Showing posts with label free speech. Show all posts
Showing posts with label free speech. Show all posts

Friday, 20 April 2018

A measure of justice for an Australian tweeter

The win won’t eradicate the sustained personal stress or financial difficulties that such an unfair dismissal imposed – still it was pleasing see this tweeter's actions recognised as the right to freedom of political expression.

Hopefully Comcare will not be so bloody minded as to appeal the judgement,

The Sydney MorningHerald, 18 April 2018:

A  former Immigration official sacked over tweets critical of Australia's asylum seeker policy has won a fight for compensation, after an appeals tribunal found her dismissal was unlawful and described government efforts to restrict anonymous comments from its employees as Orwellian.

The decision on Monday will redirect scrutiny to the Immigration Department's dismissal of Michaela Banerji for tweeting criticisms of detention policies, and challenges Australian Public Service rules stopping public servants from expressing their political views on social media.

Ms Banerji took the government to the Administrative Appeals Tribunal after federal workplace insurer Comcare refused to compensate her for the psychological condition that developed after she was sacked in 2013 over tweets from a pseudonymous Twitter account.

The tribunal overturned Comcare's decision and found she suffered depression and anxiety that could be classed an injury under federal compensation laws.

Ms Banerji was working in the Immigration Department when co-workers learnt she was behind the tweets railing against the government's treatment of asylum seekers.

She lost a high-profile attempt to stop her dismissal in the Federal Circuit Court in 2013, a decision seen as likely to curtail other bureaucrats' use of social media when judge Warwick Neville found Australians had no "unfettered implied right (or freedom) of political expression".

In a case that Ms Banerji's lawyer Allan Anforth from Canberra Chambers said could have implications for other public and private sector employees, the AAT said Comcare's refusal was based on a dismissal that was unlawful because it intruded on her right to free political expression.

Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not disclose confidential departmental information, but an internal investigation in 2012 found she had breached the code of conduct for government employees.

In a submission to the tribunal, Mr Anforth said the tweets were posted from her own phone and, in most cases, outside work hours.

The appeals tribunal found the Immigration Department itself had identified Ms Banerji after she posted anonymously, and said guidelines stopping public servants from publicly criticising the government should not be applied to anonymous comments.

"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," it said.

"Such conclusions might conceivably be open if the comments were explicitly attributed to, say, an unnamed public servant, but that hypothetical situation does not apply to Ms Banerji."

The tribunal found Ms Banerji appeared to have taken care not to have used information which could only have been in her possession as an Immigration employee.

It lashed the government decision to sack her, saying it "impermissibly trespassed upon her implied freedom of political communication", and "with a law only weakly and imperfectly serving a legitimate public interest".

"The burden of the code on Ms Banerji’s freedom was indeed heavy – the exercise of the freedom cost her her employment.

"In our opinion, there is no significant justification available to the employer here for the law which exacted that cost."

Comcare is considering the tribunal's decision. The findings could be appealed in the full Federal Court…..

Thursday, 1 March 2018

No need to worry about the possibility that a Liberal-Nationals Federal Government will impose censorship on the free press in Australia

The time to fret over the possibility of government censorship of the media is over because in February 2018 it ceased being a distant possibility and became fact.

This is what the Australian Press Council stated about the News Corp online article….

Australian Press Council (APC):   

The Press Council has considered whether its Standards of Practice were breached by an article published in on 31 May 2017, headed “Islamic State [IS] terror guide encourages luring victims via Gumtree, eBay”.

The opening paragraph read: “ISLAMIC State has released a step-by-step guide on how to murder nonbelievers, which includes how to lure targets via fake ads on Gumtree and eBay”. The article proceeded to relay in detail how an article in “[t]he latest edition of the terror group’s English-language propaganda magazine … encourages would-be terrorists to advertise products on second-hand selling sites … to lure victims and assassinate them”. The article mostly comprised extracts from the source material describing the steps necessary to perform such acts.

The Council considered that the article did publish much of the source material from IS verbatim, with limited accompanying analysis or context, such as comments from experts and websites such as Gumtree. The Council accepted there was no intention to encourage or support terrorism, but considered that republishing content from terrorist entities in this manner can perpetuate the purpose of such propaganda and give publicity to its ideas and practices.

