Do we need proof of the unfair bias in our laws when an indigenous Australian can be jailed for the theft of a Mars Bar and his employer can’t be charged fo underpaying him? (ODT)
“The Fair Work Act contains very hefty civil penalties for wage underpayments. The penalties were increased by up to 20 times last year,” he said. “Therefore, any view that the previous penalties were not tough enough has already been very comprehensively addressed.
“Any civil case relating to back-pay would be put on hold by the Courts until the criminal case is heard and determined. Therefore, workers would be waiting years for back-pay.”
Victorian Attorney-General Jill Hennessy said the existing legal regime has failed to prevent underpayment of workers in low paid industries such as hospitality.
“The new laws will be drafted carefully to address any potential constitutional inconsistency issues,” he said.
The big question of climate change is no longer why it’s happening (humans have a wild fossil-fuel-burning habit) nor when it’s going to happen (it is happening). These days, it’s how are we going to build a civilization that can survive climate change—and how can we adapt in a way that doesn’t leave out whole segments of the population.
Over the last few years, the small island state has insisted on controlling the journalistic pool. A conspicuous target here has been the ABC itself, which was banned from entering the country to cover the Pacific Islands Forum in September. In a government statement posted in July, “It should be noted that no representative from the Australian Broadcasting Corporation will be granted a visa to enter Nauru under any circumstances.”
Elevated to the levels of high secrecy under the term Operation Sovereign Borders, “operational details” in dealing with boat arrivals, as they are termed, have been a matter of clandestine value. The degrees of control have also extended to covering camp conditions, a matter policed by such brutish little laws such as the Australian Border Force Act 2015 (Cth). Under that bit of legislative nastiness, those who obtain “protected information” in the course of their employment in the border force apparatus can be punished for two years for disclosing such information except to authorised personnel.
Prior to the passage of the ABFA, the Australian government made it its business to hound a number of Save the Children employees working in the Nauru Regional Processing centre. Their sin had been to disclose information on the lamentable conditions in the centre.
The levels of media management regarding reporting on the conditions in Nauru has been extreme. Amnesty International has called this a veritable “wall of secrecy”, designed to conceal “a system of deliberate abuse”. The Nauru government has periodically limited access by journalists to the island, a process made craftier by the hefty visa application fee. In 2014, the non-refundable fee of $200 jumped to $8000.
Greg Sheridan of News Corp argued on Q&A that Israel was “highly capable” of investigating itself in any investigation of the massacre of unarmed protesters in Gaza (ODT)
The court’s rejection of a lawsuit challenging the shooting of protesters in Gaza is a reminder that the Israeli legal system simply isn’t set up to investigate the policy makers and policies that result in alleged war crimes.
Other motions to be debated at state council include:
Calls for the Commonwealth Sex Discrimination Act to re-insert “man” and “woman” in the place of “sexual orientation” and “gender identity”. The aim is that a person will define their gender as either male or female, according to their biological and reproductive function.
Calls to ban the Safe Schools program from Victorian schools and any other curriculum teaching a person’s gender may be different from their biological sex or that people can transition.
- Media organisations and unions say they cannot support bill unless exemptions made for journalists
- Claim existing security laws already undermine media’s role in informing Australians
- Brandis described announcement as most significant overhaul of espionage laws in decades
Use of word “Zionist” could be deemed criminal in some circumstances.
By Michael Bradley
In the aftermath of the Lindt Café siege, local Sydney businesses were sweating on whether the event would be deemed a “terrorism event” by the Federal Government, because of the implications for their lost business insurance coverage.
Outside that legal nicety, the Prime Minister and his supporters in the media were keen to label Man Haron Monis a terrorist.
In Paris, the massacre at Charlie Hebdo and the related siege at a kosher delicatessen were more obviously politically motivated acts of terror, meeting the classical definition of terrorism and appropriately given that label.
There is general agreement that we are entering a period where attacks of this kind will be more frequent, more random and more distributed. They have a general source, a streak of radical Islamic ideology that may not have any legitimacy and that is anyway clearly disavowed by almost all Muslims, but which nevertheless exists and is causing a lot of trouble.
