Category Archives: Legal

Submission to Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples

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Tonight I took some time to send a submission in to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples in support of the Uluru Statement from the Heart from the 2017 First Nations National Constitutional Convention held at Uluru. Submissions close June 11th so I wanted to get this in as I feel very strongly about this issue.

Here’s what I wrote:

To the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples,

The first peoples of Australia have lived as part of this continent for many times longer than the ancestors of James Cook lived in the UK(*), let alone this brief period of European colonisation called Australia.

They have farmed, shaped and cared for this land over the millennia, they have seen the climate change, the shorelines move and species evolve.

Yet after all this deep time as custodians of this land they were dispossessed via the convenient lie of Terra Nullius and through killing, forced relocation and introduced sickness had their links to this land severely beaten, though not fatally broken.

Yet we still have the chance to try and make a bridge and a new relationship with these first peoples; they have offered us the opportunity for a Makarrata and I ask you to grasp this opportunity with both hands, for the sake of all Australians.

Several of the component states and territories of this recent nation of Australia are starting to investigate treaties with their first peoples, but this must also happen at the federal level as well.

Please take the Uluru Statement from the Heart to your own hearts, accept the offering of Makarrata & a commission and let us all move forward together.

Thank you for your attention.

Your sincerely,
Christopher Samuel

(*) Australia has been continuously occupied for at least 50,000 years, almost certainly for at least 60,000 years and likely longer. The UK has only been continuously occupied for around the last 10,000 years after the last Ice Age drove its previous population out into warmer parts of what is now Europe.
—
Chris Samuel : http://www.csamuel.org/ : Melbourne, VIC

Getting Political

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I’ve not been blogging recently, though I’ve been tweeting a fair bit, and I’ve been getting more and more disconcerted by what the Australian government has been up to, especially with respect to refugees. We are seeing the emergence of a militaristic approach where the facts about rights to seek asylum are conveniently ignored and refugees are labelled as “illegal” (they’re not) and a threat to our borders (they’re not). Questions are met with silence (unless they happen to coincide with their agenda) to frankly absurd levels.

We keep them in concentration camps on foreign soil and deprive them of necessities even though they’ve committed no crime and we leave them to go mad from boredom, fear and neglect. We’ve had one person murdered in our care with the prime suspect being a Salvation Army worker, but somehow after 6 months nobody has been charged. Others were seriously injured, but their assailants haven’t been charged either.

Now we have the situation of refugees from Sri Lanka who have boarded boats in India being intercepted at sea and returned, not to Indias care, but to the Sri Lankan navy where on their return to Sri Lanka they are then handed over to the police for prosection (as it’s apparently illegal to leave Sri Lanka without permission, the sentence is “two years of rigorous imprisonment and a fine”).

This seems like a prima-facie case of refoulement and a clear breach of international law. I’m not the only person to think like that, 57 legal scholars from 17 Australian universities have written an open letter expressing the same feelings.

Such summary procedures do not comply with minimum standards on refugee status determination under international law. Holding asylum seekers on boats in this manner also amounts to incommunicado detention without judicial scrutiny.

I cannot stand by and be seen to acquiesce in this abuse of fundamental human rights and so I’ve decided that I must join The Greens as none of the major parties appear to understand international law and obligations.

This is not an easy decision for me, I spent 7 years working in the UK Civil Service and so that ethos of being independent of a political party is deeply ingrained, but the revulsion I have for the policies of this government and my fear of the dark places it is leading us has finally overcome it.

This is not in my name.

National Court of PNG Opens Inquiry Into Treatment of Refugees

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This could get interesting, the National Court of PNG has invoked a section of the PNG Constitution that permits it to investigate possible breaches of basic rights on its own initiative.

The National Court, having taken judicial notice of the alleged detention at the regional processing centre at Lombrum Naval Base, Manus Province, of a considerable number of persons seeking refugee status or asylum in Australia, who have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia, known generally as “asylum seekers” or “transferees”, and reports of alleged human rights violations and complaints about the conditions of detention and disturbances resulting in injuries to such persons, decided on its own initiative to inquire into such matters by invoking Section 57(1) of the Constitution.