However, the Council accepted the public interest in alerting readers to potential risks to their safety. It considered that on balance, the public interest in alerting readers to the dangerous content of the terrorist propaganda and its instructional detail was greater than the risk to their safety posed by the effective republication of terrorist propaganda content. Given this, the Council concluded that the public interest justified publication of the article. Accordingly, the publication did not breach General Principle 6.

The Council noted that great care needs to be exercised by publications when reporting on terrorist propaganda to ensure that public safety is not compromised. In particular, effectively republishing source material comprising instructional detail in how to carry out particular terrorist acts could pose a risk to public safety, and reasonable steps should be taken to prevent such an outcome.

This is what the Turnbull Government did……., 28 February 2018:

…the article titled “Islamic State terror guide encourages luring victims via Gumtree, eBay” no longer exists.

A week after it was published on May 31, 2017, the Attorney-General’s office contacted to demand it be taken down, saying the Classification Board had ruled it should be refused classification as it “directly or indirectly” advocated terrorist acts.

It appears to be the first time section 9A of the Classification (Publications, Films and Computer Games) Act 1995 has been used to censor a news report, since it was first added in 2007.

The action has alarmed the publisher of as Australian media in general were not informed the Classification Board had the power to ban news stories or that the eSafety Commissioner had the power to instigate investigations into news articles.

“The first knew of this matter was when contacted by the Attorney-General’s Department and advised of the Classification Board decision,” argued as part of a separate Press Council investigation into the article.
“The department, board and the eSafety Commissioner did not contact beforehand to advise of the investigation. Consequently, was not given the right to make submissions or a defence in regard to the article.” removed the article as it was facing legal penalties from the Australian Communications and Media Authority (ACMA) if it refused, including fines or even civil or criminal legal action.
In justifying its decision, the Classification Board noted the article contained “detailed references and lengthy quotations from Rumiyah (Islamic State’s propaganda magazine)” with limited author text to provide context. asked the board why there was no opportunity for news organisations to defend the article based on public interest grounds but a response provided by a spokesman for the eSafety Commissioner did not directly address this.

The spokesman said the board did consider whether the material could “reasonably be considered to be done merely as part of public discussion or debate, or as entertainment or satire” before making its decision.

He also acknowledged this may have been the first time a news article had been censored using this section.

However, as a government which to a man fails to grasp how the Internet works their well-laid plans seldom go off without a hitch and, the article that Turnbull & Co wish to erase from memory remains on national and international news sites as I write.

Friday, 19 January 2018

In response to Trump's fake news awards the Committee to Protect Journalists announced Press Oppressors awards

After a couple of date deferrals, well-known right wing ratbag US President Donald J Trump finally released his so-called 2017 Fake News Awards on a Republican web site on 18 January 2017 (Sydney time) announcing "the most corrupt & biased of the Mainstream Media".

As one has come to expect from this inadequate man it was an eleven point non-event with no red carpet, no 'ceremony', absolutely no evidence of corruption being presented and containing a number of distortions of fact.

Trump's awards had been left in the shade weeks ago by Stephen Colbert's mocking off Times Square billboard and the Committee to Protect Journalists' pre-emptive strike.

Shareblue Media, 9 January 2018:

The Committee to Protect Journalists (CPJ) on Monday released a list of the world’s worst press oppressors — and Donald Trump took home the top honor, beating out dictators like Russian President Vladimir Putin, Turkish President Recep Tayyip Erdoğan, and Egyptian President Abdel Fattah el-Sisi.

The list of global press oppressors recognizes world leaders “who have gone out of their way to attack the press and undermine the norms that support freedom of the media.” It was released in response to Trump’s upcoming “fake news” awards ceremony.

Trump was named the winner of the “Overall Achievement in Undermining Global Press Freedom” award for going “above and beyond to silence critical voices and weaken democracy.”
Among other things, Trump has popularized the term “fake news,” using it to describe any news that he doesn’t like — at times, even his own words. He uses the bully pulpit to openly promote Fox News as his personal propaganda arm while denigrating other news sources and calling for the firing of journalists who make honest mistakes.

Most recently, Trump called for banning the book “Fire and Fury” because he doesn’t like its unflattering portrayal of his first year in office.

