed threat presented by unpopular religious beliefs.

It has long been recognised that these basic values, so hard won, are always at risk. In a speech in Boston on 28 January 1852 Wendell Phillips said:

“Eternal vigilance is the price of liberty—power is ever stealing from the many to the few…. The hand entrusted with power becomes … the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity.”

In America, in Australia and elsewhere, there is a retreat from basic values. Pragmatism is emerging as a sufficient justification of measures which, until recently, would have been abhorrent. The dictates of pragmatism can be very appealing, especially to those (always the majority) who take the benefit. In the wake of September 11, Australia and other Western governments introduced draconian anti-terrorist laws. These laws, unprecedented in recent history except in time of war, betray the basic values on which democratic systems are established.
“Anti-terrorism” legislation in Australia

In 2002 the ASIO legislation was amended to permit the incommunicado detention, for a week at time, of people not suspected of any wrong-doing: it is enough if they are thought to have information about others who may have been involved in terrorist offences. The person may be taken into isolated custody, and will not have a free choice of legal help; they will not be permitted to tell friends or family where they are; they must answer questions, or face 5 years imprisonment. When released, they are not permitted to tell anyone where they were or what happened to them, on pain of imprisonment.

In 2005 further anti-terror legislation was introduced.

Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may apply for a preventative detention order in relation to a person. A preventative detention order will result in a person being jailed for up to 14 days in circumstances where they have not been charged with much less convicted of any offence. The order is obtained in the absence of the subject and authorises that the person be taken into custody. When the person is taken into custody pursuant to the order, they will not be told the evidence on which the order was obtained: they will be given a copy of the order and a summary of the grounds on which the order was made. The summary need not include any information which is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act (2004).

Thus, a preventative detention order can be made not only without a trial of any sort, but in circumstances where the subject of the order will not be allowed to know the evidence which was used to secure the order.

Division 104 of the Commonwealth Criminal Code allows the Federal Police to obtain a control order against a person. A control order can include an order confining a person to a single address for up to 12 months, without access to telephone or the internet. When the subject of the control order is served with the order, they are to be given a summary of the grounds on which the order was made, but not the evidence. Thus, a person’s freedom of movement can be grossly interfered with for up to 12 months in circumstances where they have no opportunity to know the evidence on which the order was obtained much less to challenge it. The summary of the grounds on which the order was obtained need not include any information disclosure of which is likely to prejudice national security within the meaning of the NSI Act.

Secrecy provisions prevent publication of the fact that people are held for incommunicado questioning, or held on preventative detention, or the subject of a control order.

Lying behind these draconian laws is something even more sinister: National Security Information (Criminal and Civil Proceedings) Act (2004)) (the NSI Act). It is perhaps the most alarming piece of legislation ever passed by an Australian Parliament in a time of peace. The Act as originally passed was confined in its operation to criminal proceedings. In early 2005 it was amended so as to extend to civil proceedings as well. It provides that if a party to a proceeding knows or believes that they will disclose in the proceeding information that relates to national security, or the party intends to call a witness and that witness would, by their presence in court or by the evidence they could give, disclose information that relates to national security, then the party must notify the Commonwealth Attorney-General of the fact. The party must also notify the opposite party and the court. The court is then required to adjourn the proceeding until the Attorney-General acts on the matter. If the Attorney-General chooses, he may sign a conclusive certificate to the effect that the evidence proposed to be called, or the proposed calling of the witness, would be likely to prejudice Australia’s national security interests.

The certificate must then be provided to the court and the court must hold a hearing to decide whether or not to make an order preventing the evidence or witness from being called. During that hearing, the court must be closed. The Act authorises the court to exclude both the relevant party and his or her counsel from the closed hearing in which the question will be decided whether or not the evidence may be called or the witness brought to court.

In deciding the balance between the interests of a fair trial and the national security interests, the statute directs the court to give the greatest weight to the Attorney-General’s certificate that the evidence would present a risk of prejudice to national security.

These provisions are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when the real breadth of the provisions is understood. Their breadth comes from two things:

(a) the notion “likely to prejudice national security” is defined as meaning that there is a “real, and not merely remote, possibility that the disclosure will prejudice national security”;

(b) the definition of national security which means: “Australia’s defence, security, international relations or law enforcement interests”.

The apparently uncontroversial definition of national security is rendered astonishingly broad by the definition of “law enforcement interests”. That expression is defined as including interests in:

(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

(b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

(c) the protection and safety of informants and of persons associated with informants;

(d) ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.

By reference to this definition, Australia’s national security is affected by each of the following things:

(a) evidence that a CIA operative extracted a confession by use of torture;

(b) any evidence which tended to reveal operational details of the CIA, Interpol, the FBI, the Australian Federal Police, the Egyptian Police, the American authorities at Guantanamo Bay, etc.;

(c) evidence which tended to show the use of torture or other inhumane interrogation techniques by any law enforcement agency.

These provisions are likely to have profound effect in several types of case.

First, in cases of people charged with terrorist offences. In such cases confessional statements may be received, but evidence that torture or other improper practices were used to obtain the confession may be excluded, in the name of national security.

