Peter A Clarke

I guess the name says it all.  The guest speaker was Lord Walker of Gestingthorpe, or should I say The Right Honourable Sir Robert Walker, Knight, a Lord Justice of Appeal,  appointed a Lord of Appeal in Ordinary and created Baron Walker of Gestingthorpe, of Gestingthorpe in the County of Essex, for life by Letters Patent dated 1st October 2002.  And his speech on the operation of the British Human Rights Act from a judges perspective was about as interesting.  The curse of the law is that the aridness and precision of the language leeches into our souls.  Words aren’t the means to express ideas, enchant, excite or seduce. Their purpose is to give effect to an argument.  That’s fine when it comes to practising our black arts. But for a speech, even to crusty lawyers, requires something more.  Hell, the human rights is all about drama, politics and philosophy in motion.  From time to time we got a hint of excitement but then his Lordship (as one of the questioners in the audience addressed him.  I mean C’MON!  How poncey is that.  I don’t care whether he is a Lord across the ways I refuse to address anyone in those terms – unless they are wearing a Mikado outfit) quickly returned to the arid landscape or legal erudition, 18th century style. 

I suspect his speech will do better on paper. 

The night wasn’t a bust though.  The Banco Court is a brilliant venue.  It has been spectacularly refurbished.

It has been a while since I handled a criminal law brief.  All defendant’s work.  When an offer to undertake a proseuction came along it was hard to resist, if a little terrifying. 

Police v McKeown, a prosecution under the Marine Act, was scheduled to run for 5 days.  In the end, as is often the case, there was a plea.  The report of the first day’s hearing was in the Herald Sun on 7 August, at page 12:

On 7 August 2007 the defendant was fined $5,000 and had a conviction recorded against him. 

Kafka, eat your heart out. The Federal Government has pulled one of its most outrageous abuses of the legal process. 

Haneef had to face a reverse onus in getting bail on a terrorist related charge.  He got it. Then in one of the shiftiest slight of hands the Minister for Immigration cancels his visa.  No visa, no legal basis to walk a free man, no legal basis detention.  Until when?  According to the Sydney Morning Herald he is lock up pending the hearing of his charges. 

According to the ABC site

Mr Andrews says he has used his powers under the Migration Act to cancel Haneef’s visa because he has failed the character test.

“In particular, a person fails the character test if – and I quote – ‘the person has or has had an association with someone else or with a group or organisation whom the Minister reasonably suspects has been involved has been or is involved in criminal conduct’,” he said.

Mr Andrews says Haneef will remain in immigration detention while the legal proceedings against him continue.

Such sanctimonious hum bug is stench in the nostrils of anyone who has any sense of justice and fairness.  If that isn’t an abuse of process nothing is.  Why new material was before the Minister to cancel the visa that he was aware of pre the bail application?  Even the stated reason is bogus.  What evidence is there that there was an association with a group or organisation that has been involved in terrorist activities?  The evidence seems to be that he gave a phone card to a person, not an organsiation.  Is that an association?  Please! 

Now Haneef is in immigration detention until when? Until he is deported perhaps?  No until he is brought to trial.  And that gets back to the bail application.  He is on bail……but in detention. 

I hope Haneef’s lawyers are on winged foot as they race to the Federal Court to get Andrew’s decision reviewed.

And through the looking glass we go……….. 

Waleed Aly, ex of Victorian Islamic Council, has an opinion piece in today’s Age . I have no problems with him having a red hot go at Professor Raphael Israeli whose comments about Muslims and the threats they pose is fair enough. Generalisers who go on about societal problems being explained away by this or that ethnic group are sloppy thinkers and often of fascist tendencies. The article is a bit stodgy and earnest but he doesn’t call for a ban on Israeli. He chooses to take on Israeli because “they are not as marginal as they are mad” (whatever that means) and he can’t ignore the challenge. So it is a matter of education.

