Wind Farm Music Dedicated to Tony Abbott

Here is the first performance of Wind Farm Music Dedicated to Tony Abbott  https://youtu.be/fbLiBCdZyBg

And here is another: https://youtu.be/ky-w9qrCO-E

Lots more to follow, I hope

The score and parts are available, free of charge, here: https://www.mediafire.com/folder/zgkxv0xa8xwpp/Wind_Farm_Music

I recently commissioned Sydney-based composer Lyle Chan to write a short piece for piano trio.

We were chatting at the Melbourne International Chamber Music Competition.  I thought about commissioning him to write something.  Normally  when I commission a piece, I give the composer a completely free hand. But for the first time, I had very specific requirements: I wanted a short piece of music for piano, violin and cello, which must contain quotes from famous pieces of classical music, and  must be called “Wind Farm Music, Dedicated to Tony Abbott”.
Lyle completed the piece within a week, and  wrote the following epigraph to the score:

“This music is a vision of happy wind turbines, high in the air, soaking up the sunshine, catching fragments of music that rise into the sky after it leaves the ears of the people who listen to them. The music tangles up in their airfoils and the turbines are laughing, delighted. “

From the windmills of the middle ages to the first electricity producing turbine in the 19th century, human beings have ground grain and pumped water with wind power. This music – the music of Beethoven, Bach, Vivaldi, Schubert, Rossini – was around at that time, and the music is still here today, reminding us that it witnessed humans who knew a kinder and more loving way of fulfilling its needs.

Political?  Of course.  There is a long and honourable tradition of art in service of political protest. That’s why politicians are a bit jumpy about funding the arts.
This music is intended to counter the absurd idea that wind farms are “ugly”; a reminder that harnessing the wind to help save the planet is a fine thing.  It is a reminder of our obligation to future generations

Lyle and I hope that piano trios around Australia will perform the piece (just the right length and tone for an encore).  We encourage them to record it and put it up on YouTube.  We want everyone to hear it.

The piece is subtitled “A quodlibet for piano trio”. A quodlibet is a musical work made up of fragments of other music. Great composers throughout history wrote them, including famous examples by Bach and Brahms.

Wind Farm Music Dedicated to Tony Abbott will have its world premiere by Seraphim Trio at 12.30 on Wed 19 Aug 2015, at the State Library of Victoria.

Wind Farm Music Dedicated to Tony Abbott is available online.

You can download the score, parts and a digital playback from this folder:
https://www.mediafire.com/folder/zgkxv0xa8xwpp/Wind_Farm_Music

Performances here  https://youtu.be/fbLiBCdZyBg and here:  https://youtu.be/ky-w9qrCO-E

Lots more to follow, I hope

Detainees in Manus Island face grim prospects

The PNG authorities have advised detainees in Manus of thir options.

In short, it comes to this: If you are refused refugee status, you will be sent back to your country of origin. If you cannot return to your country of origin, you will stay in detention in PNG.  You will not be allowed to go to Australia.

Be clear about this: people who have committed no offence will be jailed, potentially for life, if they are stateless or if they are unwilling to return to their country of origin to be persecuted.

Here is a copy of the notice.

This, coupled with processing designed to exclude as many refugees as possible, will involve forcing people badk to face persecution.  Already the system on Manus is operated with a view to breaking the spirit of the people held there, so that they will abandon their claim for protection.

Australia has disgraced itself by creating and running a system like this.

More letters returned from Manus Island

returned letters

 

 

 

This is a photo of about 300 letters posted to detainees on Manus Island have been returned unopened.

Some of them, no doubt,  were addressed to people who have left Manus and returned to their country of origin.

The objective of the detention system as it operates on Manus is to break the spirit of people held there so they will give up any hope of protection and prefer to  face persecution at home than face persecution at the hands of Australia and its contractors:

TRANSFIELD SERVICES

WILSON SECURITY

IHMS (International Health & Medical Services)

Those companies – Australian companies – are collaborating with the Australian Government in one of the most shameful operations this country has ever been involved in: the deliberate mistreatment of asylum seekers who have sought protection in Australia.

Any group of people who (innocent of any offence) are locked up indefinitely in appalling conditions are eager to receive friendly messages from outside.  Common sense suggests  this, and experience shows it.  The Australian government simply says that asylum seekers do not want to receive letters.

The government is lying when it says  this.

The Department of Immigration is lying when it says this.

The greatest threat to Australia is not terrorism, but people like Tony Abbott and Peter Dutton, who are willing to inflict misery on innocent people in order to hold on to political power.

Tony Abbott and Peter Dutton both deserve to go down in history as the worst people ever to hold high office in this country.

Speech to Labor National Conference

Today I recorded a speech to the Labor National Conference.  I did it because I was asked to.  They may not like it.

SPEECH TO LABOR NATIONAL CONFERENCE

What I have to say to you today is not what I would have expected to say.

I do not expect you to agree with me.

Let me start by saying that in my view the current Prime Minister is the worst in our history. The current Government is probably the worst in our history.

But we also have the least effective Opposition in living memory.

It will not be news to you that a lot of people – at least those who think about their vote instead of voting out of habit – must be wondering whether either of the major parties is worth voting for. In my opinion, they aren’t.

There was a time when Labor stood for something. If it still stands for anything, it has been conspicuously quiet on the matter.

On asylum seekers, Labor’s record is patchy and getting worse. In the 2013 election campaign Labor tried to out-promise the Coalition on the cruelty with which it would treat boat people.

I know that asylum seeker policy might be seen as a niche issue, but we are now at the stage that it calls in question the character of the nation.

Labor’s refugee platform speaks in high-sounding terms of fairness and humanity, but it stays silent on the fact of deliberate, intentional cruelty to boat people.

