The Allies’ trial of Japanese wartime political and military leaders was intended to lay the foundations of a new, peaceful and democratic Japan by punishing the militarists who had led the country into a disastrous conflict. The notion that victors could judge the vanquished evoked controversy, both within Japan and internationally; yet in the late 1940s the pioneering Japanese feminist Kato Shizue could confidently write that “intelligent Japanese long ago decided that the punishment of the war criminals was inevitable, and they think the verdicts were just.”

Today, feelings are very different. Japanese conservative politicians (including prominent members of the present government) rail against what they label the “Tokyo Trial View of History,” which they blame for instilling a darkly masochistic view of the nation’s history in the minds of the Japanese population. The late prime minister Shinzo Abe was particularly emphatic in denying that the men convicted by the International Military Tribunal for the Far East should be regarded as criminals. The seven who were executed for war crimes following the Tokyo trial — as well as others convicted and given lesser sentences — are among those commemorated in the Yasukuni Shrine, where right-wing politicians and some senior military officers go to honour the spirits of the dead. As political scientist Gary J. Bass argues in his monumental new book Judgement at Tokyo, “the Tokyo trial misfired and fizzled,” revealing “some of the reasons why a liberal international order has not emerged in Asia, despite the wishes of some American strategists.”

The paradoxes at the heart of the Tokyo trial began to be visible well before the International Tribunal opened its hearings on 3 May 1946. Bass’s book starts by guiding readers through the concluding stages of the Pacific war and the impassioned debates among allied leaders about the treatment that should be meted out to the vanquished. (US secretary of state Cordell Hull was among those who initially favoured summary executions of Hitler and Japan’s wartime prime minister, Tojo Hideki.) A central figure in the early part of Bass’s narrative is Henry Stimson, US secretary of war at the time of the defeat of Germany and Japan, who played a key part in creating the conceptual framework that underlay both the German Nuremberg war crimes trials and the Tokyo trial.

In Nuremberg and Tokyo, the wartime leaders of the defeated nations faced three classes of criminal charge. Class A was the crime of waging (or conspiring to wage) aggressive war; Class B covered the war crimes set out in the existing Geneva Conventions, including mistreatment of prisoners of war; and Class C encompassed crimes against humanity. The difficulties lay in Classes A and C. There were no legal precedents for prosecuting people for waging aggressive war, nor for crimes against humanity, and even within the victorious allied nations some leading legal commentators were concerned that the trials were imposing newly invented laws retrospectively on the defeated.

The horrors revealed at Nuremberg helped to embed the notion of crimes against humanity both in public consciousness and in international law. But in Tokyo the key charge (though not the only one) was the crime of waging aggressive war — an offence for which no one had ever been prosecuted before the Nuremberg and Tokyo trials, and for which no one has been prosecuted since.

As Bass vividly shows, unease and disagreement about the moral and judicial basis of the International Tribunal’s proceedings haunted the Tokyo trial. Even Sir William Webb, the acerbic Australian judge who presided over the International Military Tribunal, privately questioned whether waging aggressive war could be treated as a crime, though he managed to suppress these doubts sufficiently to concur in, and hand down, the tribunal’s guilty sentences on all the twenty-five defendants who survived the trial. (Two died during the proceedings, and another was found mentally unfit to be tried.)

A further obvious paradox of the Tokyo trial was the fact that Emperor Hirohito, in whose name the war had been fought and hundreds of thousands of Japanese soldiers had gone to their deaths, never appeared in court. By the time Japan surrendered, the US government had decided that it would be politically expedient to retain the emperor as symbolic leader of the new Japan. Despite protests from Australia, he remained immune from prosecution.

Judgment at Tokyo, though, is not a dry analysis of judicial principles and legal arguments. It is a vivid blow-by-blow account of the trial, filled with colourful characters and moments of farce as well as tragedy. The Tokyo tribunal, though dominated by the colonial powers, was more international than its Nuremberg counterpart. Its eleven judges represented the United States, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China, India and the Philippines, and each judge brought with him (they were all men) his own experiences, professional training and personal prejudices. They spent their time in war-devastated Tokyo living an isolated existence in the Imperial Hotel, and relations between them were often tense. Chinese judge Mei Ruao took a deep dislike to Indian judge Radhabinod Pal; the British judge, Lord William Patrick, was derisively dismissive of his Filipino counterpart, Delfin Jaranilla. They were united, it seems, only in their shared aversion to the court’s president, William Webb.

Yet this is not a simple litany of fractiousness and failure. What the Tokyo trial achieved, in very difficult circumstances, was the collection of a mass of vivid and often searing evidence of the horrors of war, including of many conventional war crimes: among them, the massacres and mass rapes of civilians in the Philippines and China, the mistreatment and killing of prisoners of war, and the brutal forced labour inflicted on tens of thousands of Southeast Asians and of allied prisoners of war on the Thai–Burma Railway and elsewhere.

While taking readers through this evidence, Judgement at Tokyo also points out the silences: most notably, the absence from the trial of any serious discussion of Japan’s use of biological warfare in China. The US and Soviet authorities were well aware of this dark story but made sure that it was kept out of the trials because they were busy trying to obtain knowledge of Japan’s biological techniques for their own purposes.

Bass explores not only the events of the trial itself but also the subsequent destinies of the judges — particularly the very different fates of Mei Ruao and Radhabinod Pal. Mei, who had been appointed to the court by the Chinese Nationalist government of Chiang Kai-shek, decided hesitantly to return to mainland China in 1949 and throw in his lot with the new People’s Republic of China. Ironically, he fell foul of the communist authorities because of his fierce criticism of Japanese war crimes at a time when China’s government was trying to improve the country’s political relationship with Japan. He was publicly condemned during the Cultural Revolution and died soon after — only to be elevated to the status of national hero under current Chinese leader Xi Jinping, whose nationalist rhetoric echoes Mei’s own insistence that China should never forget the wartime horrors inflicted on its people by Japan.

The Indian judge Pal, on the contrary, famously wrote a dissenting judgment that sweepingly rejected the right of the International Tribunal to judge the defendants. (Later, he also questioned the Nuremberg judgements and the reality of the Holocaust.) Pal’s lengthy statement of dissent made him the hero of the Japanese right, who feted him on his later visits to Japan and have cited his judgement ever since as justification for their own revisionist views of the war.

Judgement at Tokyo is based on a mountain of court records, government archives and interviews with the descendants of the judges and defendants, and Bass skilfully weaves all this together into a fascinating narrative. Despite the scale and scope of the book, though, there is one odd lacuna. It barely mentions a crucial counterpoint to the Tokyo trials: the story of the 4000-odd Japanese soldiers and military auxiliaries who were found guilty of Class B and C war crimes in trials held throughout East and Southeast Asia and the Pacific, of whom almost 1000 received the death sentence.

As Utsumi Aiko and other Japanese scholars have pointed out, these were the most tragic of the war crimes proceedings, for many of those who received the harshest sentences were low-ranking auxiliaries — some of them drafted from Japan’s colonies of Taiwan and Korea into the violent world of the Japanese wartime military only to be abandoned to their fate by the collapsing military machine that had recruited them.

As Gary Bass shows, the Tokyo trial had far-reaching implications for Japan and its Asian neighbours. Its fundamental flaw was its shakily based attempt to define the waging of aggressive war as a crime. The spectre of double standards and retrospective justice raised by this concept has never been laid to rest. This in turn allows historical denialists today not only to dismiss the trial as “victors’ revenge” but also, by extension, to whitewash the history of the war and depict the Tokyo defendants as innocent martyrs to a just cause. And the growing influence of that denialism, as Bass trenchantly observes, risks shackling Japan to a narrative of the war that is both “morally odious and historically dubious.” •

Judgement at Tokyo: World War II on Trial and the Making of Modern Asia
By Gary J. Bass | Picador | $39.99 | 912 pages

The post Victors’ justice? appeared first on Inside Story.

None of this was controversial. The ex-judge was Tom Bathurst, most recently chief justice of New South Wales. His confidant was the state’s attorney-general, Michael Daley. And the high-profile figure was Kathleen Folbigg. Twenty years after being convicted of suffocating her four children, she was released from a Grafton prison.

Asked when Bathurst’s actual report would come out, Daley replied, “Without giving away any confidences, I think it would be appropriate to say that it will be weeks and not months.” The report was published last week, more than five months after Folbigg’s release.

Bathurst is the latest in a very lengthy string of judges who’ve ruled on Folbigg’s murder convictions. Six appeal judges, rejecting her first two appeals, all expressly said they agreed with the jury’s verdict. Three High Court judges (who had all once sat on the same appeals court) refused a further appeal, adding that the prosecution evidence was strong.

Just four years ago, in a different official inquiry, a former judge (previously head of a different New South Wales court) not only declared Folbigg guilty as charged but said that the further evidence he had heard “makes her guilt of these offences even more certain.” Two years ago, yet another appeal panel found ample basis for their former colleague’s ruling.

That’s twelve judges and one former one who’ve ruled Folbigg’s conviction safe, with no dissenters or doubters. Until now.

As he foreshadowed to Daley, Bathurst has told the state governor (a former head of the appeals court who had already pardoned Folbigg) that “there is reasonable doubt as to Ms Folbigg’s guilt” of each of her alleged crimes.

What created the doubt, according to Bathurst’s report, was new evidence that emerged just as the previous inquiry reported. Rather than supporting the finding that Kathleen Folbigg smothered her children, it showed that her two daughters shared a gene that could kill them. Other new evidence firmed up the likelihood that one of her son’s multiple afflictions also had natural causes. Bathurst accepted most, but not all, of this expert evidence.

Also presented was fresh psychological evidence about how to read diaries written by people under stress. Folbigg had written, for instance, of her husband’s “morbid fear” of their fourth child dying, “Well I know there’s nothing wrong with her. Nothing out of ordinary any way. Because it was me not them,” adding “I’ve learnt once it’s getting to me to walk away… With Sarah [her third child] all I wanted was her to shut up. And one day she did.” Bathurst said that these, and similar entries, were “evidence of self-blame” and concluded that the diaries contained no “reliable admissions of guilt.”

But it’s not only evidence that changes with time. As academic Emma Cunliffe details in her masterwork on Folbigg’s case, shared assumptions about multiple infant deaths have shifted with the decades. Once, those deaths were attributed to sleep apnoea, but then New York police investigated a family whose experience had been presented as key evidence of that theory and came away with the mother’s confession to five infant murders. Unsurprisingly, maternal suffocation became the preferred go-to, until the doctor who coined the term “Munchausen syndrome by proxy” was disgraced for giving bad statistical evidence in homicide trials. Folbigg’s misfortune was to be tried just before genes’ and trauma’s stars rose as explanation for such family tragedies.

Another change is simply that Folbigg’s trial is now much less recent. As anger, shock and memories recede and anticipated confirmations — confessions, revelations, similar cases — fail to materialise, space opens up for murderers to be unmade in the public’s mind. (Folbigg has long had champions including, startlingly, Alan Jones.)

Given the myriad possible explanations for the late turnabout in Folbigg’s case, I’m content to put aside the less palatable ones — medical fashion, malleable opinion, multiple wrong judges or jurors, or error on the part of Bathurst himself — and pin it all on the fresh evidence.

But there’s a further uncomfortable fact that Bathurst, Daley and others never mention, and that I’m not content to let slide: Kathleen Folbigg was unfairly tried in 2003, something New South Wales’s judges have known perfectly well for at least seventeen years.

Kathleen Folbigg’s two-month trial nearly collapsed in its second week. The trouble started when a new lawyer named Annabel dropped by to watch the proceedings and immediately recognised one of the jurors. She phoned a friend to confirm that her boyfriend was on the panel and then asked, “Did you know that was the case I was working on?” Annabel had done her student training at legal aid and had helped to prepare Folbigg’s defence.

It belatedly dawned on her that her phone call may have worsened the situation. Still worse, her friend had been part of her uni study group and may have been there when she described her work on the case. Worst of all, she might have told the group her personal view: that Folbigg was guilty as charged but shouldn’t be jailed. She promptly told the trial lawyers everything.

Folbigg’s prosecutor was dismissive — jurors often hear others’ takes in high-profile cases — but the defence fretted that Annabel’s opinions may be given particular weight. The judge, loathe to act on mere possibilities, opted to put the juror on the stand. He testified that he knew Annabel and about her phone call to his girlfriend, but, asked whether he had heard any of the lawyer’s opinions about the case, replied, “None whatsoever.” He was returned to the jury room with instructions to discuss the case with no one, including his girlfriend.

Justice Graham Barr made many decisions in 2003 that have aged well. Crucially, he barred all of the medical experts from opining on the likelihood of four natural infant deaths in a single family, restricting them to discussing each child individually. Bathurst ruled that Barr’s take matched the state-of-the-art medical thinking two decades later, and disclaimed the stance of then prosecutor Mark Tedeschi, who likened the defence case to a person being “hit by lightning four times.”

Tedeschi repeatedly tried to inform the jury of another startling fact about Kathleen Folbigg: that her father had killed her mother. The prosecutor initially said that it “provided an explanation for why the accused may have smothered her children.” Later, he claimed that it explained how Folbigg’s self-description in her diary as “my father’s daughter” amounted to a confession to the murders. Finally, he argued that the jury needed to know the history to understand her discussions about it with her husband and, later, the police.

Barr knocked back each of these attempts in turn, explaining that “the risk of misuse of the evidence is so great that I doubt whether any direction can obviate it.” This year, Folbigg’s ex-husband Craig complained that her troubled childhood was scarcely mentioned in Bathurst’s inquiry. He urged that it should be put in the report to the governor as evidence of his former wife’s possible inherited traits, mental illness and consciousness of guilt. Bathurst’s report dismissed this “rank speculation,” instead listing Craig’s unreliable trial testimony as a further reason to doubt the jury’s verdict.

It is a tribute to Barr that the courts have identified only one mistake he made: giving Folbigg too harsh a sentence. On the morning of 17 February 2005, the first three judges to review her case upheld her conviction but lowered her sentence from Barr’s forty years to thirty, leaving her eligible for parole in 2028. “Any person who was properly informed, sensible and thoughtful” would see how her “tragic background” — which effectively left her an orphan — “explains to some extent, although it does not excuse to any extent, how the crimes came to be committed.”

Barr’s excellent judging was something of a misfortune for Folbigg. A fair trial means a fair verdict. Or so it seemed that morning. That afternoon, Annabel emailed legal aid with some bad news about Folbigg’s jury.

Two brief court judgements are the only public insight into the flurry of behind-the-scenes events kicked off by Annabel’s email from early 2005 to late 2007. Even the judgements that emerged are unusual, because courts typically cannot rule on evidence that emerges after (here, hours after) a convicted offender loses her first appeal. Bizarrely, a missing staple on her court file allowed an exception in Folbigg’s case.

Thanks to the missing staple, we know that Annabel’s email recounted how a juror she “knew” had told her that “one of the jurors had researched Kathy’s history etc on the internet” during the trial. A year-long court-ordered investigation followed. Thanks to the rules protecting jurors and their deliberations, the only public outcomes of that investigation are terse summaries of “two instances of potential irregularity in the conduct of the jury trial.”

One involved the fact that some of the infants’ bodies were warm when paramedics arrived. The jurors were curious about how long bodies stay warm, and one asked a nurse friend. Such inquiries are forbidden, but the court ruled that, luckily, what the jury was told — that bodies stay warm for quite a while — helped the defence.

The other irregularity was far more serious. A juror googled “Kathleen Folbigg,” read “several related sites” and told others what they said: that Folbigg’s father killed her mother when Folbigg was an infant. This discussion happened early in the trial, while Tedeschi tried and Barr refused to let the jurors know this very fact, blissfully unaware that their debate was moot.

The jury verdict would also be moot unless the court was “satisfied” that what the jury discovered had not affected their verdict. And here’s where the story took another turn.

Chief judge Peter McClellan explained the appeals judges’ take in a single paragraph:

Even though the appellant was the child of a person who killed another I do not believe there was any likelihood that a juror would reason that it was more likely that the appellant would kill her own children. The killing of a spouse may tragically occur in circumstances of the breakdown of a relationship or be occasioned by temporary loss of control accompanied by a violent and fatal act. The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant’s mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.

Judges Carolyn Simpson and soon-to-be-High-Court-justice Virginia Bell agreed without comment. The panel, satisfied that the juror’s research hadn’t affected the jury’s verdict, dismissed Folbigg’s second appeal and caused her to spend sixteen more years in prison.

There is no nice way to say this: what the court says here is wrong. It’s possible that the sheriff’s investigation turned up a quite different reason to be satisfied that the jury’s verdict was unaffected by the learning about Folbigg’s childhood, but the reason the court gave — that the jury would have simply shrugged and ignored it — is ridiculous.

Don’t just take my word for it. Take the word of prosecutor Mark Tedeschi, who argued that the jury could use the information to apply “the attachment theory, which is that children who have gone through the sort of early life that this accused went through may have difficulty themselves bonding with their own children.” Or trial judge Graham Barr, who acknowledged that the family history had “substantial” value in interpreting Folbigg’s diary, but that that still did not outweigh “the danger of unfair prejudice.”

Or why not appeal judge Peter McClellan? A decade after ruling on Folbigg, he headed the royal commission into institutional child abuse. There, he wrote eloquently about how “adverse childhood experiences can negatively influence a person’s emotional, social and cognitive development.” But he also bemoaned the “misconception… that victims of child sexual abuse go on to sexually offend against children themselves,” a conception sadly voiced by some victims when they privately confessed their own crimes to the commission.

My point, of course, isn’t that Folbigg’s history casts light on her guilt or innocence. Rather, it’s the possibility that one or more jurors may have seen such a link themselves, much as her ex-husband and others did. Or, as Barr feared, that one or more of them might have somehow irrationally judged her for her father’s crimes. I struggle to imagine why the appeal judges couldn’t imagine these possibilities.

Indeed, I have a further, more speculative worry, based on what Folbigg wrote in her diary between the death of her third child and the conception of her fourth:

I’m ready to continue my family time now. Obviously, I’m my father’s daughter. But I think losing my temper stage and being frustrated with everything has passed.

Craig Folbigg, the police and Tedeschi all thought the middle sentence was a confession to a homicidal temper. Barr ordered that it be whited out in the jury’s copy of the diary, and belatedly told Tedeschi not to mention the word “But” either.

But I fear that the jury could well have puzzled out what was behind the white-out, for two reasons. First, Craig Folbigg himself blurted the hidden sentence from the diary to the jury in the trial’s first week, the same period when one juror turned to Google. And, second, they were highlighted in pretrial articles about the case, ones that also reveal the history that juror found via Google. This makes it possible that Folbigg’s jurors in 2003 may have mimicked the very moment in 1999 when Craig Folbigg says that he started to think his wife was a murderer.

Fortunately, there’s no need to dwell on whether Folbigg’s seventh, eighth and ninth judges were wrong, any more than whether the other ten were wrong. Nor is there any need to engage in some undoubtedly uncomfortable speculation about why. Instead, as of this week, we can let all of that slide.