How things have changed for Waleed. His earlier tendency was to go for the big ban. He of the Islamic Council of Victoria was an enthusiastic supporter of the cumbersome blunt instrument of censorship otherwise known as the Victoria’s racial vilification legislation. In an article on 21 December 2004 in online opinion (copy of articles published in the Courier Mail) titled “There is free speech, and then there is hate-inducing vilification” showed way less tendencies understanding and tolerance of alternate, even vile opinions. In his 2004 persona he gloated, after the Council had a win in the Victorian Civil and Administrative Tribunal. Have a squizz at the less liberal Aly:

Expect to read a lot of obituaries to free speech over the coming weeks.

On Friday, the Victorian Civil and Administrative Tribunal ruled (pdf file 324kb) that an evangelical Christian group and two pastors had incited hatred, ridicule and contempt for Muslims in contravention of religious vilification laws.

………..

Democracy only functions meaningfully in a well informed society. And this is only possible where competing ideas are allowed to contend in the public domain, and public debate is allowed to flourish. Without this, there is little difference between democracy and dictatorship.

• So far so good.

No doubt then, free speech is a cornerstone of any genuine democracy. But it is never, and can never be, absolute. Australia has only very limited constitutional protection of free speech, and has some of the tougher defamation laws in the common law world. We accept these restrictions because we recognise that free speech is a means to a democratic end, rather than a goal in itself. It is a wonderful servant, but a dangerous master.

• Ah the traditional, free speech can never be absolute. Natural born censors are always starting any defence of curbing free speech with that trite drivel. Frankly speech, the exchange of ideas, should be absolutely free. Or at least that should be the aim. But the censore is delighted with the status quo. Because in Australia there is plenty of controls and no revolution about it. Therefore it must be OK.

Friday’s ruling concerned more than mere disagreement between religious groups. It even went beyond the contemptuous mocking of another religious group. Though there was plenty of that, it was more serious. One defendant argued that Muslims have a plan to take over Western democracy through violence and terror, and to replace it with repressive regimes; another argued that Muslims would rape, torture and kill Christians in Australia.

• So we have a group of ratbags arguing conspiracy. Ever read the John Birch society nonsense. They’ve been doing it for nearly 50 years (and maybe longer) and yet society has not collapsed.

Of course, people have the right to advance such ridiculous arguments, and the religious vilification laws do not change that. All the legislation requires is that such arguments are put reasonably and in good faith. It does not limit the scope of debate. But there was nothing reasonable about the arguments put forth in Friday’s case. Not a scrap of proof was given for such rancid claims.

• Here is where Waleed of 2004 is just being duplicitous. On his arguement put ridiculous arguments but put them reasonably and good faith. Palleeeeease. He sets up a straw man.

Judge Higgins was stating the obvious when he said the comments in question served no genuine religious purpose or any other purpose in the public interest.

• How stupid is the law when a Judge has to trawl through religious rants. Bad policy.

This was not a serious discussion of religious beliefs. It was nothing more than pure hate speech. Can we honestly maintain that this is what free speech in Australia is about? Is this really necessary for our democracy? Does it really enhance our public debate? Surely not.

Surely it is in everyone’s interests to prevent our public conversation from being hijacked by this vitriol. After all, we’ve prevented it in the past. If such things were said of an individual, it would be undoubtedly defamatory. If said of a racial group, it would have long been illegal under racial vilification laws (just as Holocaust denial has been).

• What nonsense for Waleed to now say what is in everyone’s interest. Patronising nonsense. And because we have banned it in the past we can ban it now. Sounds like a great argument.

If anything, the idea that such statements cannot be made of religious groups is actually consistent with the traditional Australian approach to free speech. It therefore seems a little hysterical to say, as one letter in yesterday’s Herald Sun did, that “freedom of speech is now officially and legally dead… No more can pastors critique other religions”.

Surely we can tell the difference between a sincere critique of another faith, and a baseless assertion that Muslims will embark on a spree of rape, torture and killing of Australians.

• The problem is always putting a judge, politician or censor to determine the differences, to draw the line.

This case illustrates how religious debate in Victoria should proceed. By all means, let us engage in passionate, robust debate. But let us do so reasonably and sincerely so that our speech can create a well-informed society that is so vital to democracy. If instead we allow misleading, hate-inducing vilification to masquerade as debate, we are actually undermining the very democracy that is so dear to all of us.