How many Labor MPs have even been to Manus Island or Nauru?  When was the last time a Labor parliamentarian went to Manus Island or Nauru?  How much do Labor parliamentarians know about the shocking conditions in offshore detention?  Labor has not used its position to expose the cruelty and hypocrisy of the Government’s position.

The Coalition’s rhetoric says they are worried about asylum seekers drowning in an attempt to reach Australia, so they punish the ones who don’t drown. It is an intentionally hard line. It is a hard line which depends on a cruelty.

To an outsider, the only difference between the two major parties is this: the Coalition treat boat people and boasts about it; Labor would mistreat boat people, but is ashamed of it.

A voter recently wrote to 45 Federal MPs asking two simple questions:

“In your personal opinion, are asylum seekers who arrive in Australia by boat treated humanely?

“Do you consider that people who arrive in Australia informally and seek asylum should be called ‘illegal’?”

Nineteen of the MPs were Labor MPs. Fourteen of the Labor MPs ignored the letter. They didn’t even acknowledge getting it.

One of them forwarded the letter to Richard Marles (the Shadow Immigration Minister) which is a strange thing to do when a personal opinion was asked for. But it didn’t matter because although Marles replied, his reply did not answer the questions.

Four other Labor MPs responded to the letter but did not answer the questions. They did say it was important to treat boat people with compassion and fairness, in a dignified humane way. Well, maybe Labor could advance those ideas publicly.

Do any of you have any idea how cruelly people are treated in offshore detention?

If you understand how shocking things are on Manus and Nauru the answers to that voter’s letters might have been different.

But how many Labor MPs have been to Manus or Nauru? When was the last time any Labor MP visited Manus or Nauru?

Either you have not bothered to find out the facts, or you know the facts and don’t care. Either way, Labor should be ashamed of itself.

The Opposition has a chance to be the second-loudest voice in the country. So why are you so quiet about these things?

Labor supported the Australian Border Force Act, which makes it a criminal offence to disclose anything about conditions in detention, including instances of child sex abuse.

There is a defence in section 48, which permits disclosure for the purpose of reducing a serious risk to the life or health of a person. But Labor’s Shadow Minister seemed to be unaware of section 48, and instead defended the legislation by pointing to the more onerous provisions of the whistle-blower legislation.

The only available inference is that Labor supported the legislation without understanding it, and without regard to the obvious chilling effects which the legislation is bound to have.

If Labor actually believes that people in detention should be treated with dignity and compassion, it should not have supported the Australian Border Force Act.

But that’s the problem: viewed from outside, it looks as though Labor does not actually believe in its own rhetoric. In fact, it looks as though Labor does not believe in anything much at all.

If that is where today’s Labor Party stands, it will not long survive.

Labor today looks like a weak centre-right party which does not believe in itself. A party that believes in nothing except power will end up with nothing at all.

If Labor refuses to stand up for the principles it espouses, to articulate them and then argue for them, it forfeits its right to any political support.

 

Australia: becoming a pariah on climate change

Katharine Murphy has a good piece in today’s Guardian

It includes these observations from Tim Flannery:

The Climate Council’s chief councillor, the scientist and climate activist Tim Flannery, said Australia needed to step up its level of ambition for the international talks because the Abbott government’s domestic policies had attracted international attention.

“Given Australia is one of the world’s largest coal producers, and the 13th largest contributor to climate change in terms of greenhouse gas emissions, the eyes of the world are on Australia right now,” Flannery said on Monday.

“This is likely the first time in recent history that Australia has come under such sustained criticism from other countries over its domestic policies.

“We risk becoming a pariah if we don’t join the rest of the world in doing our fair share to tackle climate change.”

Analysis of Border Force Act by George Newhouse

Here is a very useful analysis of the Australian Border Force Act, by George Newhouse: Criminalising whistleblowing under the ABF Act.

In my view, the scenarios he identifies are realistic although the defence under ABF s.48  probably applies to them.

The deeper point is this: the government is apparently intent on suppressing information about what is going on in Australia’s detention system.  They have a lot to hide, and health workers know this better than most people.

Unfortunately, most Federal parliamentarians seem not to understand what they have just voted for.  The Labor party supported the government on this one, and representatives on both sides point to the whistleblower legislation (the Public Interest Disclosure Act) to suppor their view that health workers can speak out.  Apparently they did not read or understand section 48 of the Australian Border Force Act.

 

Zaky Mallah, Steve Ciobo and Q & A

The fuss over that episode of Q & A is becoming increasingly absurd.

Zaky Mallah was in the Q & A audience on Monday 22 June.  12 years earlier he had been convicted of threatening to kill.

He asked Steve Ciobo (the parliamentary secretary for Foreign Affairs and Trade) a question which focussed on the idea that the Minister for Immigration might be able to cancel a person’s citizenship without the inconvenience of a trial to see whether the person had done something wrong.  The following is what happened:

Zaky Mallah: “… what would have happened if my case had been decided by the minister himself and not the courts?”

Steve Ciobo: “I am not familiar with the circumstances of your case … but from memory I thought you were acquitted on a technicality rather than it being on the basis of substantial finding of fact.  I got to tell you … my understanding of your case was that you were acquitted because at that point in time the laws weren’t retrospective but I am happy to look you straight in the eye and say I’d be pleased to be part of a government that would see you out of the country as far as I am concerned.  I would sleep very soundly at night. I don’t apologise for this point of view”

That comment by Steve Ciobo prompted Mallah to say:

“The Liberals have just justified to many Australian Muslims in the community tonight to leave and go to Syria and join ISIL because of ministers like him,”

Tony Jones said Mallah’s comment was completely out of order.

