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

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.

NOTE

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

THE PEOPLES DEMOCRATIC RIGHT TO PROTEST: High Court of Australia, BROWN & ANOR versus THE STATE OF TASMANIA, 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.

THEN

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.

NOW

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


BACKGROUND


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.

Sincerely,
[Add your name!] 

Whois Record ( last updated on 2016-12-21 )
Domain Name: AVAAZ.ORG
Domain ID: D952419-LROR
WHOIS Server:
Referral URL: http://www.gandi.net
Updated Date: 2016-08-30T06:40:19Z
Creation Date: 1997-10-01T04:00:00Z
Registry Expiry Date: 2017-09-30T04:00:00Z
Sponsoring Registrar: Gandi SAS
Sponsoring Registrar IANA ID: 81
Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
Registrant ID: MH4220-GANDI
Registrant Name: Ricken Patel
Registrant Organization: Avaaz Foundation
Registrant Street: Obfuscated whois Gandi-63-65 boulevard Massena
Registrant Street: Suite #500
Registrant City: Obfuscated whois Gandi-Paris
Registrant State/Province: Paris
Registrant Postal Code: 75013
Registrant Country: FR
Registrant Phone: +33.170377666
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Registrant Fax Ext:
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Admin ID: MH4220-GANDI
Admin Name: Ricken Patel
Admin Organization: Avaaz Foundation
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Admin Street: Suite #500
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Tech ID: MH4220-GANDI
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Name Server: ELSA.NS.CLOUDFLARE.COM
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DNSSEC: unsigned

For more information on Whois status codes, please visit https://icann.org/epp

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.

Footnote

Sunday, 17 April 2016

Special Broadcasting Services Corporation (SBS) not trailing clouds of glory on settlement of unfair dismissal dispute


mUmBRELLA, 11 April 2016:

Multicultural broadcaster SBS has reached a confidential settlement with its former sports reporter Scott McIntyre after he launched legal action against the broadcaster claiming it did “not follow due process” when it fired him…..

Asked what he meant by the phrase “vigilantes & hypocrites” Bornstein accused former Communications Minister and now Prime Minister Malcolm Turnbull, News Corp columnist Chris Kenny and former Human Rights Commissioner Tim Wilson of seeking to “crush” free speech.

“The vigilantes & hypocrites who sought to have Scott sacked and his freedom of speech suppressed after the event included (then Communications Minister) Malcolm Turnbull, (News Corp columnist) Chris Kenny and (Australia’s Human Rights Commissioner) Tim Wilson,” said Bornstein.

“These are people who speak loftily about freedom of speech and when it is inconvenient to them ditch it and try and crush someone whose views they disagree with. They should be ashamed of themselves.”…..


11 April 2016

SBS and Mr McIntyre have now resolved their dispute over the termination of his employment on 26 April 2015.

SBS acknowledges that Mr McIntyre was a well respected sports reporter with SBS for a period spanning over a decade, and SBS is disappointed that it was unable to continue with his services following his Tweets.
Mr McIntyre acknowledges that the views expressed in his Tweets on 25 April 2015 were his views and that they were contentious. Mr McIntyre regrets any attribution of his views to SBS and acknowledges that SBS was drawn into controversy following the expression of his views.



BACKGROUND

McIntyre v Special Broadcasting Services Corporation [2015] FWC 6768 (1 October 2015) – Fair Work Commission Decision:

Conclusion

[43] In this instance the respondent employer, SBS, has made a challenge to an application for unlawful termination of employment which was taken under s. 773 of the Act. The applicant had made a previous general protections application under s. 365 of the Act. The challenge to the application made by SBS relies upon the purported operation of s. 723 of the Act.
[44] I have concluded that in the particular circumstances of this case, s. 723 of the Act does not operate as a jurisdictional bar to the application, as the applicant is not a person who is entitled to make a general protections court application in relation to the conduct that he complains of. Further, I have decided that exceptional circumstances exist such that the time for the making of the application should be extended and the application permitted to proceed accordingly.
[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person’s “day in court”. In the circumstances of this case the applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.
[46] It is perhaps sadly ironic that many members of the Australian Defence Force lost their lives in the earnest pursuit of the protection of rights and freedoms such as the access to a fair hearing which the applicant is entitled to obtain.
[47] The jurisdictional objection raised by SBS is dismissed, the extension of time for the application to have been made is granted and a certificate shall be issued pursuant to subsection 776 (3) of the Act.