Second, where a person is the subject of a preventative detention order or a control order they have a right to challenge the making of the order. However their challenge will be made difficult or impossible if they are prevented from knowing the evidence against them, or if they are prevented from calling other evidence which would qualify or explain the evidence against them.

Third, in cases where a person’s ordinary rights have been interfered with because of an adverse security assessment by ASIO. In those circumstances, it may prove impossible to have effective access to the material which provided the foundation of the interference.

There may be examples of the first and second type, but we are not allowed to know. The secrecy provisions surrounding control orders and preventative detention orders means that, in effect, the general public will not learn of them until many years have passed.

However examples of the third type can already be identified. An adverse security assessment from ASIO can result in a person’s passport being cancelled, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for the adverse security assessment may prove difficult or impossible. Attempts to challenge the material can be met with the Attorney-General’s certificate.

Adverse security assessments from ASIO create another, related problem. An adverse security assessment will result in the cancellation of a visa or passport as the case may be. Cancellation of a passport may be challenged in the Administrative Appeals Tribunal. The Administrative Appeals Tribunal Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and the applicant’s lawyer from being present in the Tribunal whilst certain evidence is given and submissions are made on behalf of the Government. Here is the text of one such certificate, issued early in 2006:

“I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia … hereby certify … that disclosure of the contents of the documents … described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security.

I further certify … that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents … are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

As the responsible Minister … I do not consent to a person representing the applicant being present when evidence described … above is adduced and such submissions are made ….”

In 1894, Captain Alfred Dreyfus was falsely accused of treason, and wrongly convicted. The heart of the problem was that the trial was held in camera, and documkents were provided to the judges which were withheld from Dreyfus and his counsel, on grounds of national security. The documents were forgeries.

The campaign for Dreyfus’ freedom is still remembered, not least for Emile Zola’s famous newspaper article “J’accuse…” which exposed the appalling nature of the “trial” which convicted Dreyfus. It was many years before justice was finally done: 13 July 2006 marks the centenary of his ultimate exoneration.

It is all too easy to look back on the Dreyfus Affair and imagine that it could not happen here today. Two matters made the Dreyfus Affair possible:

(a) a secret trial and the use of evidence concealed from the accused and his counsel, and

(b) racial or religious prejudice which ran so deep as to blind people to any concern about the quality of justice accorded to Dreyfus.

In the certificate set out above however, the Attorney-General produces the conditions which led to the wrongful conviction of Alfred Dreyfus in 1894. The applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because neither he nor his counsel will be allowed to know the nature of the case against him. And he is a Muslim.

Anti-Semitism no longer exists in any significant measure in Australia, at least not in the virulent form which characterised 19th Century France and the first half of the 20th Century in Western Europe generally. However there are other groups who are sufficiently unpopular that, for practical purposes, most members of the community do not regard the rights of those people as mattering. Those unpopular groups include alleged paedophiles, alleged terrorists, aborigines, people with mental disorders and Muslims. This is not to say that the feeling against each of those groups runs as deep and as strong as anti-Semitism at the time of Dreyfus’s trial. But it is strong enough that a large majority of people in our society do not regard the rights of those groups as being important enough to deserve recognition or protection.

The possibility of secret trials and trials in which evidence is concealed from the accused and their counsel already exist in Australia as a matter of law, because of the NSI Act and related legislation.

Fair trials are one of the basic promises of democracy. It is a tragedy that we have abandonned the guarantee of fair trials, ostensibly to help save democracy from terrorists. What we will achieve in fact by these measures is a growing concern that the real danger to democracy is our own government.

In December 2004 the House of Lords decided a case concerning UK anti-terrorist laws which allow terror suspects to be held without trial indefinitely. By a majority of 8 to 1 they held that the law impermissibly breached the democratic right to liberty. Lord Hope said that “the right to liberty belongs to each and every individual”. Lord Bingham traced these rights to Magna Carta, and made the point that the struggle for democracy has long focused on the need to protect individual liberty against the might of executive government. Lord Nicholls said:

“Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.”

Lord Hoffman said:

“The real threat to the life of the nation … comes not from terrorism but from laws such as these.”

How much more forcefully could that be said of Australia’s “anti-terror” legislation.

By these laws, the Howard government  betrayed the rule of law in Australia. It  damaged Australian democracy more than any terrorist could. It created the new Terror.

Seventeen years on, there has been no improvement.  We would do well to remember the lessons of the Gunpowder Plot.

 

Trump’s Gettysburg Address

I am grateful to Barry Jones for drawing this to my attention: the Gettysburg address as Trump would have made it.

First, the original:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.  Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate…we can not consecrate…we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government: of the people, by the people, for the people, shall not perish from the earth.”

Now, the Trump version:

It was many, many years ago that our beautiful founders created this great nation for Americans to love deeply. It’s been 400 years, or 700 years. That’s the information I was given. We’ve had a tremendous number of years. And they’ve been good years, believe me, the best. No country in the history of the world has had years like ours. Because we were conceived in winning and dedicated to the proposition of America first. Always America first.