That should have been an end of it.  But the Abbott government went berserk.  Government front-benchers who had agreed to appear on the following week’s Q & A withdrew.  Now Abbott has ordered his front bench to refuse any invitation to appear on Q&A.  Barnaby Joyce confirmed on The Insiders on Sunday morning that he was to appear on Monday night’s Q&A, but later cancelled

Why this infantile response?  Well, the LNP give several reasons.  First, they say that it was an unacceptable security risk that Mallah was allowed into the audience.  This argument is so weak as to look idiotic.  Mallah was acquited of a terrorist charge 13 years ago.  He was found guilty of a charge of threat to kill: also 13 years ago. The suggestion that he was a risk to the people in the studio was ludicrous, and seems not to have been pursued.

The second complaint was that the ABC should not have allowed a person with his history to ask a question.  But Mallah is known as a public opponent of  ISIL.  His question was a reasonable one, and was not directly related to ISIL (except that it was people thought to have fought with ISIL whose citizenship was to be cancelled by the Minister).  The ABC could hardly have predicted that Ciobo would respond with such a foolish and intemperate response.  Mallah’s reaction to Ciobo’s response was also intemperate but, viewed dispassionately, it was probably reasonable.  A harsh government which is willing to sideline the rule of law in its populist assault on Islam can expect to radicalise some young Muslims.  That seems to be the point of Mallah’s answer.

So: Mallah asked a reasonable question, Ciobo made an intemperate response to that reasonable question, and Mallah responded in a way which was rational but regrettable.

Why should the ABC be criticized for that?  And why should the government boycott the programme, for something which was provoked by one of its own people, Steve Ciobo?

Thailand prosecutes Phuketwan journalists

Here is an important piece written by Ian Yarwood concerning the forthcoming trial in Thailand of two journalists, including Australian journalist Alan Morison.  It is his prediction of how the trial will go. As Ian says towards the end of the piece “… it would be disastrous for Thailand if the journalists were found guilty of any of the offences.  It would also be disastrous for the journalists if they were sent to jail…”

Ian writes:

As the trial dates of 14 -16 July 2015 approach, people have been trying to predict what might happen over the next two weeks.  For what it’s worth, this is my attempt to see two weeks into the future.

I predict that the journalists will prevail and that they will do so on one of those famous Thai “technicalities” that will allow The Royal Thai Navy to save face and that will also diffuse all the unnecessary drama we have witnessed.  I am not too concerned with which “technicality” the Phuket Provincial Court might find most attractive but I can outline a few possibilities.

I should stress that I am not privy to any advice from or discussions with the journalists’ Thai legal team.  In addition, my discussion of the reasons why I think the journalists will prevail is fairly limited but the publication by David Streckfuss (referred to below) does go into greater detail of Thai defamation law.

CLARIFYING SOME MATERIAL FACTS 

Those readers with limited or no knowledge of the background facts would be well served by reading part of the open letter from Lawyers’ Rights Watch Canada (“LRWC”) dated 5 January 2015 on its website and republished on 7 January 2015 on Phuketwan under the headline:  “Judicial Harassment in Thailand and Consular Protection of Mr Alan Morison.”  It is one of the few articles I have read on this matter that is really accurate in the reporting of the background facts.

Unfortunately, I have read many press releases, media reports, blogs and comments from readers of Thai websites that contain factual errors of varying degrees of importance.  One particularly serious error in the media reports seems to have occurred when media outlets paraphrase each other’s stories.

Many months ago, I read one disappointing letter from the Australian Department of Foreign Affairs and Trade to Jenny Braddy (one of Alan Morison’s sisters) that contained several misleading statements.  Anyone who reads the LRWC article will also observe that, according to Jenny Braddy, the Australian Foreign Minister incorrectly asserted that British human rights activist, Andy Hall had his passport returned from a Thai court because he made an apology, when in fact he never made any apology.  Andy Hall successfully defended a charge of criminal defamation in the Prakanong Court, Bangkok.

Some of the comments from readers of websites seem insightful but others are wildly inaccurate when making statements of fact.

The precise words in the paragraph in the Phuketwan story are of vital importance.  The relevant paragraph referred to “Thai naval forces” and not to “The Royal Thai Navy.”

The bottom line is that in the relevant Reuters paragraph, republished by Phuketwan, Reuters did not point the finger at The Royal Thai Navy.  This is the most fundamental and important fact to understand when trying to predict the events of the coming two weeks.

Reuters did (correctly or incorrectly) directly point the finger at The Royal Thai Navy in a subsequent story it published on 5 December 2013, some five months later.  Most readers will be aware that despite this The Royal Thai Navy has not pursued Reuters or any other news services – just tiny Phuketwan.

It should not be lost on anyone that the conduct of The Royal Thai Navy has been dubious to say the least.  It comes across as being a bully that wants to pick on the little guy (Phuketwan) but wishes to avoid a bigger target such as Reuters.  It should also not be lost on anyone that an appropriate course of action for the police and prosecutors to take would be to investigate the reason(s) why The Royal Thai Navy targeted Phuketwan in particular.

It is worth noting that Phuketwan did publish a reply from The Royal Thai Navy three days after the story of 17 July 2013.  Phuketwan also published a favourable story regarding The Royal Thai Navy on 18 December 2013.  These actions would be important in a Western legal system (demonstrating an absence of malice) but these actions are even more important in the Thai legal system where the intentions of the person making the allegedly defamatory statement are very important.

On or about 26 June 2015 Alan Morison received a letter from the office of the Thai Prime Minister advising that the Attorney General’s Office would not be requested to drop the Computer Crimes Act charges.  Therefore, it seems almost certain that the case will proceed to trial on 14 July 2014.

