18 December 2004

derogatory rights

Abraham Lincoln 1838
How then shall we perform it? At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

A (FC) and others v. Secretary of State for the Home Department (Respondent) per Lord Hoffmann:
This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.


The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Ahmed Ali Al-Kateb V Godwin per Gleeson CJ:
During the Second World War, reg 26 of the National Security (General) Regulations 1939 (Cth) provided:

The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth it is necessary to do so make an order ... directing that he be detained in such place and under such conditions as the Minister from time to time determines ...

This Court unanimously upheld the validity of the regulation in Ex parte Walsh[48]. Starke J said that the application for habeas corpus was "hopeless"[49]. In Little v The Commonwealth[50], Dixon J held that an order of the Minister under this regulation was not examinable upon any ground other than bad faith.

During the greater part of the period when reg 26 was in force, the relevant Minister was Dr H V Evatt, who had been a Justice of this Court and was later to become President of the United Nations General Assembly. According to a speech he gave in Parliament on 19 July 1944, 6174 persons were detained under this regulation at the time when he became the Minister and 1180 persons were still detained under the regulation in July 1944[51]. He does not appear to have thought that, in making orders under reg 26, he was acting in breach of Ch III of the Constitution

The High Court also upheld a similar regulation during the First World War. My great grandfather, whose family had lived here since the 1840s, faced internment because he had a German name.

In August the High Court made a legally impeccable and morally repugnant decision that our constitution permits indefinite detention without charge. The moral repugnance does not belong to the judges, it belongs to a political elite which has always opposed a bill of rights in Australia. The Court said, also per Gleeson CJ:

Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments[75]. It is an enduring - and many would say a just - criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country. It would be absurd to suggest that the meaning of a grant of power in s 51 of the Constitution can be elucidated by the enactments of the Parliament. Yet those who propose that the Constitution should be read so as to conform with the rules of international law are forced to argue that rules contained in treaties made by the executive government are relevant in interpreting the Constitution. It is hard to accept, for example, that the meaning of the trade and commerce power can be affected by the Australian government entering into multilateral trade agreements. It is even more difficult to accept that the Constitution's meaning is affected by rules created by the agreements and practices of other countries. If that were the case, judges would have to have a "loose-leaf" copy of the Constitution. If Australia is to have a Bill of Rights, it must be done in the constitutional way - hard though its achievement may be - by persuading the people to amend the Constitution by inserting such a Bill.

The moral fault lies with both major parties who show a consistent record of threatening the nation, as Lord Hoffman and Abraham Lincoln said, by abridging liberties in the name of crisis. We need a major political party that accepts the priority of human rights. We do not have such a major party. To return to Lord Hoffman:

When Milton urged the government of his day not to censor the press even in time of civil war, he said:

Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours

96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

Australia will survive al-Qa'ida as well. But we need to stop empowering the terrorists by abridging our liberties.

16 December 2004

signs of the times

Winning in the Streets
One of the unlikely heroes of the Ukraine uprising is a state television sign-language interpreter, who began signing on the air that the telecast was lies and that she wouldn't go along with it any longer. Inspired by her actions, 200 journalists for state-run TV and radio vowed to no longer act as the government's mouthpiece. How many bland White House assertions that the sky is green and the grass is blue would it take to drive someone at Fox News to denounce the status quo like that?

The US media are deaf to reality anyway.

smoke and mirrors

Different targets, same tactics
The relevant facts about the oil for food programme were pushed to one side. James Dobbins, the former US ambassador to Afghanistan, wrote in the Washington Post: 'First, no American funds were stolen. Second, no UN funds were stolen. Third, the oil-for-food programme achieved its two objectives: providing food to the Iraqi people and preventing Saddam Hussein from rebuilding his military threat to the region.'

Then the Post published a story that the US was wire-tapping Mohamed ElBaradei, director general of the UN's International Atomic Energy Agency, in an operation to discover that he was secretly aiding Iran in hiding its nuclear weapons programme. In fact, ElBaradei was working with the Europeans in negotiating a resolution with the Iranians. It was this diplomacy that neoconservatives were seeking to discredit. Compliance with internationally monitored nuclear development of Iran isn't the objective of the neocons; they want regime change, Iraqredux.

