Border searches

The Commonwealth Ombudsman has released a 37 page report on Administration of coercive powers in passenger processing [PDF] regarding an investigation into use by the Australian Customs & Border Protection Service [ACBPS] of coercive powers.

The basis of those powers includes ss 195, 186 and 186A of the Customs Act 1901 (Cth), the Migration Act 1958 (Cth), the Environment Protection & Biodiversity Conservation Act 1999 (Cth) and the Anti-Money Laundering & Counter-Terrorism Financing Act 2006 (Cth). Section 195(3) of the Customs Act provides that the offence of not answering questions put under s 195(1) is one of strict liability. Salient case law regarding questioning includes R v Raso (1993) 115 FLR 319 and R v Bangura (2006) 3 DCLR(NSW) 179.

The report reflects complaints from travellers about their experiences with ACBPS officers. Those travellers often do not know why they have been searched, or are left wondering if the officer acted within their power. The report finds that searches by ACS "are generally consistent with principles of good administration but improvement could be made in several areas".

It indicates that -

A Customs officer is able to impede a person's passage through an airport and to ask questions that the person must answer. The officer is allowed to examine the person’s baggage and items found within it, including diaries and notebooks, laptop computers, cameras and other electronic storage devices. The officer can in some circumstances copy those documents – for example, the officer may download mobile phone content. The officer is also able to keep an item carried by the person for a period of time after the person has left the airport, to enable it to be examined by another area within Customs with the necessary expertise and equipment. These are strong powers, used by Customs to regulate the movement of people and goods across Australia's border.

Customs officers’ powers are exercisable with respect to all those who depart from and arrive in Australia on international flights. For the most part, passengers will travel through the airport unimpeded. Customs' 2008/09 Annual Report indicated that in that year it processed 24.33 million international air and sea passengers, and on average 97.4 per cent of those passengers were processed through Customs within 30 minutes of joining the inwards queue. Nevertheless, as complaints to this office indicate, when a person is subject to some form of Customs intervention at the airport, it can be cause for significant concern for that person.

Some sense of potential concerns is provided by an instance highlighted in the report, with the Ombudsman noting that -

a man was questioned about his accommodation in his country of origin, who he lived with, details of their relationship and whether he was married – which did not relate so much to the 'carriage of prohibited goods', as to whether his story stood up to the officer’s scrutiny. He complained to the Ombudsman that the questioning had been unduly invasive and personal, and that his reluctance to answer was interpreted by the Customs officer as if he had something to hide, which led to more questioning.

Improvements suggested by the Ombudsman relate to -

* the relevance of questions asked

* the relevance of documents copied

* the timeliness of the return of personal possessions after forensic examination

* gaps between policy and practice with respect to record keeping and the transparency of administration

* record keeping

* providing information to the public on passenger processing.

Maybe it's the water?

Appointment as Attorney General of South Australia seems to induce a willingness to forget basic principles of jurisprudence among people who should be expected to provide an example to the community.

Yesterday the SA Attorney General, John Rau, announced that "South Australia is to get a Law Reform Institute for the first time in more than twenty years". According to his media release

the Institute will assist in the streamlining of South Australian laws and management of justice in this state. South Australia hasn’t had a Law Reform Commission since the late 1980s, and is the only jurisdiction in Australia not to have one. ...

"The South Australian Law Reform Institute, and its members, will play a key role in improving the administration of justice in South Australia", Mr Rau said.

"The Institute will help modernise, simplify and consolidate laws and the administration of the justice system and, in doing so, improve access to justice for the community.

The Institute's work will also lead to the repeal of laws that are obsolete or unnecessary for the community today.

In addition, the new body will consult and collaborate with law reform agencies in other states and territories on proposals to reform laws in other jurisdictions or within the Commonwealth."

Before you celebrate that progressive leadership, contemplate statements reported on the same day in the Adelaide Advertiser (ie the state's leading newspaper, albeit dismissed by Rau's colourful predecessor as a "sewer") under the headline "Attorney General John Rau moots laws to strip serious criminals of their rights".

The report states that -

Fundamental legal rights including the presumption of innocence and access to a fair trial must be sacrificed to eradicate sophisticated criminal gangs, Attorney-General John Rau says.

As the State Government prepares to return to Parliament in the new year with a raft of legislation targeting organised crime gangs, Mr Rau has warned the legal system has failed to keep up with ruthless gangs.

The State Government is in possession of a report from retired District Court Judge Alan Moss which includes several proposals for fixing anti-association laws ruled unconstitutional by the High Court last month.