The full opening statement by Justice Cannings is currently on Scribd, but Justice Cannings makes it clear that the intention is to visit the detention centre and talk to refugees:

The third stage of the hearing I anticipate will be in Lorengau, in the week commencing Monday 10 March. Evidence will be received at this hearing. The Court will inspect the regional processing centre. Transferees will be invited to give evidence. It is anticipated that this process will take at least three days.

The questions that he has set are:

  1. What human rights do the transferees have under the Constitution, if any?
  2. Have those rights, if any, been or are they now being, administered to them?
  3. If not, what orders and declarations should the Court make to protect and enforce those rights?

I suspect that the first one is the real substantial question, my guess is that if the court finds that they do have human rights then the rest will flow pretty simply from that. You can read the PNG Constitution online as a PDF.

Hat tip to Humanitarian Research Partners for mentioning this on Twitter (see below).

Australian War On Refugees latest: refugee intake capped at 2,773 for this financial year

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Thanks to Asher Wolf on Twitter for digging up this piece of latest awfulness in Australia’s War On Refugees:

I, SCOTT MORRISON, Minister for Immigration and Border Protection, acting under section 85 of the Migration Act 1958 (‘the Act’) DETERMINE that the maximum number of Protection (Class XA) visas that may be granted in the financial year 1 July 2013 to 30 June 2014 is 2773.

Worse still it’s not the first time the Minister for Operation Sovereign Murders has tried this, on 4th December 2013 he set a limit of 1,650 visas, the number granted up to that date. That instrument was revoked on the 20th December after a legal challenge was mounted to it (see the RACS PDF for more information). So this seems to be another cynical attempt to prevent genuine refugees coming to Australia, by any means at all.

I can only imagine what will happen on Manus Island when the news gets out that nobody will have any chance at all of getting a visa until July at the very earliest.

Australian Government says Australian law doesn’t include a right to seek asylum

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In a supplemental answer to a question taken on notice (PDF) in the Senate Estimates Committee regarding the forced repatriation of 12 and 14 year old Sri Lankan refugees the Australian “Department of Immigration and Border Protection” (formerly DIMIA, etc) said (my emphasis):

In relation to question 2, no, the unaccompanied Sri Lankan minors were not advised of their rights to seek asylum. Australian law does not contain a right to seek asylum, and therefore, departmental practice does not involve advising unauthorised arrivals that they have such a right.

In other words, Australia’s own “Don’t Ask, Don’t Tell” policy, except this time in defiance of international agreements Australia itself helped forge.

Article 14 of the Universal Declaration of Human Rights says:

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

You’d have thought the Australian government would have heard of that because their own Human Rights Commission website points out:

Australia was a founding member of the UN and played a prominent role in the negotiation of the UN Charter in 1945. Australia was also one of eight nations involved in drafting the Universal Declaration.

This was largely due to the influential leadership of Dr Herbert Vere Evatt, the head of Australia’s delegation to the UN. In 1948, Dr HV Evatt became President of the UN General Assembly. That same year he oversaw the adoption of the Universal Declaration.

Of course that declaration was not legally binding but Australia was involved in drafting, and we are signatories to, the 1951 Refugee Convention, which in the preamble says it:

recommends Governments to take the necessary measures for the protection of the refugee’s family especially with a view to:
(1) Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country,
(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.

The Australian Governments own website says that the 1958 Migration Act enshrines into law the Refugee Convention definition of a refugee as one:

owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Australian Government site then goes on to say:

The Migration Act incorporates art 1A(2) into Australian domestic law, and gives effect to Australia’s obligation of non-refoulement—not to return a person in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. Section 36(2) provides for the grant of a protection visa to a ‘non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

Now the Migration Act itself doesn’t include a right to ask for “asylum”, but it does include the right to ask for a “protection visa” on grounds of being a refugee. To me that’s exactly what the Universal Declaration of Human Rights means when it talks about asylum, not to mention the fact that the Refugee Convention talks about asylum all the time. For instance when talking about not penalising refugees for their method of arrival it says:

The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.

To me this seems to show that the Australian Government itself is either ignorant of its own legislation or just being deliberately misleading. Or both. None of which would surprise me at the moment.