I have seen comments from members of the public suggesting that Alan Morison might call for an adjournment.  I believe this is most unlikely.  Had he wished to avoid the trial he could have stayed in Australia earlier this year but he returned to face the charges.  In addition, it is in his interests to bring the matter to a head so that he and Khun Chutima can get on with their lives.

95% CONVICTION RATE

According to David Streckfuss (the author of the publication “Truth on Trial in Thailand”) some 95% of criminal defamation charges result in convictions.  This is a frightening statistic and possibly the most sobering aspect of the situation that the journalists find themselves in.

Few things are certain except in hindsight.  However, for the reasons I shall outline below I believe that the odds are in favour of the journalists.

REASONS WHY THE JOURNALISTS SHOULD PREVAIL

In British based legal systems local councils and government bodies cannot sue for defamation although individuals employed by them can do so.  It would appear that in Thailand the situation is not entirely clear.  It might be possible for a branch of the armed services to bring a criminal defamation charge.

I note that this seems to be a test case as to whether or not a branch of the armed services can bring criminal defamation charges and charges under the Computer Crimes Act 2007.  (In the Thai language there is no distinction between the singular and the plural so the Act is sometimes referred to as the Computer Crime Act 2007)

Streckfuss does discuss a few cases in which the Courts considered which groups of people could bring criminal defamation charges.  The issue of whether or not The Royal Thai Navy can sue will be tangled up with the whole notion that the words “Thai naval forces” and whether those words can include or mean persons outside the Royal Thai Navy.  The larger and less well defined the group is the more likely it is that the Court will decide that the “plaintiff” is unable to sue.

It is unclear but it is quite possible that the Court will decide that The Royal Thai Navy cannot sue at all.  Alternatively, it might decide that The Royal Thai Navy cannot sue in these special circumstances where the correct plaintiff might include Thai Marine Police, militia commanders etc.

I would imagine that the Court would prefer to leave the various branches of the Royal Thai armed services with the right to sue but that it might be attracted to a decision that The Royal Thai Navy cannot sue in these specific circumstances where a very vague term is used.  A favourable result could thereby be achieved for the accused without creating an unfavourable precedent for the armed services.  (Although I understand that the concept of “precedents” is not as important in Thai law as it is in British law)   The charges could then be dismissed.

Should the Court find that The Royal Thai Navy is able to sue even in these circumstances then the obvious argument for the journalists is that plaintiff was not expressly named and that the plaintiff was not referred to by implication.  This would appear to be a strong argument that the offence of defamation had not been established by the plaintiff.  If the Court finds favour with that argument then the charges should be dismissed.

I refer to the excellent report of the Brisbane barrister, Mr Mark Plunkett concerning the criminal defamation case of Natural Fruit Co Ltd v Andy Hall. http://www.ictur.org/Eng/Plunkett.html

Although the charge against Andy Hall was dismissed on a “technicality” (prosecution failing to follow the correct interrogation procedure) Mark Plunkett did highlight the fact that Andy Hall did not name the Natural Fruit Co Ltd in the Al Jazeera interview that was the subject of the charge.

A further argument available to the journalists is that in the relevant paragraph (and indeed in the whole story) they did not accuse anyone of doing anything immoral or illegal.  They merely quoted from a report from an internationally respected news service.  This is the sort of thing that journalists do all over the world every day of the week.

Journalists can often rely on a qualified privilege in some jurisdictions provided there is no malice in the reporting.

As mentioned above, the intent of the journalists is more important in Thailand than it is in other jurisdictions.  Streckfuss does discuss this in his publication.  There is ample evidence in the Phuketwan articles of 20 July 2013 and 18 December 2013 and elsewhere to demonstrate that the Phuketwan journalists had no intention to defame The Royal Thai Navy.

I can think of one or two additional “technicalities” that might favour the journalists but it might be inappropriate for me to commit these to writing in a forum that the plaintiff’s representatives might read.

In the unlikely event that the Court decided that the journalists had identified The Royal Thai Navy in the relevant paragraph and that the paragraph was critical then the journalists would be obliged to prove: (1) that the statements (as interpreted by the Court) were true; and (2) that the journalists acted in the public interest and not for the purpose of embarrassing The Royal Thai Navy.  Obviously, it could prove extremely difficult for the journalists to satisfy the first of those requirements given that they were not the original authors of the paragraph or the story.

OTHER MATTERS

The journalists have been charged under s 14(1) of the Computer Crimes Act 2007.  The meaning of the Act (and that subsection) is vague and has been described as such by many commentators.  The subsection states that it is an offence to “import into a computer system ….false computer data in a manner that is likely to cause damage to a third party or the public.”

The criminal defamation trial of Natural Fruit Co Ltd v Andy Hall lasted approximately one week in September 2014.  As it transpired most of the evidence adduced at the trial was irrelevant given that the case was dismissed on the grounds that the prosecution had not followed the correct interrogation procedure.

In the circumstances, the Prakanong Court did not make any adverse findings against the plaintiff.  Andy Hall won but it was on a technicality, which allowed the Natural Fruit Co Ltd to “save face.”  The result was a victory for the defendant but in a sense it was also a bit of an anti-climax.

Andy Hall’s case received an enormous amount of international publicity which in my opinion did not hurt his interests at all.

The Phuketwan case has also attracted considerable international interest.  Of course, every case is important but the presiding judges will be motivated to reach a just decision based on the evidence that is brought before them.

To state the obvious, it would be disastrous for Thailand if the journalists were found guilty of any of the offences.  It would also be disastrous for the journalists if they were sent to jail.

I cannot realistically see either of those things happening though.  I see a big anti-climax coming following a couple of weeks of widespread interest.

An appropriate and just decision would be that the case is dismissed on one of the technicalities outlined above.  In the circumstances, there would be no adverse findings against the plaintiff.  The journalists would get their lives back and The Royal Thai Navy would not “lose face.”