Now we have a huge fight on our hands. I’m telling you folks, we’re fighting to take back our country and start winning again. We’re fighting to make America great again. We’re fighting to make America first again. Some people have taken some very unfair hits in this fight. They’ve been hit by liberal activists and the dishonest fake news media. They’re gone now, but we remember their dedication to our movement, and we will be even more dedicated in their memory. We will commit ourselves to secure borders to keep our nation safe, extreme vetting to keep out the bad dudes, and the best trade deals to guarantee that our great American economy does not perish from the earth.
Chris O’Carroll/Donald Trump

Parliament and Dual Citizenship

Two Greens Senators, Scott Ludlam and Larissa Waters, recently quit the Senate after discovering that they held dual citizenship: Ludlam is, apparently, a citizen of New Zealand, and Waters is, apparently, a citizen of Canada.  You wouldn’t have guessed: both have normal Aussie accents, and both have worked tirelessly in support of Australia’s interests.

The sudden departure of Ludlum and Waters from the Senate focussed renewed attention on section 44 of the Commonwealth Constitution.  Section 44 provides:

“44. Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power …

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

Senator Ludlam said “About a week or so ago it was brought to my attention that I hold dual-citizenship nationality of Australia and New Zealand”.  Given that section 44 is the relevant provision, it is ironic that Scott Ludlam, who is now 47 years old, has lived in Australia for 44 years.  He came here when he was a 3-year old.

A few days later, Senator Larissa Waters also announced she was leaving the Senate, as she had been born in Canada and came to Australia when she was 11 months old.

According to news reports on 20 July, Senator Richard di Natale is now trying to find papers showing that he has renounced any rights to Italian citizenship.  It is significant to notice that, if your citizenship of another country  is a thing of the distant past, digging out documents to show that you no longer adhere to that other country could be challenging.  Given that a lot of people come to Australia as young children born in another country, or are born here to parents who came here from another country, the challenge is a large one.  And add to this that you would have to find out whether the law of the country where you were born, or where your parents came from, recognised you as a citizen in the particular circumstances.

In a multi-cultural country like Australia, it looks a bit crazy.

When a person is elected to the Commonwealth Parliament, they take an Oath of Allegiance in the following terms:

“I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, So help me God”

This is a little less comprehensive than the Governor-General’s Oath of Office:

I, [name], do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God!

It is mildly surprising that members of the Parliament have to swear allegiance to a person who would be disqualified from being a member of the Australian Parliament.  Queen Elizabeth the Second is a British national, she is not a citizen of Australia, but she is our Head of State.  It is also disconcerting that the Governor-General is not constrained in the way members of parliament are.  the governor-General might or might not be a citizen of Australia, and traditionally was a British, but not an Australian, national.

But putting those minor quibbles to one side, no-one has ever suggested that Ludlam, Waters (or any other Greens member) has been untrue to their oath of allegiance.  Given that their connection to New Zealand or Canada respectively is so remote, and so slight, that is not surprising.  Whatever your views about Greens policies, Australian democracy is the weaker for losing Senators Ludlam and Waters.  We should consider very carefully whether section 44(i) is too wide and indiscriminate in its reach.

And here is Ian Holland’s take on the same question, published on 20July 2017 in the Brisbane Times 

Complaint to International Criminal Court names Abbott, Morrison, Dutton, Turnbull

A consortium of international lawyers, led from England, has asked the prosecutor at the International Criminal Court to take action against Australia for crimes arising out of its policy towards asylum seekers.

The Consortium has issued a 52-page Communiqué which alleges that the Australian Government is guilty of international crimes because of its policy of indefinite mandatory detention of refugee “boat people” and their forcible removal   to Manus Island (part of Papua New Guinea) and Nauru (which is called the Pacific Solution).

The Communiqué fully explains that the Pacific Solution, which was revived in 2012 and remains in place, appears to have, as its primary objective, breaking the spirit of the people held on Manus or Nauru.

The mistreatment of asylum seekers is not limited to the Pacific Solution.  Christmas Island which is part of Australia, more than 1500 kilometers north-west of mainland Australia,  also had detention centres.

The people are kept in these “Offshore Processing Centres” whilst their asylum claims are processed.  Reports of cruelty and mistreatment are numerous and getting more serious.

The Communiqué is supported by witness evidence from doctors, workers, visitors and former detainees at the Offshore Processing Centres.  Key findings include:

  • As at 31 March 2014, there were 153 babies, 204 pre-schoolers (aged 2 to 4 years old), 336 primary school aged children, and 196 teenagers in Immigration Detention. As at 31 January 2016, 142 children remained in Immigration Detention.
  • The average child spends 231 days in Immigration Detention.
  • On average, the general population of refugees spend 457 days in Immigration Detention.
  • There is inadequate food and water, a lack of medicine and medical treatment, overcrowding, and a subsistence of violent incidents. Further, the length of detention is generally indefinite at the outset.
  • Conditions are unhygienic. On Nauru, showers are generally restricted to 30 seconds each day. Staff have said that the water has run out on multiple occasions, with overflowing, blocked toilets and faeces on the floor.