Just as evidence, and our takes on it or particular cases shift with time, so do courts’ takes on what is, and isn’t, a fair trial.

Juror research was once a matter of jokes, shrugs and warnings, but now it’s a crime in most parts of Australia. And, just this week, Australia’s High Court ruled that the past approach of the NSW courts to juror misconduct, including the test applied to dismiss Folbigg’s appeal, was wrong. Rather, when jurors knowingly disobey a judge’s direction, other than a trivial one, it will always be a miscarriage of justice.

The case before the High Court, like Folbigg’s, involved the discovery, after a trial, that one juror had searched the internet early in the case and had told the others what he found. The majority’s new test in such cases is to ask whether a layperson might reasonably apprehend that any juror might, as a consequence, not have decided the accused’s guilt on the evidence, according to law. If so, the majority declared, the trial would be “incurably flawed.”

The majority went on to rule that the new test wasn’t met in the case before it, but only because the juror had searched for information about how crimes are sentenced rather than about the accused or the case or the rules of proof. That was still wrong, they said, but it simply wasn’t clear either way whether the juror (and the other jurors, who didn’t report him during the trial) realised it was wrong.

Last year, I said much the same about the juror who brought an academic article about false rape accusations into a jury room, perhaps in the belief that such general research was allowed. Cases like these sharply contrast with what Folbigg’s juror did, specifically googling her name, reading websites about her case, and telling other jurors what was there. There is no way that could pass muster after this week.

Again, you don’t have to take my word for it. The other two judges in the High Court case, James Edelman and Simon Steward, who would have sent the case before them to a lower court for a rethink, decided to illustrate why the previous New South Wales approach was so dangerous. The example they chose was Folbigg’s appeal, during which, they said, the appeal panel “applied the wrong test,” “placed itself in the position of the jury” and “effectively reversed the usual onus.”

This step — effectively becoming the fifteenth and sixteenth judges to weigh in on Folbigg’s convictions — is extraordinary. It is also, surely, no coincidence that it comes after Bathurst’s report, which should be prompting many Australian judges to wonder what went wrong in that particular prosecution.

This week, three more NSW judges — the seventeenth through nineteenth, by my count — will be asked to weigh in on Folbigg’s conviction. Although Folbigg is out of jail (and cannot go back), she remains a convicted child murderer, unless and until a court holds otherwise.

Bathurst referred Folbigg’s case back to his former court so they could explore the same issue he’d decided: whether or not there is reasonable doubt about her conviction. But there is no need for the new court to, yet again, weigh up all of the evidence for or against.

The new judges can, and should, simply quash her jury’s verdicts because her trial was unfair, as their predecessors should have done sixteen years ago. •

The post Judging Kathleen Folbigg appeared first on Inside Story.

Here in Australia, despite hopes of rehabilitation, around 50 per cent of ex-prisoners serve another term in jail. As criminologists joke, this kind of statistic would have led to radical change in any other policy area. Yet until recently abolition movements have been sidelined as a utopian hangover from the 1960s.

In the past few years, however, campaigns in the United States and Australia have highlighted police brutality against minority populations. Coalescing in the Black Lives Matter movement, they have brought into the public arena calls for the abolition of police and, by extension, prisons.

In his latest book, The Idea of Prison Abolition, American philosopher Tommie Shelby considers the arguments in favour of abolishing prisons by analysing the work of well-known abolitionist and activist Angela Davis. The idea of prison abolition has a long tradition, probably since prisons themselves came into use. This is more recent than you might think: imprisonment as a penalty for wrongdoing has only been used since the late 1700s, which may well be the best argument for taking the idea of abolition seriously.

There is nothing inevitable or natural about imprisonment as a response to offending. It produces many undesirable outcomes, not the least of which is huge disruption to families. Family support is one of the most powerful elements in preventing reoffending, but when I interviewed prisoners in eight NSW prisons about their sentences, it didn’t seem to be a priority for the system. As one prisoner, Dave, told me, “[My kids] want to come and see me but I don’t want to bring them here, to this place.” “This place is horrible,” said Chris, whose family lived hundreds of kilometres away. “My missus — just because she’s associated with an inmate she doesn’t get treated well.”

Shelby’s book approaches abolition as a legitimate social movement and a coherent set of theoretical principles. In some ways the title is a misnomer: it could equally have been called “Arguments Against the Idea of Prison Abolition.” Short of accepting Davis’s ultimate conclusion, though, Shelby agrees with many aspects of her analysis. Mass incarceration as currently practised in the United States is difficult to justify from any perspective — moral, philosophical or practical. Rather than abolition, Shelby argues for imprisonment to be used sparingly, contingent on the achievement of social justice goals. Throughout the book he engages with the need to tackle inequality as a precondition for prison reform.

Bombarded as we are with representations of the US criminal justice system, our obsession with crime sometimes blinds us to the differences between the two countries. If we elide the distinction between the American and Australian systems, we miss the point of Shelby’s work, and Davis’s too. Both reflect deeply on the intersections between slavery and criminal justice in the United States.

More importantly, the impact of Australia’s history of colonisation needs a very different analysis, starting with the symbiotic relationship between the colonisation of Aboriginal and/or Torres Strait Islander people and the continuing over-policing and over-incarceration of those communities. The effect may be the same — over-incarceration and racially distorted policing and criminal justice practices — but the aetiology and therefore the solutions could well be different. With that proviso, Shelby’s work provides some good thinking tools for us to interrogate our own system.

Shelby’s basic position is that, if incarceration provides a way for society to prevent or reduce crime — particularly crime that causes “great and irreparable harm” — then abolition is not justified, no matter what other arguments, moral or practical, can be marshalled. Put another way, if imprisonment can reduce the harm that crime causes to society then, no matter the harm to the offender, it can be morally justified.

Acknowledging the considerable disagreement as to whether prisons reduce crime, he points out that there is little evidence that “alternatives” fare any better. If, as he puts it, “background conditions are just” then, for him, incarceration has legitimate uses.

While she has written widely on many aspects of the criminal justice system, Angela Davis’s abolitionist views are distilled in her 2003 book Are Prisons Obsolete?. To an extent, Shelby reduces that book’s complex matrix of thought to a single theme: that imprisonment is, to put it somewhat crudely, a tool of capitalist domination. This oversimplifies a more nuanced argument, but for Shelby her revolutionary Marxist standpoint lessens the power of her calls for abolition.

Is Davis taking an abolitionist position because prisons lack a moral basis, he wonders, or simply as a part of a radical project of abolishing institutions that shore up the capitalist society?

Tommie Shelby writes as a professor of African and African-American studies expert in a broad range of issues, including the ghetto, hip-hop culture and now prisons. As a philosopher with a political focus he is mainly concerned with justifying imprisonment from a moral point of view — indeed, he accepts that jail’s harmful effects mean the onus lies on those arguing for its retention to provide arguments supporting it.

While he critiques Davis’s functional approach, which sees imprisonment’s function as supportive of capitalism, he approaches the subject in a similarly functionalist way. Even if a practice is morally or philosophically justified, he asks, does it work? Does it do what we want it to do in the real world? Then he turns the point around, using the functional argument to justify the philosophical one — if it works then it is philosophically and morally justified.

In attempting to examine imprisonment through the prism of the aims of the criminal justice system, Shelby takes on a Sisyphean task. Sentencing can feel like a downward spiral of impossibly conflicting ideas that cancel each other out. The somewhat exasperated pronouncement of the High Court of Australia that our sentencing aims are like “signposts pointing in opposite directions” sums it up well. Philosophy can’t reconcile the fact that, in practice, it is very difficult to rehabilitate someone while you are also causing them pain by punishing them.

But that is not the level at which Shelby engages abolitionist arguments. He takes the aims he thinks can and should be fulfilled in a society where the types of inequalities present in the United States have been defeated and leaves the others alone. To establish the preconditions of social justice, he implies, would allow a more integrated approach to often-conflicting aims.

With high rates of recidivism a feature in most countries, whether in high-imprisoning societies like the United States or relatively low ones like Australia, it is difficult to find evidence of specific deterrence: imprisoning an individual does not seem to make them less likely to offend in the future. General deterrence — the idea that the mere existence of the criminal justice system prevents crime — is more defensible.

That latter fact supports one of Shelby’s most persuasive propositions, that imprisonment serves a valuable symbolic function as a “linchpin” of the criminal justice system serving to “anchor” other penalties, with the threat of prison producing compliance in people undertaking less restrictive penalties like probation. The existence of the prison provides the “enforcement tool” for these other penalties, which, as he rightly points out, are perfectly compatible with imprisonment and therefore not really alternatives. Our system ostensibly functions this way already.

But Shelby does rather gloss over concerns about “alternatives” as a way back into the prison — the idea that even more benevolent forms of punishment like community service or probation can, if administered poorly, impede rehabilitation by setting up a “back door” to imprisonment. Social workers know all about how people can be set up to fail. They also know that rehabilitation is more complex than it may seem, which makes Shelby’s suggestions about how prisons could be made less “criminogenic” seem somewhat naive and curiously remote from how prisons actually work. In this and other areas his self-admitted focus on theory (or vision) rather than praxis is evident.

Shelby is careful to state that he doesn’t believe that retribution is a morally justifiable rationale for imprisonment, although he implies that some degree of harsh treatment is necessary to avoid vigilante-style revenge on the part of victims.

As for rehabilitation, the view that prison may be a time of reflection and a chance to change antisocial habits hints at the aims of the early prison builders in the United States, the term “penitentiary” meaning just that, a place for penitence. As one schooled in praxis, I find it difficult to reconcile this rosy view with the scarcity of good prison rehabilitation anywhere in the world except perhaps the Nordic countries.

Ironically, given that abolitionist thought is often characterised as utopian, Shelby’s imagined prison system is itself quite utopian, although he sees the need for coercive rehabilitation. Drawing a distinction between prison work as slavery and as fair exchange for bed and board is similarly difficult in practice. But Shelby is in the business of the possible and these things are, theoretically, possible.

Shelby carefully examines Davis’s early personal experiences with the criminal justice system during her involvement with the Black Panther movement. He is happy to treat urban ghettos as sites of oppression alongside prison, which involves accepting that Black prisoners in the United States are “political prisoners” jailed for their opposition to injustice. This does not mean that prison has no utility, rather that it should not be used as a site for political oppression.

Like Davis, Shelby sees the necessity of dealing with the unequal social conditions that underlie the overrepresentation of people of colour in the US prison system. He examines in some detail how these matters could be tackled, with prison remaining as a penalty of last resort. He engages with issues of victimisation, pointing out that it is necessary to respond to both the future risk the perpetrator may pose to others and the need to avoid actions of revenge on the part of victims if the punishment is not considered adequate. Incapacitation may certainly be justified on the first condition, but it seems possible to deter vigilante behaviour without necessarily using imprisonment.

Shelby’s admiration for and agreement with Davis on many levels is evident, but his characterisation of her vision sets up the familiar binary of reformist versus abolitionist. If we believe reform efforts are always counter-revolutionary because they integrate potentially positive moves into the ultimate project of exploitation, then it is a choice between the two. But perhaps it is possible to challenge this binary while still taking an abolitionist perspective.

In fact, much current “abolitionist” writing is not inconsistent with this approach — and in many ways this is what Shelby has done in his sensitive and approving examination of the many questions on which he and Davis agree. If abolition is seen as a way of thinking about punishment rather than an “all or nothing” goal, then reform needn’t be inconsistent. As prominent writer and activist Brea Baker says, “Abolition is an ongoing process of assessing and replacing any system that doesn’t serve all of us.” If abolition is a process, then what happens along the way may be just as important as the final outcome. •

The Idea of Prison Abolition
By Tommie Shelby | Princeton University Press | $49.99 | 224 pages

The post On the morality of imprisonment appeared first on Inside Story.

Three and a half years later, as the war was coming to an end, Eugene V. Rostow, a young law professor who had served as an assistant legal counsel to the State Department, published an article in the Yale Law Journal that provides the benchmark against which all criticism of government “emergency powers” ought to be measured. Under the title “The Japanese American Cases: A Disaster,” Rostow’s criticism was forensic and fierce.

“Our war-time treatment of Japanese aliens and citizens of Japanese descent on the West Coast has been hasty, unnecessary and mistaken,” he began. “The course of action which we undertook was in no way required or justified by the circumstances of the war. It was calculated to produce both individual injustice and deep-seated social maladjustments of a cumulative and sinister kind.”

After setting out the evidence for his argument, Rostow provocatively concluded:

We believe that the German people bear a common political responsibility for outrages secretly committed by the Gestapo and the SS. What are we to think of our own part in a program which violates every democratic social value, yet has been approved by the Congress, the President and the Supreme Court?

One of the real tragedies of FDR’s internment of Japanese Americans is that it was completely avoidable. In March 1941, nine months before Pearl Harbor, American agents had seized a list of Japanese agents and sympathisers during a break-in at the Japanese consulate in Los Angeles. In this way, the intelligence agencies had broken the Japanese espionage ring nearly a year before Roosevelt signed Executive Order 9906. That damaging affront to democracy and the rule of law could easily have been averted had cooler heads, like that of Eugene Rostow, prevailed.

Reading Jess Bravin’s powerful book reminded me of Rostow. As a researcher on anti-terror laws, I have read numerous books and articles on the “war on terror,” but Bravin’s book is different. It is written by a journalist and his craft shines through, drawing the reader into the human story at its heart. This is not an overview of the legislation, or of the politics, or of the legal system – though each of those is addressed. This is a book about people.

Bravin gives the reader an insight into the motivations of Gitmo prosecutors. People like Stuart Couch: “Couch had once been a pilot flying KC-130s out of the Marine Corps Air Station at Cherry Point, North Carolina,” he writes. “So had Michael Horrocks. While Couch moved on to law school, Horrocks – ‘Rocks’ to his buddies in Marine Aerial Refueler Transport Squadron 252 – kept flying after leaving the marines.” On 11 September 2001, “Rocks” was a copilot on United Airlines Flight 175, which struck the South Tower just after 9 am. Losing a friend in this way gave Couch a sense that he had a calling to seek justice for this “unspeakable crime” by prosecuting those accused in the war on terror.

Bravin also reveals how the military connections of Senator Lindsey Graham and Colonel Morris (Moe) Davis would come to shape policy and events at the Guantanamo military commissions. Graham, a Republican senator from South Carolina, sat on the Judiciary and Armed Services Committees, which gave him a central role in overseeing the development and operation of military commissions. He was disgusted by the alleged use of torture by the United States.

Graham had served in the Judge Advocate General’s Corps of the US Air Force Reserve. As a captain he had beaten Moe Davis, also a captain and a lawyer, in a drugs prosecution. The two had become friends during the course of the trial and remained in touch. So, when Graham wanted advice on the development of military justice for trials at Guantanamo he approached Davis. Davis asked Stu Couch and the other prosecutors what they needed and together they prepared a wishlist.

These are fascinating insights into the role of social interaction and friendships in the formation of the trial processes at Guantanamo Bay. They demonstrate the kind of legal culture that academics speak of but rarely paint as vividly as Bravin does.

Even moments of great legal import are given the human touch. Thus, we are told that Davis’s response to the US Supreme Court judgement in Hamdan was to call his team together and tell them to “‘Start working on your resumes’… Then they got some beers.” In Hamdan, the Supreme Court found that Common Article 3 of the Geneva Conventions – a provision that guarantees basic protections in armed conflicts – applied to the Guantanamo detainees, and that the president needed congressional approval before establishing military commissions. It was a significant decision and I have read many analyses of it – but none as vivid as Bravin’s.

Australian readers will no doubt be interested in Bravin’s treatment of David Hicks and Mamdouh Habib. There are no major revelations. We are told that the highest priority for the White House was to satisfy prime minister John Howard – who they recognised had taken a risk by agreeing to the military prosecution of Australian citizens.

Bravin contends that the Bush administration’s reluctance to try “high value” detainees such as Khalid Sheikh Mohammed stemmed from the fact that they did not want to expose the reality of the rendition system, under which detainees were jetted across the globe in search of a friendly regime willing to extract intelligence using robust techniques. As a result, it was Hicks – “the hapless kangaroo skinner” – who was prosecuted. There was also pressure to settle the trial quickly, to assist Howard with the upcoming Australian federal elections.

The other Australian at Guantanamo Bay, Mamdouh Habib (referred to as an “Arab Mr Bean” by his attorney), presented a difficulty for prosecutors. Canberra wanted his trial to begin immediately after Hicks’s. Washington was keen to please Canberra. But Stu Couch realised that the prosecution of Habib would be complicated. He had been rendered through Egypt and the prosecution was keen to avoid exposing that fact in court.

Habib’s rendition was exposed – though not in court. On 11 January 2005 the Washington Post published a front-page article based on Habib’s account of his extraordinary rendition and torture in Egypt and at the Guantanamo Bay detention camp. Later that day, the US government announced that it would not, after all, be charging him. US authorities were unwilling to allow Habib onto a regular commercial flight and as a result the Australian government chartered a special plane to bring him home. On the insistence of the United States he was shackled throughout the flight. He arrived back in Australia on 28 January 2005.

If you want detailed analysis of the legal case for and against military commissions there are better books than Bravin’s. Kent Roach’s The 9/11 Effect, for instance, is an excellent account of the distorting impact of the “war on terror” on legal systems around the world. But Bravin has taken a focused look at the issue of the Guantanamo trials; that necessitates a discussion of the politics of the “war on terror” and the detention centre at Guantanamo Bay, but those issues are incidental to his main story. What we see is the interconnectedness of the actors. We are shown their motivations. We see how good people who believed in the rule of law became involved in and ultimately disgusted by a system that lacked respect for law.

THE War Relocation Authority, which supervised the internment of Japanese Americans during the second world war, held loyalty examinations to help determine who could be released into the community. But a determination of loyalty did not guarantee an individual’s release. Officials were also required to establish that community sentiment was not unfavourable to the presence of such citizens before they were released. It was not enough to be loyal; release was dependent on public opinion.

In 2008 Barack Obama, elected on a message of “hope,” promised to close Guantanamo Bay. He has been prevented from doing so by members of both parties in Congress, who will not authorise the expenditure necessary to transfer detainees to prisons in mainland America or to continue prosecutions. As a result, there are still 166 detainees in Guantanamo, eighty-eight of whom have been deemed to pose no threat. Over one hundred are reputed to be on hunger strike. They cannot be tried; they cannot be released; but the US administration force-feeds them to keep them alive.

“What are we to think of our own part in a program which violates every democratic social value,” Eugene V. Rostow asked, “yet has been approved by the Congress, the President and the Supreme Court?” That same question can be asked about Guantanamo Bay.

Of course, the injustice of FDR’s internment policy was eventually recognised, though not for decades. On 10 August 1988 Ronald Reagan signed the Civil Liberties Act into law. The Act’s compensation program, eventually implemented by the Clinton administration, paid $1.6 billion to more than 82,250 people of Japanese ancestry. How long before the injustice of Gitmo is fully acknowledged?