However, The Royal Thai Navy will look like a bully and the world will take considerable notice of Thailand’s defamation laws.

The Australian Border Force Act: Labor’s role

Labor supported the passage of the Border Force Act.

It comes into operation on 1 July 2015.

Supporting it is another indication of Labor’s shockigly compromised position.  It brings to mind a verse written in 1943:

It is the logic of our times,
No subject for immortal verse
That we who lived by honest dreams
Defend the bad against the worse.

(Cecil Day-Lewis Where are the War Poets, 1943)

The purpose of the Border Force Act is to ensure that all the iniquities which happen in Australia’s detention system remain hidden.  Labor collaborated, becasue if they win government it is clear that they will maintain a hard line on boat people, and cruelty lies at the heart of the policy.

When the Border Force Act was being considered by the Parliament, an amendment was moved which would have made it compulsory to report child abuse in detention. Labor opposed it.

For reasons the government and Labor apparently overlooked, their attempt to suppress what is going on in detention cnntres (especially Nauru and Manus Island) will probably fail: see my earlier post on the Border Force Act.

But the important matters aer these: the desire of tehe government to cover up what is happening in detention centres, and Labor’s collaboration in that shabby endeavour.  First Dog On The Moon picked it pretty well: Go home Labor, you’re drunk.

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.

Politicians ignore questions about detention of refugees

It is a miserable thing to report, but our politicians who inflict unspeakable misery on refugees are apparently not willing to explain themselves.

An Australian citizen recently wrote to six Federal MPs asking a couple of very simple questions.  Each letter was less than a page long.  Five of the six MPs simply ignored her letters.  Apart for being bad manners, it shows utter contempt for the electorate.  The worst offenders – the ones who simply ignored the letters – are:

Josh Frydenberg – ignored every letter

Kevin Andrews – ignored every letter

Sarah Henderson – ignored every letter

Michael Sukkar – ignored every letter

Alan Tudge – ignored every letter

The only MP who responded to the letters was Barnaby Joyce.  He referred the letters to the Minister for Immigration.

Have a  look at the list below.  See how simple the questions are.

If Federal MPs are not willing to answer sensible, simple questions like these, they do not deserve to be in parliament at all.

MP Question response
Kevin Andrews Do you believe it is right to imprison innocent children? did not respond
Josh Frydenberg Do you believe it is right to imprison innocent children? did not respond
Sarah Henderson Do you believe it is right to imprison innocent children? did not respond
Alan Tudge Do you believe it is right to imprison innocent children? did not respond
Barnaby Joyce Do you believe it is right to imprison innocent children? referred question to Minister of Immigration
Barnaby Joyce Do you believe it is right to imprison innocent children? referred question to Minister of Immigration
Kevin Andrews Do you believe it is right to imprison innocent people? did not respond
Josh Frydenberg Do you believe it is right to imprison innocent people? did not respond
Sarah Henderson Do you believe it is right to imprison innocent people? did not respond
Alan Tudge Do you believe it is right to imprison innocent people? did not respond
Barnaby Joyce Do you believe it is right to imprison innocent people? referred question to Minister of Immigration
Barnaby Joyce Do you believe it is right to imprison innocent people? referred question to Minister of Immigration
Kevin Andrews Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? did not respond
Josh Frydenberg Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? did not respond
Sarah Henderson Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? did not respond
Michael Sukkar Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? did not respond
Alan Tudge Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? did not respond
Barnaby Joyce Do you believe people commit an offence by arriving in Australia without permission and seeking asylum? non-responsive answer, referred question to Minister of Immigration
Kevin Andrews How much does it cost each year to pursue our policy of deterrence of boat people? did not respond
Josh Frydenberg How much does it cost each year to pursue our policy of deterrence of boat people? did not respond
Sarah Henderson How much does it cost each year to pursue our policy of deterrence of boat people? did not respond
Michael Sukkar How much does it cost each year to pursue our policy of deterrence of boat people? did not respond
Alan Tudge How much does it cost each year to pursue our policy of deterrence of boat people? did not respond
Barnaby Joyce How much does it cost each year to pursue our policy of deterrence of boat people? non-responsive answer, referred question to Minister of Immigration

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!

ACTU Congress adopts new refugee policy

The ACTU Congress has just distributed its policy on refugees.

Significantly, it acknowledges that boat people ARE NOT ILLEGAL.

In addition, it acknowledges that “…Australia receives fewer applications than comparable
industrialized countries.”

It is a tragedy that there is so little genuine leadership on this issue in the Federal Parliament.

ACTU 2015 Asylum seekers Policy

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.

Magna Carta, 800 years on

Magna Carta is mostly a myth, but provides a great example of an enduring truth: that in political matters, mythology matters far more than facts.

Popular history tells us that Magna Carta was sealed on the meadow at Runnymede on 15 June, 1215. So this year – tomorrow, on 15 June – we will commemorate 800 years since it was sealed.

I am not too troubled by speaking about it 1 day early because, technically, tomorrow people will also be commemorating it a bit early. This is for several reasons.

First, the document that was sealed on 15 June 1215 was the Articles of the Barons. Magna Carta was based on it and was prepared and engrossed a few days later, some say on 19 June.

Second, in 1752, England switched from the Julian calendar to the Gregorian calendar, to bring the calendar back into synchronisation with the real world. Eleven days simply disappeared. So, while it is true that the Articles of the Barons, later called Magna Carta, was sealed on 15 June 1215, that day is 800 years ago minus 11 days. The date which is exactly 800 years after the signing of the Articles of the barons is actually 26 June this year; The date which is exactly 800 years after the sealing of the Articles of the Barons is probably 30 June this year.