Reports from the United Nations High Commissioner for Refugees are highly critical of the Pacific Solution and Australia’s treatment of those seeking asylum.

Amnesty International has also issued several reports equally critical of Australia’s policies towards refugees and the conditions in which they are held.

The Communiqué cites precedents in international law which show that Prime Ministers and Ministers for Immigration in Australia, Nauru and Papua New Guinea could be held personally responsible as perpetrators of crimes.

The lawyers behind the Communiqué consder that there is no option remaining, other than the International Criminal Court  (ICC).  Previous legal action before the UN Human Rights Committee, UN Human Rights Council and the UN Working Group on Arbitrary Detention (WGAD) have not changed the Australian Government’s course.  Asylum seekers who have had their detention recognised as arbitrary by the WGAD and are still in detention over a year or more later – including those with children. The previous Australian Prime Minister Tony Abbott, in response to comments by the UN Special Rapporteur on Torture, stated that ‘Australians are sick of being lectured to by the UN’.

As such, the ICC is really the venue of last resort.

Courtenay Barklem, former human rights adviser at the Law Society of England and Wales said: “This scandal sullies Australia’s record on human rights.  We expect Australia to have higher standards and not to mistreat some of the most vulnerale people through deliberate government policies.  This diminishes Australia’s reputation in the eyes of the international community.”

It names every Australian PM and Immigration Minister since 2002, as well as Mr Baron Waqa (current Nauruan President and Minister for Foreign Affairs and Trade).  It details the cruel treatment of boat people by successive Australian governments:  communique-to-icc

Was Eureka a terrorist event?

Yes: the Eureka Stockade, 1854, was a terrorist event by our contemporary legal standards.  The current definition of “terrorist act” is set out below.  It’s complex, but the bottom line is this: if an ordinary criminal act of damage to property or person is carried out in order to intimidate the government or the public, it is a terrorist act.  The Eureka Stockade involved fairly serious criminal conduct: 30 people were killed. and it was explicitly for political purposes: they wanted to force the Victorian government to allow miners (who paid high mining licence fees) to vote.  Their sentiment was part of the idea expressed 81 years earlier in America: the Boston tea party of 1773 and then the American war of independence were clear expressions of the sentiment: no taxation without representation.

The leaders were charged with high treason, but they were acquitted.  this was generally regarded as an expression of public sympathy for their cause.  One of them, Peter Lalor went on to be Speaker of the Victorian Legislative Council (upper House) in 1880.

The diggers swore an oath on 30 November 1854: ‘We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties’

The Commonwealth Criminal Code Act (1995) defines”terrorist act” in section 100.1.  You can see the full version here.  Here is an abbreviated version:

“terrorist act means an action where:

(a) the action falls within subsection (2)…and
(b) the action is done with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

(2)       Action falls within this subsection if it:

(a)       causes serious harm that is physical harm to a person; or
(b)       causes serious damage to property; or
(c)       causes a person’s death; or …”

However it will not be a terrorist act if it falls within sub-section 3:

“(3)       Action falls within this subsection if it:

(a)       is advocacy, protest, dissent or industrial action; and
(b)       is not intended:

(i)        to cause serious harm that is physical harm to a person; or
(ii)       to cause a person’s death; or …”

 It is a nice historical irony that another icon of Australian history is also bound up in terrorism. Ian Jones, the foremost authority on Ned Kelly, says Kelly’s activities in North-East Victoria had the ultimate objective of establishing a separate colony in that area.  Kelly’s Jerilderie Letter adds credence to that suggestion.  If his objective was a political one, then his murderous exploits fit him neatly into the modern legal definition of a terrorist.

An index to this blog (alphabetical order)