From the Japanese American internees to Guantanamo Bay: have we seen any progress – even of a sort? •

The post Military injustices appeared first on Inside Story.

OUR APPROACH to asylum seekers is woefully inadequate. I don’t necessarily mean the government’s asylum seeker policies, although those policies are certainly fraught with all sorts of problems. What I mean is how we, as a society, approach the issue of asylum seekers.

That approach is reflected in the public discourse on asylum seekers – or rather, the discourse on how to respond to their arrival. That discourse manifests itself not so much in what individual Australians think or say, as in the comparatively small number of positions that feature most prominently in public debate.

These positions could be located on a broad spectrum. At one end are the Tony Abbotts. They cry “Stop the boats!”, as if Australia’s survival were at stake. Some of them, including Mr Abbott himself, cry “Stop the Boats!” while knowing very well that the arrival of a few thousand irregular migrants, many of them refugees, should be, at worst, a minor inconvenience for a country as affluent as Australia. But while insinuating that the arrival of asylum seekers threatens national security and suburban lifestyles, they sow fears in the minds of others, such as the good citizens of Northam and Woodside, who believe their daughters won’t be safe and the local hospital will be understaffed if the government accommodates asylum seekers in their town.

At the other end of that spectrum, refugee advocates refer to asylum seekers as refugees as if the two terms were synonymous, and argue that Australia ought to grant protection to asylum seekers because they are deserving, that if only they were accorded protection they would make a valuable contribution to Australia.

Somewhere between those positions is that of the Gillard government. Or rather: those of the Gillard government, because Julia Gillard herself, who appears to empathise with the good citizens of Northam and Woodside, seems a long way from, say, former immigration minister Chris Evans, who brought a level-headedness to the issue not seen since the immigration ministers who served under Malcolm Fraser.

Please don’t get me wrong. I’m not saying that there haven’t been any thoughtful interventions in public debate. There have been many of them. But they are barely listened to outside the circle of those who live in ivory towers or who read the opinion pages of the Fairfax newspapers.

On 30 November, shadow immigration minister Scott Morrison gave a speech in Sydney, in which he reflected on some of the conundrums in Australia’s response to asylum seekers. Some of what he said was thoughtful and deserves further consideration. But the speech was reported in a way that gave the impression that all Morrison had been talking about was his idea for detention centres and extraterritorial processing in countries bordering Afghanistan. There may have been good reasons for the selective attention his speech received. For one, Morrison himself, when condensing the content of his speech to generate soundbites, focused on the issue of extraterritorial processing. Also, he does not exactly have a reputation for making thoughtful contributions to the debate; therefore only a few would have taken the trouble to read his speech.

I’ll come back to one of Mr Morrison’s points, but first I’d like to consider why the broader public discourse on asylum seekers in Australia is so shallow. It is shallow not least because it is uninformed, and I believe there are two main reasons why. The first has to do with the insularity inherent in Australian public discourse more generally. The problem of asylum seekers tends to be all about us – rather than about Australia’s obligations as a regional partner, its international legal obligations or its obligations as a rich nation that arguably has also benefited from the impoverishment of countries in the “developing world.” I won’t pursue these issues here, for I am mainly interested in the second reason: the lack of an informed historical perspective.

Because of such a lack, myths and misconceptions abound (such as the one that says: the majority of Vietnamese refugees resettled in Australia sought asylum after arriving on our shores as “boat people”). More often than not, however, those engaging in public debate believe that they don’t need to refer to the past at all.

Histories rarely provide suitable blueprints for present actions. Nor do they automatically prevent us from repeating past mistakes. But regardless of its capacity to lay the foundations for informed public debate, an awareness of the antecedents of Australia’s current approach to asylum seekers is useful for at least two reasons. First, and most importantly, histories – particularly those of pasts that are purportedly inconsequential – have the capacity to make us see the present in a new light. They make us stop and think. They allow us to recognise the present.

The other reason has been highlighted by some of the documents released by WikiLeaks. They have exposed much hypocrisy: policy-makers saying one thing in public and something altogether different to each other. Surprisingly often, their actions seem guided by their convictions, which are revealed not by what they say in public but by what they say to, for example, a trusted colleague – let’s say, somebody like Mark Arbib. When we’re trying to come to grips with current policy making, it is often difficult to find out what’s behind the smokescreen of media releases.

The job of getting behind that smokescreen is much easier with regard to policy-making in the past. After a while – thirty years in Australia – government files are opened to public scrutiny, allowing us to make informed surmises about motivations and rationales.

In his speech last month, Scott Morrison argued that the 1951 Refugee Convention was increasingly becoming an inadequate instrument for dealing with what he called “global people movement” and what I would call “forced migration”:

Global people movement will therefore become a greater problem in the years to come, but not necessarily for the reasons as defined in the UN Refugee Convention and Protocol.

The Convention is designed to provide relief for an individual with a well founded fear of persecution. It does not provide relief for people leaving a war zone, health epidemic, famine, natural disaster or economic collapse.

Interestingly, only 27% of Vietnamese seeking asylum status under the Comprehensive Plan of Action were successful in their asylum claims.

A person may not be a refugee according to the Convention, however, their home country may still, at a general level, be unsafe and expose them to a more general mortal risk.

The absence of other instruments dealing with these more general risks forcing people to move are likely to lead to the Refugee Convention being abused as a surrogate – with claims being confected to attract protection.

The UNHCR must therefore re-look at its mandate, in concert with its parent organisation and signatory countries to rethink what should be its greater focus in the years ahead.

It could be useful to have an informed debate about this idea. But then we would need first to know more about the 1951 Convention – and its alternatives.

ONE of the myths and misconceptions about the 1951 Convention is that it was the direct result of the lessons learned from what happened in Nazi Germany. But the main problem for those persecuted in Nazi Germany was not being deported from countries of refuge but being admitted to them in the first place. The 1951 Convention does not really concern itself with that issue. It is for people who are “outside of their country of origin.” It was not a response to numerous cases of individuals trying to flee persecution in country A by knocking on the door of country B, but to their already being in country B.

The United Nations High Commissioner for Refugees, or UNHCR, was the successor organisation to the IRO, the International Refugee Organization, set up in 1946, which in itself was the successor to the UNRRA, the United Nations Relief and Rehabilitation Administration, set up in 1943. Both the IRO and the UNRRA were agencies created specifically to deal with the displacement of millions of people in the course of the second world war. While the UNRRA organised the movement of displaced people from country B back to country A, the IRO facilitated their passage to country C. The UNHCR took over that task when the IRO ceased operating.

Most of the people who fell within the brief of the UNHCR in 1950, when the organisation was established, were living in refugee camps in Germany, Austria and Italy. They were the refugees that the architects of the Convention primarily had in mind. Today’s equivalent of the “displaced persons,” or DPs, of the immediate postwar years are the forced migrants stuck in UNHCR-administered refugee camps, often for many years; the notorious Kakuma and Dadaab refugee camps in Kenya are today’s Föhrenwald and Wildflecken, the large DP camps in the late 1940s and 1950s.

The experience of hundreds of thousands of people unsuccessfully trying to flee Nazi Germany informed the architects of another international instrument, the 1948 Universal Declaration of Human Rights. Its article 14 states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” But it is the 1947 version of the Declaration, which was drafted by the United Nations Human Rights Commission, that reflects most obviously the original intent of its architects: “Everyone has the right to seek and be granted in other countries asylum from persecution.” Hersch Lauterpacht, who later became a judge of the International Court of Justice, commented that the formula adopted by the General Assembly in 1948 was “artificial to the point of flippancy,” and that it would have been “more consistent with the dignity” of the Declaration if Article 14 had been left out altogether.

The architects of the Universal Declaration envisaged that its article 14 would be fleshed out in a separate instrument. The perceived need for such an instrument was not substantially affected by the 1951 Refugee Convention.

During the 1950s, the right to asylum continued to preoccupy the Human Rights Commission. In 1957, France (represented at the time by René Cassin, who had earlier been one of the driving forces behind the Universal Declaration of Human Rights) submitted a draft declaration on the right of asylum. The first two articles of that document read as follows:

1. Responsibility for granting asylum to persons requesting it shall lie with the international community as represented by the United Nations.

2. Every person whose life, physical integrity or liberty is threatened, in violation of the principles of the Universal Declaration of Human Rights, shall be regarded as entitled to seek asylum.

Article 5 of the French draft reads in part: “No one shall be subjected to measures, such as expulsion, return or rejection at the frontier, which would result in compelling him to return to or remain in a territory where his life, physical integrity or liberty would be threatened, in violation of the principles of the Universal Declaration of Human Rights.” The response was lukewarm. Most governments thought that the text went too far. Only a small minority of member states – Spain, Yugoslavia and the Netherlands – conceived of the Declaration primarily as an instrument to enshrine the rights of individuals and made suggestions that went further than the French draft.

Over the next ten years, a succession of committees worked on the draft declaration. Eventually, on 14 December 1967, the General Assembly unanimously adopted the Declaration on Territorial Asylum. It makes no mention of the idea that asylum is granted by the United Nations itself, rather than by individual member states. The right not to be rejected at the frontier has been qualified: exceptions can be made “for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”

Between 1974 and 1977, the United Nations once more discussed the right of asylum. This time the initiative came from the UNHCR, which aimed for a Convention on Territorial Asylum to complement the 1951 Refugee Convention. The idea was shelved when it became apparent that no agreement could be reached. There were no further attempts to revive the discussions, and the right of asylum has disappeared so far from view that the 1967 Declaration is barely remembered today.

What was Australia’s position? In 1948, Australia had joined forces with the Soviet Union in opposing the earlier draft of Article 14 of the Universal Declaration. It was perhaps unsurprising that when the French first presented a draft text for a declaration on asylum, the Australian Mission to the UN was instructed to point out that the proposal amounted to a “substantial inroad on national sovereignty” and that it would therefore be unacceptable to Australia.

As the wording of the draft changed, so did the attitude of the Australian government. Rather than rejecting a declaration outright, as they had done initially, Australian negotiators played an important role in watering down its provisions.

In 1960, the acting secretary of the immigration department listed several reasons why the Australian delegation ought to push for a non-committal wording. He thought that the draft, which then still bore traces of the original French version, was unacceptable to Australia. He recommended to the Australian delegation that they put forward an argument that has often been used to defend Australia’s asylum seeker policies: “We hope Australia’s proud record in the matter of resettlement of and assistance to refugees since the end of World War II should suffice to stifle any criticism in the General Assembly, of our present reluctance to accept the draft declaration on the Right of Asylum.”

Right up to the vote in the General Assembly, elements of the Australian government remained critical of the Declaration. The Department of Territories, in particular, feared that the Declaration would encourage asylum requests from West Papuans crossing into the Australian Territory of Papua and New Guinea. Earlier, the attorney-general’s department had raised two issues. First, while in Australia’s view “a Declaration would not have binding force,” that view might not be shared by other countries. Second, even if all countries agreed that a Declaration were merely a recommendation, “an Australian vote in favour… could form a basis for criticism if Australian practice were to depart from the Declaration.” Declaration or no Declaration, the Australian government maintained that it had the right to deport asylum seekers whenever it wished to do so. While voting for the Declaration in the General Assembly, the government knew that Australian practice would depart from that recommended in the Declaration.

By the time the right of asylum was back on the UN’s agenda, Labor had replaced the conservative coalition. The Whitlam government wanted to be seen internationally as a champion of human rights, including the right to asylum, and some ministers genuinely believed that the time had come to go further than the 1967 Declaration. Foreign affairs minister Don Willesee thought that “Australia, as an enlightened country, a middle power and one of the few countries of immigration, could well show a lead to others in regard to territorial asylum.” His department could point to the generous application of Australia’s asylum seeker policy – very often, asylum seekers, while being refused asylum, were nevertheless given permanent visas. At the same time, though, Gough Whitlam decided that in the event Vietnamese refugees were to reach Australia by boat, they would be disembarked “into custody” in order to be able to return them to their boat “for the purpose of departing them from Australia.” Of course, by the time those “boat people” arrived in Australia, Malcolm Fraser had replaced Whitlam, so we don’t know exactly how Whitlam’s instructions would have been implemented.

Under Fraser, Australian negotiators were advised that the government “will wish to retain its discretion to determine ultimately who can enter into Australian territory and under what conditions they remain.” There was nothing new about that sentiment – variations of it have guided Australian asylum seeker policy for many years, including later, of course, when John Howard uttered his infamous line, “We have the right to decide who comes to this country, and the circumstances in which they come.”

THIS is one of those histories I’m fond of. In some ways it doesn’t seem immediately relevant to what’s happening now, but it can help us to recognise the provisional nature of the status quo and, at times, its absurdities. Mind you, it is more relevant than it might seem. Australia still has an asylum seeker policy that is substantially different from its refugee policy. The former is administered by Foreign Affairs, whereas the latter is the responsibility of Immigration. In fact, Australia still has a visa category for those who are granted asylum rather than protection.

What this history may help us to recognise is the fact that there is an important difference between those who come to seek asylum, and those who are invited to come here to enjoy asylum. In my view, this history could provide ammunition for the argument that asylum – “the protection which a state grants … to a person who comes to seek it,” according to a definition coined by the Institute of International Law in 1950 – should be the domain of the attorney-general rather than the immigration minister.

I hope that histories such as this one provoke curiosity – not just about the past but also about the peculiarities of the status quo. For such histories may make the present appear to be a little less self-evident. And of course, the more we understand the present to be contingent and provisional, the more we can imagine alternatives to it. •

The post Whatever happened to the right of asylum? appeared first on Inside Story.

This last picture shows about ten prisoners – framed by the diamond shape of a wire fence – kneeling in a cage. Each is wearing an orange beanie, earmuffs, a face mask, and handcuffs; covering their hands are what look like oven mitts; over their eyes, blacked-out goggles. Thus deprived of their senses, these men are being stood over by two American servicemen dressed in camouflage fatigues.

The photo was taken at Camp X-Ray, Guantanamo Bay, Cuba, on 11 January 2002. The “worst of the worst” – as the Bush administration famously dubbed them - had just arrived at Gitmo. Snapped by a navy photographer, and released by the Pentagon to the media, the photo rapidly entered the public consciousness. To some observers, the image epitomised everything that was wrong with George Bush’s newly minted prison in the Caribbean; in treating suspected terrorists in this manner, they argued, the United States had managed to jettison the very values that made it morally superior to al Qaeda.

The irony, according to Karen Greenberg, is that at the time the photo was taken the human rights of Gitmo’s newly arrived inmates were protected more rigorously than they ever would be again. The photo shows them straight off the plane from Kandahar; it didn’t show how they would be treated over the next few weeks while the detention centre was under the command of a remarkable man.

Greenberg’s book tells the story of the first 100 days of Gitmo’s life as a prison for suspected terrorists. In essence, it is a morality tale in which adherence to the rule of law is pitted against the radical agenda of a national security state convulsed by the events of September 11. But her hero is an unexpected one: Brigadier General Michael Lehnert of the United States Marines.

A career soldier and trained engineer, General Lehnert was given the job of establishing and running a detention centre at Guantanamo. Aided by a force of 2000 marines, in just ninety-six hours he created Camp X-Ray – a functioning prison with cells, guards and medical staff.

But Washington had dropped Lehnert and his Joint Task Force 160 into a policy vacuum. Out of necessity – he had a prison to run after all – Lehnert improvised his own set of rules about how the prisoners would be treated. In the absence of clear orders he fell back instinctively on the Uniform Code of Military Justice, other US laws, and the Geneva Conventions. Told that “Geneva does not apply, but its spirit should be the guide,” Lehnert requested the involvement of the International Committee of the Red Cross, as required by international law. He could never get a straight answer about whether and when Red Cross representatives would arrive.

And then, in what Greenberg identifies as a pivotal moment in the history of Guantanamo, an army lawyer named Colonel Manuel Supervielle became fed up with the lack of legal guidelines and simply picked up the phone and invited the Red Cross to Cuba. Once it was done the Bush administration couldn’t undo it, and Lehnert now had on board an institution that he felt was essential to the proper running of the facility.

A mature and astute manager of men, Lehnart always feared that the situation on the ground at Gitmo could get out of hand. His soldiers were young and patriotic; his inmates were frightened and facing years of legal limbo. When the inevitable occurred and several dozen inmates went on hunger strike after a guard desecrated a copy of the Koran by kicking it, Lehnert faced the biggest crisis of his command. Characteristically, he chose to deal with the problem personally. Many times he sat down with the inmates and talked them through their grievances. He was willing to try anything in order to avoid force-feeding. In the end this disciplined and humane approach prevailed and the hunger strike petered out.

But Secretary of Defence Donald Rumsfeld had other plans for Gitmo. In late February and early March he sent another commander to Cuba: a reservist Major General named Michael Dunlavey. A former US army interrogator in Vietnam, Dunlavey was much more simpatico with the can-do ethos of Secretary Rumsfeld. Dunlavey’s brief was to ramp up the intelligence gathering, never mind the niceties.

By the time Lehnert left Gitmo a few weeks after Dunlavey’s arrival, Camp X-Ray had the Red Cross, a Muslim chaplain, a humane set of rules – including the right for detainees to talk to each other – halal food, and a Koran in every cell. But in short order the Guantanamo of popular imagination – the Gitmo of force-fed hunger strikers, punishment in isolation cells, and the generally unproductive interrogation of prisoners – became the reality.

As narrative, The Least Worst Place reads a bit like a post-Vietnam Hollywood Western. A posse returns with the bad guys and the local sheriff bravely upholds the law and protects them from the mob. But inevitably the humane regime he struggles to construct is undermined by the powers that be, and the Man in the Black Hat is eventually given his badge and takes over. As the hero rides off into the sunset his ears ring with the sound of hammer blows as a gallows is built in the town square.

The Bush administration always intended for Gitmo to become a law-free zone. But at least if General Lehnert’s grandchildren ever ask him, “So, Grandad, what did you do in the so-called War on Terror?” he’ll be able to tell them that he tried to do the right thing. •

The post Doing the right thing appeared first on Inside Story.

MR RUDD launched a health plan, focused on public hospitals. Then he demanded that the owners of those hospitals, the states, all sign up. Some were keen, some relieved, some doubtful. One in particular was very negative.

Mr Brumby reckoned Victoria’s system led the way and suggested a different model. A few states joined in, chanting “more money.” Others joined Mr Rudd to paint Mr Brumby as a potential wrecker of policy unity. Mr Rudd didn’t want to take over public hospitals nationwide, but he wanted to put the Commonwealth in the driver’s seat.

Now imagine you ran a loose but supposedly cooperative enterprise. Say a company with factories in different places that were used to doing things differently. Imagine everyone agreed that things needed to be improved, but there was no consensus as to how. You, the overall manager, proposed a model, but another factory, which had been doing okay, asserted that its model was better.

The logical thing would be to trial your model in those factories that were ready for it, and let the factory with its own model do things its way. Then, in a few years time, you could compare performance.