Most Thin-skinned - Winner: President Recep Tayyip Erdoğan, Turkey, Runner-Up: President Donald Trump, United States

Most Outrageous Use of Terror Laws Against the Press - Winner: President Recep Tayyip Erdoğan, Turkey, Runner-Up: President Abdel Fattah el-Sisi, Egypt

Tightest Grip on Media (This category excludes countries with no independent media, such as North Korea and Eritrea)  - Winner: President Xi Jinping, China, Runner-Up: President Vladimir Putin, Russia

Biggest Backslider in Press Freedom - Winner: State Counselor and de facto leader Aung San Suu Kyi, Myanmar, Runner-Up: President Andrzej Duda, Poland

Overall Achievement in Undermining Global Press Freedom - Winner: President Donald Trump, United States

The United States, with its First Amendment protection for a free press, has long stood as a beacon for independent media around the world. While previous U.S. presidents have each criticized the press to some degree, they have also made public commitments to uphold its essential role in democracy, at home and abroad. Trump, by contrast, has consistently undermined domestic news outlets and declined to publicly raise freedom of the press with repressive leaders such as Xi, Erdoğan, and Sisi. Authorities in ChinaSyria, and Russia have adopted Trump's "fake news" epithet, and Erdoğan has applauded at least one of his verbal attacks on journalists. Under Trump's administration, the Department of Justice has failed to commit to guidelines intended to protect journalists' sources, and the State Department has proposed to cut funding for international organizations that help buttress international norms in support of free expression. As Trump and other Western powers fail to pressure the world's most repressive leaders into improving the climate for press freedom, the number of journalists in prison globally is at a record high.

Friday, 12 January 2018

Australian Politics 2018: and you foolishly thought things might get better this year

Well the democracy canary in the political coal mine fell senseless to the bottom of its cage this month when the Turnbull Government admitted that a high level of secrecy would surround its extra-parliamentary review of religious freedom in Australia.

The Sydney Morning Herald, 3 December 2017:

Public submissions to the Turnbull government's review of religious freedom in Australia will be kept secret, in a marked departure from normal processes, according to Prime Minister Malcolm Turnbull's department.

The department, which has control of the inquiry, said it would not publish the submissions, which is in stark contrast to ordinary parliamentary inquiries, in which most submissions are automatically released.

"Submissions to the Expert Panel will not be published online," a department spokesman said in an emailed statement. "However, where individuals provide consent, submission extracts may be included in public materials."

Late on Tuesday, however, Mr Turnbull's media team sought to intervene by suggesting inquiry chairman Philip Ruddock would decide if submissions were published. The PM's office then instructed his own department to issue a new statement to that effect.

An hour later, the department said decisions on releasing submissions would rest on "whether individuals have provided consent", but that appears impossible, because the online consent form assures people their submission "will not be published in its entirety".

It is expected the high-profile inquiry - prompted by fears about the impact of same-sex marriage on religious practice - will attract submissions from Australia's biggest churches, including the Catholic and Anglican archdioceses of Sydney and Melbourne. It presents an opportunity for religious organisations and other advocates to spell out the exact changes to the law they believe are necessary.

Mr Ruddock said when contacted on Tuesday that the panel had not discussed the publication of submissions and ultimately it was a matter for the PM's department…..

The expert panel - which also includes Australian Human Rights Commission president Rosalind Croucher, Catholic priest Frank Brennan and retired judge Annabelle Bennett - is expected to meet for the first time next Wednesday. 

However, the negative response in mainstream and social media saw the democracy canary revived and placed on life support as the secrecy provisions in the online Consent form have been changed and now only apply to all those submissions received to date.

"The Expert Panel has not yet determined a final approach to publication of submissions. Submissions already provided will not be published without the agreement of the author" 

Which given that the majority of submissions would have been received by now means that it is highly unlikely that submissions made on behalf of religious institutions will ever be published by the Expert Panel.


The submission period for the Religious Freedom Review commenced in December 2017 and ends on 31 January 2018 with the Expert Panel to deliver its findings by 31 March 2018.

Wednesday, 10 January 2018

How US President Donald J Trump made one particular book an immediate best-seller

On 3 January 2018 excerpts from a soon to be published book, “Fire and Fury: Inside the Trump White House” were published in The Guardian newspaper.

The following day brought news of a letter to former Trump chief strategist Steve Bannon…..