A hat tip to RISE for pointing this out on Twitter:

Paying for Freedom (Updated)

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There has been much furore over the Microsoft Windows 8 Logo requirements, and how they require UEFI Secure Boot to be enabled, requiring the user to reconfigure their UEFI firmare (on x86 platforms) to be able to boot non-Windows 8 operating systems. People are concerned about the fact that this may be a slippery slope to systems that are locked down completely (as ARM powered Windows 8 systems already will be) with Secure Boot not being allowed to be disabled in order to get the MS Windows logo tick and thus the valuable marketing dollars from Redmond.

Now to me the solution seems obvious – don’t buy systems from people who sell such systems, but instead buy from vendors who believe in making systems that are under your control, and agree that it is you who gets to decide whether or not you want to turn Secure Boot on, or not. Go to companies like ZaReason (who sell around the world and have an Asia Pacific setup in New Zealand now) and System 76 (who used to be US only, but now apparently ship internationally).

The problem seems to be though that people complain that their systems tend to be a bit more expensive than the Dell’s of the world, companies who ship millions of PCs and have huge economies of scale (and power over their OEMs). Because ZaReason and System 76 work on much smaller volumes they don’t get the same deals and so of course their hardware will be more expensive – but that extra cost is actually an investment, a small downpayment on having vendors around in the future who will care about our freedoms to do with our computers as we see fit.

If we don’t make that investment in these companies then we will have no right to complain should we suddenly wake up one morning and find we have a choice between a beige PC that will only boot Windows 8 or later (and the ability to get your own code blessed so it will boot has gone away) and a shiny white Apple iProduct that will allow you to install any of the applications from the App store, but nothing outside of that walled garden.

So I have made my choices, when my desktop PC came a cropper and cooked itself due to the Linux leap second bug I bought a ZaReason Valta desktop and I then replaced my 9 year old laptop with a shiny new UltraLap 430 ultrabook which, I have to say, absolutely rocks with 8GB of RAM and an i5 Ivy Bridge CPU. 🙂

I believe freedom is worth investing in.

Update:

As spufidoo mentions in the comments the situation for desktops is not too bad at present whilst you can build your own, though there is always the chance that you end up with motherboards shipping with Secure Boot enabled and only Microsofts key installed (“why would you want anything else?”).

More of an issue are laptops and tablets where you can’t really build your own and you rely on companies to sell you the finished product. This was really the issue I had in mind when I wrote the article but failed to articulate it. We’ve already seen examples of the issues around tablets being locked down with the Nook Tablet from Barnes and Noble (though as the linked article reports people have worked around that now) so unless we support projects like the ZaTab where the package includes the source code we are purely relying on the munificence of companies for whom freedom is not the first thing they are thinking about.

A Possible Escape Route for Julian Assange from the UK (UPDATED x2)

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So Julian Assange has been granted asylum by Ecuador. The problem that he has though is he is still in the UK (and the UK can theoretically close that embassy down, it’s not a parcel of Ecuador in the middle of London) so the question would be how could he legally get out of the UK?

Here’s my idea (which is probably crazy, but Mark Newton had the same one on Twitter)..

  1. Ecuador makes him a citizen of their country.
  2. Ecuador appoints him to their diplomatic staff
  3. Ecuador makes him a diplomatic courier to courier a diplomatic bag from the embassy in London to Ecuador.
  4. Julian Assange leaves the UK.

So why do I think that will work?

Well I found a United Nations document from 1989 called “Draft articles on the status of the Diplomatic Courier and Diplomatic Bag not accompanied by a Diplomatic Courier and Draft Optional Protocols thereto with commentaries” (PDF) (not destined for commercial success with a title like that) which nicely explains what’s involved.

The important points I read were:

  • The receiving nation (in this case the UK) does not get to approve couriers who are nationals of the sending nation (Ecuador), that’s only for the head of missions.
  • The receiving nation is obliged to “accord to the diplomatic courier the facilities necessary for the performance of his function”, and even to provide temporary accomodation.
  • The receiving nation can declare the diplomatic courier who holds diplomatic rank “persona non grata” and then the sending country is obliged to recall the courier and they must leave the country. It’s only if they fail to recall the courier and they do not leave in a “reasonable period” that the receiving nation (the UK) can take action against them.