But this does not matter: it is the symbolism of the thing that really counts, and I doubt that anyone will think about Magna Carta on 26 June this year. and on 30 June their minds will be focussed on taxes (as Magna Carta was) but they will probably not give Magna Carta a second’s thought that day.

Winston Churchill wrote about the creation of the Articles of the Barons in volume 1 of his great History of the English Speaking Peoples:

 

“On a Monday morning in June, between Staines and Windsor, the barons and Churchmen began to collect on the great meadow at Runnymede. An uneasy hush fell on them from time to time. Many had failed to keep their tryst; and the bold few who had come knew that the King would never forgive this humiliation. He would hunt them down when he could, and the laymen at least were staking their lives in the cause they served. They had arranged a little throne for the King and a tent. The handful of resolute men had drawn up, it seems, a short document on parchment. Their retainers and the groups and squadrons of horsemen in sullen steel kept at some distance and well in the background. For was not armed rebellion against the Crown the supreme feudal crime? Then events followed rapidly. A small cavalcade appeared from the direction of Windsor. Gradually men made out the faces of the King, the Papal Legate, the Archbishop of Canterbury, and several bishops. They dismounted without ceremony. Someone, probably the Archbishop, stated briefly the terms that were suggested. The King declared at once that he agreed. He said the details should be arranged immediately in his chancery. The original “Articles of the Barons” on which Magna Carta is based exist to-day in the British Museum. They were sealed in a quiet, short scene, which has become one of the most famous in our history, on June 15, 1215. Afterwards the King returned to Windsor. Four days later, probably, the Charter itself was engrossed. In future ages it was to be used as the foundation of principles and systems of government of which neither King John nor his nobles dreamed.”

 

King John was the youngest of 5 sons of Henry II. His oldest brother, Richard, was king, but went off to fight the crusades, where he earned his nickname “Lionheart”. John’s elder brothers William, Henry and Geoffrey died young. Richard died in 1199, and John became king.

Richard and John both incurred huge expenses in war, especially in suppressing rebellion in their French domains in Normandy and Anjou. Both leaned on their nobles to support the expense. John, who had managed to make himself deeply unpopular, met resistance. John made increasing demands for taxes of various sorts, including scutage – money paid to avoid military service – and he sold wardships and heiresses for large sums. Henry II and Richard had done the same, but John’s nobles resisted. By May 1215, the barons had occupied London and made a series of demands.

In June 1215, the barons met King John at Runnymede. The Archbishop of Canterbury, Stephen Langton, played an important role in mediating the dispute and eventually the Articles of the Barons were prepared and signed.

Before it became known as Magna Carta, it was set aside. Two months after the Articles of the Barons were signed King John, who was not a reliable person, prevailed on Pope Innocent III to declare the Deed invalid. The Pope said it was “not only shameful and base but illegal and unjust.” He declared it null and void, and ordered King John not to observe it. This was in August 1215, just 10 weeks after the great symbolic meeting at Runnymede.

The barons were not happy.

John died in October 1216. His son Henry was only 9 years old. Henry’s advisors saw that re-issuing the Charter in modified form would help keep the young king in power. So an amended version was issued in 1217, under the title Charter of Liberties. At the same time the Charter of the Forest was issued. The Charter of Liberties was the bigger of the two, and soon became known as the Great Charter: Magna Carta.

When he had come of age, Henry III swore his allegiance to a modified version of Magna Carta. This took place on 11 February 1225, so that is probably the most appropriate date to observe. The 1225 version of Magna Carta more closely resembles the document which has been so venerated for so long.

Perhaps people will celebrate the 800th anniversary of Magna Carta on 11 February 2025, or perhaps on 22 February 2025 to allow for the change in calendars. But probably not.

The 1215 version of Magna Carta includes many provisions which are concerned with taxes. For example:

 

(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief’, the heir shall have his inheritance on payment of the ancient scale of `relief’.

(12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly.

(15) In future we will allow no one to levy an `aid’ from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable `aid’ may be levied.

(27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are to be preserved.

(28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.

(30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.

And there are plenty of surprises:

 

(4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. …

(5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear.

(6) Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be’ made known to the heir’s next-of-kin.

(10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

(33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast.

(35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom. There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells[1] within the selvedges. Weights are to be standardised similarly.

The only part of Magna Carta which is widely remembered (if that is the right word) is found in Articles 39 and 40. :

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

Together, these became Article 29 of the 1225 version:

(29) No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. To none will we sell, to none will we deny, to none will we delay right or justice.

Considering the mystic significance which is attached to Magna Carta these days (and especially this year) it is interesting to note that Shakespeare, in his play King John, does not mention it. He mentions Stephen Langton, the Archbishop of Canterbury who played a large part in compiling the document, just once, and in passing. He does not mention Runnymede.

So why do we honour it this year, or at all? The short answer is: Sir Edward Coke. And here we embark on a truly remarkable story of a new reality being formed as myth is piled on myth.

Sir Edward Coke entered the English parliament in 1589, during the reign of Queen Elizabeth I. In 1594, he became Attorney-General and still held that role when James VI of Scotland became James I of England in 1603.

Elizabeth’s father, Henry VIII, had famously broken from the Church of Rome because he wanted a divorce. The formation of the Church of England led to increasing oppression of English Catholics. The oppression sharpened during the reign of Elizabeth. Elizabeth died without leaving an heir or any obvious successor. When James VI of Scotland was cautiously chosen as Elizabeth’s successor, the oppressed Roman Catholics of England had hopes that James might treat them more leniently. After all, James was married to Anne of Denmark who, although a Protestant, converted to Catholicism.