ABC News, 4 January 2018:

Trump attorney Charles J. Harder of the firm Harder Mirell & Abrams LLP, said in a statement, "This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent."

In the letter to Bannon, Harder, writes, "You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book."

Along with a letter to Macmillan Publishers (Henry Holt & Company INC) and author Michael Wolff…..

CBS News, 4 January 2018:

President Trump's personal lawyer has issued a cease and desist letter to author Michael Wolff and Wolff's publisher over the release of explosive excerpts of "Fire and Fury: Inside Trump's White House." The letter demands that Wolff and the publisher halt all publication and apologize to the president for "defaming" him.

The letter from lawyer Charles Harder, dated Thursday, comes after excerpts of Wolff's book have cast the president and much of his White House in an unflattering light, portraying the commander-in-chief as someone who does not understand constitutional amendments, and is sometimes not taken seriously by key advisers. The letter accuses Wolff and Henry Holt and Company of publishing false statements about the president. 

"Your publication of the false/baseless statements about Mr. Trump gives rise to, among other claims, defamation by libel, defamation by libel, defamation by libel per se, false light invasion of privacy, tortious interference with contractural relations, and inducement of breach contract," the letter says. 

Mr. Trump, according to the letter, demands that publication of the book immediately cease, along with the publication of any excerpts or summaries. The letter also insists that a "full and complete retraction" be issued, along with an apology to Mr. Trump. 

The letter also demands a full electronic copy of the book "in searchable form" be given to Mr. Trump's lawyers.

Full text of letter here.

What happened after is that in the following order:

1. the book was published on 5 January 2018 ahead of the previously announced date and bookstores quickly sold out of hard copies on hand;
2. @RealDonaldTrump's thumbs began to work overtime as he began to tweet his displeasure commencing 6 January;
3. Steve Bannon blinked on 8 January and issued an ‘apology
4. Also on 8 January lawyers for Macmillian Publishers formally replied to the 'cease and desist' letter; and
5. Macmillan Publishers (founded circa 1843) issued this pushback statement on 9 January

Macmillan Publishers’ CEO John Sargent, Twitter, 9 January 2018

The ball is now back with Donald Trump.

Will he be stupid enough to proceed to litigation?

Tuesday, 2 May 2017


BROWN & ANOR versus THE STATE OF TASMANIA, High Court of Australia, Canberra on 2 May 2017 at 10.15 am before the full court:

Date Special Case referred to Full Court: 13 December 2016

The issue in this proceeding is whether the Workplace (Protection from Protesters Act) 2014 (Tas) (‘the Act’), in whole or in part, contravenes the implied freedom of political communication in the Commonwealth Constitution.

The plaintiffs were each arrested and charged, purportedly under the Act, in early 2016 as a result of their onsite political protest against the proposed logging of the Lapoinya Forest in Tasmania. The respective criminal proceedings against them were abandoned by the police after the commencement of this proceeding. The plaintiffs contend that the Act is either wholly invalid or, at the least, is invalid in so far as it applies to forestry operations on forestry land as defined in s 3 of the Act.

The Act allows police officers to prevent the commencement or continuation of an onsite political protest that they reasonably believe is preventing, hindering or obstructing or is about to prevent, hinder or obstruct a "business activity" at any "business premises" or "business access area" as defined in s 3 of the Act, anywhere in Tasmania. The key provisions empower police officers to prevent the commencement or continuation of onsite political protests by directing the protesters to leave and stay away from business premises and business access areas for up to three months under pain of arrest and of criminal penalties if they do not do so.

The plaintiffs contend that ss 6 and 7 of the Act target and single out for prevention and punishment onsite political protest and protesters without any broader purpose of preserving, enhancing or protecting political communication. Further, they contend that no reasonable provision has been made in the Act to preserve or protect political communication.

The defendant contends that the Act protects (amongst other things) business activity lawfully carried out on land in the lawful possession of a business operator, and that the plaintiffs are seeking to prevent, hinder or obstruct activity of that nature. They submit that the Act does not restrict protest activity on land other than business premises or business access areas; it has a narrow operation and effect; it is compatible with the freedom and is in any event reasonably and appropriately adapted to the fulfilment of a legitimate purpose.