In political science it’s called competitive federalism, but we could also call it governmental diversity. In a federal system, we tend to look for diversity between states at the same level – different rates of stamp duties, for instance, or different drink-driving limits. We used to see it culturally, outside government, too. (Remember the strict divisions between which football code was followed in which state?)

In any complex federation there’s also a lot of overlap between national and regional government – especially in Australia, where the states are powerful in theory but Canberra now has most of the money. This overlap is usually labelled a problem, a cause of the “blame game” where there aren’t clear lines of accountability. But given cooperation, the overlap can be used to accommodate, even to embrace, competitive federalism.

There’s plenty of precedents for this kind of two-track approach. Years ago Jeff Kennett ceded Victorian industrial relations to Canberra while the other states retained a mix of state and federal laws. Today, that balance is inverted. All the states bar Western Australia have ceded their private sector industrial laws to Canberra.

Of course, it’s election year, both federally and in Victoria. Mr Rudd was goaded into attempting to appear decisive by an opposition leader who has caught attention with his own he-man act. So what we saw in both the politics and reporting of the health debate were the politics of posturing. Sure, through Commonwealth eyes it would be cleaner to have a single model for public hospitals nationwide. But if one or two states really wanted to hold out, the answer was to sign up the states that were convinced and negotiate a distinct model for the hold-outs. As long as no state wields a veto power, competitive federalism can avoid state-specific gouging of benefits.

The posturing we’ve witnessed has its roots in “anti-politics” – not Pauline Hanson–style, bring-the-temple-down anti-politics, where someone new plays politics by feigning that they are not a professional politician – but a more routine kind of anti-politics. It’s the politics of putting down other politicians while scrambling for a moral high ground. Negative politics can be a turn off, but it can also work when the electorate is grumpy. And this one is grumpy (hardly surprisingly after an economic downturn). The grumpiness is evidenced by oppositions becoming more oppositional lately, which further stokes the grumpiness.

Anti-political politicking – also known as finger-pointing – has actually been endemic in Australian politics since the first fleet. After all, the colonial governors had Whitehall, and the colonial parliaments had each other. Since Federation it has been institutionalised in stoushes between Canberra and the states, or stoushes among the states. It is especially useful because it permits members of the same party to “stand up” to each other, and thereby appear non-partisan.

Anti-politics particularly flourishes in federations because leaders can criticise each other across party lines. By rights that shouldn’t work: doesn’t it project disunity? It may, but in standing up to your own kind, you appear above partisan politics.

Of course, some of the posturing was just a negotiation tactic: hard bargaining over money, more pecuniary than policy. Of course this was theatrical as well. The spigots opened and extra money flowed – as it was always likely to – so everyone could claim credit (the states for “forcing” the money, the Commonwealth for providing it).

That still leaves Western Australia’s Mr Barnett, who doesn’t mind the plan and wants the extra funding, but objects to adjusting the 1999 agreement that the GST will flow, no strings attached, to the states. Of course he is the only Liberal premier and he’d not want to hand Mr Rudd an easy, bipartisan consensus. But let’s take Mr Barnett at face value: he sees the 1999 GST agreement as a fundamental principle.

At law it is not. It’s not enshrined in the Constitution. It is not a binding contract. It is a “framework” of “principles.” The GST, at root, is just another Commonwealth tax. But Mr Rudd would need Senate approval to re-cast it. After all, both Howard and Rudd governments enshrined the intergovernmental agreements in legislation.

Politically – and in the spirit of cooperative federalism – the agreement should only be reworked by consensus. The current agreement was expressed to “operate indefinitely from 1 January 2009 unless the Parties by unanimous agreement in writing revoke it.” Mr Barnett is free to hold onto his principle and hold out against such a rewriting.

But to do so would hardly be in the spirit of federalism. If the majority of states wish to sign on to a Commonwealth plan, it would be hypocritical for one state to hold that up in the name of “states’ rights.” Provided Western Australia is left in no worse position than when the negotiations started, it is entitled to preserve its status quo in a new intergovernmental agreement, but not to object to other states choosing a different path.

If there really is an important policy or principle difference underlying the Western Australian position then the ideal federal outcome would be for its model to apply to it alone, and a different model apply elsewhere. But perhaps there is no policy at stake, and money will trump any posturing over principle. If so, while this pudding is still cooking, expect everyone to soon be tucking into it. •

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THE PERTH-BASED internet service provider iiNet, which won a remarkable victory against Hollywood in the federal court last week, used to advertise its various broadband plans on commercial radio. Their ads began, “The question is, how big is a Gig?” The answer: “A Gig is about 500 hi-res photos or about 300 songs or five episodes of the Golden Girls. At iiNet we explain this to you so you can choose a broadband plan that’s right for you... it’s not the size of the Gig, it’s how you choose to use it.”

During the case, iiNet’s CEO Michael Malone was apologetic about the ad. Was the last sentence the key point – that subscribers control what they do online? Or was iiNet really saying to its customers, we can help you steal Golden Girls episodes, and any other movies or music you want, and we’ll let you know when you’ve reached your quota? Fortunately for Australian ISPs, Justice Cowdroy thought differently: the Golden Girls reference was not an incitement to piracy, but a joke about the improbability of anyone wanting to download the Golden Girls.

The iiNet case is interesting in many respects, and not only as an instance of pragmatic legal reasoning combined with an impressive grasp of contemporary viewing preferences. It shows how copyright law has become a treacherous battleground between the internet and entertainment industries, each armed with completely different conceptions of the internet. Where the screen industries see a crime scene, replete with the evidence of wanton theft and destruction, ISPs see a basic service industry connecting customers to vital information resources all over the world.

From the point of view of the movie industries, the ISPs were there at the scene of the crime, profited from it, and are complicit in it. Someone must be responsible for the losses of the industry, and the ISPs are a better target than the innumerable individuals who have actually done the downloading. From the point of view of the ISPs, movies, pirated and not, and the means to get hold of them, can indeed be found on the internet, along with virtually everything else. Adult users make decisions about what they do online and must be responsible for their actions.

In 2009, when this case was just beginning, Communications Minister Stephen Conroy made some surprising remarks at an industry conference to the effect that iiNet’s defence belonged in an episode of Yes Minister. Last week, in the light of what he called iiNet’s “decisive victory,” he expressed his regret that the parties had not been able to talk through their differences earlier, and suggested that a code of conduct for ISPs, agreed with the screen industries, would be the best solution. A settlement of that kind might still be reached. But the judge’s comments in this case underline the difficulties of this kind of approach: copyright infringement is not as simple a matter as the studios suggest, and policing it would be very difficult.

The studios made copyright the focus of this battle, and copyright may now make the battle unwinnable. How did it come to this? The answer lies in that particular Hollywood world view, and its roots in the history of the movie business. Despite its love for the next big thing and the latest special effects, Hollywood is a slow-moving beast. In some senses it is still living in the 1930s, the golden age of classical Hollywood cinema. This was a time when the vertically integrated studios made their movies in-house, had long-term contracts with stars, and controlled the cinemas that screened their films. The public had no choice but to see what local cinemas screened, and cinemas had no choice but to screen what the studios supplied.

This all changed with the invention of television, which brought movies to millions of households for the first time, and then again in the late 1970s when home video appeared on the scene. The mass take-up of video was a major drama for studio executives, who were slow to recognise its potential value and feared that it would cannibalise their revenue from cinemas. The 1980s witnessed many public battles between Hollywood and VCR manufacturers and software producers, most notably in the Sony vs Betamax case, when the studios’ key lobbyist Jack Valenti famously pronounced that “The VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

This hyperbole died down once the studios came around to the idea of video as an additional sales outlet which could be slotted into their existing distribution system. But even then the transition was not easy, and the studios detested the idea of losing control over their distribution pipelines.

The movie industry’s dealings with ISPs reflect this history, and their argument throughout the iiNet case is in line with their longstanding belief that watching a movie through channels outside their own distribution network is unlawful. Through careful and concerted lobbying, the copyright industries have created an environment in which only a limited range of listening and viewing options – such as paying to see a movie in a multiplex or watching advertiser-supported content on commercial TV – are legitimate. Circulating content outside this framework is “leakage” at best, or “theft” at worst.

This approach means that Hollywood always seems to be on the defensive. It is as though their entire business were a leaky bucket, and their task is to madly plug up the holes with whatever they can find to do the job – prosecuting individual pirates or ISPs, installing anti-copying software on DVDs, raiding street markets, lobbying for ever tougher legislation, and so on. In this way, they can present themselves as the underdogs in a battle to protect the livelihoods of the artists they represent.

Of course, this is great PR for the studios, which are not known for their good corporate citizenship. Recent anti-piracy ad campaigns invite us to think about “what we’re really burning” and attempt to localise the issue by making a direct link between piracy and loss of jobs for Australian camera operators, scriptwriters and make-up artists. Personal appeals from figures such as Margaret Pomeranz and Joel Edgerton drive the point home: piracy is killing the Australian film industry.

This is powerful rhetoric, but it relies on a simplistic understanding of how media industries work and how media circulates. The leaky bucket scenario only makes sense if we keep our mindset locked into an old-Hollywood framework – a locked down model of distribution in which the only legitimate kind of consumption is licensed and paid for. The problem for the studios is that media has never circulated like this. The current era of strict copyright enforcement is a historical anomaly. Until relatively recently, what we now call piracy was the norm rather than the exception.

IF WE BEGIN our history of the film industry in 1900 rather than the 1930s, for example, then we get a very different image of how the film industry operates. Early Hollywood was a hotbed of copyright infringement. Piracy was so common that film companies would make sure their trademarks appeared in the background of key scenes so that their films could not be passed off as those of a rival producer. This scenario has come full-circle in the age of viral online video, when advertisers use product-placement in popular YouTube clips as a way to make money from unauthorised circulation, which they see as not only inevitable but desirable.

Increasingly complex intellectual property laws have done little to alter the fact that words, pictures and sound circulate in ways that exceed and frustrate regulation. In copyright law these are seen as infringements of the rights of content owners, but sometimes it may be more useful to recognise these as inevitable features of the media. Sharing a movie, like other informal forms of media circulation, may or may not be “piracy”, but that may not be the most important fact about it.

This conceptual short-circuit reflects the degree to which the copyright industries have set the terms of the piracy “debate”, which rarely strays far from an over-simplified understanding of how media industries work. The piracy discussion has been a series of moves and counter-moves around the same old leaky bucket argument, an argument defined by the copyright industries rather than by audiences. Moving away from the leakage scenario produces quite a different understanding of what media is, how it circulates, and how it should be regulated.

The fact is that paid consumption is only one part of a much larger media ecosystem. Take music, for example: we listen to it in shops, at restaurants, in workplaces; songs appear in TV shows, advertisements, jingles; people make mix-tapes and swap tracks with each other. Some of these activities generate revenues for copyright holders, others do not. But all are integral to our immersion in a musical culture, and they help us become lifelong music listeners and consumers.

Unfortunately, the debate about copyright tends not to acknowledge the importance of this informal consumption. Nor does big media, which is suspicious of any activity from which they do not directly benefit. Yet informal circulation, generally unlicensed and unmanaged, is one of the foundations of paid consumption. It is absolutely vital to the long-term sustainability of cultural industries.

This is why we now need to expand our view of what constitutes media business. A teenager who listens to illegally downloaded MP3s of her favourite band may also be a proudly paid-up member of their fan club, own several items of legally purchased merchandise, and be a paying regular at every gig. Yet the music industry’s refusal to acknowledge the role of informal circulation means that it can’t acknowledge these other potential sources of revenue. This studied ignorance does little to help record companies out of their current structural crisis.

The same is true of film. The Motion Picture Association of America, which represents the major studios, spends much of its time condemning the high rates of DVD piracy in the developing world. But many of these black economies for pirated Hollywood movies will one day ripen into legitimate markets. As the media critic Toby Miller argues, piracy breeds the “Hollywood habit”: it familiarises global audiences with American cinema and promotes a lifelong love of Hollywood products.

China is a good example here. Though it is the target of the MPAA’s most vociferous criticism, the People’s Republic is also an increasingly profitable market for the studios. Box office takings in China rose 44 per cent last year, on the back of a construction boom in multiplex cinemas. Hollywood will share in the benefits of that growing market, even though US films are still subject to an import quota. Yet none of this would have been possible were it not for a generation of Chinese consumers raised on pirate DVDs of Hollywood movies.

Mainstream media businesses benefit from informal media activity in other ways as well. Informal fan networks have long provided studios with valuable market intelligence and ideas for new products. More recently, the rise of social media and Web 2.0 has been driven by the perceived need to draw upon the creativity of amateurs to sustain and grow markets for commercial media products. While Hollywood sometimes paints broadband-enabled teenagers as the enemy, the same people are at the heart of its business strategy.

The formal and informal economies of media are overlapping and interdependent. The challenges for the media industries now are not problems of law or policy; they are to do with adjusting highly structured distribution systems and market strategies to the pace of technological change. Existing copyright protections already provide more than enough shelter for these businesses; it should be plain that the solutions will not be found in the courts. It is not that the industry must now admit the importance of informal circulation. But they would do well to accept its existence, and work with it. •

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YOU MIGHT have heard some small explosions coming from Melbourne last week. Mostly, it was the sound of champagne corks popping, as supporters of an Australian Human Rights Act greeted the release of the much-awaited report of the National Human Rights Consultation. But not all the noise was in celebration; some of it might well have been the sound of blood vessels bursting among a group of disappointed Human Rights Act opponents.

Quite a crowd had gathered, under the impression that the attorney-general, Robert McClelland, would not only launch the report but also deliver the government’s response. Barely had he put off that decision (saying only that “the government will carefully consider all of the committee’s recommendations”) before the people with the burst blood vessels had “slammed” the report, to use the journalistic cliché. The chair of the consultation committee, Father Frank Brennan, came in for special criticism.

But what did the report say, and what are the prospects for change? The headline reform proposal was recommendation 18, which couldn’t have been clearer: “The committee recommends that Australia adopt a federal Human Rights Act.” While there are divergent views in the community on the merits of a Human Rights Act, the popular response was overwhelming. A total of 29,153 submissions – 83 per cent of those received – favoured this reform. Some concern was expressed that the ratio was skewed by successful campaigns to rally supporters of an Act. (The pro-Act side was led by Amnesty International and GetUp!. The opponents were led by the Australian Christian Lobby.)

To counter this concern, the committee commissioned independent opinion polling which showed 57 per cent of respondents supported an Act, 14 per cent opposed it and 30 per cent were neutral. Among those who had made up their minds, 80 per cent were in favour and 20 per cent opposed (figures rounded). The committee could only conclude that there was strong support for a Human Rights Act.

Introducing an Act would bring Australia in from the cold, as we are the only liberal democracy without some form of national human rights statute. But there is no universal template for human rights protection, so the Brennan committee had to choose from the many different models of human rights protection on offer.

Opponents of a Human Rights Act, meanwhile, warn that we should abandon the whole endeavour. After all, the human rights statutes in Zimbabwe and the Soviet Union didn’t exactly do the job in those countries. But there is an obvious response to this: the success of a human rights law – indeed any law at all – depends on a country’s having robust democratic institutions that adhere to the rule of law.

The committee opted for an approach known as the “dialogue model,” which is dominant in countries whose legal systems most resemble Australia’s, including the United Kingdom and New Zealand. This model – variants of which have already been adopted in Victoria and the Australian Capital Territory – would strike a very different balance from most constitutional bills of rights. For starters, it would not be constitutionally entrenched. The Australian Human Rights Act would be enacted and, crucially, could be amended by the ordinary parliamentary processes. So, for example, were it to contain a right that subsequently became anachronistic – as is arguably the case with the “right to bear arms” in the US Bill of Rights – parliament could simply amend the Act.

In the division of powers between parliament, the executive and the judiciary, parliament would remain the first among equals. This result is achieved by the interaction of two key provisions in the Act. The first is an “interpretative provision,” which says that laws should be interpreted compatibly with protected rights, subject to the express will of parliament. This means that the courts will attempt to interpret laws consistently with the rights set out in the Act, but cannot strain that interpretation beyond what parliament intended.

Sometimes a law will simply be incompatible with a particular human right. Where the High Court makes such a finding, it will only be able to issue a “declaration of incompatibility,” the second of the two key provisions. Rather than invalidating the law, such a declaration would simply notify parliament of the incompatibility. Parliament would then choose whether or not to amend the relevant law.

The Ghaidan case in Britain illustrates how this would work. The case centred on the Rent Act, which says that when a protected tenant dies, certain property rights are conferred on the tenant’s “surviving spouse” if the spouse had been living “as [the tenant’s] wife or husband.” The critical word is “as,” which must have been included to allow these property rights to extend not just to wives and husbands, but to people who were living in relationships like that of a wife and husband. If Westminster had wanted to confine this benefit to people who were recognised in law as a married couple, surely it would have opted for that simpler definition.

By the time of the Ghaidan case, it was uncontroversial to argue that the Rent Act extended to de facto heterosexual couples. The effect of the court’s decision was to extend the benefit to homosexual couples, because this interpretation allowed the Rent Act to operate consistently with the anti-discrimination principle and the right to private life.

Although there are some differences between the British interpretative provision and the Brennan committee’s proposal, we can expect that the Australian courts would use it in a broadly similar way. Essentially, such a provision encourages courts to interpret laws through a human rights filter, mitigating the unintended harshness that the law sometimes produces.

But the proposed Human Rights Act would also preserve parliament’s flexibility to impinge on human rights where appropriate. After all, there are many situations in which human rights conflict with each other. The law of defamation, for instance, seeks to balance freedom of expression and the right to protect one’s reputation.

Just as importantly, the proposed Act anticipates that there are some extreme situations in which certain rights must cede to other legitimate interests. There is a strong argument that effective anti-terrorism laws must sometimes impinge on rights such as freedom of association – albeit to the minimum extent necessary to protect Australia against terrorist attack.

During the consultation process, some concern was raised by former High Court judge Michael McHugh, among others, about whether some features of the UK version of the dialogue model would pass constitutional muster in Australia. Some of the heat of that debate was removed when a group of constitutional experts, including McHugh, agreed publicly that the key elements of the dialogue model could be incorporated into a carefully drafted Australian Act.

The report noted the committee’s cautious approach, with consideration only given to “those options that were constitutionally watertight.” The report annexes the advice of the solicitor-general, Stephen Gageler SC, which clearly affirms that the committee’s proposals are constitutionally sound.

WHILE THE PUNDITS have focused on the relationship between parliament and the judiciary under a Human Rights Act, in my view the really significant impact will be seen in the public service.

The Act would provide that “public authorities” must comply with protected rights. The term “public authority” refers principally to ministers, public servants, government departments and agencies. This means that when the government makes a decision, it must pay due attention to the human rights of anyone affected.