#hushtag
A Blunt Assessment
A Brief Account Of Australias Offshore Detention Regime
A Christmas Letter From Manus
A Classic Rant Against Peter Dutton
A Letter To Minister Dutton From A Refugee Advocate
A New Account Of The Ways We Manage To Mistreat Asylum Seekers. Read This And Blush
A Plea From Manus
A Proposed New Refugee Policy For Australia
Accomodation For Refugees
Ai Weiwei
An Alternative To Offshore Detention
An Angel Visits Malcolm Turnbull
And More Bad Goings On At Manus
Australias Offshore Torture Regime
Befriend A Child In Detention
Benaud Piano Trio Seeking Sponsor For Composition
Bigotry And Terrorism In More Than 140 Characters
Border Force
Border Force Cracking Down At Mita In Victoria
Calling Boat People Illegal Is A Lie
Cash For People Smugglers
Conditions In Immigration Detention Deteriorating
Corruption On Nauru Your Taxes At Work
Cruelty In Australias Offshore Detention Camps
Data Retention Legislation Act Now Before Its Too Late
Detainees In Manus Island Face Grim Prospects
Detention Australian Style
Detention Is Torture
Detention On Manus Illegal Supreme Court
Deterrents And Disincentives
Dutton On The Rampage
Fact Checking Pauline Hanson
Fare Go Report Rethinking Public Transport
From The Big Bang To The Present In 12 Months
Gillian Triggs, John Basikbasik, And Politicians Who Play God
Guards Conduct In Nauru Getting Worse
Haitch Or Aitch
Hal Wootten Lecture 2015 The Bludgeoning Of Chance
Islamophobia Rampant
Kate Durhams Speech At The Opening Of Home Here And Now
Keep The Arts Alive At Fortyfive
Let Them Stay
Lets Get Labor To Tell The Truth About Refugees
Letter From Manus
Letter From Manus
Letters To Nauru Now The Department Lies Again
Lnp Only Pretends To Be Compassionate
Magna Carta, 800 Years On
Manus
Manus Island: What Will It Take To Shock Us
Manus: An Emotional Rant
Manus: Bad And Getting Worse
Mistreatment Of Refugee Brought From Nauru For Treatment
Mohammad Albederee Update
More Bad News From Manus
More Bigotry From Sonya Kruger
More Horrors At Mita
More Misery Christmas On Christmas Island
More Mistreatment On Manus
Mourning And Weeping From Hell
Myki: Authorised Officers Behaving Badly
New Get Up Campaign To Get Dutton Out
News From Australias Gulags
News From Nauru
No Kindness For Mojgan
Norfolk Island
Not In My Name
Offshore By Madeline Gleeson
Rebranding The Nation
Refugees In Terror On Nauru
Refugees Write To Png Supreme Court
Remembering Refugees As Christmas Approaches
Schrödingers Refugees
Solitary Confinement In Manus Detention
Stopping The Boats Doesnt Stop The Deaths
Strip Searched In Lygon St
Strip Searches On Nauru
Supporting Human Rights Or What Is Left Of Them
Thailand Prosecutes Phuketwan Journalists
The Australian Border Force Act Labors Role
The Australian Border Force Act: Trying To Silence Health Workers
The Australian Now Quotes Twitter
The Border Force Hits Town: Operation Fortitude
The Drowning Argument
The Drowning Excuse
The Election
The Impact Of Cuts To Art Funding
Threatening Our Way Of Life
Tim Wintons Palm Sunday Plea: Start The Soul Searching Australia
Tom Ballard
Tom Ballard Writes About Refugee Stories
Tony Abbott Is A Bully Over Un Convention Against Torture
Turnbull Posing As Compassionate
Two New Projects Which Bear Witness To Mistreatment Of Asylum Seekers
Un Rapporteur Australias Treatment Of Asylum Seekers Breaches Torture Convention
Unrepresented Refugee Applicants
Update From Manus
What Manus Is Like
What Sort Of Country Are We
When People Bother To Ask Me Why I Support Refugees
Why Gag Doctors In Detention Centress What Are We Hiding
Why You Should Care
Wilson Security
Wind Farm Music Dedicated To Tony Abbott
Write To Federal Mps About Refugee Policy
Year 12 Student Taken From School And Put In Detention
Young Boy Held In Manus
Zaky Mallah, Steve Ciobo And Q & A

Fare Go report: rethinking public transport

WEstJustice today released a ground-breaking report called Fare Go: Myki, Transport Poverty and access to education in Melbourne’s West.

Here is the report: Fare Go Report

It makes the point that, especially in disadvantaged suburbs, Myki fares compete with a kid’s ability to get breakfast or buy books:

There are many poor families in this school community who can’t even feed their children breakfast – they are fed through the school. Many families can’t afford the initial payment for Myki.”

 “A lot [of students] stay at home, miss out on school until they can top up [Myki], starting the cycle of educational disadvantage.

In the course of 12 years at school, a student will pay about $7,500 in public transport fares.  Public transport is an important integer in our social life.  Making sure kids can get to school is essential. Public transport is not just about revenue raising.

The system is complex, even for adults, and especially for kids:

“I helped one boy to contest fines…. I made numerous phone calls…tried to explain that he had a mental illness… also had an insecure home life… I spoke to three different people three times, got the same response, then someone said, ‘go and plead the mercy of the Magistrate’. Going to court then causes much stress and anxiety. In fact, this boy was struggling to speak in sentences. I can’ t imagine him going to court. I haven’t heard from him, so I don’t know what happened to him.”

We should never allow the cost of public transport, and the complexities of the system of fines, get in the way of a kid’s education.

The Report includes some very sensible recommendations, including:

1. Provide free public transport travel to all passengers up to 18 years of age and to any passenger who is a secondary student where their parent, carer or guardian is in receipt of Centrelink income or a healthcare card.

2. Accept identification issued by any authorised educational institution as evidence of age or student status for the purposes of free travel.

3. Authorise educational institutions to issue Myki travel cards to students free of charge.

4. Cancel all outstanding public transport fines related to Myki ticketing issues and fares which were incurred while a young person was under 18 years of age.

5. Abolish the public transport fines system for all young people under 18 years of age.

If you value the education of children, urge the Victorian Government consider the contents of this Report.