On 13 December 2016 Gordon J referred the Special Case for consideration by the Full Court. Notices of Constitutional Matter have been served. The Attorneys-General for the Commonwealth, Victoria, New South Wales, Queensland, and South Australia have filed Notices of Intervention. The Human Rights Law Centre has been granted leave to appear as amicus curiae, limited to submissions in writing.

The question in the Special Case is:
• Is the Workplace (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Monday, 17 April 2017

Trump's bully boys went after Twitter, then turned tail and ran

US President Donald Trump's bully boys issued a summons on 14 March 2017:

This is an action to prevent the U.S. Department of Homeland Security ("DHS"), U.S. Customs and Border Protection ("CBP"), and the individual Defendants from unlawfully abusing a limited-purpose investigatory tool to try to unmask the real identity of one or more persons who have been using Twitter's social media platform, and specifically a Twitter account named @ALT_USCIS, to express public criticism of the Department and the current Administration. The rights of free speech afforded Twitter's users and Twitter itself under the First Amendment of the U.S. Constitution include a right to disseminate such anonymous or pseudonymous political speech. In these circumstances, Defendants may not compel Twitter to disclose information regarding the real identities of these users without first demonstrating that some criminal or civil offense has been committed, that unmasking the users' identity is the least restrictive means for investigating that offense, that the demand for this information is not motivated by a desire to suppress free speech, and that the interests of pursuing that investigation outweigh the important First Amendment rights of Twitter and its users. But Defendants have not come close to making any of those showings. And even if Defendants could otherwise demonstrate an appropriate basis for impairing the First Amendment interests of Twitter and its users, they certainly may not do so using the particular investigatory tool employed here—which Congress authorized solely to ensure compliance with federal laws concerning imported merchandise—because it is apparent that whatever investigation Defendants are conducting here does not pertain to imported merchandise.

@ALT_uscis weighs in:

The American Civil Liberties Union joins the fray:
On 8 April it was announced that the Trump Adminstration had withdrawn the summons.

Reuters, 8 April 2017:

The abrupt end to the dispute may indicate that Justice Department lawyers did not like their chances of succeeding in a fight about speech rights, said Jamie Lee Williams, a staff attorney at the Electronic Frontier Foundation, which advocates for digital rights.

"It seemed like a blatant attempt to censor or chill the people behind this account, or to retaliate against people who are speaking out against this administration," Williams said.

"This could have been a huge loss for the administration in court," she added.

Tuesday, 3 January 2017

Fleeing Trump in 2017

Controversial global activist the Avaaz Foundation (website registered in France but headquartered in United States) has decided that it will not wait around until after the inauguration of U.S. president-elect Donald John Trump to find out what he may do to American freedom of speech and freedom of political association – it will leave the country before 20 January 2017.


Miami Herald, 1 November 2016:

A global activist group that opposes Donald Trump has filed a complaint with Florida elections officials claiming that his campaign CEO submitted false voter registration information.

The complaint says Stephen Bannon does not actually live at the Sarasota County address where he registered to vote in August.

“Under Florida law, to qualify as a registered voter, one must be a resident of the state,” states the one-page complaint filed Oct. 19 by Heather Reddick, chief operating officer of Avaaz.

“These allegations are a serious matter of public interest given Mr. Bannon's role as the chief executive officer of the Republican candidate's presidential campaign and warrants immediate investigation.”

Avaaz is an international online campaign organization that opposes Trump’s candidacy. The group has launched a campaign urging Americans living overseas, including in Mexico and Canada, to vote in the election.

Trump’s campaign did not respond to questions about Bannon’s voter registration. A spokeswoman for the Florida Division of Elections said that the office is reviewing the complaint.
Keep reading here.


Excerpt from Avaaz email seeking to raise money to leave the U.S.A., 21 December 2016:

Dear Avaazers,

I'm worried. Trump has a way to kill Avaaz.

Avaaz is a global organization, but like much of the internet, our servers, data, email list and website, are all housed in the US. 'President Trump' could shut us down in a heartbeat.

Would he do it? We campaigned hard against him -- we even filed a criminal suit against his top advisor for voter fraud. And if we've learned anything about Trump, it's that he holds a grudge.

So we have to move countries. And fast.

This won't be easy. Shifting all our technology will be costly. But if just 0.1% of us donate the price of a drink or a meal by Jan 1st, we can make Avaaz safe before Trump takes office. Let's trump-proof Avaaz…….