Mr Rau said each model "has its own repugnant element" but the Government had "no choice" but to sacrifice legal principles in its attempt to win the war against criminal gangs.

"The rule of law has certain underpinnings in it, which include the fact that people are entitled to a fair trial, that there's a presumption of innocence," he said.

"When you are dealing with very organised, very sophisticated people whose capacities are much more focused and targeted than general government capacities are, you unfortunately have to start looking at models which eat away at those fundamental rights."

It is, in my opinion, both disturbing and bizarre that the SA Government - apparently unabashed by Supreme Court and High Court rejection of its flawed anti-bikie statute, apparently unabashed by criticisms such as that noted here, apparently unabashed by disquiet regarding proposals to reshape the rules of evidence in pandering to a crude populism - seems to be blithely headed towards sacrificing foundational legal principles.

We should, in my opinion, be wary about rhetoric involving "the war against criminal gangs". We should also be hesitant about statements that foster a moral panic or that expose the Attorney General to a much deserved ridicule. What will the new Law Reform Institute (and the University of Adelaide) be saying about Rau's proposals?

Talking up

The High Court in Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42 has tacitly reinforced the right of political communication in confirming that an outspoken NGO has charitable status.

Aid/Watch was incorporated in 1993 under the Associations Incorporation Act 1984 (NSW), gaining endorsement in July 2000 as a 'charitable institution', ie as an entity exempt from income tax liability under the Income Tax Assessment Act 1997 (Cth). It was subsequently endorsed as a 'charitable institution' for the purposes of the Fringe Benefits Tax Assessment Act 1986 (Cth) and the A New Tax System (Goods and Services Tax) Act 1999 (Cth), aka the GST Act.

In 2006 those endorsements, and thus Aid/Watch's charitable status, were revoked by the Australia Commissioner for Taxation. Aid/Watch lodged an objection to the revocation (disallowed by the Commissioner in March 2007)and then appealed to the the Administrative Appeals Tribunal, which in Re Aid/Watch Inc and Federal Commissioner of Taxation [2008] AATA 652 set aside the Commissioner's decision and determined that the organisation was a "charitable institution" within the meaning of the relevant legislation. The Commissioner appealed, with the Full Court of the Federal Court in Federal Commissioner of Taxation v Aid/Watch Inc [2009] FCAFC 128 setting aside the AAT decision of the AAT and affirming the Commissioner's 2007 decision. Aid/Watch appealed to the High Court.

Aid/Watch, which promotes itself as an "activist" organisation, is concerned with the relief of international poverty, a laudable objective. In undertaking its mission it campaigns for improvement in the delivery of Australian overseas aid. That campaigning, which necessarily involves criticism and can be construed as political comment, contrasts with traditional charitable activity such as raising funds (which may or may not stick to the charity pipeline) or engaging directly in anti-poverty initiatives.

Aid/Watch argued that it seeks to ensure that -

1 aid projects and development programs and projects are designed to protect the environment and associated human rights of local communities in countries that receive Australian aid.

2 there is increased aid funding for environment programs with specific attention to renewable energy, end-use efficiency and energy conservation, small scale irrigation schemes and sustainable agriculture, land rehabilitation programs, waste management, and protection of biodiversity.

3 there are complete environmental impact assessment according to the highest standards for all projects, incorporating meaningful public/community participation.

4 aid and development projects and programs incorporate the principles of ecologically sustainable development.

5 there is respect for the rights of indigenous people and a recognition of their expertise in ecological management.

6 aid agencies, development banks and export credit agencies conduct full and regular [consultations with] community organisations, regarding the identification, planning, implementation, monitoring and evaluation of projects.

7 there is accountability and transparency in the Australian aid and export credit programs including freedom of information on all aspects of projects and programs of development agencies and multilateral development banks.

8 there is greater recognition of women's needs and greater involvement of women on development projects, and greater gender equity at all levels of the development process, including in consultancy firms contracted to implement aid programs and projects.

9 there is a halt to structural adjustment programs that contribute to environmental degradation and dislocate or damage the poorest populations.

10 there is an increased proportion of appropriate professional staff in Australia's official overseas development agency (currently AusAID), official Export Credit Agency (currently EFIC) and multilateral development agencies and consultancy firms contracted for aid programs and projects and the development banks.

11 there is increased funding of development education activities within Australia and an increased public awareness of the environmental and social impact of the Australian Overseas Development Assistance Program and related private investment, including input into environmental and developmental studies.

As a result Aid/Watch has criticised government and proposed major reforms. That activity was considered by the Commissioner to deny it charitable status, a matter explored in works such as Dal Pont's new Law of Charity (Chatswood: LexisNexis Butterworths 2010), noted here.