COMMISSIONER

Sunday, 21 September 2014

David Marr's list of how our rights are faring under 'Freedom Abbott'



In this September’s issue of The Monthly David Marr discusses Values Abbott, Politics Abbott and Freedom Abbott and sets out this list of how basic rights are faring under Australian Prime Minister Tony Abbott since 18 September 2014:

10 October 2013: The state and territory attorneys-general meet in Sydney without discussing shield laws. The issue was on the agenda. With the change of government it vanished. It hasn’t appeared since. Efforts begun under Gillard to introduce uniform national laws to give effective protection to journalists and their sources have ceased.
25 October: Scott Morrison first utters the phrase “on water operations” to justify the unprecedented secrecy that surrounds the Abbott government’s blockade of refugee boats. Morrison whittles away the few rights and freedoms left to those caught up in Operation Sovereign Borders.
2 December: Brandis authorises an ASIO raid on the Canberra office of Bernard Collaery, the lawyer representing East Timor in its dispute with Australia over the Timor Sea Treaty. In March this year, the International Court of Justice at The Hague orders Australia to seal the material seized and keep it from all officials involved in the dispute. The order is binding.
3 December: Abbott rages against the ABC and the “left-wing” Guardian for together reporting that Australian spy agencies had targeted the phones of Indonesian President Susilo Bambang Yudhoyono and his wife. “The ABC seemed to delight in broadcasting allegations by a traitor,” he later told Ray Hadley of the Sydney radio station 2GB. “This gentleman Snowden, or this individual Snowden, who has betrayed his country and in the process has badly, badly damaged other countries that are friends of the United States, and of course the ABC didn’t just report what he said, they took the lead in advertising what he said.”

11 December: Brandis announces terms of reference for the Australian Law Reform Commission’s audit of Commonwealth laws that compromise freedom. The terms’ focus is not individual liberty but “commercial and corporate regulation; environmental regulation; and workplace relations”. Free speech barely makes the list. Brandis tells the Australian Financial Review he is most perturbed by the “reversal of the onus of proof, the creation of strict liability offences, the removal of lawyer–client privilege and removal of rights against self-incrimination”. It reads like a list of everything tax evaders loathe about the law.