When the US government wanted to kill Wikileaks, they simply told companies like Visa, MasterCard and Paypal to stop processing their online donations. It shut them down for over a year. Trump could go even further to target firms that house our servers and email list. We might never recover.

Avaaz is particularly at risk because we're a global organization. Far-right nationalists everywhere rail against Avaaz and "foreign" organizations who challenge their hate and ignorance.

We can't afford to be unprepared for this assault, let's Trump-proof our movement……

The great beauty and legitimacy and strength of Avaaz is that all our power flows and comes from people. That's why we're so hard to intimidate - because you won't be. But our fearlessness has made us many enemies, and we need to be smart. Let's get ahead of what they'll do next.

With hope,
Ricken, Danny, Mia, Spyro and the Avaaz team


Avaaz—meaning "voice" in several European, Middle Eastern and Asian languages—launched in 2007 with a simple democratic mission: organize citizens of all nations to close the gap between the world we have and the world most people everywhere want.

The Avaaz community campaigns in 15 languages, served by a core team on 6 continents and thousands of volunteers. We take action -- signing petitions, funding media campaigns and direct actions, emailing, calling and lobbying governments, and organizing "offline" protests and events -- to ensure that the views and values of the world's people inform the decisions that affect us all. 

Avaaz online letter to Donald Trump alleged to have been signed by over 2 million people, April 2016:

Dear Mr. Trump,

This is not what greatness looks like.

The world rejects your fear, hate-mongering, and bigotry. We reject your support for torture, your calls for murdering civilians, and your general encouragement of violence. We reject your denigration of women, Muslims, Mexicans, and millions of others who don’t look like you, talk like you, or pray to the same god as you.

Facing your fear we choose compassion. Hearing your despair we choose hope. Seeing your ignorance we choose understanding.

As citizens of the world, we stand united against your brand of division.

[Add your name!] 

Whois Record ( last updated on 2016-12-21 )
Domain Name: AVAAZ.ORG
Domain ID: D952419-LROR
WHOIS Server:
Referral URL:
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Domain Status: clientTransferProhibited
Registrant ID: MH4220-GANDI
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Registrant State/Province: Paris
Registrant Postal Code: 75013
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Registrant Fax: +33.143730576
Registrant Fax Ext:
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Admin ID: MH4220-GANDI
Admin Name: Ricken Patel
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DNSSEC: unsigned

For more information on Whois status codes, please visit

Thursday, 10 November 2016

The government's attack on Australian Human Rights Commission president continues unabated

On 28 May 2013 a small group of students sought to use facilities at the dedicated Oodgeroo Unit within the Queensland University of Technology (QUT) and were asked to leave.   

The subsequent comments of one or more QUT students on Facebook resulted in a complaint to the Australian Human Rights Commission by a university administrative employee under the Racial Discrimination Act 1975.

Conciliation between the parties under the auspices of the Commission failed by August 2015 and, the employee then made application to the Federal Circuit Court Of Australia in Prior V Queensland University Of Technology & Ors to seek what she obviously thought was justifiable legal remedy.

The judgment dismissed that part of the application brought against three students under s18C of the Racial Discrimination Act. However the remainder of the matter involving a fourth student and the university and its named employees is next before the court on 21 November 2016 in what appears to be a directions hearing.

The Turnbull Government leaped on this summary judgment to continue its public attack on Human Rights Commission President Gillian Triggs – which had commenced in earnest in February last year - culminating this month in Malcolm Bligh Turnbull raising the possibility of sections of the Racial Discrimination Act 1975  being reviewed and possibly amended and suggesting that the Commission had damaged its credibility.

A swift response came from the Australian Human Rights Commission in the form of a media release on Monday 7 November 2016:

There has been considerable public interest in the Commission’s complaint handling processes under the Australian Human Rights Commission Act 1986.  There has been particular interest In the Commission’s handling of complaints under the Racial Discrimination Act 1975. 

In relation to the recent QUT case, it is a matter of public record that the Commission terminated this matter in August 2015. The Commission has had no role in the subsequent law suit in the Federal Circuit Court.

At no stage does the Commission initiate or prosecute a complaint. If the Commission receives a complaint in writing alleging a discriminatory act, the Act provides that the Commission must investigate the facts and attempt to conciliate the matter.