More outrages on the flawed Myki system in Melbourne

Here is a story from a Melbourne man who got bullied into paying $75 on the spot even though he had not even been on public transport at all!

“On 24/09/2014, I was crossing Collins Street in Melbourne CBD at a point where there is also a tram stop. There was a Public Transport official on the platform of the tram stop, busily writing a ticket for somebody else as I walked past him. He stopped me as I passed him and he asked to see my validated MYKI card. I said that I don’t have one, I do not use public transport and I was just crossing the road. He claimed that he saw me step off a tram, which was quite impossible, given that he was preoccupied at the time writing out a ticket. Anyway, he then proceeded to issue me with a fine, and when I stated that I did not wish to provide my personal details to him since I had done nothing wrong, he called a nearby policeman over. Between them, they proceeded to intimidate me to the point where I reluctantly agreed to pay a $75 on-the spot fine on my credit card.
As I said, I felt intimidated by the two of them, and they left me with little choice. If I had not either provided my personal details or allowed the public transport officer to process an on-the-spot fine against my credit card, the policeman implied that I would be arrested. If I provided my personal details and allowed the public transport officer to issue me with a normal fine, I was of the belief that if I then wanted to contest it in court, it would end up costing a lot more than $75. I was very much bullied into submission!”   (emphasis added)

What is of real concern is that I am told Public Transport officers operate on a quota: they have to book a certain number of people a day.  And this is what happens.

Journalists facing jail: mentioned Thai naval forces & Rohingyan refugees

I have recently been sent the following very disturbing story:

Alan Morison is a former senior editor of the Melbourne newspaper, The Age. For approximately a decade he has been the owner and editor of an online news service called Phuketwan, which is based in Phuket, Thailand. Chutima Sidasathian is one of his reporters and a colleague.

Alan and Chutima have (along with other reporters and NGOs) been at the forefront of reporting of human trafficking of the Rohingya from Burma through Thailand and into Malaysia, as well reporting on other human rights abuses against them. They have also helped larger news services such as Reuters by providing vital contacts for their stories.

They feature in the recent 4 Corners episode dealing with Rohingyan refugees who are smuggled through Thailand: http://www.abc.net.au/4corners/stories/2015/06/22/4257490.htm

In December 2013 the Royal Thai Navy charged both Alan and Chutima with criminal defamation and a breach of the Computer Crimes Act for reprinting verbatim and in quotation marks, a 44-word paragraph from a Reuters story. That paragraph read:

“The Thai naval forces usually earn about 2000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the southern Thai region of Phang Nga [north of Phuket] and deals directly with the navy and police.”

http://phuketwan.com/tourism/thai-military-profiting-trade-boatpeople-says-special-report-18454/

They were charged 5 months after the article appeared.

The paragraph does not even name the Royal Thai Navy but refers to “Thai naval forces.” Unfortunately, the translator for the Royal Thai Navy elected to translate the words “Thai naval forces” to “Royal Thai Navy”

The vague term “Thai naval forces” is apt to describe the Thai Marine Police, militia commanders as well as the Royal Thai Navy. But a bad translation has resulted in Alan and Chutima being charged with criminal defamation and a breach of the Computer Crimes Act.

Neither Reuters nor any of the other news services which have run the story have been charged: only the journalists have been charged. They face the prospect of 7 years in a Thai jail.

Please let your local Federal MP know you are concerned for the way Alan and Chutima are being treated. Do what you can to make sure that Thailand (which depends significantly on the West) knows that their handling of this case is being closely watched.

 

The Australian Border Force Act: trying to silence health workers

On 20 May 2015, the Australian Parliament passed the Australian Border Force Act.  The Act  came into force until 1 July 2015.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down.  What is really alarming about the Australian Border Force Act is that it shows the willingness of the government to suppress the facts connected with its brutal mistreatment of asylum seekers.  I think the attempt will fail, but it should not have been made in the first place.  It is of a piece with Tony Abbott’s response to Q & A allowing a question from Zaky Mallah to go to air: instead of regretting an error of judgment, he asked “Whose side is ABC on?”.  Abbott appears to think that the best way to deal with the world is to ignore facts which contradict your view of it.

Section 42 of the Australian Border Force Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers.

Accordingly, an employee of a detention centre service provider is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

The restriction in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However the exceptions include these:

  • disclosure to an authorised person for a purpose relating to the protection of public health, or the prevention or elimination of risks to the life or safety of an individual or a group of individuals; (s. 44 & s. 45 in conjunction with s. 46(d))
  • disclosure to an authorised person for the provision of services to persons who are not Australian citizens; (s. 44 & s. 45 in conjunction with s. 46(j))
  • section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a health worker learned facts while employed by a service provider in detention and genuinely believed, on reasonable grounds, that those facts  represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.

Similarly, if any other employee of a detention centre operator formed the same belief, and disclosed the facts believing that disclosing them might help prevent or lessen that threat, the disclosure would not constitute an offence.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

Two practical matters remain. First, the Act came into force on 1 July. Disclosure before then cannot be a breach of the Act.