Significantly, the definition of “public authority” extends to private organisations performing functions on behalf of the government. This means that where the federal government outsources to a corporation the management of an immigration detention centre or a service on behalf of Centrelink, that corporation would be treated as if it were a public authority and it would be required to comply with the Act for this purpose. This prevents the government from contracting out of its human rights obligations.

But what happens where a public authority does breach someone’s human rights? The Brennan committee recognised the need for flexibility in allowing tribunals and courts to frame appropriate remedies. Often the best way of remedying a human rights breach is to require the relevant public authority to change its practices.

Usually where an individual’s human rights have been infringed, monetary compensation will be inadequate because it can do little, if anything, to restore the damage done to the individual’s dignity. For example, would compensation really salve the dignity of an individual who is unjustly denied the right to vote? And if so, how much?

Nevertheless, it remains an important remedy of last resort, and shows that we take human rights seriously. The law takes a similar approach in relation to defamation, where damages are frequently part of a court order in favour of a plaintiff. While it is generally accepted that a monetary award for defamation is an imperfect remedy, it still provides some relief to someone wrongly defamed and sends a warning to would-be defamers.

In spite of the popular support for an Act, the Brennan report frequently acknowledges that there remains a divergence of views in the community. Crucially, that divergence is most pronounced among politicians themselves, with shadow attorney-general George Brandis leading the opposition.

Recognising this, there is plenty of hard-headed pragmatism in the Brennan report. It makes a number of recommendations for reform that don’t assume a Human Rights Act is introduced. The report proposes major changes to the Acts Interpretation Act, for instance, which provides guidance to courts on how to interpret laws. It also proposes amending the legislation that guides public servants in their decision-making. The significance of these reforms is that they resemble key aspects of a Human Rights Act, and so provide the government with an option to pick and choose which features of such an Act it might want to introduce.

More broadly, the committee recommends fundamental changes to the way we learn about rights in Australia, and improvements in access to justice for disadvantaged people. Although the committee found great concern about the disparity in rights protection for Indigenous people, very few of its proposals are directed specifically towards Indigenous groups. For instance, the committee made no recommendation for the legal protection of the cultural rights of Indigenous people.

Many reports from large public inquiries are greeted with fanfare only to languish on a dusty Canberra bookshelf. But the size and scope of this inquiry – in terms of popular participation, it is the largest inquiry in Australia’s history – build momentum for human rights reform. That momentum is not all one way, and the vehemence of some criticism of the report highlights the fact that the government will have to be deft in building consensus if it decides to implement these recommendations. •

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WITH THE RELEASE last week of its vast discussion paper on amendments to national security legislation, the Rudd government has finally got around to reforming Australia’s terrorism laws. In opposition, Labor couldn’t win a trick on national security and was strongly out-polled on the issue by the Coalition. So how should it proceed now it is in the driver’s seat?

According to the attorney-general, Robert McClelland, these proposals reflect the need to lock down a long-term and sustainable scheme of national security laws. He cites the fact that substantial portions of the Howard government’s laws will expire of their own accord under sunset clauses limiting their life to ten years. It’s odd, then, that the paper contains no proposals to amend the two most controversial parts of the Criminal Code subject to the sunset clauses – those enabling control orders and preventative detention orders to restrict people’s liberty.

Instead, the government’s main focus is on the less exotic aspects of terrorism policing – the crimes themselves, the power to hold suspects before charging them and the management of prosecutions where information prejudicial to national security might be disclosed during trial. While much of this involves amending the laws enacted under the Coalition government, there are some entirely original, and rather surprising, measures in the package.

All of which makes the media’s resort to the tired old labels that dominated the security debates of the Howard era a bit dispiriting. At the same time as the Australian announced with incredulity that McClelland had “moved to soften elements of Australia’s counter-terrorism laws, barely a week after police raided a cell of suspected Somali and Lebanese extremists in Melbourne,” the ABC’s Kerry O’Brien began his interview with the attorney-general by asserting that the government was “seeking to toughen up anti-terrorism laws that are already quite draconian.” At least Radio National’s Fran Kelly admitted that clarity either way was elusive when she began her conversation with the minister by confessing: “I’m a little confused, do they tighten or soften the terrorism laws?”

As Wayne Swan might say, it’s the wrong question. Apart from being an unhelpful way to approach a discussion paper which runs (including draft legislative provisions) to over 400 pages, talk of “tough” or “soft” laws is not really to the point. What the public is entitled to expect is that the government will enact effective laws.

What this means is that the police and other agencies should have the legal framework they lets them do their job of protecting the community but ensures they go no further than that. Certainly, we should resist laws that actually contribute to the problem – frequently announced with swaggering bravado as “tough on terrorism” – regardless of any superficial appeal they may hold. Even with the best of intentions, governments can overreach in their responses to the threat of political violence. Laws expressed in very broad terms and subject to too few controls do not assist police and other agencies in their difficult task. Instead, they all too easily lead to error – which can be expensive both in terms of misdirected time and manpower and for the liberties of individuals wrongly targeted.

Laws are clearly counter-productive if they serve very little operational purpose but fan fears in communities that already feel they have been singled out for discriminatory treatment. Although Australia’s anti-terrorism laws are expressed in neutral language, independent and parliamentary inquiries have found that some provisions have the potential to alienate the very communities with which we need to work in rooting out extremists and thwarting conspiracies to commit mass violence. The crime of “association” with a terrorist organisation has been repeatedly mentioned in this regard. Yet even though it has never been used to charge an individual and would likely prove most unwieldy in evidential terms, this offence is left untouched by the McClelland proposals.

This example indicates the main problem with the attorney-general’s discussion paper – its fundamentally reactive character. In seeking to respond to the many (and occasionally diverse) recommendations of no fewer than four major government and parliamentary reviews between 2006 and 2008, Mr McClelland has lost sight of the wood for the trees. This is not to say the trees are not important – in this area the devil is generally in the detail. And we should remember, too, that McClelland's predecessor, Phillip Ruddock, was breezily dismissive of virtually any suggested changes to the laws, even when they were put up with bipartisan support. The long overdue implementation of many of these inquiry recommendations is welcome but, even so, it is fair to say that the government has largely been captured by the agenda set by its predecessor.

This is reflected in the failure to seize the opportunity to recast the laws to match the government’s objective of “public confidence in the operation of the national security legislation framework.” What that would require, if we were really to do the job properly, would be to look with fresh eyes not only at the dubious categorisation of various crimes as “terrorism” but at also those mechanisms in the law which demonstrably privilege the power of the state in areas where individuals should worry most about intrusion.

A small but nonetheless important example is the decision of the attorney-general not to scale back his personal discretion to proscribe an organisation on the basis that it (or presumably any of its members) “praises” some terrorist incident, in cases where a person, regardless of actual or mental age, might be encouraged to engage in a terrorist act of their own. This basis for proscription exists alongside the far more justifiable grounds of “urging” or “instructing” others to commit a terrorist act, and “praise” is a very ambiguous term in comparison. It is not hard to imagine that bodies which refer approvingly to the activities of the leaders of national liberation movements – say, Mandela or Gandhi – could conceivably fall foul of the law. In 2006 the Security Legislation Review Committee recommended that this aspect of the proscription regime should be repealed, given its vagueness and the “chilling” effect it is likely to have on free speech. But while McClelland has agreed that the risk of the listener acting after hearing the “praise” must be “substantial,” that’s as far as his amendment goes.

This is in keeping with the tendency of the government to keep step with the lowest common denominator of the various review panel recommendations when these involve a rollback of the existing laws. Placing a seven-day cap on the pre-charge detention of a terrorism suspect is a particularly controversial instance. This power sustained Mohamed Haneef’s ongoing detention while the Federal Police pursued their ultimately baseless case against him. The Clarke Inquiry into that affair favoured a limit being put on the length of detention but was non-committal about what it should be. Acknowledging that it had received a range of opinion on the matter, John Clarke QC declared that whatever was settled upon, seven days should be the upper limit. It is not surprising, then, to see the government peg the duration of pre-charge detention on that marker, even though experience to date seems to indicate that this window seems far bigger than necessary. It is ironic that the only real use of these provisions in the Crimes Act was to deprive an innocent man of his liberty for twelve days. For those who have gone on to be convicted of terrorism crimes, the police did not require any special extension of the detention time before laying charges.

The attorney-general’s approach appears different, though, when a possible extension of the laws has been suggested. Among these, the one that has received the most attention has been the proposal to broaden the definition of “terrorist act” beyond “physical harm” to take in the psychological damage caused by a terrorist attack. This change was recommended by the Security Legislation Review Committee in 2006 but the subsequent Parliamentary Joint Committee on Intelligence and Security report did not share its view. A good case can be made for including damage in all the forms that the law recognises more generally when criminalising terrorism. The primary aim of terrorism is to instil fear in the community – in that sense, we are all intended victims. Usually the lives of some individuals are used by extremists to this end, but it is appropriate that the law recognises the wider harm intended and inflicted by those who peddle political violence.

As a matter of practical application, very little is likely to turn on this expansion of the harm element because, ideally, plots will be foiled and charges laid in connection with the preparatory stages of a terrorist plan. This has been the case in the operation of the laws to date and prosecutions have been successful even though the “harm” has not come to fruition. Were a plot to progress to execution, it seems very likely that some physical harm (bearing in mind that the definition currently includes property damage regardless of any casualties) would result. But it is not totally inconceivable that an act of terrorism – a thwarted hostage-taking, for example – could occur without physical harm to victims.

The merits of the change aside, the decision on this issue can be seen as part of a discernible pattern underlying the attorney-general’s choice between conflicting recommendations. Any proposals that might be seen as too ameliorative (or, to be crude, “soft”) were passed over while those of an expansive nature tended to be picked up.

THEN THERE are the areas in which the attorney-general has gone it alone. The most unsatisfactory of these is his decision to keep the “threat of terrorism” within the definition of a “terrorist act” rather than house it as a separate offence – despite a clear consensus for change among the various inquiries. The discussion paper argues that creating a separate offence somehow “dilutes the policy focus” of criminalising “threat of action.” But how exactly is illegal activity diminished by being the subject of a separate offence provision in the strictest division of the Criminal Code?

The government goes on to propose broadening that section by including activity not just that “causes” harm but also is “likely to cause” harm. This is a far more worrying expansion of the definition than the inclusion of psychological harm and one which makes the entirety of the laws far more malleable in their application.

Other expansions of the powers of the state are far more obvious. The new police power to enter premises without a warrant in “emergency situations” deserves to attract fierce debate, with the onus on the government to explain why this extraordinary extension is necessary given that the police have conducted a number of operations to date without any evidence that they’ve been impeded by the need to obtain warrants. Even the apparently positive step of empowering the government to declare which regional aid organisations people may safely deal with (notably in giving or receiving some form of training in, say, medicine or construction) is an example of this. While providing clarity to Australians, there is no doubt that this will significantly broaden the power of the executive by enabling it to receive and determine applications from organisations seeking to show they have no links to terrorist movements.

CONSIDERED AS A WHOLE, this suite of proposals from the government is marked by its determination not to travel too far from the Ruddock era. Certainly the many specific amendments and clarifications to overcome long-recognised deficiencies or ambiguities in existing provisions are welcome. But in aiming to finish the job the Howard government started, the government has not paid enough attention to broader questions about how best to criminalise political violence and the extent to which a departure from accepted norms is justified in the investigation and prosecution of offences. By retaining merely symbolic aspects of the laws and continuing to privilege the role of executive discretion in the operation of other parts, Labor shows a reluctance to think creatively.

That said, no assessment of the discussion paper is complete without acknowledging the great efforts the attorney-general has made to break with the tone of past debates about counter-terrorism laws. On this score, the government deserves high praise. The tendency of the Howard government to ambush the parliament with a succession of anti-terrorism measures, restrict opportunities for public input in Senate committees and ram laws through with histrionic cries of urgency seems a world away from the present exercise. That the present government has chosen to move ahead with reform in this area in a spirit of broad consultation rather than community fear – even in light of recent attacks in Jakarta and arrests in Melbourne – is impressive.

But it would have been good to see the same amount of courage and principle brought to the substance of many of the proposals. •

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GIVEN the Rudd government’s well-known tendency to wrap interesting ideas in pedestrian prose, it should have come as no surprise when attorney-general Robert McClelland announced that the new office to review the impact of anti-terrorism laws would be called the National Security Legislation Monitor. This important initiative has been proposed by almost all participants in the debates about Australia’s anti-terrorism laws in recent years – but never under this title.

The Monitor is directly modelled on Britain’s Independent Reviewer of Terrorism Laws – a name that conveys a lot more about the “watchdog” role of the office. The origins of the independent reviewer lie in the legislative responses to political violence stemming from the conflict in Northern Ireland, but it has assumed a far broader importance in the wake of 11 September 2001. As fate would have it, it was on that very morning, just hours before the attacks on the United States, that the British home secretary, David Blunkett, contacted Lord Alex Carlile QC and offered him the position. Carlile has been doing the job ever since and has played a striking role in the legal and political process surrounding British counter-terrorism.

Carlile provides annual reports on the operation of various British anti-terrorism laws – most notably the control order regime, which must be renewed each year by parliament. (Australia’s control order scheme, by contrast, was given a full decade’s life – it will not be reconsidered by our political masters until 2015.) Carlile’s reports are seen as an integral tool in parliamentary deliberation over the continuation of the orders.

Inevitably, Carlile’s contributions to the ongoing debate about how best to achieve security without sacrificing liberty attract a fair degree of controversy. His support for the control orders as a “justifiable and proportional safety valve for the proper protection of society” was welcomed by the Labour government but not everyone else. Quite aside from civil rights groups such as the influential Liberty, other institutional actors have offered differing perspectives on some of these issues. In particular, Carlile’s views about the fairness of the process by which a control order is imposed have been repeatedly rejected by the bipartisan Joint Committee on Human Rights. More conclusively, in judicial decisions in 2007 and earlier this year the House of Lords has confirmed that, despite Carlile’s confidence in the control order regime, some of its procedural aspects are in clear tension with the Human Rights Act 1998 and require refinement.

Carlile has also attracted criticism from some quarters for his willingness to support tough new anti-terrorism measures even before they are enacted. Of these, his strong support for the extension of pre-charge detention from twenty-eight to forty-two days (even going so far as to write a criticism of the shadow home secretary, David Davis, who resigned to fight a by-election on the issue in June 2008) led some to see him as more of an “advocate” for the anti-terrorism laws than their impartial assessor.

Lord Carlile visited Australia in June and met with both the federal government and opposition. A genial fellow, and quite the raconteur, he was very willing to discuss his role with us and explain what he believes it brings to monitoring the use of strong anti-terrorism laws in the jurisdiction which has most influenced the content of Australia’s approach in this area. But it is difficult to escape the sense that this is a very “British” sort of office. It’s difficult to imagine someone with Carlile’s professional history being given the job in Australia or operating in the way he does.

For example, as well as being a well-respected and highly successful member of the English bar (among his career highlights is the successful defence of Paul Burrell, Princess Diana’s butler, who was accused of making off with her personal effects), Carlile has had a long engagement with political life as, first, a Liberal Democrat MP between 1983 and 1997 and then as a life peer in the Lords since 1999, where he is party spokesman on mental health and disability. Even allowing for the rather odd culture of Britain’s upper house, one can scarcely imagine the Rudd government appointing a former, let alone a sitting, member of parliament to the position of National Security Legislation Monitor.

This relaxed overlapping of roles and responsibilities is, of course, a hallmark of English constitutionalism more generally. Public institutions are not so much “designed” as serendipitously develop as needed, frequently on the hop. It is for that reason that no single statute exists establishing the office of independent reviewer and comprehensively setting down his role and functions. Having been created through letters patent, the position has taken on new tasks by accretion. Carlile evidently views himself as having an expansive brief: he has produced reports on definitions of terrorism and commented not only on his government’s involvement in the extraordinary rendition of civilians but even on the design of cells for terrorism detainees.

Carlile says he needs no clear coercive and investigatory powers because of his ability to “name and shame” those who obstruct his work. As we said, it’s a very “British” approach... Even so, and whatever one may think of Carlile’s reports and other public statements, the very existence of his office and his annual reports amount to a solid safeguard for individual liberty. It would have been strange if Australia hadn’t recognised the need for a similar watchdog.

So the tabling of the National Security Legislation Monitor Bill 2009 in the final week of the winter sitting of federal parliament was very welcome. Last year, the government shot down an effort by Liberal MP Petro Georgiou to establish a similar position through a private members bill. That bill received the full scrutiny of a Senate inquiry but the government was unwilling to have its thunder stolen. It insisted it would set the agenda – and only after the inquiry into the bungled prosecution of Mohamed Haneef was concluded.

They need hardly have waited. The idea of an Australian office charged with scrutinising the many anti-terrorism laws introduced since September 2001 is not new. Georgiou first raised the prospect of an independent reviewer of terrorism laws back in 2005, during pitched battle over controversial new anti-terrorism laws dealing with sedition and control orders. Since then, two inquiries of the Parliamentary Joint Committee on Intelligence and Security and another convened by Philip Ruddock as attorney-general have all strongly endorsed the need for this office.

HOW DOES the Rudd government’s new Monitor stack up against the British office on which it is based? The first point of difference is highlighted by the fact that, with Carlile soon to retire as independent reviewer, the British government’s failure to detail the functions and powers of the independent reviewer in legislation means that a future reviewer may take a more narrow approach to his or her role. Robert McClelland’s bill avoids this danger by setting out the functions of the Australian Monitor in deliberately wide terms. The Monitor is given the task of reviewing Australia’s anti-terrorism laws in light of international human rights principles to see whether they contain adequate safeguards for protecting the rights of individuals. Even more valuably, the Monitor is required to get to the heart of the matter: to decide the fundamental question of whether these laws “remain necessary.” Acting within these stated purposes, the Monitor is able to set his or her own agenda, taking the initiative to commence inquiries or receiving matters referred by the prime minister.

Second, in order to defend his findings, it has been important for Carlile to be able to stress his independence. He maintains his private practice at the English bar and believes this sends a strong message about his impartiality. In this light, it is a good thing that the Australian office will be part-time, enabling the Monitor to engage in outside business activities and thus maintain financial independence from the government.

But further steps might have been taken to ensure the public sees the Monitor as strictly impartial. One way this might have been done would be to have included the word “independent” in the title of the office. Additionally, it would have been preferable for the Monitor’s reports to be presented directly to federal parliament, rather than to the prime minister personally. Most worryingly, the legislation allows the prime minister to ask the Monitor for a private progress report on any review before the final report is concluded. That seems an odd way to guarantee true independence.

Lastly, the Australian office will have considerable teeth. While Carlile has been happy to wield influence over intelligence agencies and individuals through his ability to “name and shame” in his reports, the difficulties which the Clarke inquiry had in getting the full cooperation of various political players and the Federal Police are a good indication of the limits of such a technique in Australia. So it seems wise that the government’s bill makes it a criminal offence (carrying a possible jail term of six months) to fail to assist the Monitor.