The Commission’s focus is on resolving disputes so parties can avoid court proceedings. Of complaints where conciliation was attempted, 76% were successfully resolved in 2015-16.

Only 3% of complaints finalised by the Commission were lodged in court. For example, of the over 80 complaints finalised under the racial hatred provisions of the Racial Discrimination Act last year, only one proceeded to court at the initiation of the complainant.

In the 2015-16 reporting year the average time it took the Commission to finalise a complaint was 3.8 months. In that same reporting year, 94% of surveyed parties were satisfied with the Commission’s service.

The Commission has no judicial powers, and it makes no legally binding determinations as to whether unlawful acts have occurred. The Commission has no statutory power to prevent a complainant proceeding to court once the Commission terminates the complaint. 

The Commission has provided advice to successive governments and Attorneys-General on amendments to the Australian Human Rights Commission Act.  In particular, the Commission has asked for amendments to streamline the process by raising the threshold for accepting complaints.

Refutation of the Turnbull Government's position is also found elsewhere.

Excerpts from Castan Centre for Human Rights LawOfficial Blog, 7 November 2016:

This is all the Australian Human Rights Commission and/or Professor Gillian Triggs’ fault

No it isn’t. The AHRC is not a party in the Prior litigation. Professor Triggs is not acting for Ms Prior (Ms Prior has engaged her own solicitors and counsel). And the student respondents were not in the case because the AHRC put them in there; they were in there because the applicant, Ms Prior, sued them when proceedings were commenced in the Federal Circuit Court in October 2015.

Applicants bring proceedings for discrimination (including under section 18C), not the AHRC. There is one applicant in the proceedings and it is Ms Prior.

If the claims were lacking in substance, the AHRC should have thrown them out – they should never have got to the Court

In order to bring a claim for unlawful discrimination under Federal legislation, the AHRC is the first step in the process. A complaint is made to the AHRC, and the AHRC will then try to resolve the complaint by assisting the parties to reach an agreement for resolution. If the complaint can’t be resolved, the AHRC “terminates” the complaint, and the complainant can then take the terminated complaint off to the Federal Court or the Federal Circuit Court to start a court case.

The AHRC cannot decide discrimination claims, because the AHRC is not a court – it doesn’t have any judges and it doesn’t have the power to impose a resolution on the parties to the complaint. The AHRC cannot decide that a complaint is hopeless and should go no further. The AHRC cannot decide that a complaint will invariably succeed and award damages to the complainant. The function of the AHRC is to investigate (and, if possible, to conciliate), not to decide. The deciding needs to happen in a place where Federal judicial power can be exercised, namely, in the Federal Court or the Federal Circuit Court.

It is true that there are many different grounds on which the AHRC (acting through a delegate of the President of the AHRC) can “terminate” a complaint (which is the necessary precondition for the matter to go to a Federal court). Those grounds include that the delegate “is satisfied that the alleged unlawful discrimination is not unlawful discrimination” or “is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance”.

According to press reports, Ms Prior’s complaint was terminated on the more commonly used ground that the delegate was “satisfied that there is no reasonable prospect of the matter being settled by conciliation”.

Shouldn’t the AHRC should have taken the harder line? For two reasons, no.

The first is that it wouldn’t have made a blind bit of difference. Ms Prior’s right to commence court proceedings would have been exactly the same regardless of the ground on which the complaint was terminated by the delegate. Ms Prior decided, presumably with the benefit of legal advice from the experienced firm of employment lawyers who are acting for her, to commence proceedings against all of the respondents. That was a choice which the AHRC could not have denied her, regardless of what view was expressed by the President or her delegate as to the merits of the claim at the time the complaint was terminated.

The second is that Ms Prior’s complaint is still continuing against four of the respondents (including QUT, who are also represented by highly experienced employment lawyers). Those respondents did not seek to have the claims against them struck out summarily, which suggests that Ms Prior’s claim as a whole could not be properly have been described, at the time the complaint was terminated, as hopeless.

The case proves that section 18C is terrible and must be abolished

Good luck trying to make that one work, given the basis on which the respondents succeeded in convincing the court to dismiss the claims against them. The two respondents who succeeded on the basis of the Court’s analysis of section 18C succeeded on the basis that (a) their Facebook posts were not made “because of” Ms Prior’s (or anyone else’s) race and (b) the posts were not reasonably likely to give rise to offence, insult, humiliation or intimidation.