Second, whether a prosecution would be brought in any particular case is hard to guess. If the disclosure was such as to attract a possible defence under section 48, a government acting sensibly would recognise that a prosecution would provide an opportunity for the accused to explain – in the very public forum of court proceedings – exactly what is going on inside detention centres and why those things present a serious threat to the life or health of an individual (or individuals) in detention.

The defence under section 48 is important.  It is arguably more powerful than normal whistle-blower defences.  The most disturbing thing about the Australian Border Force Act is its apparent attempt to hide the iniquities which are happening in immigration detention, on-shore and off-shore.

Shameful things are being done in our name, on out taxes and Australia’s reputation internationally is being degraded rapidly.  The only favourable thing which hass been said about Australia’s policy in relation to asylum seekers was said by Katie Hopkins in the London Sun a few months ago.  Her compliment was diminished by the fact that she referred to boat people as “vermin” and “cockroaches”.  I would prefer Australia not to have the good opinion of someone who thinks like that.

Why gag doctors in detention centress? What are we hiding?

Here is a link to a good article in the British Medical Journal, written by David Berger.

On 20 May 2015, the Australian Parliament passed the Border Force Act.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. The Act does not come into force until 1 July 2015, so until then no-one is bound by its restrictions.

Section 42 of the Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.

Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers. The service providers include IHMS as well as the companies which then operated the detention centres.

It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.

In any event, an employee of Transfield or Wilson Security or IHMS is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.

This represents a drastic gagging of Australians and others who work in the refugee detention system.  Presumably the government is aware that bad things are happening in Australia’s detention system, and it is keen to suppress any information about what goes on.  This is consistent with a long-standing ban on juournalists entering detention centres.  It is consistent with Nauru imposing an $8,000 application fee if a journalist wants to apply for a visa to go to Nauru: the fee is not refundable even if the visa is refused.

In short, Australia is doing everything it can to conceal its iniquitous mistreatment of asylum seekers.

What is happening in detention centres, both in Australia and offshore, is profoundly damaging to the health of people held there.  It takes about 12 months’s detention to drive people to hopelessness and despair. That is when they start suffereing serious mental problems.  It is when they start harming themselves.  And it is important to remember that boat people have NOT COMMITTED ANY OFFENCE by coming to Australia as they have.  They are NOT ILLEGAL.  They are NOT CRIMINALS.

It is no great surprise to learn that if you lock up an innocent person indefinitely, they will eventually break.  That is Australia’s dark secret: we are deliberately destroying people by detaining them indefinitely in shocking conditions.  And the government is anxious to ensure that information about what we are doing does not get out, because they know most Australians would be appalled if they knew the truth.

Every Federal MP who voted for the Border Force Act, and every Federal MP who supports the continued hard line on boat people deserves the contempt of the nation.

But there is still hope, despite the miserable quality of our Federal MPs.

The restriction on disclosure found in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However section 48 has arguably the most important exception:

“48 Disclosure to reduce threat to life or health

An entrusted person may disclose protected information if:

(a)       the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

(b)       the disclosure is for the purposes of preventing or lessening that threat.”

In my opinion, if a worker in a detention facility genuinely believed, on reasonable grounds, that facts he or she learned while employed by a service provider represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.  If the Immigration Department did not share that view and prosecuted the person, the prosecution would provide a useful showcase in which all the details of all the inquities in our detention system would be exposed.  Bring it on!

People smuggling: our Government is committing crimes

A lot has been said about whether our government paid people smugglers to return asylum seekers to Indonesia.  The evidence clearly suggests that it did.

Tony Abbott refused to deny that Australia had paid people smugglers, and said we would do whatever it takes to stop the boats.  Here he is on the Neil Mitchell programme on 3AW on 12 June 2015:

“Mitchell: These allegations that Australia paid people smugglers to turn back the boats – did it happen or not?
Abbott: Well, Neil, we don’t comment on operational matters but we are determined to ensure that illegal boats don’t get to Australia and we will do whatever is reasonably necessary to protect our country from people smuggling and from the effect of this evil and damaging trade that cost lives.
Mitchell: But surely we wouldn’t pay people smugglers, they’re criminals?
Abbott: Well, what we do is we stop the boats by hook or by crook, …”

“Mitchell: I don’t know about the relationship with Indonesia. They’re saying today they’re shocked by the allegations we paid people smugglers. Are we at least investigating whether it happened?
Abbott: Neil, I want to say to you and your listeners that I am proud of the work that our border protection agencies have done. I really am proud of the work that they’ve done and they’ve been incredibly creative in coming up with a whole range of strategies to break this evil trade …
Mitchell: Will we investigate whether it happened?
Abbott: As I said by hook or by crook we are going to stop the trade, we have stopped the trade, and we will do what we have to do to ensure that it stays stopped.
Mitchell: Will the Australian government investigate whether it happened?
Abbott: The short answer is the Australian government will do whatever we need to do to keep this evil trade stopped.
Mitchell: Including paying people smugglers?
Abbott: We will do whatever we need to do to keep this trade stopped because that’s what the public expects. …”

“Mitchell: Prime minister, will the Australian government investigate whether it happened?
Abbott: Um, Neil, what we are doing is saving life at sea. We are defending our national sovereignty, we are protecting our country from the evil trade of people smuggling and by hook or by crook we will do what is necessary to keep our country safe and to keep this evil trade stopped. …”

The Commonwealth Criminal Code makes people smuggling a criminal offence.  Here is an extract from the Criminal Code:

Subdivision A—People smuggling offences
73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Summarizing it, the elements are that you facilitate the entry of a person into a country where they are not a citizen and they do not go through ordinary entry procedures.