The majority in the High Court case indicated that -

Aid/Watch submitted that the generation by it of public debate as to the best methods for the relief of poverty by the provision of foreign aid has two characteristics indicative of its charitable status. The first is that its activities are apt to contribute to the public welfare, being for a purpose beneficial to the community within the fourth head identified in Pemsel. The second is that whatever else be the scope today in Australia for the exclusion of "political objects" as charitable, the purposes and activities of Aid/Watch do not fall within any area of disqualification for reasons of contrariety between the established system of government and the general public welfare.

The court concluded that -

These submissions by Aid/Watch should be accepted. By notice of contention the Commissioner submitted that the Full Court should have decided the appeal in his favour on the ground that the main or predominant or dominant objects of Aid/Watch itself were too remote from the relief of poverty or advancement of education to attract the first or second heads in Pemsel. It is unnecessary to rule upon these submissions by the Commissioner. This is because the generation by lawful means of public debate, in the sense described earlier in these reasons, concerning the efficiency of foreign aid directed to the relief of poverty, itself is a purpose beneficial to the community within the fourth head in Pemsel.

The Commissioners for Special Purposes of the Income Tax v John Frederick Pemsel [1891] UKHL 1, as noted by the High Court, is -

the source of the modern classification of charitable trusts in four principal divisions, namely, trusts for the relief of poverty, for the advancement of education, for the advancement of religion and for other purposes beneficial to the community. But even in 1891, the case law which gave the term "charitable" its technical meaning had developed considerably since the time of the British income tax statute of 1799. The case law may be expected to continue to do so as the cases respond to changed circumstances. As Lord Wilberforce put it, the law of charity is a moving subject which has evolved to accommodate new social needs as old ones become obsolete or satisfied.

the ultimate question regarding Aid/Watch is whether its public advocacy fits into the charitable category of "other purposes beneficial to the community". The High Court found that it did.

In the current case the Court also concluded that -

It also is unnecessary for this appeal to determine whether the fourth head encompasses the encouragement of public debate respecting activities of government which lie beyond the first three heads (or the balance of the fourth head) identified in Pemsel and, if so, the range of those activities. What, however, this appeal should decide is that in Australia there is no general doctrine which excludes from charitable purposes "political objects" and has the scope indicated in England by McGovern v Attorney-General.

In dissent Heydon J commented that Aid/Watch -

did not have the goal of relieving poverty. It provided no funds, goods or services to the poor. It did not raise funds to be distributed to the poor by others. The purposes of the appellant embraced aid to the poor, but they also embraced aid to many other sections of society as well. The goal of ensuring that there was local community involvement in the planning and implementation of aid projects was not targeted at the poor. Nor was the goal of ensuring that aid was delivered in an environmentally effective manner. Nor were the goals of respecting indigenous people and their expertise, ensuring "accountability and transparency" in relation to Australian aid programs, and increasing recognition of women's needs and involvement of women in development projects.

The Tribunal was correct to find that the relief of poverty had "no particular emphasis in [the appellant's] formal objectives". The Tribunal contradicted itself when it said that "[v]irtually every purpose or activity of [the appellant] is directed towards promoting the relief of poverty." The Tribunal was not correct to find that implicitly the relief of poverty was a "major objective" of the appellant. It was an objective, but diluted and diffused by many other objectives, and actually contradicted by some. The purpose of providing aid to improve infrastructure might relieve poverty, but the appellant opposed infrastructure which damaged the environment. One of its goals was to "demand" a complete phase out of support for extractive industries: these industries often damage the environment, but they also often bring wealth to many who would otherwise be poor. Similarly, the connection between opposing the Free Trade Agreement between Australia and the United States of America and relieving poverty was obscure.

Kiefel J concurred, commenting that -

A Full Court of the Federal Court (Kenny, Stone and Perram JJ) held that its main purpose was its political purpose, which is to say, the assertion of its views. The Court considered that it was not possible to determine that the appellant's purposes were for the public benefit, since the Court was in no position to determine that the promotion of one view, rather than the other, was for the public benefit. In my view, the Court's conclusion was plainly correct.

The submission by the appellant, that its purposes are for the public benefit because it generates public debate, cannot be accepted at a number of levels. Its assertion of its view cannot, without more, be assumed to have that effect. Its activities are not directed to that end. If they were directed to the generation of a public debate about the provision of aid, rather than to the acceptance by the Government and its agencies of its views on the matter, the appellant might be said to be promoting education in that area. But it is not. Its pursuit of a freedom to communicate its views does not qualify as being for the public benefit.