In making those findings, the Federal Circuit Court expressly referred to the jurisprudence of section 18C to the effect that the section does not extend to “mere slights” but requires “profound and serious effects”. (This is jurisprudence which needs to be mostly ignored in order to advance the case that the words “offend” and “insult” somehow create an overly broad restriction on free speech).

The final respondent succeeded on the basis that there was no evidence that he had made the Facebook post alleged to constitute the breach of section 18C, which has nothing to do with the section, and everything to do with orthodox principles of establishing a “no case to answer submission”. In any litigation, successful defendants will feel aggrieved at having been put to the time and expense of defending claims which failed. However, the fact that a claim fails does not mean that the law used to bring the claim should be demolished.

No-one sensibly suggests dismantling the law of defamation every time a defamation plaintiff loses, or suggests tearing up the law of torts every time a personal injury plaintiff is unsuccessful. For the same reason, it is hard to see any sensible legal basis to suggest that the decision of the Federal Circuit Court last Friday should affect anyone other than the parties to the claim. If only the ability to distinguish “sensible legal basis” from “nonsense” was a precondition to publishing on the topic of section 18C . . .

Thursday, 21 April 2016

Then Australian Attorney-General George Brandis in March 2015: "Media organisations are not the target of this law. The targets of this law are criminals and paedophiles and terrorists"*

The Australian federal police have admitted they sought access to a Guardian reporter’s metadata without a warrant in an attempt to hunt down his sources.
It is the first time the AFP has confirmed seeking access to a journalist’s metadata in a particular case.
The admission came to light when the AFP told the privacy commissioner it had sought “subscriber checks” and email records relating to the Guardian Australia journalist Paul Farrell, and the correspondence was sent to Farrell by the office of the Australian information commissioner……
The AFP’s submission said: “You will see that exemptions have been claimed under s47E(d) and s37(2)(b) on some folios. These exemptions primarily relate to e-mail and other subscriber checks relating to Mr Farrell, and examination of meta data associated with some electronic files.”  [The Guardian, 14 April 2016]

At 11.35am AEST on 17 April 2014 The Guardian published journalist Paul Farrell’s article Australian ship went far deeper into Indonesian waters than disclosed with this map:

And this observation:

The redacted version of the classified report, obtained by the Australian Associated Press under freedom of information laws, said: “Entry to Indonesian waters was inadvertent, arising from miscalculation of the maritime boundaries, in that the calculation did not take into account archipelagic baselines.”

Crucially, the report adds: “Territorial seas declared by foreign nations are generally not depicted on Australian hydrographic charts.”

But the digital map from the vessel casts doubt on these findings, and clearly shows the Australian ship crossing the red line that marks the point of Indonesia’s baselines and entering its waters past the headlands near Pelabuhan Ratu bay. Indonesia’s territorial seas are 12 nautical miles further out from where the baselines are marked in red. It is not known whether the digital mapping device was operational at the time the Ocean Protector entered Indonesian waters.

If he wasn’t a blip on the Australian Federal Police radar before the publication date of that article, Paul Farrell was from then on.

However, it is unclear if the initial request to investigate this journalist came from the then Minister for Immigration and Border Protection, Scott Morrison, his department or some other individual or agency.

Although what appears to be Folio 3 of an est. 200 pages in Case No.5610147 seems to suggest that Customs (now called Border Force) may have been the complainant of record by May 2014 and the media finger points to the head of Australian Customs and Border Protection Services, Michael Pezzullo.

On 12 Febraury2016 Farrell stated of this investigation:

The files are made up of operational centre meeting minutes, file notes, interview records and a plan for an investigation the AFP undertook into one of my stories. Most concerning is what appears to be a list of suspects the AFP drew up, along with possible offences they believe they may have committed.
The documents show that during the course of an investigation into my sources for a story I had written, an AFP officer logged more than 800 electronic updates on the investigation file.

Farrell is not the only journalist whose metadata has been accessed in search of sources, but the Australian Federal Police insists that it has not accessed any journalist’s metadata for the last six months – the last time being in 13 October 2015.