But these hopes were dashed, and a group of well-educated, pious, Catholic nobles conceived a bold plan to resist the increasing oppression. The opening of James’ first Parliament was delayed because the Plague had spread through London. For the opening of the Parliament, the Royal family, the Lords and the Commons would collect together in the great Hall at Westminster. Eventually the date for the opening of Parliament was set for 5 November 1605. But word of the conspiracy got out. The night before Parliament was due to open, the whole Parliament building was searched. In a room immediately below the great hall, a man called John Johnson was discovered. He had 36 barrels of gunpowder: enough to blow the whole place sky-high.

John Johnson was also known as Guy Fawkes.

King James personally authorised the torture of John Johnson, in an attempt to identify the other conspirators. Torture was unlawful then, as it is now. But King James considered that he ruled above the law. He adhered to the theory of the Divine Right of Kings. In this, we see the elemental force which was at play in the Constitutional struggles of the 17th Century. The key question was this: Does the King rule above the law, or is he subject to it?

The trial of the Gunpowder conspirators began on 26 January 1606. Sir Edward Coke, as Attorney-General, prosecuted the case. He won. He was a favourite of King James because, on many occasions, he had supported King James’s view that the King ruled above the law. Later in 1606 he was rewarded for his loyalty and good service by being appointed Chief Justice.

On the bench, Coke’s view seems to have changed. This sometimes happens to judges, to the great irritation of governments. In a number of cases, Coke CJ insisted that the King ruled subject to law. It is a principle we take for granted these days, but in the early 17th century it was hotly contested. He rejected King James’ interference with the operation of the Courts. The King dismissed him from office in 1616. He re-entered Parliament.

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, various complaints about the King’s conduct, including that:

  • 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 Petition of Right reflected Coke’s distilled thoughts about English law and politics. In his most famous work, The “Institutes of the Lawes of England”, Coke elevated Magna Carta to previously unrecognised significance. He claimed of it that it was the source of all English law, and in particular he claimed that it required that the King rule subject to law, not beyond it. He said that Magna Carta “is such a fellow that he will have no sovereign.”

The Petition of Right was Coke’s way of creating (he would have said “recognising”) the essential features of the English Constitutional framework.

The Petition of Right was adopted by the Parliament but Charles I would not agree to it. Charles I, like John centuries earlier, wanted to continue raising taxes without the inconvenience of Parliament. Like King John, he did it by exacting large sums from his nobles, as he had done in Darnel’s case. Again, the nobles were unhappy. The Civil War started in 1642. Charles lost the war and, in 1649, lost his head. Then came Cromwell, Charles II and James II.

James II was a Catholic and was not popular. His son-in-law, William of Orange, was persuaded to usurp the throne of England. In what became known as the “Glorious Revolution”, on 5 November 1688, William landed at Brixham. That year, 5 November turned out worse for James II than it had in 1605 for James I. James was deposed and William and Mary became joint sovereigns in James’s place.

But there was a catch. William had agreed in advance to accept the Petition of Right. So the parliament of 1689 adopted the petition of Right and it became the English Bill of Rights. By this path, Sir Edward Coke’s views on Magna Carta gained an unassailable place in the fabric of English law.

In form, the Bill of Rights declares itself to be “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”.

It recites and responds to the vices of James II. Its Preamble starts this way:

“Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom …

and it then declares certain “ancient rights and liberties”.

The English Bill of Rights does, in some ways, reflect Magna Carta. So:

Magna Carta (1215) Article 12: No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly

Bill of Rights, clause 4: That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

And the ideas underlying Article 20 of Magna Carta and clause 10 of the Bill of Rights are similar:

Magna Carta (1215) Article 20: For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Bill of Rights, clause 10: That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Beyond this, other parallels can be found but it takes the ingenuity of Sir Edward Coke to make them sound persuasive. For example, Article 61 of Magna Carta of 1215 (which was not repeated in the 1225 version adopted by Henry III) provides for a council of 25 barons to hold the KIng to his promises, and clause 13 of the Bill of Rights requires Parliaments to be held frequently.

But Coke had persuaded a generation of lawyers and historians that the liberties in the Petition of Right, and thus in the Bill of Rights, were recognised in Magna Carta. So the importance of Magna Carta was picked up and sustained by the Bill of Rights.

We do not think about the English Bill of Rights much these days. When we hear about “The Bill of Rights” these days, we automatically think of the United States of America. It is not an accident. The American colonies had been established by the English when they settled Jamestown in 1607. By 1773, things were not going well. The Boston Tea Party took place on 16 December 1773, in protest against having to pay taxes to a distant government in which they had no representative. In 1776 the colonists decided to sever their ties with Britain and on 4 July 1776 they signed the Declaration of Independence.

In 1789 a Constitution was proposed for the newly independent United States of America. It was a bold, and unprecedented, venture. The idea of a federation of states with local as well as a central government was a novelty back then. The thirteen colonies, anxious about the possible tyranny of a Federal government, put forward 10 amendments to the Constitution. Those amendments are known, in America and across the English-speaking world, as the Bill of Rights. They closely reflected the English Bill of Rights of 1689.

Although it is sometimes thought the US Bill of Rights is a human rights document, it is no such thing. It is no less than a reflection of what is now called the Rule of Law.

The parallels between the English Bill of Rights and the US Bill of Rights are very clear:

English Bill of Rights (1689) US Bill of Rights (1791)
Preamble: By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law 5 – No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
3 – That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
4 – That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; See US constitution Article 1, Section 9 “…No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time….”
7 – That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; 4 – A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
10 – That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; “10 – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
5 – That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Two important provisions of the US Bill of Rights reflect Articles 39 and 40 of the 1215 Magna Carta (Article 29 of the 1225 re-issue).

Articles 39 and 40 of the 1215 Magna Carta:

“(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land

(40) To no one will we sell, to no one will we refuse or delay right or justice.”