Look for the silver lining

A contact has pointed me to a Guardian piece, redolent of conspiracism, by Max Keiser, who appears to suggest that if we all buy some shiny metal we can - and should - bust JPMorgan Chase.

As part of the ongoing exposé, it has now become clear that JP Morgan is sitting on what is estimated to be 3.3bn ounce "short" position in silver (which they have sold short, meaning they don't own it to begin with) in an attempt to keep the price artificially low in order to keep the relative appeal of the dollar and other fiat currencies high. The potential liability for JP Morgan has been an open secret for a few years.

On my show, Keiser Report, I recently invited Michael Krieger, a regular contributor of Zero Hedge (the WikiLeaks of finance). We posited that if 5% of the world's population each bought a one-ounce coin of silver, JP Morgan would be forced to cover their shorts – an estimated $1.5tn liability – against their market capital of $150bn, and the company would therefore go bankrupt. A few days later, I suggested on the Alex Jones show that he launch a "Google bomb" with the key phrase "crash jp morgan buy silver".

Within a couple of hours, it went viral and hundreds of videos have been made to support the campaign.

Right now, silver eagle sales for the month of November hit an all-time record high and the availability of silver on a wholesale level is drying up. The most important indicator is the price itself – holding just under a 30-year high. With each uptick JP Morgan gets closer to going bust or requiring a bailout.

Putting aside a fundamental distaste for the Alex Jones Show (a venue for 9/11 Denialism and claims that the British Monarch is actually a large green extraterrestrial 'reptilian') my immediate response is to ask whether there is anyone with an interest in boosting the price of silver other than as a way of ostensibly punishing a big bad bank? Will it end in tears?

Large-scale speculation in shiny metal has a long history. I am reminded of the bursting of the speculative bubble on 'Silver Thursday', ie 27 March 1980, with panic on futures exchanges, a bailout of brokers and the disposal of the art collection (including the Euphronios Krater) of the "famously wealthy" and infamously right wing Hunt family.

Nelson Bunker Hunt and Herbert Hunt had attempted to corner the global market in silver, reportedly gaining rights over a third of the world's non-government holdings of the metal and in the process pushing up the price from US$2.90 per ounce to US48.70. Wealth has its ironies. The rise elicited an ad from Tiffanys - of course on a purely philanthropic basis - that declaimed

We think it is unconscionable for anyone to hoard several billion, yes billion, dollars worth of silver and thus drive the price up so high that others must pay artificially high prices for articles made of silver

Government-induced collapse of the bubble saw the brothers face a potential loss of US$1.7 billion and anxieties about the demise of other speculators and brokers, addressed through a US$1.1 billion line of credit from a consortium of US banks. Mitchel Abolafia & Martin Kilduff's 'Enacting Market Crisis:
The Social Construction of a Speculative Bubble' in (1988) 33 Administrative Science Quarterly 177-193 comment that

On October 26, 1979, the Chicago Board of Trade decreed that those traders holding in excess of 600 contracts for speculation in the silver futures market had to reduce their positions. "You can't do it," was Nelson Bunker Hunt's incredulous reaction. "You wouldn't dare. You're the last bastion of free enterprise in the world" .... Hunt found himself confronted by an organization with the power to redefine the rules of transaction and the temerity to violate the sacrosanct principles of a free nnarket. Over the next six months Hunt was to receive more lessons on the organizational context of free markets, as regulatory agencies and futures exchanges sought to control what they regarded as an artificial inflation in the price of silver.

The Hunts lost over a billion dollars, later being found guilty of conspiracy to corner the silver market and eventually declaring bankruptcy. Their travails are recorded in Stephen Fay's Beyond Greed (Viking,  1982), 'Spending: the Hunts, silver, and dynastic families in America' by George Marcus in (1985) 26(2) European Journal of Sociology 224-259, and Bryan Burroughs' The Big Rich: The Rise and Fall of the Greatest Texas Oil Fortunes (The Penguin Press, 2009).

SSN and ID Crime

'The Military’s Cultural Disregard for Personal Information' [PDF] by Gregory Conti, Dominic Larkin, David Raymond & Edward Sobiesk in 6(11) Small Wars Journal [2010] discusses misuse of the Social Security Number (SSN) in the US by military personnel, service providers and their families.

Despite advice that the number "is your identity" and has been shown to be a foundation for identity crime, the number is used as the default personal identifier in settings that include

- filling out health forms
- identifying laundry
- checking out basketballs, racquets or towels at the gym
- getting a flu shot
- buying a pair of pants at a ship's commissary
- identity cards borne by children of military personnel.