Paying people smugglers to take asylum seekers back to Indonesia appears to satisfy each element.

But even if money was not paid, we have been piling asylum seekers into orange lifeboats to return them to Indonesia.  That satisfies the definition of people smuggling even more clearly.  And the government makes no secret about it.

The question all Australians should ask is this: should a government engage in criminal acts in order to give effect to a policy, regardless whethe the policy is good or bad, popular or unpopular?

Proper respect for the rule of law demands that a government should not engage in criminal conduct.

Cash for People Smugglers

A lot has been said and written about the recent story that Australian officials paid people smugglers to return their passengers to Indonesia.

If the story is true, and Abbott’s repeated refusal to deny it suggests strongly that it is true, then it is clearly a criminal offence.  Section 73 of the Criminal Code deals with the offence of people smuggling.

Section 73.1 provides:

“73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Fitting that to the probable facts: an Australian official pays smugglers to take refugees back to Indonesia; the official thereby facilitates the entry of the refugee into Indonesia; the entry does not comply with Indonesia’s rules for entry; the refugee is not a citizen or permanent resident of Indonesia.

On the same analysis, providing refugees with lifeboats and pushing them back to Indonesia is people smuggling, and simply pushing their boat back to Indonesia might also be people smuggling.

Our government speaks of people smuggling as if it only applies when Australia is the intended destination.  That is simply not so.

Tony Abbott, Scottt Morrison and Peter Dutton have described people smugglers in powerfully unflattering terms (“scum of the earth” etc) but they were describing themseves.

Interestingly, only the Attorney-General can bring a prosecution for the offence of people smuggling (section 73.5), so don’t hold your breath.

Gillian Triggs, John Basikbasik, and politicians who play God

The President of the Australian Human Rights Commission, Gillian Triggs, was attacked again in the Senate for her report in June 2014 concerning John Baskibasik.  For more on the political attack on Gillian Triggs, see this article in the Guardian Australia.

Basikbasik had been convicted of the manslaughter of his wife, and was sentenced to 7 years prison.  He served his term of imprisonment. But he is refugee and was in Australia on a protection visa. The Minister of Immigration cancelled his visa because of his conviction. Once his prison term was up, he was put in immigration detention, because he is a non-citizen who does not have a visa. He has been in immigration detention for 8 years on top of the prison sentence of 7 years.

He can’t be returned to his country of origin, because he is a refugee and would face persecution there.

The Commission’s report included the following observations:

44. Anyone with Mr Basikbasik’s personal history and custodial background would be likely to require support to re-integrate into the community. There is no information before me to indicate that the Commonwealth considered whether any risk which Mr Basikbasik posed to the community could be mitigated by a management plan to assist with his rehabilitation or by a requirement to reside at a specified location, with curfews, travel restrictions or regular reporting. It does not appear that it was necessary to detain Mr Basikbasik in an immigration detention centre.
45. Given the material before me, I find that Mr Basikbasik’s ongoing detention in an immigration detention centre is arbitrary within the meaning of article 9(1) of the ICCPR.

The Commission reported that holding him in detention for 8 years after he had served his term of imprisonment involved a breach of his human rights. The report noted that the Minister had not considered a less restrictive mode of detention and recommended that he receive $350,000 in damages. Under section 35 of the Australian Human Rights Commission Act, the Commission has power to make such recommendations, although it cannot order compensation.

Abbott said the commission’s ruling that Basikbasik “be released” was “pretty bizarre” and demonstrated “extremely questionable judgment”. The social security minister, Scott Morrison, said the decision was “absolute nonsense”. The immigration minister, Peter Dutton, said suggestions that “wife killers should be released back into the community with a cheque from the taxpayer are so far removed from the public view, it is just offensive”.

It is a pattern we have become accustomed to: Ministers of the Crown making foolish, misinformed comments about their political targets.

Mr Abbott’s comment was simply wrong: the Commission did not recommend that Baskibasik be released. Mr Dutton’s comment was misinformed and either foolish or dangerous. It depends on the unstated assumption that a person convicted of a serious offence should be held in detention for life, regardless of the sentence imposed by the Court. It depends on the assumption that a person’s right to be released when their prison term has been served should be capable of being trumped by the unsupervised decision of the Immigration Minister.

Most people would agree that Basikbasik’s offence was a very serious one. Most people would also agree that, once a person has served the term of imprisonment imposed by a Court, they should be released. Most people would find it uncomfortable to think that a person’s effective sentence could be converted to life imprisonment by the simple act of a Minister cancelling that person’s visa.