A point of clear similarity between Britain’s independent reviewer and Australia’s planned Monitor is that the office is filled by a single individual. The undesirability of this was recognised both by the Security Legislation Review Committee and by the Senate inquiry into the 2008 Georgiou bill. Although Carlile says it would be impractical for a committee or a trio of reviewers to report on anti-terrorism laws because they could all too easily diverge in their assessment, surely that goes to the point? The danger of a single reviewer is that the individual’s opinion on what are undoubtedly contentious and thorny issues would be given too much weight. In Britain this has been very noticeable when the unanimous and measured recommendations of parliament’s Joint Committee on Human Rights have struggled for a hearing from the government, which has chosen to rely instead on Carlile’s endorsements. The Monitor legislation could be enhanced by the appointment of not just one, but three, part-time reviewers of the laws.

The government is to be congratulated for introducing an initiative that their predecessors resisted for no good reason. Overall, the bill gets the Monitor off to a good start by virtue of the clarity with which it establishes the functions and powers of the office. Time will tell how valuable the new Monitor’s contribution will be – and making a good appointment will in many ways be the real challenge.

Despite the strong support for a watchdog over Australia’s anti-terrorism laws, the office is ultimately a reactive one. Far more than a sophisticated means of post-enactment scrutiny, the community would benefit from legislators conducting themselves soberly in the first instance. If parliamentarians did not lose their heads when rushing to create more, and yet more, new security laws of little relevance to combating the domestic threat, then the case for a Monitor would be nowhere near as compelling. •

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JAMMIE THOMAS-RASSET is a brownfields development coordinator for the Mille Lacs band of the Obijwe people in Minnesota, and a mother of four. She has been taken to court twice for sharing twenty-four songs on the peer-to-peer network Kazaa. The songs included Guns N Roses’s “Welcome to the Jungle,” Gloria Estefan’s “Here We Are,” and Sara McLachlan’s “Possession.” Readily available on iTunes for a dollar or so each, these songs and mainstream hits like them are now part of what Wired.com calls the most valuable playlist of the century.

In the first case, a jury found her liable for wilful infringement and awarded damages to the record companies of $US9,250 a song, with a total fine of $222,000. The judge ordered a mistrial. Rather than settle, Ms Thomas-Rasset decided to face a second trial. Her defence changed several times, and her argument that her children might have been responsible for the infringement was not convincing. The second jury again found her liable for damages, this time at the increased rate of $US80,000 a song, for a total bill of $1.92 million.

Ms Thomas-Rasset is one of over thirty thousand individual file sharers the Recording Industry Association of America has sued for infringement of copyright, reportedly generating over $US100 million in settlements. So far only this one case has gone to trial, with such a crushing victory for the RIAA that it casts into doubt the whole strategy of suing individual file-sharers.

The RIAA has again offered to settle with Ms Thomas-Rasset. In a statement that may prove an apt metaphor for the entire strategy of suing individual infringers, Ms Thomas-Rasset has described the chances of extracting the damages from her as “like squeezing blood from a turnip.” While $1.92 million is an extraordinary penalty for sharing a couple of CDs’ worth of music, the amount awarded was in the middle of the statutory range, which was increased from $750 to $150,000 for each infringement after amendments to the US Copyright Act. These amendments were intended, it was said, to bring the law into line with the realities of the digital age. The thinking behind the $80,000 figure, just as for the $9250, is completely mysterious.

Downloading a song, movie or TV show from BitTorrent without paying for it is an everyday act of exchange in internet culture. It is one of the many kinds of contact internet users continually have with copyright material, and it will usually infringe someone’s copyright. Making that song available to others by uploading it will be a further infringement, and these acts clearly have some potential to damage the owner’s economic rights. The strongest message from the copyright industries, and from governments, is that these acts are kinds of stealing. The idea is that while the contravention of a “statutory economic right” may be an abstruse and complex wrong, people should agree that stealing is a bad thing, whether or not it is easy to do, and whether or not there is much chance of being caught, despite the unfortunate experience of Jammie Thomas-Rasset.

The difficulty with the idea of stealing is that it implies taking possession of an object, and in the case of something like music it is not clear what this object is. Stealing is also, generally, a criminal offence, although most copyright actions are civil matters. The British government’s recent report, Digital Britain, asserts that “Unlawful downloading or uploading, whether via peer-to-peer sites or other means, is effectively a civil form of theft.” But making a digital copy of something doesn’t stop anyone else from enjoying the work, whether they pay for it or not. It doesn’t deprive the owner of their work, even temporarily. And far from being a departure from our pre-internet patterns of consumption, the act of not paying for music or TV is familiar for all of us, because we’ve learnt to rely on remarkably contrived and indirect systems of paying for these things on broadcast media, through advertising or taxation. So a direct translation of the idea of stealing from tangible goods to a digital network is fraught. And the idea of “digital piracy,” with its suggestion of profiteering from trade in stolen items, has proved not so much scary as enticing, at least enough to excite a wave of “pirate parties” devoted to digital liberty in Europe. The recent European elections returned one representative of the Swedish Pirate Party, riding on the back of the prosecution of a prominent Bit Torrent website there.

Real enthusiasm for piracy, like the anti-capitalist “culture-jamming” celebrated by critics such as the Canadian writer Michael Strangelove, is likely to remain on the techno-political fringe. The mainstream downloaders are more of a worry for the record industry. There is some evidence that downloading may now be considered a standard form of internet behaviour – an accepted and widely adopted practice, if perhaps not one people are always comfortable with. In this ethos, the question of whether it is wrong to download something is not determined by strong beliefs about “property” in general. The issue is likely to be contextual – “it depends” – rather than clear-cut. It might depend on how easy it may be to acquire a copy legitimately, or whether a listener wants to try something they are curious about.

The Oxford Internet Institute’s 2009 survey made some interesting findings on this topic. It reports that in Britain non-users and ex-users of the internet are notably more critical than users of activities such as downloading music without paying for it. In a similar study conducted in Australia in 2007, we asked internet users how much they would be prepared to pay for an online version of a $40 CD or DVD. The answers were not encouraging for traditional audiovisual businesses: over 50 per cent said they would not pay any amount, and 27 per cent said they would pay only up to $20.

If governments are determined to tackle downloading as a form of “civil theft,” we should be as clear as we can about what is being stolen, and what its value is. One striking aspect of the debate over new anti-digital piracy laws is the lack of credible evidence as to what downloading actually costs copyright owners. A succession of industry-funded reports has made highly publicised claims that vast sums have been lost to piracy. Many of these studies appear to be based on questionable extrapolations of consumer behaviour, and assumptions that downloaded copies can be directly translated into sales foregone. Yes, downloading is increasing and recorded music industry revenues are declining. But is there a causal link between the two, and if so is it important? Ben Goldacre, author of Bad Science, drily observes that if the latest estimates of the costs of piracy in the UK were to be believed, then this activity alone would have cost the UK 10 per cent of its GDP in 2008. Things are bad, but not quite that bad.

The Guardian’s Charles Arthur has made the sensible suggestion that downloads need not be seen as “lost sales.” A more sensible starting point would be to consider what people are spending money on, assuming that they will probably continue, more or less, to devote a reasonably stable portion of their disposable cash to entertainment. If they’re not spending it on music, they’re likely to have spent it on something else, like video games or DVDs. Sales of both of these have increased dramatically over the last decade, in sync with the startling decline of the CD. If this is where the important causation really lies, the sales have been lost not to downloads but to other, more popular, forms of personal entertainment which have emerged fairly recently. The problem may not be the net so much as broader trends towards more immersive, less casual, forms of audiovisual leisure.

This line of reasoning connects with some older (and much criticised) American research, conducted in the early 2000s in response to a wave of anxiety over then-popular file sharing systems such as Morpheus and Kazaa. Using data from those file sharing networks, researchers from Harvard Business School and the University of North Carolina found almost no connection between the sharing of particular music online and sales of CDs.

AFTER A DECADE of litigation and bitter debate, the problem of internet piracy appears to be looming larger than ever for governments and industry. If suing individuals is no better than suing turnips, the issue turns to those other parties involved in the whole downloading business. Those who market the offending software have been targeted in a series of cases, such as the prosecution of Kazaa in Australia, and the US cases against Napster, YouTube and Gnutella. Despite legal victories, these cases have in fact had mixed results. Although some parties, such as YouTube, have been drawn into negotiation with copyright holders, the effect of other decisions seems to have been to encourage the evolution of infringing file sharing at least as much as its substitution by legal means. Napster invented easy-to-use, peer-to-peer music distribution back in the last century, but from today’s perspective it was a remarkably centralised system of managing the flow of content across users’ machines. BitTorrent, the most widely used peer-to-peer system today, is much more dispersed, leaving copyright owners with the less satisfactory option of attacking websites such as the Pirate Bay, which hosts small files that point to files spread across the net.

The next port of call are the internet service providers, or ISPs, who connect downloaders with the file sharing networks, and profit from that link. More importantly, ISPs record and store critical information about the actions of their users: which websites they visit, and what files they download. An industry group, the Australian Federation Against Copyright Theft, together with a group of broadcasters and others, is now suing a small Western Australian ISP, iiNet, in the Federal Court. The claim is that iiNet in effect authorised its customers to engage in downloading copyright materials. But the real issue in this case is probably the capacity of ISPs to protect themselves from liability for their customers’ actions, using “safe harbour” provisions in the law which offer immunity from damages. Copyright owners would like ISPs to notify them and disclose information about infringements; they would like ISPs to do the dirty work, by taking responsibility for dealing with infringing users. All this, of course, would place the ISPs in a new and difficult role.

A new generation of official thinking about the internet is now appearing around the world, driven by the promise of fast broadband and the continuing evolution of online applications and services. In Australia, the United States and Britain, centre-left governments are making the case for substantial new investments in infrastructure, and once again extolling the educational, social and economic potential of public networks. The British government’s Digital Britain report reveals one fish in a school of new, would-be digital nations. But as we’ve seen in Australia, the twenty-first century’s official image of the internet, like the nineteenth century’s image of the city, is always a picture of light and shadows. The case in favour of spending money on broadband and the good things must then be coupled with the appearance of decisive action dealing with the nasty things. The idea that ISPs should monitor, report and if necessary disconnect errant customers might be part of the new deal: on the other hand it may unravel into yet another of the unworkable, symbolic and apparently necessary futilities that characterise the long war against digital piracy.

Meanwhile, a second case against an individual file-sharer is underway in the United States, and it is developing into even more of a spectacle than the first. Graduate student Joel Tenenbaum is being sued for sharing seven songs. Charles Nesson, a distinguished professor in internet law from Harvard, is leading the defence, along with a team of his students. Their case has now left behind Jammie Thomas-Rasset and her fumbling, final attempts to shift responsibility to her children. For them, as for the RIAA, the case is now about something much bigger than a copyright infringement. It is about establishing the right to share as a new form of fair use, attuned to contemporary online culture. The defence argues that the record company’s suit is an attempt to scare parents and teachers away from computers, the internet, and their promise of freedom. As his motion to dismiss declares, “Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation.” •

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ON 22 SEPTEMBER LAST YEAR, in a sunny room in the Sydney Convention Centre overlooking Darling Harbour, the official inquiry into what has become known as the Haneef Affair held its only major public proceeding. This “community forum” owed its existence to a commitment given by the attorney-general, Robert McClelland, when he announced the inquiry. Exactly what purpose he had in mind for the forum was not terribly clear; nor was it evident how the proceedings might complement the inquiry’s investigation of the circumstances surrounding the protracted detention and bungled charging of Mohamed Haneef. In his final report, however, the head of the inquiry, the Hon John Clarke QC, stated that the forum enabled the airing of “arguments about the strengths and weaknesses of aspects of Australia’s counter-terrorism laws.”

One thing the forum did do, unintentionally, was highlight the false dichotomy that plagued the development – and, in Haneef’s case, the operation – of Australian counter-terrorism law and policy. The inquiry chose to bestow on the event the catchy but simplistic title of “Too Safe or Too Sorry?” It is hard to imagine a more loaded premise from which to commence a debate about anti-terrorism laws. As everyone knows, it is always better to be safe than sorry.

In couching the forum in this way, the inquiry reinforced the perception that the community is faced with a crude choice between security and liberty. Even when this is presented as an attempt to strike a “balance,” the clear implication is that security is only increased when liberty is sacrificed. Sadly, it’s an all too familiar message for Australians. Over the years after 11 September 2001, the Howard government repeatedly used this unsophisticated trade-off to justify the steady introduction of ever more elaborate anti-terrorism measures which sat uneasily alongside our familiar freedoms and rights.

Reading Clarke’s account of the twists and turns of the Haneef affair, I was struck by the pernicious influence of this mindset on many of the key players. Nowhere was this more apparent than at the point when, for many onlookers, the case took on a truly bizarre complexion. This was the decision, after twelve days of extended detention and investigation of Haneef, to charge him with providing support to a terrorist organisation having been reckless as to its character. The central fact on which that charge depended was that Haneef, when he departed England over a year earlier, had given his mobile phone SIM card to his cousin Sabeel Ahmed so the latter could make use of its remaining free calls. In late June 2007, it was Sabeel’s brother Kafeel who drove a jeep laden with explosive material into the doors of Glasgow International Airport in a spectacularly unsuccessful terrorist attack.

It makes for revealing yet ultimately depressing reading to see just how little confidence many of those working on the investigation had in the case against Haneef and yet how powerless they were to halt its momentum. The range of people who had doubts about whether a charge should be laid extended from the arresting and interviewing officers of the Australian Federal Police to senior members of the Queensland Police Service. Alone among the investigation team, according to Clarke, AFP Comander Ramzi Jabbour had come to hold “a strong personal view that Dr Haneef was implicated in the British terrorist acts, despite his inability to uncover any substantial piece of evidence on which to anchor that belief.” Although Clarke described Jabbour as “an impressive, dedicated and capable police officer,” surely there can be no more worrying assessment of the officer then responsible for overall management of the AFP’s Counter Terrorism Domestic Operations than to say that he “had lost objectivity”?

Crucial to the decision to charge Haneef despite the qualms of all officers but Jabbour was the advice tendered to the AFP by Clive Porritt of the office of the Commonwealth Director of Public Prosecutions. Many members of the investigating team rejected the argument that the CDPP advice mandated the laying of a charge, and both the interviewing officers refused to take this step on the strength of the advice. But its mere existence powerfully increased the possibility that the AFP would proceed down this path. That was particularly so since Jabbour and his boss, Asistant Commissioner Prendergast, felt the advice “effectively left them with no choice” but to charge Haneef. As Clarke found, Porritt’s advice was relied on not because it was any good but simply “because it was there.”

How did the DPP come to give the AFP the green light to charge? The office had been brought into the picture very late in the day: Porritt did not meet with the investigating team until ten days after Haneef had been arrested. At that meeting, Porritt was informed that Haneef’s SIM card had been found on Kafeel Ahmed at Glasgow airport – an inaccuracy which was corrected the following day by the AFP in the briefing paper for Porritt, but was never specifically drawn to his attention. The paper also made much of Haneef’s attempted flight of Australia without adequately highlighting his explanation of his travel plans and his attempts to contact the Metropolitan Police in Britain. The AFP also incorrectly told DPP that Haneef and his cousins had shared a house – expressly denied by Haneef in his interview – and suggested there was evidence of Sabeel Ahmed holding “radical views.”

Even more worrying than this inaccurate information was the failure of the AFP to reveal the transcript of interview to the DPP or pass on key facts that seriously undermined the case against Haneef. Foremost among these was the existence of email communication apparently establishing that Sabeel Ahmed had no involvement in his brother’s plot. It was this email – sent to Sabeel just 75 minutes before the attack and opened by him after it had occurred – that led to the rather zealous prosecution of him on the charge of withholding information that could have assisted police to secure the apprehension, prosecution or conviction of the perpetrator of a terrorism crime. He is now serving an eighteen-month sentence, but ironically that offence only underlines the absence of any meaningful connection that Sabeel might have provided between Haneef and the actions of Kafeel Ahmed. There simply was no “terrorist organisation” to which Haneef provided support.

It beggars belief that the contents of this crucial piece of evidence was not revealed to DPP staff until after the charge against Haneef had been withdrawn. Clarke accepted that the British authorities had imposed restrictions on its dissemination, but noted that other information which was similarly restricted appeared in the briefing paper provided to Porritt. Although he declined to say whether the AFP’s non-disclosure of the email was justified, Clarke said that simply revealing to Porritt the existence of the correspondence, even without details, would have put him on notice that he did not have “the full picture.”

While Porritt was undoubtedly in the dark on some of the underlying facts, his own actions still attracted stern criticism in Clarke’s report. Porritt had failed to communicate at all adequately with his supervisor throughout his involvement with the case; in writing his advice, he was muddled as to the end in mind. In his subsequent oral statement to Clarke, Porritt claimed to have supplied the advice as to the sufficiency of evidence sustaining arrest, but the AFP not unreasonably interpreted the document as supporting prosecution of a charge. When clarification of the advice was sought, Porritt failed to stress its limits. Clarke concluded that Porritt’s advice was “obviously wrong and should never have been given.”

THE QUESTION of why, then, it was given takes us back to the perilous impact of the “safe or sorry” logic on orthodox criminal procedures. Although Porritt denied that the “unspoken pressure” on him to support a charge impaired his judgment, Clarke found to the contrary. What can be said of a prosecutor who admits he was “loath to say no” to police? But while Clarke made no bones about Porritt’s failure to carefully assess the evidence for himself, he accepted that the case was presented to the prosecutor by Jabbour in such a confident light as to fail to meet the standard required by the Memorandum of Understanding between the AFP and the Commonwealth DPP. The bottom line from Clarke is that Porritt was operating under a “subconscious desire to provide positive reassurance” to a senior investigating officer who had “lost objectivity” – a fatal combination.

Of course it was not the actions of these lesser figures which most excited public reaction at the time, but those of immigration minister, Kevin Andrews, when he cancelled Dr Haneef’s visa just shortly after he had been granted bail. The likely result of Andrews’ intervention was not to deport Haneef immediately but rather to ensure that he would remain in some form of detention until his trial under a criminal justice stay certificate.

Andrews had two exculpatory tools at his disposal in defending his decision to revoke the visa. One was that, ludicrous as it might seem, existing judicial authority on use of the “character test” under the Migration Act conferred on the minister a virtually unfettered discretion in respect of the visas of non-citizens regardless of the nature of their “association” with others suspected of criminal activity. The Federal Court subsequently rejected such a broad interpretation of the power, but at the time he acted Andrews had the law on his side. The second thing on which he relied was the “national interest” in using all caution in respect of Haneef. Better, as they say, to be safe than sorry.

Andrews, like Jabbour before him, was not prepared to be swayed in the least by ASIO’s repeated insistence that there was no evidence whatsoever linking Haneef to the recent events in Britain. Andrews knew of the broad thrust of ASIO’s advice yet never attempted to square it with the “rambling brief” given to him by the AFP. It is truly galling that when questioned by Clarke on this point, the former minister said knowledge of the detail of the ASIO report would not have caused him to act differently. How else are we to understand this except as blind commitment to security at all costs – including the rights of an individual entirely cleared of suspicion by the nation’s primary intelligence agency?