This is a significant shift from the post 9/11 decade, when we expected and defended against large-scale terrorist attacks such as those in Bali, Madrid and London. For those of us who remember, it is strongly reminiscent of a much earlier time, when “terrorism” first entered the consciousness of modern Western society.
This was the 1970s.
For a large part of that decade, well-organised, ideologically driven and utterly ruthless terrorist groups held the West in horrified thrall as they bombed and shot up airports and pubs, kidnapped and murdered politicians, hijacked planes and cruise ships and, most famously, turned the 1972 Olympics into a bloodbath.
They acted in large groups with clear political aims like the PLO, ETA and IRA, and in small terror cells with more anarchic goals such as the Red Brigades and Baader Meinhof Gang. What they had in common was a commitment to using extreme violence as a means to achieving their various ends.
It was a terrifying time. The existential fear was that Western society was coming apart at the seams. However, the moment passed, the terrorist activity quieted and ultimately almost disappeared (for a while), and yet none of the terrorist groups had attained their goals.
So, practically, there’s nothing new about this. We’ve seen wide-scale terrorism before. And it will not succeed, any more than it did at any other time, simply because too few of us want to kill and most of those who do will tire of it or die violently themselves. Shooting people has never been a very effective way of getting them to agree with you.
But something is different this time around. What we now have, which we didn’t in the 1970s, is a structure of executive government built around terrorism that stands outside the criminal law. Its perceived legitimacy is a problem for all of us.
In the 1970s, Western governments treated and responded to the actions of the various terrorist groups as crimes. They did enlist the support of the military at times, and sensibly so, but when a group of men turned up at an airport and started shooting (as happened at Athens and Rome Airports in 1973), they were considered primarily to be the murderers of innocent civilians. In dealing with such events, often extra-judicial and military responses were deemed appropriate (for example, in 1976 when PFLP terrorists hijacked a plane and landed it at Entebbe Airport in Uganda, the Israel Defence Forces carried out the response and killed all the hijackers), which was not inconsistent with an approach grounded in criminal law enforcement. Sometimes hostage takers have to be shot, not as punishment but as the least-worst option.
In some of the most directly affected countries at the time, such as the UK and Italy, the first terrorism-specific laws were enacted, allowing for organisations to be proscribed as illegal and the exercise of extreme powers such as detention without trial. Their justification was expressed to be the same as that for wartime measures – that the IRA, for example, presented an existential threat to society. They were designed to be temporary, as an emergency expedient.
It can be argued that they were unnecessary and that a better approach would have been to extend the criminal law’s reach to give police and the courts sufficient power to attack and degrade the terror groups that were, after all, criminal conspiracies. It may be that the IRA, for example, had a political end goal, but its violent acts within the UK were crimes pure and simple.
The terrorism laws started the shift in focus from the act to the actor. But wanting independence for Northern Ireland could never properly have been a crime.
The temporary laws stayed on the books and languished until 9/11. Since then, “terrorism” has become its own classification. Not just for insurance purposes, but for whole rafts of special laws enacted to protect us from terror. Dozens of terrorism-specific laws were passed after 9/11, and we are in the middle of a new wave of such laws now, with several passed in Australia last year and more on the way. The justification for all of them is that terrorist acts require a response that the criminal law cannot provide.
Since 2001, we have heard much about the “war on terror”, as if you can wage war against a concept (you can’t). The language and usages of war are ill-adapted to terrorism, because war is a battlefield construct. Hence the knots the US and its allies tied themselves into in Afghanistan and Iraq, trying to have it both ways by treating their opponents as soldiers when it suited (while shooting at them) but not when it didn’t (prisoners of war can’t be tortured and have to be sent home when the fighting is over, not held captive in Guantanamo Bay forever).
Somewhere between the bright lines of war and criminal law, the shadowy concept of “terrorism” has now taken root. To combat it, our personal rights and freedoms all become commodities that can be traded for security. The trading calls are to be made not by us but by our governments, empowered mostly by laws we’ve allowed them to pass (but sometimes illegally, for example the US National Security Agency’s unlawful wiretapping of US citizens between 2001 and 2007).