17 December: Brandis appoints the policy director of the IPA, Tim Wilson, to the Australian Human Rights Commission. Wilson’s mission is to restore balance to a body which the attorney-general believes “has become increasingly narrow and selective in its view of human rights” under Labor. This is code for the culture war complaint that the left is manipulating anti-discrimination laws to impose its moral agenda on a reluctant society. The Bolt case is a particular focus of the fear that protecting blacks, gays, foreigners and cripples from discrimination is stripping the rest of us of our freedom.
29 January 2014: Abbott blasts the ABC for reporting claims that Australian military personnel have punished asylum seekers by burning their hands. “I think it dismays Australians when the national broadcaster appears to take everyone’s side but our own,” says the prime minister. “You shouldn’t leap to be critical of your own country.” News Ltd joins the attack. The ABC falters. Its managing director, Mark Scott, apologises for imprecise wording in the original report, but three days later, Fairfax’s man in Indonesia, Michael Bachelard, finds asylum seeker Yousif Ibrahim Fasher: “He says he has no doubt that what he saw at close quarters on about January 3 was three people’s hands being deliberately held to a hot exhaust pipe by Australian naval personnel to punish them for protesting, and to deter others from doing one simple thing: going to the toilet too often.”
6 March: Abbott threatens to cut the ABC’s budget if it doesn’t cave in to Chris Kenny. The Chaser team had crudely photoshopped the head of the News Ltd pundit onto a man with his pants down mounting a labradoodle. Kenny sued for $90,000. Missing in action is Abbott’s defence of lively debate where “offence will be given, facts will be misrepresented”. He tells 2GB’s Ben Fordham the ABC should settle the case or else: “Government money should be spent sensibly and defending the indefensible is not a very good way to spend government money. Next time the ABC comes to the government looking for more money, this is the kind of thing that we would want to ask questions about.” The ABC buckles. Kenny gets an apology and cash.
13 March: Brandis decrees artists who refuse private sponsorship on political grounds may be stripped of public funding. Troubled by Transfield’s links to offshore detention centres, a handful of artists had pressured the company to withdraw sponsorship from the Sydney Biennale. Brandis asks: “If the Sydney Biennale doesn’t need Transfield’s money, why should they be asking for ours?” He directs the Australia Council to find a formula for deciding when public funding will be withdrawn because private sponsorship has been “unreasonably” rejected. He does not rule out compelling arts organisations to take tobacco money. Months later, the council is still labouring over the words. However it’s done, Brandis wants artists to know they will pay a price for embarrassing the government. This threatens direct political intervention for the first time in the allocation of Australia Council funds.
24 March: Brandis tells Senator Nova Peris: “People do have a right to be bigots, you know.” The next day, he releases draft legislation to gut sections 18C and 18D of the Racial Discrimination Act. Abbott backs him. The proposal – drafted by Brandis himself – would allow almost unrestrained racist abuse in the name of freedom. Ethnic community leaders lobby for the act to be left as it is. Polls swiftly show nine out of ten Australians disapprove of the changes. Three-quarters of the 4100 submissions received by Brandis’ department are hostile. The department blocks their release.

23 May: Morrison strips the Refugee Council of Australia of half a million dollars allocated in the budget only ten days before. The minister explains: “It’s not my view, or the government’s view, that taxpayer funding should be there for what is effectively an advocacy group.” The CEO of the council, Paul Power, calls the cuts petty and vindictive. “This in many ways illustrates the state of the relationship between the non-government sector – particularly organisations working on asylum issues – and the government at the moment.”
1 July: Community legal centres across Australia are also forbidden to use Commonwealth money for advocacy or to campaign for law reform. During the Labor years, funding for NGOs had come with the guarantee that they were free “to enter into public debate or criticism of the Commonwealth, its agencies, employees, servants or agents”. Under Abbott, the guarantee disappears. So do many sources of independent advice. The budgets of the National Aboriginal and Torres Strait Islander Legal Service, the Environmental Defender’s Offices and the National Congress of Australia’s First Peoples are slashed. Axed are the Social Inclusion Board, the National Housing Supply Council, the National Policy Commission on Indigenous Housing, the National Children and Family Roundtable, the Advisory Panel on Positive Ageing, and the committee of independent medicos advising the refugee detention network, the Immigration Health Advisory Group.
16 July: Brandis threatens laws to double the sentence for reporting “special intelligence operations” by ASIO. Whistleblowers would not be protected, and journalists would not even need to know the operations were “special” to find themselves in prison for up to a decade. No public interest defence would be available. The shadow attorney-general, Mark Dreyfus, says: “We will not tolerate legislation which exposes journalists to criminal sanction for doing their important work, work that is vital to upholding the public’s right to know.”
4 August: Twenty-two-year-old student Freya Newman, a former part-time librarian at the Whitehouse Institute of Design, is charged with unauthorised access to restricted data following reports of Frances Abbott’s scholarship, after complaints to the police by the institute. The chair of the institute is Liberal Party donor and friend of the prime minister Les Taylor.
5 August: Abbott announces the metadata of all Australians is to be kept by internet service providers for two years and made available to ASIO and police. That trawl will, of course, include the metadata of whistleblowers and journalists. He abandons at the same time his two-year crusade to amend the Racial Discrimination Act. Both moves he justifies in the light of terrorist outrages by Australian nationals in Syria. “When it comes to counter-terrorism, everyone needs to be part of ‘Team Australia’,” he says, “and I have to say that the government’s proposals to change 18C of the Racial Discrimination Act have become a complication in that respect. I don’t want to do anything that puts our national unity at risk at this time, and so those proposals are now off the table.”