True Blue Cultural Revolution

I've just downloaded my very own copy of the draft Anti-Terrorism Bill 2005 from the website of Jon Stanhope, the ACT's Chief Minister. I gather from Nine MSN that Phil Ruddock is pissed off mightily that Stanhope has leaked the bill. Here's a particularly choice section of the Bill, dealing with control orders:

104.4 Terms of control order

(1) If the issuing Court makes the control order, the order must:

(a) state that the Court is satisfied of the matters mentioned in paragraphs 104.3(b) and (c); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the 22 person by the order; and
(d) specify the period during which the order is to be in force, which must not end more than 12 months after the day on which the order is made; and
(e) state that the order does not begin to be in force until it is served personally on the person; and
(f) state that the person s lawyer may attend a specified place in order to obtain a copy of the order.

Note: An order in relation to a 16- to 18-year-old must not end more than 3 months after the day on which the order is made: see section ^104.14. 32

(2) Paragraph (1)(d) does not prevent the making of successive orders in relation to the same person. [my emphasis]

(3) The obligations, prohibitions and restrictions that the Court may impose on the person by the control order are the following:

(a) a prohibition or restriction on the person being at specified areas or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between specified times each day, or on specified days;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or associating with specified individuals;
(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet);
(g) a prohibition or restriction on the person possessing or using specified articles or substances;
(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at specified times and places;
(j) a requirement that the person allow himself or herself to be photographed;
(k) a requirement that the person allow his or her fingerprints to be taken;
(l) if the person consents a requirement that the person participate in specified counselling or education. [my emphasis]

According to reasonable, mainstream opinion - that is the editorial and opinion pages of the Murdoch dailies - it's entirely inappropriate and a little odious to compare this legislation to the apartheid regime in South Africa worse yet to invoke the historical spectre of Nazi Germany. Comparisons with Stalinist Russia are likewise right out. Which leaves me a little stumped when it comes to describing a piece of proposed legislation which allows the courts to impose rolling periods of more or less complete house arrest. I suppose, in the current climate, civil libertarians should just be grateful that at least the re-education will be voluntary.

Wrong Again (So What Else Is New?)

I checked out Channel 10's new drama series The Surgeon last night. What a disappointment. Thanks to the Channel 10 promo department, I was expecting a quality Australian drama along the lines of The Young Doctors or The Flying Doctors (which, I am reliably informed, once featured a scene where brain surgery was performed with dental instruments). Nothing like it.

The Surgeon turned out to be a tightly scripted and well acted. I didn't get a single laugh out of it. Bugger.

Cue Applause: The Sound of One Hand Clapping

James McConvill, whose blog often calls to mind Sylvester Stallone striding around in blue lycra tights over a large swimmer's cup bellowing "I am the law", has decided to take it up to the "latte lefts" on the subject of legally sanctioned torture. It seems that, as far as the leading lights of the Deakin University Law School are concerned, this is an argument we more or less have to have, preferably on terms which they find personally congenial, even favourable to their side of the argument. Today's Lawyers Weekly carries an opinion piece by Mirko Bagaric on the conduct of the debate over the place of torture in the defence of democracy:

Mirko Bagaric has not bothered responding to community outrage following the publication of his views on torture – it is to be expected that lay people may come out strongly against them. However, he says, he expected more from lawyers

It is fair to say that my article in The Age on torture on the 17 May, 2005 has caused a storm. It is to be expected that lay people may come out strongly against my views, given the manner in which they were portrayed. More, however, could have been expected of lawyers. From lawyers, the minimum that could be expected is a rational assessment of how the proposal would affect the existing operation of the law and an awareness of the social importance of robust and open debate on matters of potential social relevance.

It's easy to understand why Bagaric is so upset at the rough handling he received; after all, he was paddling around in the centre of the teacup when the storm broke. I suppose, as a member of the hoi-polloi, I should applaud Bagaric's generosity of spirit when it comes to his "lay" detractors; we got it wrong because we was misled about what he was really saying in passages such as this:

The belief that torture is always wrong is, however, misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. It is this type of absolutist and short-sighted rhetoric that lies at the core of many distorted moral judgements that we as a community continue to make, resulting in an enormous amount of injustice and suffering in our society and far beyond our borders.