(1225 version, Art (29): No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. To none will we sell, to none will we deny, to none will we delay right or justice.”

US Bill of Rights

“8 – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; … and to have the Assistance of Counsel for his defence.

9 – …the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court”

Articles 39 and 40 of Magna Carta are sufficient justification for the document’s fame. They have since been taken to stand for the proposition that punishment can only be imposed by a court, that laws apply to all equally according to its terms, and that all people are entitled to have their legal rights judged and declared by a Court. This is more grandly expressed as the Principle of Legality or the Rule of Law.

In Australia, we did not adopt a Bill of Rights in our Federal Constitution, and our Constitutional fathers did not have the same reasons to be anxious about a Federal government as the American colonists had a century earlier. But the High Court of Australia has found in the structure of our Constitution a Principle of Legality which reflects the spirit of Magna Carta as interpreted by Coke.

The Australian Constitution is divided into chapters. The first three chapters create the Parliament, the Executive Government and the Courts respectively. The High Court very early on decided that this gives each arm of government exclusive rights within its own domain. So, for example, only the parliament can exercise legislative power, and only the courts can exercise the judicial power. For present purposes, that means that courts can impose punishment, but the Parliament and the Executive cannot. Parliament can pass a law which says “Doing x is illegal; penalty 5 years jail” but only a court can find that a person has done x, and impose the available punishment.

At least according to Coke, this echoes the provision in Article 39 of Magna Carta that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals…”

It seems odd, and not a little ironic that, in the year of the 800th anniversary of Magna Carta, we are confronted with a government which is seriously challenging the Rule of Law.

A recently introduced Bill authorises detention centre guards to treat detainees, including children, with such force as they think is reasonably necessary. As a retired Court of Appeal judge said to a Parliamentary enquiry, this would, in theory, allow a guard to beat a detainee to death without the risk of any civil or criminal sanction.

The Social Services Legislation Amendment Bill removes financial support for patients with a mental illness if they are charged with an offence which could carry a sentence of 7 years or more. This automatically puts a defendant at a disadvantage when facing a serious charge, and they suffer that disadvantage regardless whether they are innocent or guilty. Punishment without trial.

The Abbott government is debating the idea that any Australian who goes to fight with the Islamic State should be stripped of their citizenship by a Minister of the Crown, that is to say, by a member of the Executive government.

Having your citizenship cancelled looks very much like a punishment: but the Abbott government wants to be able to do it without troubling a Court to see if the relevant facts are proved and the punishment is required by law. And, archaic as it seems, letting the Minister take away a person’s citizenship looks very much like outlawing or exiling the person without the judgment of his equals. Punishment without trial.

This is not a political argument: it is an argument about the rule of law and is as serious and important as it was 800 years ago.

It is too late to deny that Magna Carta has developed a level of significance which its authors may not have noticed or intended. If we are true to the spirit which Sir Edward Coke found in it; if we are true to the same spirit which informed the petition of Right and the EnglishBill of Rights and the American Bill of Rights then we owe it to the past and to the future to resist any attempt by this or any government to punish or outlaw or exile any person, except by the judgment of his equals.

[1] An ancient unit of measure. The English ell = 45 in.; the Scotish ell = 37·2; the Flemish ell = 27 in.

Paying off the people smugglers

 

Part of the united rhetoric of the Coalition and Labor is to condemn people smugglers.  Both sides of politics describe people smugglers as “evil” and as “the scum of the earth”.

We need to put to one side whether that generalisation is correct or not, because it automatically consigns Oskar Schindler and Dietrich Bonnhoeffer to the worst category of infamy.

If the Coalition are genuine in their judgment of people smugglers, it would be a very strange thing to do business with them. But on radio 3AW this morning, Abbott had a revealing exchange with Neil Mitchell.  He tried repeatedly to duck the issue, but he appeared to concede that the government has paid people smugglers to return their customers to Indonesia.  The conversation included the following exchanges:

“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. …”

Mitchell did well to get as far as he did.  It was as close to an admission as he was going to get. Abbott’s refusal to deny the allegation effectively amounts to an admission.

Abbott’s contempt for people smugglers is hardly a secret.  It is an act of the basest hypocrisy that he would allow his government to pay them anything at all for any service at all.

Hypocrisy in politics is pretty common, so this could just be “business as usual”.  But it goes deeper than that.  Abbott’s primary justification for condemning people smugglers is that they cause deaths: he is so worried about boat people drowning that he is willing to punish the ones who don’t.  The reason they drown, so he argues, is that people smugglers are cruel, heartless and careless.  Why then does he think it a good thing to pay the people smugglers   to take their passengers back along their perilous voyage?  Surely, if his concern was the safety of boat people, he would have them rescued from the smugglers as quickly as possible.

On Abbott’s argument, prolonging the time boat people spend in the hands of people smugglers increases their risk of drowning.  But he is willing to pay the people smugglers to take their passengers further.

And of course we are not allowed to know the consequences of his willingness to deal with the Devil.  If boat people drown as a result of the payment, we won’t be told because it is an “on-water” matter.   And if they don’t drown, we won’t be told, because that would contradict the government’s main narrative.

On any view of it, for the Abbott government to countenance payment of people smugglers is genuinely astonishing, and casts doubt not only on its own integrity but also on the sincerity of its arguments for “stopping the boats”

A striking insight into modern existence

During an interview the Dalai Lama was asked what surprises him the most about humanity. His answer was  profoundly insightful:

“Man surprised me most about humanity. Because he sacrifices his health in order to make money.
Then he sacrifices money to recuperate his health. And then he is so anxious about the future that he does not enjoy the present; the result being that he does not live in the present or the future; he lives as if he is never going to die, and then dies having never really lived.”