• The opening line is a classic. Having VCAT finding against a fringe church group with possible sanctions is an illustration of how religous debate should proceed. Crypto fascist nonsense.

But perhaps Waleed has lost his enthusiasm for having the court system telling what is reasonable and not with the Court of Appeals decision in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284

Massachusetts health officials have decided to publicize the patient death rates for individual heart surgeons, the first time the state will release information on the quality of care provided by individual doctors –not just by hospitals and physicians’ groups .  About time. 

Remember, remember the fifth of the November

Gunpowder, treason and plot.

I see no reason why gunpowder treason

Should ever be forgot.

On midnight tonight 401 years ago the soldiers of the King of England caught Guy Fawkes about to set an eight hour fuse in a cellar under Westminster Abbey.  The Catholic plotters, wild eyed recusants, wanted to blow up King James 1, the parliament and virtually the entire elite of Protestant England on the morning Parliament was due to open.  The plotters were incompetent and comic. 

Those conspirators that weren’t killed in the immediate aftermath of the plot were tortured to extract confessions, tried for treason, found guilty and dragged on sleds to Old Palace Yard where they were hanged, drawn and quartered.  Their heads were stuck on pikes around the Tower. 

James 1 of England was a hideous and duplicitous king.  He ratted out the Catholics of England and played every end into the middle.  His departure, via an explosion (or any other way) shouldn’t have worried anyone interested in good government.  The act of destroying a government was an act of terrorism so can never be forgiven.  What really is amazing out of this is how James dined out on this event for the rest of his forgettable reign and used it to torment the Catholics of England.  It was spinning writ large. 

Aisinh Azmi (pictured right), a teacher in the UK, has lost her claim of religious discrimination against her employer, the Headfield Church of England Junior School at Dewsbury, West Yorks. The Tribunal dismissed her claim of religious discrimination and harrasment but found for her on a claim of victimising her.

The school said pupils found it difficult to understand her during class. The amazing thing is that it had to moniter the situation to see whether that was the case. Try talking through mauslin and see for yourself. Of course there is a problem. What student doesn’t want to see his or her teacher.

What is amazing about this case is the hard line approach of the Labor minister who demanded she be sacked saying she was Headfield Church of England Junior School.”

Yesterday French Senate has passed a law making it illegal to deny the Armenian Genocide. The events described as the Genocide revolved around the Turkish army’s actions against the Armenian population from 1915 onwards. I personally think the series of events from that time on during the First World War was genocide but not in the sense of the Nazis in the next war.

As usual with these feel good resolutions making a viewpoint illegal, however noxious, does nothing to stop the views existing and being expressed. From time to time the State does wear down the proponents of hate speech. David Irving, after years of litigation and prosecution, seems to have finally waved the white flag. But will that mean the holocaust deniers will give up. Of course not. It comes down to the hard yards of engaging in the debate wherever and whenever it appears.

In Australia there remains supporters of the “when in doubt” repress free speech with the nonsense of Phillip Ruddock’s ban on books and Pru Goward’s call for sexual vilification laws.

It seems some centrelink staffers have copper instincts when it comes to databases – have a sneak peak and see whose doing what.  Seven hundred and ninety breaches involving, in one way or another, 585 employees over a 2 year period smacks of a cultural problem.  It is an outrageous breach of privacy and Centrelink seems to have done something about it according to today’s Age.  Sacking, demoting, fining and reprimanding workers who access a persons record without authorisation is a good start. But why isn’t it a criminal offence. Surely it is criminal behaviour.  The real problem with privacy protection in Australia is that those in breach, especially at the commonwealth level, rarely find themselves in the legal gun.  The Privacy Commissioner is a toothless tiger and government departments would rather keep any punishment at an administrative level. Information is power and sooner or later someone is going to again be tempted to trip over to a keyboard and tap away.  No smart operator wants to leave open the option for him/her or one of their colleagues doing a stretch for a moment of weakness or opportunism.  It is a terrible weakness in our privacy protections. 

In another brilliant career move the Clarke strikes fear into the hearts of the Visiting officers Association:

 Download the VMO case