Well, one other way is, of course, to see the whole affair as a desperate exercise in the politics of fear in the final months before the federal election of 2007. The Howard government seemed to have a peculiar talent for capturing the imagination of conspiracy theorists and the Clarke report does little to dampen a cynical view of the government’s role in this case.

Andrews claimed to have been vindicated by the Clarke report, and seized on key phrases from it to bear out this assertion – crucially Clarke’s comment that he “found no evidence of conspiracy or improper purpose” behind the minister’s action. Arguably, Clarke judged this aspect of his report poorly. Having been unable to conduct a full investigation of the political actors, his statement that he found no evidence of a conspiracy needed a far heftier qualification than that which he offered when he said that he still found the timing of Andrews’ intervention in the case, immediately after Haneef was granted bail, “mystifying.” Euphemisms are all very well in judicial reasons, but are an art form wasted on politicians. Andrews can easily live with “mystifying.”

Clarke’s inability to unearth improper political interference or opportunism in Haneef’s case needs to be understood in light of who he was able to speak to and under what conditions. Andrews’ former chief of staff declined to provide a statement, while former prime minister John Howard neither provided a statement himself nor granted permission for his former adviser, Jamie Fox, to do so. The former attorney-general, Philip Ruddock, under whose portfolio both the AFP and ASIO fell, did speak to Clarke but only for an hour. Clarke recounts his considerable difficulties in negotiating access to Cabinet deliberations, including those of the National Security Committee, and in receiving timely responses and submissions from various departments and agencies. The only way in which Clarke felt he could gain any traction was through his announcement in July last year that transcripts of interviews and related evidential documents would not be made public.

Throughout the inquiry calls were made for it to be converted to a full royal commission in order that it might compel testimony from all people of interest and issue notices to produce documents, though cross-examination of witnesses in open proceedings would not necessarily have been a consequence of upgrading the inquiry. Clarke states that “on a number of occasions” he gave “serious consideration” to approaching the attorney-general with a recommendation to reconstitute the inquiry as a royal commission but believes his decision not to do so was correct. Maybe, but it clearly was a perplexing process for him and it is notable that his first formal recommendation is that the government “consider incorporating in legislation the special arrangements and powers that would apply to inquiries and other independent reviews and investigations involving matters of national security.” In late January, McClelland referred this question to the Australian Law Reform Commission, which will look afresh at the existing provisions of the Royal Commissions Act 1982. This has caused some concern that the legislation is in danger of being weakened and might be amended to allow governments to impose constraints on future royal commissions. We will have to wait and see, but the merit in Clarke’s suggestion is not difficult to appreciate. The challenge in implementing it will be the tendency of agencies and government departments to be over-inclusive in classifying documents even vaguely connected to the topic of “national security.”

WHAT FINAL ASSESSMENT can be made of the Clarke Report? Wading through the detail, one might be tempted to think that the Haneef imbroglio was essentially due to the actions of two individuals – Jabbour and Porritt. But while Clarke was critical of the actions of both men, beyond their handling of the situation lies the machinery put in place by the Commonwealth which enabled their errors of judgment to be compounded. Clarke’s recommendations largely concern these structural issues, but as he either suggests further reviews or steps which have already been put in motion following the Street Review on interoperability between agencies, much of the impact of his report was, ultimately, rather muted.

This is not to say that the recommendations are not worthwhile. The suggestion, for instance, that terrorism offences and procedures might be usefully hived off into a separate and distinct Code is an interesting one which may eliminate much of the confusion about overlap between standard and special processes. But, overall, others have beaten Clarke to the punch on many of the points he raises. Certainly, he is simply the last in an impressive roll-call of voices calling for the establishment of an independent reviewer of all counter-terrorism laws, and the Ul-Haque case had already galvanised moves to establish better communication between authorities investigating terrorism cases.

All this meant that the attorney-general was able to respond very positively to all of Clarke’s recommendations before Christmas. The real news was the Rudd government finally making responses to the reports of earlier inquiries which their predecessors had left to gather dust. Implementation of many of those reforms will eventually see the more worrying aspects of panic-driven legislation discarded or ameliorated, with the sedition offences being just one early example.

Going back to the Clarke Inquiry’s public forum that warm spring day in Sydney, it was encouraging to hear, despite the ham-fisted title of the event, a notable decline in talk of “balance.” While some speakers chose to frame their comments in that way, they only served to demonstrate its essential hollowness. Adherence to clear procedures which respect the rights of individuals is not something we should ever sacrifice in our fervent desire to be safe from terrorism. The extraordinary steps taken to deprive Dr Haneef of his liberty did not, contrary to the metaphor, raise the scale of our security. Instead there is good reason to think that it harmed effective security efforts which rely on public confidence and social inclusion.

Instead of “balance,” more of the talk at the forum was of striving towards “proportionate” responses to the terrorist threat. The abiding impression from the Clarke Inquiry is that a sense of proportion was lacking in several of the key participants in the fierce little drama that played out over an innocent Indian doctor in July 2007. Moves to sober and rational law-making and policing in Australian counter-terrorism are certainly to be welcomed. •

The post Learning from Haneef appeared first on Inside Story.

AUSTRALIA HAS HEARD David Hicks’s voice for the first time. For years, through a few ubiquitous images and, more powerfully, the impassioned advocacy of his father Terry, Hicks was a man at the centre of a major public debate in this country. But he was an enigma.

Hearing Hicks speak doesn’t tell us much more about him – but it does remind us that locked up in a cell for all those years was an Australian citizen, not simply a political prop for use by advocates of either side of the debate on the “war on terror.”

Hicks has been quiet since his release from prison in South Australia, where he served the remainder of the sentence imposed by the United States Military Commission. That system is still of dubious legality and incoming president, Barack Obama, has announced plans to replace it as part of his commitment to shutting Guantanamo Bay.

The twelve month “gag order” imposed on Hicks was never an enforceable restraint on him speaking out and yet, despite frenzied indignation that he may seek to profit by telling his story, Hicks chose to maintain his silence. His behaviour was that of a man keen to oblige the authorities and eager to resume a normal life.

That appears to still be his abiding wish. In his brief statement direct to camera and available through the website of the community advocacy organisation, GetUp!, Hicks made it clear he was only raising his head up over the parapet in order to plead for the removal of the remaining restrictions which prevent him from rebuilding his life.

The Commonwealth control order imposed on Hicks for the last year was due to expire in late December. The current order restricts Hicks’s freedom to leave his house at various times of the day or use the telephone or internet. He is also required to report to police at a local station several times a week. These conditions are certainly nowhere near as harsh as those available under Division 104 of the Criminal Code for control orders but it is not hard to imagine their disruptive effect.

The AFP was quick to announce yesterday afternoon that it will not be seeking the consent of the Commonwealth attorney-general for an application for a new control order to be issued by a federal court. That may always have been the case, but if not, then Hicks’s strategy of pre-emptively raising the issue was a smart move.

Even so, his speaking out should serve to remind Australians that we live in a country where it is possible to substantially deprive people of liberties they take for granted even when no new, or even any, criminal offence has been committed.

Australia’s use of control orders has always been at odds with what occurs in the United Kingdom. There, control orders are only used for persons the authorities do not feel they have sufficient evidence to prosecute. A big factor in this is that British courts – unlike their Australian counterparts – do not admit evidence of intercepted telecommunications in criminal trials. Without recourse to such evidence, putting terror suspects through the traditional criminal justice system is occasionally impossible and orders are issued as a solution.

That is certainly not uncontroversial, but at least the British judiciary have been able to ameliorate the worst excesses of the orders to some extent through application of the principles underlying the guarantees of the European Charter of Human Rights.

In Australia, where no similar evidential impediment to a prosecution exists, control orders have found an unexpected use as post-trial measures to retain control over individuals now free. Melbourne’s Jack Thomas, for example, was slapped with a control order after his conviction on terrorism crimes was first quashed on appeal. Similarly Hicks was made the subject of an order once he became, at least technically, a “free man” again.

Control orders remain an extraordinary addition to Australia’s legal system. But as the GetUp! campaign reminds us, they are far from being alone. In the last few years, the federal government introduced all sorts of novel laws which strengthen the powers of the state against individuals. Among these are the powers of extended pre-charge detention that led to Mohamed Haneef’s ordeal in a Queensland prison last year, which is a main focus of the Clarke Inquiry into that affair. But there are also the new laws of sedition, preventative detention orders and crimes of association.

Many of these measures were of dubious necessity when introduced. The impending expiry of Australia’s last control order – of which only two were ever issued – is demonstrative of why they are not needed in Australia’s security environment. Laws as unusual and invasive of individual liberties as these should not be left sitting on the statute books. When extraordinary measures are not needed they should not be allowed to normalise but instead repealed.

Several parliamentary and independent inquiries have already reported on the many flaws and dangers inherent in the larger body of anti-terrorism laws and made constructive recommendations for their improvement. With the Clarke Inquiry report now having been delivered to the attorney-general, the time has come for the new federal government to get on with the business of fixing our national security laws. •

The post Unusual and invasive appeared first on Inside Story.

ON 7 OCTOBER 2008, the US District Court for the District of Columbia made history. In Kiyemba v Bush, the Court ordered the release of seventeen Chinese Muslims, or Uighurs, from Guantanamo Bay into the United States. For the detainees still held at Guantanamo Bay – around 250 men, at last count – this case provides a glimmer of hope that the US courts may order their release as well.

The Uighurs, from the Xinjiang Province in the Peoples’ Republic of China, had been detained in Guantanamo Bay since they were arrested in Afghanistan and Pakistan in 2001. Their detention was controversial from the start. They claimed to have been caught up in the conflict in Afghanistan by mistake, after fleeing from Chinese oppression – a claim backed up by human rights organisations. They reported that China was conducting a “crushing campaign of religious repression” against Uighurs in the aftermath of the September 11 bombings, ranging from vetting imams and closing mosques to forcing women to have abortions, taking away land and detaining and executing thousands of people every year.

The US government rejected the claims made by the Uighur men. Classified as “enemy combatants,” they were detained at Guantanamo Bay. The government’s logic was that (a) they were affiliated with the East Turkestan Islamic Movement, or ETIM, (b) ETIM was associated with Al Qa’ida and the Taliban; and, (c) ETIM is engaged in hostilities against the United States and its coalition partners.

Earlier this year, in Parhat v Gates, the Court of Appeals for the District of Columbia heard a challenge by one Uighur man to his classification as an enemy combatant. The Court held that because there was insufficient evidence for this classification it was invalid. In a decision strongly critical of the US government, the Court said: “Lewis Carroll notwithstanding, the fact the government has ‘said it thrice’ does not make an allegation true.” The Court ordered that the men be released, transferred or re-classified.

The government accepted the decision and the other detained Uighur men were also cleared for release or transfer from Guantanamo Bay. But by October they were still at Guantanamo Bay. Why? The answer, according to the government, was simple – there was nowhere for them to go.

For humanitarian reasons, the Uighur men could not be returned to their home country. According to Amnesty International, Uighurs suspected of “separatist” or “terrorist” activities would be at risk of gross human rights violations if they were returned to China – with the likelihood of unfair trials and torture and the possibility of execution. And no other country would accept the Uighur men, fearing possible repercussions from China. Even the United States, which arguably had a moral (if not a legal) responsibility to repatriate the men, refused to take them. The government said that the men were “dangerous” because they had received firearms training in Afghanistan.

This is where Kiyemba v Bush came in. The case revolved around the respective powers of the political and judicial branches of government. The Uighur men sought an order from the Court that they be released from Guantanamo Bay and allowed to enter the United States. The US government responded that it is for the political branch of government alone to decide who is allowed into the United States.

The Court accepted that immigration decisions should usually be made by the political branch. But it said the circumstances of the case before it were “exceptional.” The Court noted that the US Court of Appeals had held, and the government accepted, that the men are not enemy combatants, yet the men were being held in indefinite detention in Guantanamo Bay in clear violation of the United States Constitution. The men had not gone voluntarily to Guantanamo Bay (as had been the case in previous cases before the US courts) – they were forcibly taken there by US authorities on what has since turned out to be a false basis. On the basis that “separation-of-powers concerns do not trump the very principle upon which [the United States] was founded, the inalienable right to liberty,” the Court ordered the release of the seventeen men.

You would be forgiven for thinking that this is the end of the story. But almost a month after the decision was handed down, the Uighur men are still in detention at Guantanamo Bay. The orders of the District Court have been stayed pending an appeal by the US government to the Court of Appeals, which is due to be heard on 24 November 2008.

Ultimately, the question of how to deal with the remaining Guantanamo Bay detainees will be one for the new US president, Barack Obama, rather than the US courts. By the time a decision is handed down on the appeal, Obama will have taken his place in the White House. Obama is committed to shutting down Guantanamo Bay and trying the detainees in the United States, although no announcement has yet been made as to when or how this will occur. This delay is not surprising given the quagmire of legal and political issues that Obama’s commitment raises. Not least of these issues is the problem of what to do with people who are acquitted of terrorism-related offences by the US courts or are released after serving a sentence of imprisonment. Many of them, like the Uighurs, will simply have nowhere else to go.

THE DISTRICT COURT’S decision in Kiyemba v Bush marks the latest stage in a struggle between the US government and the courts for control of the Guantanamo Bay detainees – in particular, over whether detainees are entitled to seek a writ of “habeas corpus” in the courts. Literally, habeas corpus means “to deliver the body”; its legal effect is to allow a person to challenge the lawfulness of their detention before the courts.

In a 2004 case, Rasul v Bush, the Supreme Court overturned the prevailing view that the detainees were stuck in a legal black hole when it found that the federal habeas corpus legislation allowed detainees to challenge their detention. In response, the government steered through Congress legislation that purported to foreclose debate on the lawfulness of detention in Guantanamo Bay.

The Detainee Treatment Act 2005 removed the right to habeas corpus for any enemy combatant held in United States custody. In place of habeas corpus, detainees were granted a limited right to challenge their classification as enemy combatants by the Combatant Status Review Tribunal in the Court of Appeals for the District of Columbia. It is this limited right that was exercised in Parhat v Gates. Because the Detainee Treatment Act applied retrospectively, proceedings that had already been filed by the detained Uighurs for writs of habeas corpus were effectively dismissed.

So what changed between 2005 and 2008 to make the District Court’s decision in Kiyemba v Bush possible?

In June 2008, the United States Supreme Court handed down its decision in Boumediene v Bush. The Court found that – contrary to the Detainee Treatment Act – detainees at Guantanamo Bay do have a constitutional right to seek writs of habeas corpus. The Constitution applies to detainees in Guantanamo Bay because the United States exercises exclusive jurisdiction and control over this area. The US government cannot simply “switch the Constitution on or off at will.” The Court found that the limited right to review under the Detainee Treatment Act is not an adequate substitute for a writ of habeas corpus, in particular, because it does not allow for the release of a detainee. The provisions of the Act eliminating the right to habeas corpus for Guantanamo Bay detainees were therefore unconstitutional.

The decision was a courageous one. The Court recognised the rights of individuals to a fair hearing before the United States courts, and opened the door to further debate about the lawfulness of detention at Guantanamo Bay and the military commission regime.

KIYEMBA v BUSH vividly demonstrates the possibilities raised by the Supreme Court’s decision in Boumediene v Bush. But the Supreme Court’s decision is not only significant for those still detained in Guantanamo Bay and seeking release. It also raises the possibility of another chapter in the story of David Hicks, the only Australian to be tried and found guilty under the United States military commission system. The case opens a door for Hicks to challenge the lawfulness of his detention and trial.

After more than five years in detention at Guantanamo Bay, Hicks pleaded guilty to a charge of providing material support for terrorism in March 2007. He was sentenced to seven years imprisonment. All but nine months of this was suspended.

The United States military commission system has been the subject of intense criticism since its establishment by executive order in 2001. The original system was struck down by the Supreme Court in June 2006 as being inconsistent with the basic requirements of a fair trial in the Geneva Conventions. The “reformed’ system under which Hicks was tried contains many of the same failings – limited opportunities for detainees to find and present evidence, an absence of legal representation, the exclusion of detainees from certain evidence and the admissibility of hearsay evidence.

The Supreme Court’s decision in Boumediene v Bush does not make any specific findings about the lawfulness of the military commission system. For this reason, the chief prosecutor of the military commissions, Colonel Larry Morris, attempted to downplay the practical significance of the decision for Hicks. In June this year, Colonel Morris stated that “even those most sympathetic to [Hicks] and most critical of [the military commission system]” would have a “hard time” making the case that this system was unlawful.

It is certainly too early to say what conclusion a United States court might reach about the lawfulness of the military commission system. But the District Court’s decision in Kiyemba v Bush shows that challenges to the lawfulness of detention in Guantanamo Bay (and, by analogy, challenges to the lawfulness of the military commission system) are not simply a pipe-dream.

There are even some indications in the Supreme Court’s decision in Boumediene v Bush that it would be willing to entertain a challenge to the military commission system. The Court there expressed concerns about the deficiencies of the system, including the “closed and accusatorial” nature of the hearing process, which creates a “considerable risk of error in the tribunal’s findings of fact,” and the prohibition on new, and possibly critical, evidence being introduced during the appeals process.

A successful challenge to the constitutionality of the military commission system could render Hicks’ guilty plea and conviction invalid. A guilty plea and conviction cannot be sustained if the system under which they were made is struck down. This, in turn, would raise a quagmire of legal questions about the validity of Hicks’ imprisonment in Guantanamo Bay and subsequently in Australia, the validity of the “control order” that still constrains his freedom, and whether it may be possible for him to sue the US or Australian governments for false imprisonment.

Let us be very clear – this matter does not depend upon one’s approval or otherwise of Hicks’ conduct in Afghanistan. Hicks has, among other things, admitted that he joined the Taliban and fought to ensure the end of “Western Jewish domination.” But to become entangled in a debate over Hicks’ status as hero or villain is to sidestep the real question about the legitimacy of the detention and trial of Hicks and the other Guantanamo Bay detainees. It is not enough to simply say, as the attorney general, Phillip Ruddock, did in 2006: “I mean, the fact is that what we’re talking about is a response to some of the most dastardly acts that we have ever seen.”

Even the worst criminals have the right to a fair trial and to a determination by the courts, rather than the executive, that a particular trial process satisfies that right. This is what it means to live under the rule of law. •

The post Nowhere to go appeared first on Inside Story.

THE TROUBLE STARTED in September 1997, a few weeks into Julia Elliot’s trial for killing and dismembering her ex-lover. She sacked her defence lawyer and hired a new one, who started claiming that the government had breached Elliot’s rights under Canada’s Charter of Rights and Freedoms. An initial complaint that the police had failed to disclose mysterious phone calls made to the victim’s house before his death quickly morphed into broader allegations of a cover-up. When the police’s case manager confessed to perverting justice in an unrelated case, the defence began to pursue a fully fledged conspiracy.