Sorry, and I know that this criticism can hardly be considered informed, with me not being a lawyer and all, but this excerpt from Bagaric's Age article strikes me as a bit woolly and muddled. Generally, it comes across as saying that torture is sometimes OK, and we'd all be a lot better off if we recognised this. A point reaffirmed in answer to possible arguments against Bagaric's modest proposal:

The second main argument is that torture will dehumanise society. This is no more true in relation to torture than it is with self-defence, and in fact the contrary is true. A society that elects to favour the interests of wrongdoers over those of the innocent, when a choice must be made between the two, is in need of serious ethical rewiring.

This alleged need for an "ethical rewiring" of society is reaffirmed in Lawyers Weekly:

The moral code propounded by my critics belongs in the domain of fairy tales, where important rights never clash. Sorry to break into the tranquility of their day, but sometimes rights do clash. When they do, the least horrible thing to do is that which causes the least amount of harm. And that is exactly what we do. Now, what we actually do, does not justify what ought to be done. Still, the above account is telling because the force of the anti torture objection lies in the fact that it supposedly so troubles our moral consciousness that there must be a mistake somewhere in the theory which accepts limited torture. But this claim loses its force when it is shown that torturing in extreme circumstances is in fact no worse than other activities that we condone.

Maybe my resistance to Bagaric's ideas is the result of "the manner in which they were portrayed" but a lot of that portrayal has been provided by Bagaric himself. In both the original Age article and his Lawyers Weekly article he argues that torture is sometimes justified yet, somewhat preciously, he doesn't like being seen as an advocate of the use of torture. Well, you don't need to be an all froth and no bubble "latte left" to know that you can't have your apple tea-cake and eat it.

Another Crap TV Post

24 was a bit of a disappointment last night; it was nowhere near as funny as last week's episode but it had its moments.

Right now, I'm tempted to check out the program's web-site to see how the rest is going to turn out. It would be a pleasing twist if, by the last episode, the terrorist mastermind Marwan has an epiphany and realises that he was being used as a cat's paw by a shadowy cabal of US Military Industrial Complex types who are staging the entire terrorist incident to give themselves the pretext they need to usher in a totalitarian police state. This would lead to an interesting showdown; on one side, Marwan who has rediscovered his essential humanity, determined to redeem himself by preventing the nuclear attack that, up till now, he has worked so hard to bring about and on the other, Jack Bauer, willing to sacrifice his life to further the noble cause of torture in defence of democracy.

I don't see it turning out that way for some reason.

Then/Now

... I as you know in other contexts, I'm a Burkean conservative and I don't believe in abandoning something that continues to work unless I'm convinced that it's no longer of value.

John Howard, National Press Club Address September 11, 2002

I think you just should allow a thousand arrangements to bloom, if I can vary a famous remark, in order to get the best outcomes for the economy.

John Howard on Industrial Relations Reform, quoted in The Age

Young and Free? Maybe Not

Here's a letter I noticed in Saturday's Age:

Overdone
I work for the Immigration Department, and I must admit that I felt pretty embarrassed after reading your front page ( The Age, 7/10). No, not because of my employment — it was the thought that I had paid good money to read this hysterical trash that made me feel a bit ashamed.

What topic prompted not just the use of almost the entire front page, but even red ink in the headlines (something I have never before seen)? Surely it was something more serious than the recent mass murder in Bali or the many immensely important issues that face us. Well, actually, it was about the handling of a single case by a large government department.

Certainly the case was wrongly handled. However, the result was not that anybody died or was even injured, but an unfortunate woman in need of help ended up in a place where she received compassion and care in peaceful surrounds.

Having gone almost off the scale in its treatment of such a story, what will The Age do when something really big needs to be reported?
Michael Saville, Ashburton

That third paragraph neatly encapsulates most of the argument that's been advanced in defence of DIMIA's bungling of the Rau and Solon cases; it's a big department so mistakes sometimes happen but, crikey, it could have been a lot worse and (the part I really like) the end result was that Vivian Solon ended up in a fairly good place so what's all the damn fuss about?