We can be detained without charge, made subject to protection and suppression orders without explanation, prevented from travelling to certain places, arrested on our return, jailed for talking publicly about intelligence operations or saying supportive things about causes deemed to be those of terrorists, and our metadata can be accessed without a warrant. Soon it will all be kept for two years, by law.
All of this only exists because “terrorism” exists. We’re told that this entire monolithic structure of laws, agencies, powers and secrecy is absolutely necessary to protect us from the terrorists. But we’ve been through this before and, in the absence of this engulfing anti-terror structure, we survived. What could have stopped Man Haron Monis? And what difference stems from calling him just what he was: a disturbed man who committed a horrific crime?
Why, in the end, do we need a response to him that differs in any way from that which we level against a man who shoots up a shopping centre over an imagined grievance, or a man who kills his own family because he can’t cope with life?
Where the violence is more organised, the criminal law can respond. The US racketeering laws are an example of how institutional criminality can be attacked in an unconventional way, without resort to calling the concrete acts anything other than what they are: crimes.
The distinction between the act and its motivation can then be maintained. To be clear: desiring that there be an Islamic caliphate in the Middle East is not illegal, nor should it be. Killing people to achieve it is a crime. Adding the word “terror” only confuses the end with the means.
Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profile here.
The light of human rights is fading in Australia
Never has an Australian government talked so much about freedom while doing so much to undermine it.When it comes to national security and refugees we are increasingly pathetic, writes Ben Saul.
.The Government’s stocks are rising as it takes advantage of public anxiety about terrorism to ram through new laws. To be sure, the Islamic State in Iraq and Syria needs to be combated to protect civilians there. But the threat in Australia is modest and the Government is overcooking it.
Terrorism here is not an existential threat. Nazism, imperial Japan, and nuclear holocaust in the Cold War were existential threats. Terrorism in Australia is a minor irritation. Your own furniture is more likely to kill you.
When our Prime Minister subordinates the magical diversity of what it means to be Australian to some absurdly jingoistic, reductive view of national identity, it is no surprise that others take it further: from hateful graffiti, to calls to halt Muslim immigration or ban the burqa, to Islamophobic attacks on Australian women wearing headscarves.
The new laws also go too far. They criminalise innocent travel to places the Foreign Minister does not want you to go. They criminalise free speech. They criminalise whistleblowers and the media that report them. They allow mass surveillance of innocent Australians on the internet. They deny procedural fairness. They violate the right to social security and therefore potentially leave people destitute.
All of this comes without the binding human rights safeguards that every other self-respecting democracy imposes on its security agencies.
The bill also erases references in our law to the Refugee Convention. The Immigration Minister spat the dummy on international law, saying: “This parliament should decide what our obligations are under these conventions – not those who seek to direct us otherwise from places outside this country”, such as foreign courts or the United Nations. The Minister assured us that Australia would comply with its international obligations – which is presumably not difficult if international law is now simply whatever the Government says it is.
The rest of the miserable story of Australian refugee policy is well known. Protracted and even indefinite, illegal detention. Cruel, inhuman and degrading detention conditions, where refugees suicide, are beaten to death, or die from treatable infections. Detention factories that manufacture mental illness. Naval interceptions and offshore processing based on grand lies about queue jumping, people smuggling, and saving lives at sea. Shifting our burden onto and bribing poor neighbours like Papua New Guinea. Coddling dictators in Cambodia and war criminals and torturers in Sri Lanka. Undermining constitutionalism in Nauru. Our system punishes refugees and tries to stop them coming at whatever the human cost.
Australia receives a few thousand boat people and our politicians – on both sides – some of our media, and many Australians go into meltdown. We have no sense of proportion or perspective, like a child that cannot control itself. Stinginess, selfishness, paranoia, and racism have become defining characteristics of our nation. We are increasingly pathetic.
The major parties are in lock-step on many of these abuses, whether on refugees or terrorism. Many Australian politicians are either hostile towards human rights or indifferent. They prefer to govern by marginal seat focus groups than to show courage or leadership.
Some of the great light of human rights is fading in Australia. It is a cause of sorrow, and shame, that our institutions are incapable of arresting it. Our country has become, in the words of our bush poet Randolph Stow, “a desert of broken quartz”, wracked by the crow.