Now unless the status of diplomatic couriers has changed since 1989 then my feeling that the process would lead to one of two conclusions:

  1. Julian Assange leaves as a diplomatic courier and travels to Ecuador
  2. Julian Assange is recalled as “persona non grata” and travels to Ecuador

I’ve probably missed something (other than a flagrant breach of the Vienna Convention), but I can’t see what..

Update

It would appear the UK government agrees with this, their webpage on DIPPRIV2400 – Diplomatic Bags and Couriers: Diplomatic Couriers says:

Couriers are entitled to personal inviolability and must not be searched, arrested or detained.

Bingo.. 🙂

Update 2

Here is the UK legislation confirming that, the Diplomatic Privileges Act 1964, which says:

5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

6. The sending State or the mission may designate diplomatic couriersad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

News Corporation – the new face of piracy

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According to Panorama from the BBC in the UK it appears Sky TV in the UK had a subsidiary involved with people cracking On Digital’s smartcards and also with people running a website to share the keys from those smartcards.

Of course News Corporation is a multinational, so it wouldn’t surprise you to know that there are now allegations that they were involved in similar antics here in Australia:

News Corporation is alleged to have used a security division known as Operational Security to encourage hackers to pirate the smart cards of rival pay TV operators including Austar and Optus, thereby draining them of revenue and devaluing the businesses.

Perhaps FACT, AFACT. MPAA, etc should adjust their “piracy funds terrorism” to warn that by supporting piracy you will be supporting Rupert Murdoch, News Corporation, Sky, Fox News, etc.. That would put a lot more people off..

Brett Smith (Free Software Foundation) talks on the TPP in Melbourne – March 5th!

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Updated: new (larger) venue now finalised.

Brett Smith is in Melbourne to talk to government negotiators about the Trans-Pacific Partnership Agreement (TPP) and the impact on free software. This public lecture will introduce free software and discuss recent issues in free software licensing, including the TPP. Members of the public are welcome. No technical knowledge is required.

It will be on Monday 5 March, 2012, 6 p.m. in Theatre 1, ICT Building, Barry Street, Carlton.

This talk will introduce free software, explain why it’s important, and explore the many places where free software interacts with the law. Brett Smith will illustrate how copyright, licenses, patents, trade agreements, and other laws all play a role in deciding whether and how we can create, use, and share free software — and by extension, who controls our computers. Members of the public are welcome. No technical knowledge is required.

Brett is a GPL Ninja. He works in the Free Software Foundation’s Licensing Compliance Lab, as license compliance engineer. Brett answers complex licensing questions from the public, writes widely read and timely posts for the FSF’s blogs, codes up Python programs, and dashes across the country to give input to policy makers. Brett also ran the GPL version 3 drafting process.

Please register here: http://apps.freesoftware.asn.au/invite/brett-smith-fsf/

Wikileaks confirms AFACT acted as a front for the MPAA in the iiNet case

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Via a tweet from iiNet, who were sued by AFACT in the Australian Federal Court, this comment on the case from a US cable released by Wikileaks:

Despite the lead role of AFACT and the inclusion of Australian companies Village Roadshow and the Seven Network, this is an MPAA/American studios production. Mike Ellis, the Singapore-based President for Asia Pacific of the Motion Picture Association, briefed Ambassador on the filing on November 26. Ellis confirmed that MPAA was the mover behind AFACT’s case (AFACT is essentially MPAA’s Australian subcontractor; MPAA/MPA have no independent, formal presence here), acting on behalf of the six American studios involved. MPAA prefers that its leading role not be made public.

It also appears the Australian companies involved needed some persuasion to be involved – I wonder if it involved any of the folding paper/plastic type of persuasion ?

AFACT and MPAA worked hard to get Village Roadshow and the Seven Network to agree to be the public Australian faces on the case to make it clear there are Australian equities at stake, and this isn’t just Hollywood “bullying some poor little Australian ISP.”

They also go into the expected reasons why they picked iiNet – mainly that they weren’t Telstra (they were scared of them).