The techniques of the permanent campaign, especially negative attacks, recently applied in the re-election contest, are being transferred seamlessly and shamelessly to international relations.

In part, the slash-and-smear campaign against Annan and ElBaradei is the Bush administration's effort to subjugate international civil servants and organisations to its central command. But this episode also reflects the rolling coup of the neocons as they struggle for power, position and policy in a second Bush term.

Just how bad can a smear campaign get? The US named Dolly Downer as ElBaradei's successor. Dolly Downer refused. Even the Howard govenrment will not sign up to this one.

Meanwhile, we have a new Bush doctrine to deal with the collapse in the US exchange rate and trade deficit.

Bush aims to cut deficits

President George W Bush pledged overnight to work with the US Congress to reduce the country's huge deficits and support a strong US dollar.
Bush said that in addition to the budget deficit, America suffers from a huge trade deficit.

"That's easy to resolve," Bush said. "People can buy more US products if they're worried about the trade deficit."

Bush's comments came a day after the government reported that America's trade deficit hit a monthly record of $US55.5 billion ($A73.42 billion) in October.

"The policy of my government is a strong-dollar policy," Bush said during an Oval Office meeting with Italian Prime Minister Silvio Berlusconi.

"We're going to take this issue on seriously with the Congress," the president said, after Berlusconi raised concerns about the dollar's fall.

The Bush administration has controlled the US presidency, house and senate for 4 years. They have done nothing to cut the deficit in that time, despite their unprecedented power. The US is being governed by Rufus T Firefly.

Something in the dihydrogen monoxide

The city councillors of Aliso Viejo in Orange County, California, are well-meaning, socially responsible people. And when they came across the huge threat posed to their constituents by dihydrogen monoxide they did what any elected official should do: they took steps to protect their community. A motion due to go before the city legislature proposed banning the potentially deadly substance from within the city boundaries.

Researchers found that the presence of dihydrogen monoxide in Aliso Viejo had reached startling levels: it was present in its crude form, often spilling unmonitored on to the city streets; it was found to be a crucial ingredient in many common chemical compounds; its presence was even detected in that most ubiquitous of civilised artifacts, the styrofoam cup.

And it got worse: dihydrogen monoxide is lethal if inhaled, causes severe burns in its gaseous state, and is the major component in acid rain. Prolonged exposure to solid dihydrogen monoxide can cause severe tissue damage. It can, said the city council report, 'threaten human safety and health'.

Fortunately for the concerned legislators, the rat was smelt before it got as far as the debating chamber. The perils of dihydrogen monoxide have been ignored until now largely because it is better known by its common name: water.

'It's embarrassing,' said city manager David Norman in an inspired act of buck-passing. 'We had a paralegal who did bad research.'

At least the city fathers of Aliso Viejo can sleep soundly at night now that they know dihydrogen monoxie is not ert. I guess it's one for the legal philosophers. If the city council had enacted this law, how should a judge have treated offenders? How is dihydrogen monoxide related to dry economics? How persuasive is the evidence presented by the Dihydrogen Monoxide Research Division?

Fortunately there is no danger of governments pursuing empirical error. It is, for instance, impossible that a number of governments would invade another country over weapons of mass destruction that do not exist.

15 December 2004

flagging missile defence

Well, I'm glad the US missile defence agency can launch a dummy successfully.

The first test in nearly two years of a multibillion-dollar U.S. anti-missile shield failed on Wednesday when the interceptor missile shut down on its launch pad in the central Pacific, the Pentagon said.

About 16 minutes earlier, a target missile carrying a mock warhead had been successfully launched from Kodiak Island, Alaska, the Pentagon's Missile Defense Agency said in a statement.

Ah, yes, this is the invincible shield of steel the Australian government wants to protect Sydney from North Korean missilies. I think I preerred it when the Coalition were part of the reality-based community