Right now I'm tempted by the idea of going out one night and cruising some of Melbourne's darker laneways until I happen upon some hapless stranger whose living daylights I shall extract by the usual means; a damn good kicking. I know it sounds reprehensible, but you have to consider the bigger picture here. I'm not actually proposing to kill anyone and, if things go as they should, the victim can expect to receive care and compassion in peaceful surroundings. My one concern is that I'm no longer as spry and fleet of foot as I was in my youth, so the getaway could be a little touch and go. But that's all; there don't seem to be any serious ethical concerns in the way.

I think I'd better make it quite clear that I'm not reccommending this approach to anger management to anyone else, particularly Melburnians. The last thing I want is to cop a kicking some evening when I'm out on the town looking for a kickee of my own. It's also a bad idea to go about inflicting a bit of GBH on complete strangers if you were born in foreign parts and aren't yet fully de-wogged. You might find yourself facing deportation under section 501 of the Migration Act. Like Stefan Nystrom.

Nystrom's parents migrated to Australia from Sweden in 1966. In 1973, his mother went back to Sweden for a holiday; Stefan Nystrom was born there on December 31, 1973. She returned to Australia, with young Stefan in tow, on January 27, 1974. Stefan hasn't been out of the country since.

On 12 August, 2004 the Minister for Minister for Immigration and Multicultural and Indigenous Affairs (Amanda Vanstone), cancelled (or purported to cancel, in the words of Justices Moore and Gyles of the Federal Court) Nystrom's visa, using the discretionary powers conferred on her by section 501 of the Migration Act:

The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

Stefan Nystrom had buckley's of passing the character test; as this report from The Age of October 6, 2004 mentions, he's served time for aggravated rape and armed burglary. Definitely not the sort of person we want in Australia. Nonetheless, Nystrom wants to stay here and on July 1, 2005 the Federal Court heard his appeal against the Minister's decision to give him the boot. He won by a 2-1 majority decision.

On the subject of Nystrom's criminal record, Justices Moore and Gyles say this in their majority decision:

29 ... The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere.

They go on to give Amanda a bit of a serve (but a dignified, judicial one, of course):

30 The third issue requiring reconsideration is the increasing tendency to utilise direct ministerial decision making. There will, no doubt, always be cases of particular political sensitivity which may require ministerial consideration. That cannot be true of the ordinary case of criminal conduct such as this.

Justice Emmett dissenting, upheld the Minister's decision, but wasn't exactly overjoyed about it:

49 I have had the advantage of reading the reasons of Moore and Gyles JJ for concluding that the appeal should be upheld. While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language will be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents. The material before the Court indicates that the appellant is a thoroughly unpleasant man having been convicted of serious and odious crimes. However, that is irrelevant to the question that has been raised concerning the validity of the Minister’s decision. [my emphasis]

Nystrom isn't the first person to face deportation under section 501 of the Migration Act. On October 11, 2004, The Age reported on the case of George Andary:

a 41-year-old former prison inmate who failed to take out Australian citizenship after his family migrated from Lebanon when he was four.

Chapter 11 of DIMIA's report Managing the Border: Immigration Compliance (June 2005) states:

In 2003-04, decisions under sections 200 and 201 of the Migration Act resulted in two criminals being deported. There were 60 removals of non-citizen criminals whose visas were cancelled under section 501.

Section 200 is merely the introduction to Division 9 of the Act; all it has to say is:

The Minister may order the deportation of a non-citizen to whom this Division applies.

Section 201 allows for the deportation of criminals who are not Australian citizens and who have lived here for less than ten years. But on the 2003-04 figures, a lot more people were removed from the country under the "character test" provisions of Section 501. When the decision is taken by the minister personally, Section 501 has this to say:

Decision of Minister—natural justice does not apply

As for Stefan Nystrom, his Federal Court win doesn't necessarily end the matter. The Age notes:

Senator Vanstone has lodged an application seeking leave to appeal against the decision in the High Court. She refused to comment while the case was before the court.