Justice Paul Cosgrove, an ex-Trudeau government minister and political appointee to the Ontario judiciary, later admitted that he was completely unprepared for these events. He not only allowed the defence to pursue its claims but openly fanned the flames, issuing hundreds of extraordinary orders to facilitate the inquiry. Elliot’s trial, which was meant to be over by the end of the year, sailed past one Christmas, and then another, and nearly a third, without any findings being made about her murder charge. The 150 Charter breaches Cosgrove ultimately found related not only to the investigative and prosecutorial process, but also to Ontario’s immigration system, funding for forensic sciences and halfway houses, and even the relationship between the government and telco Bell Canada.

Four years later, Ontario’s appeal court, observing that Canada’s rights Charter “has introduced additional complexity into our system,” found that nearly every decision Cosgrove made was wrong.

AUSTRALIANS will be hearing a lot of stories like these in the next six months. The federal government has promised a community consultation about how best to promote human rights in Australia. Similar consultations in the Australian Capital Territory and Victoria led quite quickly to the passage of landmark statutes, including the latter’s Charter of Human Rights and Responsibilities. A lot of the tales the anti-Charter squad will bandy about in response to the federal consultation will be either exaggerations or outright false. The Cosgrove case, alas, is neither.

But Canada’s Charter is very different from Victoria’s. The Canadian document is part of its 1982 Constitution, the product of prime minister Pierre Trudeau’s career-long ambition, televised deliberations of an expert committee, tortured negotiations with ten provinces and decisions by both the imperial parliament and Canada’s Supreme Court. By contrast, Victoria’s Charter is just a simple act of its local parliament, largely based on a relatively short report by a four-person committee comprising an academic, an ex-politician, a disability advocate and a basketballer. The law most resembles a forgotten piece of Canadian history, its Bill of Rights Act 1960, an ordinary statute that is now regarded as a misfire. By that reckoning, Victorian misadventures akin to Cosgrove’s are some thirty-five years in the future.

The ordinariness of Australian charters of rights (proposed and actual) is their political raison d’être. Australian parliamentarians would simply never enact a statute that would limit their capacity to pass whatever laws they want. Moreover, other powerful branches of the government, like the executive and the police, would never accept a broad human rights law without the promise that any problems the document causes for them can be fixed by a further statute. The Charter’s legal weakness has put its opponent on the back foot. They’re forced into Trojan horse arguments, such as the claim that Australia will follow Canada down the constitutional path (despite the many legal and political barriers to such a step in Australia) or that the courts will usurp parliament’s power on their own (as if other statutes and the judge-made common law don’t already provide the same opportunities for such treason).

But where does all this ordinariness leave Charter supporters? Nervous. Like Pierre Trudeau, Rob Hulls conceived of his Charter as the state attorney-general. Trudeau, though, achieved his goal a decade later as Canada’s most successful leader and sold his Charter as a transformation of his nation. Hulls, by contrast, shepherded in his Charter alongside twenty-four other law reforms packaged into a five-year plan for modernising Victoria’s justice system. His second-reading speech to parliament described the Charter as a “powerful tool” for “assessing” human rights and “educating” people about them. The state opposition voted against the statute as a pointless extravagance and added it to their list of matters to use to hassle the government. It’s doubtful that most Victorians even know that the Charter exists.

When Hull was questioned about the financial costs of the Charter (one of the opposition’s key criticisms) at an estimates hearing this June, he remarked: “I am somebody who is pretty passionate about the human rights charter and I want it to become a permanent part of the legal landscape in this state; I do not want it to become a political football. I hope that whoever is in power over the next ten years in Victoria will ensure that the human rights charter remains in this state.” The flipside of Hull’s “hope” is a chilling fear: that Victoria’s Charter, the first human rights document to be enacted by an Australian state, may also be the first to be repealed. Legally, all that would be required is another simple act of parliament.

Politically, repeal is much harder. Recent reforms to the Victoria’s voting system ensure that neither party will ever again control the upper house, where the Greens and minor parties presently hold the balance of power. As Hulls observed, the Charter will only come under threat if it becomes a political football – in other words, if something jolts the public from its present mood of indifference and ignorance.

ELLIOT’S AND COSGROVE’S trial began with Julia Elliot’s arrest on 25 August 1995. A week earlier, two men fishing the Rideau River near Ottawa found a pair of human thighs. Police divers soon located the lower legs, feet, arms, hands and head of 64-year-old Larry Foster. The retired auto-mechanic had met Elliot on a holiday in Barbados two years earlier, but the pair soon fell out over a debt. That August, she happened to be back in Canada for a short holiday visiting another man. Witnesses linked her to Foster’s apartment and a bridge near the river; in each instance she was driving a car containing what appeared to be a rolled-up carpet and many of Foster’s belongings. Foster’s and Elliott’s DNA was found on various items respectively linked to her or the crime. In her sole admissible statement to the police, she blamed her new lover for Foster’s death. Justice Cosgrove, citing Elliott’s lack of roots in Canada, refused her application for bail.

The trial concluded on the fourth anniversary of her arrest, when she made her third request for a permanent stay due to state misconduct. Cosgrove granted her request, citing not only the multitude of Charter breaches he had found but also her Charter right to a speedy trial, wrecked by the two year inquiry. Fearing just such a ruling, the police ensured that an officer was at the ready to detain Elliott under a warrant relating to criminal charges she faced in Barbados. But Cosgrove, at the defence’s request, quashed that warrant without taking evidence. The Canadian authorities, frantically trying to lodge an appeal, lost track of her half an hour after she walked out of Cosgrove’s courtroom.

It was a further four years before the Crown’s appeal against the stay was decided. Elliott was represented in her absence by new lawyers, who disowned both her trial lawyer and Justice Cosgrove but nevertheless argued that the stay should remain. Their argument, that Cosgrove himself had breached her Charter right to a speedy trial by his flawed conduct of her hearing, was frostily dismissed by the Court of Appeal. Soon after it ordered a new trial, Elliott disappeared from her residence in Barbados. It was another year before Interpol tracked her down to Costa Rica. On her return to Canada, ten years after Foster’s death, she pleaded guilty to his manslaughter. The prosecutor later explained that the long delay, the reluctance of witnesses to participate in a further trial and the practice of double-counting remand years when calculating the sentence were significant factors in his decision to accept the plea.

IN VICTORIA, just about the only political football that is bigger than football itself is a dangerous person escaping on a “technicality.” Promoters of human rights charters like to speak of the rights of minorities, the disadvantaged and “ordinary citizens.” But in the two dozen or so reported Charter cases to date, there’s only been one that involves a litigant from central human rights casting: a mother of three facing eviction from public housing because her criminal ex-spouse coerced her into letting him and his pots of cannabis stay over for three days. A handful of others have ranged from the ordinary (a woman in a commercial dispute who missed her conciliation conference) to the weird (a dentist wanting to proselytise to his patients while they were in the chair).

The overwhelming majority of Charter cases to date involve people accused or convicted of crimes (although some of these had only modest goals, such as regaining their licence to drive a bus). Indeed, the first ever Charter claimant is arguably the most hated man in Victoria. Carl Williams’s failed attempt to use the Charter to obtain an adjournment for his murder trial remains the most cited precedent on the statute. Other notorious Victorians who have tried to rely on the Charter include the dozen accused allegedly linked to Benbrika’s terrorist organisation, the gun-totin’ former director of the Australian Wheat Board, Trevor Flugge, Tony Mokbel and, most recently, Derryn Hinch. This pattern is well-known overseas and reflects both the many human rights that are specific to criminal process and the heightened incentives of those involved to make a claim.

One can imagine how disappointed the human rights community were when Kelly Gray took a permanent place in history as the first Victorian to succeed in a Charter claim. The prospective Bandidos member from Echuca, charged with bashing someone with a baseball bat, faced a year on remand due to delays in the County Court list. Justice Bongiorno, a former prosecutor and antagonist of the Kennett government, ruled that this breach of Gray’s Charter right to a speedy hearing could be remedied in only one way: bail. Bongiorno’s ruling, which seems to ignore some of the legal obstacles to granting Charter remedies, would probably have been made regardless. Doubtless, the spin doctors have such arguments ready if the worst happens and a person released because of the Charter emerges as a public threat.

In fact, the Charter has already had just such a near miss, but the threat posed no risk for Victorians. Barely a month after the Charter was enacted, Victoria’s Court of Appeal mentioned it in passing while construing a recently enacted law allowing the “monitoring” of sex offenders who had served their sentence. The courts in New South Wales, where a similar law exists, initially rejected the Victorian decision simply because of the Charter reference, but later reluctantly followed it in the name of national “comity.” Paedophile Ray Cornwall, the first NSW sex offender to be released to community “supervision” under the new ruling, shed his ankle bracelet within thirty minutes. He was found in Wollongong the next day, standing near a children’s playground and watching some boys playing beach volleyball. The media frenzy missed the link to Victoria’s Charter, which was in any case more symbolic than causal. Cornwall’s release would have been even more likely if the NSW court had acted according to the view it held before it adopted Victoria’s supposedly Charter-inspired interpretation.

The Victorian government, however, has left little to chance. In late 2007, barely a fortnight before the main provisions of the Charter were due to come into operation, the government issued a surprise regulation exempting the state’s three main parole boards – who, among other things, administer the sex offenders monitoring regime – from the statute’s obligation to act compatibly with human rights. This exemption gives lie to the Charter’s singular feature: any legal “problem” it creates can be easily reversed by legislation. The flipside of this principle is that legislation, publicly debated and analysed for its human rights impact, is the only way such concerns ought to be managed.

That Hulls opted instead for a quiet executive solution a week before Christmas seems to suggest that his worry isn’t about the Charter’s actual impact, but rather how it may be perceived. The fear of a public relations problem is, it seems, enough to deny the Charter’s protections to all prospective and actual parolees (and, for that matter, victims and other stakeholders in the process). The parole boards are now seeking a further extension to their exemption and Hulls has said that he is reluctantly considering their request. In fact, the boards were unlucky. Some much more powerful Victorian institutions are the beneficiaries of a permanent exemption built into the Charter from the get-go.

LARRY FOSTER’S RELATIVES looked on with dismay as events unfolded in Cosgrove’s court. When Elliott’s trial commenced, the judge had a reputation for favouring the prosecution. Indeed, one of the defence’s first salvos at her trial was to ask him to step aside for bias. Early the next year, when the judge began to enthusiastically back the defence’s increasingly wild claims and started to find government Charter breaches in their dozens, the state side made its own, unsuccessful, application. Courts can be both heroes and villains when it comes to human rights. They are one of the most powerful and reliable protectors of people’s rights. But their everyday activities can also limit, even destroy, them.

A year into the trial, Steve, the victim’s son, confronted Elliott’s lawyer in the court’s cafeteria and a shouting match ensued. He ended up having to hire his own lawyer after Cosgrove threatened him with a charge of contempt. Contempt powers are the courts’ strongest weapon in their dealings with the outside world, providing the main means to enforce their orders. But they are also a criminal justice anomaly, where judges act as prosecutor, jury and sentencer, applying rules that are typically unwritten and whose boundaries seem to constantly shift. Those sorts of processes, which seem to embody Acton’s maxim about power and corruption, are anathema to human rights law.

Steve Foster was not alone in being threatened with contempt; several police and prosecutors also ultimately received citations. Cosgrove was also liberal in his use of subpoena powers, agreeing to defence requests to force four of Elliott’s prosecutors to testify. That immediately disqualified them from acting in the case. Fearing a widening of the conspiracy, the judge also barred those prosecutors and various police officers from communicating with their replacements. Cosgrove’s actions left the tiny prosecution office in Brockville in disarray, forcing the trial to move to Ottawa and restart with a fresh jury. When the defence voiced its concern that the loss of corporate memory might make it impossible for the Crown to comply with the very disclosure obligations at issue, Cosgrove casually assured Elliott that the prosecution’s disarray was good news for her.

Four years later, the Court of Appeal was unable to say whether Cosgrove’s mistakes “stemmed from a misunderstanding of the basic principles that govern the Charter and its application or from his bias toward the Crown or both.” This damning verdict prompted Ontario’s attorney-general to refer the matter to Canada’s Judicial Council. The council can make recommendations that parliament sack a judge for misconduct. Cosgrove responded with a challenge of his own, backed by Canada’s defence lawyers and judges’ associations, arguing that the referral system undermined judicial independence and breached his own Charter right to free speech. After a further four years, Canada’s federal court ruled that independence is not to be equated with immunity – quite the opposite – and that the right to free speech exists to protect individuals from the state, not the reverse.

VICTORIA’S CHARTER, unlike Canada’s, protects the courts from many human rights claims. Carl Williams’s landmark claim was to ask Justice Betty King to adjourn his trial to allow him to ensure that he is defended by the lawyer of his choice, a Charter right. Her response was that, even if the gangster’s argument was otherwise sound, it wouldn’t help him, because she was free to ignore his Charter rights if she wanted. Justice King and, indeed, every other judge and tribunal member in Victoria is the beneficiary of an exemption from the Charter. The exemption covers their non-administrative work – everything they do in determining someone’s civil liability, criminal guilty or legal rights – and will stymie many efforts by criminal defendants and offenders to find a toe-hold for their human rights claims.

Indeed, exemptions and gaps in the Charter have been the main story of the statute’s first full year of operation. In what ought to have been a landmark Charter proceeding, Channel Nine sought to raise the new human rights law in its bid to be allowed to show its racy docudrama, Underbelly. Nine relied on a judgment of the Supreme Court of Canada that held that courts should refrain from ineffectual or disproportionate suppression orders. With a keen eye for the future, the Canadians in 1994 referred specifically to the role of computers in distributing information, fourteen years before the internet made a mockery of the ban on Underbelly. But Nine couldn’t even get its foot in the door in Victoria in 2008 because of exemptions banning the Charter from proceedings commenced before 2007 and preventing corporations (including most of the Australian media) from making any rights arguments. When Nine tried to raise a speculative argument that the Supreme Court should comply with the Charter anyway, the attorney-general responded with a constitutional objection, in effect calling the validity of his own statute into question.

The Charter’s over-the-top transitional provision means that people sued or charged in 2006 or earlier cannot raise any Charter rights at all. In 2008, the landmark Victorian trials of Thomas Towle, Evan Goussis, Joseph Thomas and Abdul Benbrika were all run as if the Charter had never been passed. Shane Kent, whose jury hung on his alleged involvement in Benbrika’s organisation, won’t even be able to raise the Charter in his next trial slated for 2010. Perversely, Tony Mokbel, whose alleged crimes occurred in the same time period as all these others, will be the first man associated with the gangland wars to be able to claim his Charter rights, due to a delay in charging him while he was in Greece. Even those who are lucky enough to be eligible to make Charter claims in Victoria’s higher courts will first have to comply with a provision requiring them to notify the attorney-general of their claim. This mechanism, introduced to prevent courts from being swayed by poor legal arguments, makes it difficult to raise the Charter instinctively, routinely or regularly. Miserly and technical constraints such as these have combined to make 2008, the Charters bellwether year, one of the least just in Victoria’s recent history.

Even when the statute does apply, Charter arguments are currently being dodged, rather than debated. Recently, a Victorian doctor asked the Supreme Court to overturn a ban on his practice, pending the outcome of a complaint against him. He argued that the practitioners’ board limited his right to be presumed innocent, because the ban coincided with rape charges being laid against him. While there are many good answers to this argument, Justice Elizabeth Hollingworth spent much of her judgment arguing that a Charter section containing fourteen rights of criminal defendants shouldn’t apply at all outside criminal courtrooms. The major basis for her argument was the wording of the heading of that section, which was narrower than the rights listed within it. If accepted, her argument would have far-reaching implications, denying Victorians the benefits of landmark human rights judgments on innocence and self-incrimination outside of the courtroom.

A different technical knock-out faced Catholic doctors who argued that their freedom of conscience was limited by the Abortion Law Reform Bill. The Charter contains a savings provision for abortion and child destruction laws, supposedly to stop the human rights law from being politicised. It prevents the Charter from being used to interpret not only the recently passed abortion bill, but also any future law, no matter how far pro-life or pro-choice it tilts. Indeed, it would even exclude a Charter challenge against the apocryphal bill requiring that all blue-eyed babies be killed at birth. The government relied on the provision to avoid a Charter requirement that every bill be accompanied by a parliamentary statement explaining how it is compatible with human rights.

Proponents of human rights laws often say that a Charter can only add to rights, not detract from them. But this reassuring claim isn’t entirely true. Last year, the High Court, in a series of cases responding to novel police methods of prising confessions out of suspects, cited earlier Victorian legislation giving rights to criminal detainees as a reason not to adapt the unwritten common law to meet the new challenges. So, for better or for worse, the development of Australian law in response to novel threats to rights is now in the hands of written statutes like the Charter. If the fear of public disapproval continues to be the driving force behind how those statutes are devised and developed, then they may leave Australians with less rather than more protection.

TWO MONTHS AGO, Justice Paul Cosgrove apologised to the attorney-general of Ontario, to the prosecutors, police and private citizens involved in Julia Elliot’s trial, and to the Canadian public and the family of Larry Foster. Fighting for his career before Canada’s Judicial Council, he admitted that he had lost his way in a difficult trial, but also maintained that the humbling experience had made him a better judge. His counsel pointed out that some landmark court decisions on the Charter’s role in such trials had been brought down years too late for Cosgrove. Barred from deciding cases since 2004, he has worked tirelessly presiding over less glamorous mediations and administrative programmes. The Council is presently considering whether or not Cosgrove will be able to return to the bench in the final year before his mandatory retirement. Despite a line of fellow judges attesting to his good work and intentions, it is clear that his reputation will never recover.

The singular aim of human rights law is to ensure that all branches of government never lose sight of the impact of their work on individual humans. But it is important to remember that those who make and apply laws, including human rights laws, are human too. Sometimes, they are very human. Humanity is the source of the resolve and hope that led to the enactment of both Canada’s Charter and Victoria’s. But humanity can also bring hubris, in the form of blind confidence that good intentions alone will suffice and defensive bristling in the face of criticism. And it can also bring fear, a fear that has been written into Victoria’s Charter, insulating it from dangerous paths but also reducing its capacity to bring hope to others and potentially stunting its development by the courts.

The final week of October brought news of a development that might at last allow the Charter out of its shell. Justice Bongiorno has called for submissions in a major human rights challenge to “coercive questioning” laws introduced to fight Melbourne’s gangland war. The case bristles with political dangers. Attorney-general Rob Hulls could respond by raising countless technical arguments to deflect the threat or simply exercise his prerogative to ignore any judicial declarations of Charter incompatibility. Or he could step back and allow the courts, the parliament and the public to engage in the human rights dialogue that is meant to be the statute’s raison d’être. It’s a step by the Charter’s founding father that would exhibit considerable faith in Victorians, courage in the face of political risk and trust in his Charter. •

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