The authors comment that -

the military services lag a decade or more behind best practices found in other sectors of government, industry, and academia in the proper use and handling of PII [Personally Identifiable Information]. While positive progress has been made by the services, such progress is slow, ad-hoc, frequently ignored, and overshadowed by the common usage of the Social Security number as a way of tracking and identifying individuals. The systemic leakage of personal information in day to day operations, and a pervasive attitude of disregard for personal privacy is unsettling. Such issues are not tolerated outside the military - the time for substantive change within the military has arrived.

The problem of PII use has broad implications because the impact is felt by uniformed service members as well as government civilians, family members, and contractors, all of whom are compelled to disclose their Social Security number and incur the risk that it will be further disclosed, intentionally or unintentionally, without their knowledge or consent. The Federal Trade Commission, the United States Government’s lead agency in preventing identity theft, states “Don't carry your Social Security card in your wallet or write your Social Security number on a check. Give your Social Security number only when absolutely necessary, and ask to use other types of identifiers.” This guidance is impossible to follow within the military given the pervasive and compulsory use of the Social Security number.

There are some who believe that disclosing one’s Social Security number or birth date is harmless, however, this view is patently incorrect. An individual’s Social Security number combined with their date of birth provides access to one’s identity. Scammers, identity thieves, and other criminals can use this information to commit a wide variety of crimes including opening new credit card accounts, generating credit reports, taking over existing accounts, or as a way to shield their true identity when arrested for a crime. There is even a recent trend where criminals will use the Social Security number of children as a means of stealing an untainted credit history.

Fixing the damage caused by identity theft is imperfect, stressful, expensive, and time consuming. Accounts must be closed and credit reports fixed through long and painful processes. Innocent individuals are subject to harassment by collection agencies. The cost is high in terms of time and frustration. The problem is magnified when an individual is deployed, allowing much damage to occur without their knowledge, or if known, serves to place additional stress on already strained families. Unlike a password which can be routinely changed, our Social Security number and date of birth are meant to be with us for life. Thus, disclosure of this information places us at risk for life; in fact some identity theft even occurs after death, creating immense problems for surviving family members.

The Intervention

I'm impressed by the nuanced approach in Mary Edmunds' 28 page paper [PDF] The Northern Territory Intervention and Human Rights: An Anthropological Perspective.

Edmunds concludes that -

It is essential that the Commonwealth ensure that
Australia’s human rights international obligations are fulfilled. But it also needs to ensure that this process takes account of how those human rights are implemented
and experienced on the ground. The Intervention shook the assumptions of how that might happen. It relied, in its original incarnation, on the shock impact of The little children are sacred report. And, as Toni Morrison said in her 1998 ABC interview with Jana Wendt (Uncensored, Australian Broadcasting Corporation), ‘I insist on being shocked ... To lose the capacity to be shocked is to lose our humanity’.

But the impact of the Intervention also demanded that we reflect on how the implementation of human rights goes beyond pronouncements, fundamental as they are, to an active engagement between government and those affected by government policy. The present Federal Government approach is attempting to do that. It remains to be seen whether it will or, like so many previous governments, will not succeed.

The key to a long-term response is not to be captured by a disconnected rhetoric of human rights, but to anchor that rhetoric in its translation through the prism of Aboriginal people’s contemporary lived experience. That lived experience draws on traditional culture and values; acknowledges dysfunction; recognises that it is subject to the forces of modernity, including necessary engagement with government in the intercultural space; but demands the right to operate in full partnership. That, finally, will determine how Aboriginal people’s human rights are exercised.

Caning

Amnesty International has released a 51 page report [PDF] on caning in Malaysian prisons.

Among other statutes that allow flaying are the Immigration Act 1959/63, with 6 offences-

6. Unlawful entry into Malaysia
36. Unlawful return after removal
55. Conveying a person to Malaysia illegally
55B. Employing more than five people who are person in possession of a valid Pass
55D. Forgery or alteration of immigration endorsement or document
56D. Harbouring a person known or believed to have acted in contravention of this Act

and the Penal Code, which features offences such as -

377. Buggery with an animal
377A. Carnal intercourse against the order of nature
377B. Punishment for committing carnal intercourse against the order of nature

Jeremy Bentham will be turning in his grave.

The report indicates that -

In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.

The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims.

State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities. ...

Refugees who fled torture and forced labour in Burma told Amnesty International how Malaysia (which does not recognise refugees) caned them for immigration violations, sometimes repeatedly. In Indonesia, Amnesty International met migrant workers deported by boat from Malaysia; 63 of the men had been caned.