Funding Hatespeech

'Bankrolling Bigotry: An Overview of the Online Funding Strategies of American Hate Groups', a report by Global Disinformation Index and Institute for Strategic Dialogue, comments 

Hatred is surging across the United States. Figures released by the Southern Poverty Law Center (SPLC) suggest that the number of hate groups rose steadily between 2014 and 2018, including a 55% growth in the number of number of white nationalist groups active between 2017 and 2019. In 2018 the FBI announced that hate crimes were at the highest volume they had been for 16 years, and recent analysis from the Center for Strategic and International Studies identifies white supremacists as the most significant terror threat facing the US. This matches global trends where white supremacist terrorism has spiked by 320%, in part buoyed by a broad morass of hate against communities including Jews, Muslims, immigrants, people of colour, people with disabilities and the lesbian, gay, bisexual, transgender, queer and others (LGBTQ+) community. 

This hatred has come to the streets over the course of 2020. As civil rights protesters have demonstrated across the country, groups such as the Proud Boys have incited hatred and participated in violent clashes. Such hatred threatens the safety, security and wellbeing of minority communities, and societal harmony writ large. 

There is a clear need for greater efforts to be made to tackle hate groups. While these groups remain free to mobilise they can target minority communities with hatred and violence, as well as proselytise and recruit new members. The struggle against these actors plays out in many ways. Civil society groups produce counter-messaging, which undermines the propaganda of hate; specialist practitioners work to de-radicalise individuals involved in extremist movements; and activists and academics build evidence bases and advocate for changes from social media platforms to improve and enforce their policies against hate-mongers. 

Another area where there has been successful activism over recent years is in limiting the ability of hate groups to raise funds. Advocacy groups like SumOfUs have helped wage campaigns that put pressure on companies whose products are used to facilitate the funding of hate. A number of individuals involved in promoting hatred have been banned from platforms such as PayPal, limiting their ability to make money or raise donations. 

The extent to which hate groups use different platforms to raise funds is currently not widely understood, however, so their efforts to limit this activity are not always effective. To improve our ability to check the scale and nature of online funding by hate groups, the Institute for Strategic Dialogue (ISD) and Global Disinformation Index (GDI) have analysed the digital footprints of 73 US-based hate groups, identified through existing studies conducted by the SPLC and Anti-Defamation League (ADL), with additional coding and vetting by ISD and GDI analysts. These groups were then assessed for the extent to which they used 54 funding mechanisms. The research aimed to map out the online infrastructure behind hate groups’ financing and fundraising in order to support efforts to defund and therefore disempower hate movements in the US. 

Through this research, we found that hate groups use popular platforms such as PayPal, Facebook Fundraisers and Stripe, although these platforms often have explicit policies supposedly preventing their use to facilitate hate or violence. Through this work we have improved our understanding of how different types of groups raise money using a broad spectrum of online platforms and services. This work has informed a series of recommendations which, if enacted, could diminish the ability of those who seek to spread hatred to succeed.

The key findings are 

• We analysed the digital footprints of 73 US-based groups involved in promoting hatred against individuals on the basis of their gender, sexuality, race, religion or nationality. We checked for their use of 54 online fundraising mechanisms, which included 47 platforms, 5 different cryptocurrencies and the presence of membership or consulting services, ultimately finding 191 instances of hate groups using online fundraising services to support their activity. 

• The platform most commonly used by the hate groups studied was Charity Navigator, an organisation that assesses charities in the US and ranks them according to a certain set of criteria; currently it is used by 29 groups. The second most commonly used platform was PayPal, currently used by 21 of the groups we analysed, followed by Facebook Fundraisers, currently used by 19 groups. Charity Navigator and Facebook Fundraisers are both powered by Network for Good, a fundraising software company that allows any non-profit with a profile on the non-profit information service Guidestar to use their service to raise funds. 

• A number of the hate groups analysed in this report have non-profit status in the US: 32 of the 73 (44%) hate groups have either 501(c)(3) or 501(c)(4) tax status in the US. This potentially helps legitimise hate groups and provides them with avenues through which to raise money. 

• More than one-third (38%) of the platforms analysed do not have a policy which explicitly prohibits hate groups from using their services. A majority – 29 of the 47 (62%) platforms – included in the investigation had policies designed to push back against or ban hateful activity in some way. 

• Hate groups used 24 of those 29 (83%) platforms with policies against hate speech, showing a failure to implement and enforce these policies. 

• Different types of hate groups prioritised different funding mechanisms. When identifying hate groups for analysis we subcategorised them according to their ideology. Through this we found that white supremacist organisations were least likely to use funding mechanisms such as onsite donation forms, crowdfunding mechanisms or onsite retail, instead preferring to use cryptocurrency donations. This potentially reflects proactive policy enforcement by funding platforms, suggesting that policy enforcement can become an effective tool limiting the activities of hate groups online. It may also be a result of the preferred mobilisation strategies of these groups, which prioritise decentralised organisation and the incitement of violence. Conversely anti-LGBTQ+ groups, which are in some instances well-established organisations that operate under the banner of legitimate religious groups, had the most diverse funding strategies.

The recommendations are 

• Platforms should adopt policies which limit their use by hate groups: We found that 38% of the platforms studied did not have any policies in place prohibiting their use by hate groups. Furthermore, some platforms only had limited policies in place prohibiting violent organisations, but ignored their use by non-violent hate groups. The mass proliferation of hatred against minority communities helps inspire violence and fuels community polarisation and societal destabilisation. We recommend that platforms that facilitate organisational fundraising adopt comprehensive policies banning their use by groups that promote hatred and discrimination of individuals according to their identity, including gender, sexuality, race, religion, disability or nationality. 

• Where platforms do have policies to prevent the abuse of services by hate groups, they should be more proactive and comprehensive in their enforcement: Hate groups used 83% of the platforms we identified that had policies in place around hatred. It is essential that organisations are more proactive in the enforcement of their terms of service so that they live up to the values which they publicly express, and limit their abuse by hate groups. This might include greater resource allocation to safety and policy teams dealing with such issues on the platforms, or proactive outreach to experts who can provide support in identifying and analysing the activity of hate groups on the platforms. 

• Industry bodies such as the Electronic Transactions Association or the Merchant Acquirer’s Committee should take on a leadership role in developing standard-setting guidelines about hate and extremism in order to encourage the broad adoption of policies to limit online fundraising tools for hate groups: industry standard guidelines should be drawn up to help guide a more cohesive and uniform response to the misuse of financial technology by extremists at a policy level. 

• Congressional debate on whether such groups should qualify for non-profit tax status: 44% of the hate groups in our study are registered non- profit organisations in the US. An Internal Revenue Service (IRS) designation may act as a sort of kite mark, making platforms and payment providers wary of acting against a group. Through our research we found evidence that being registered as non-profits helped the groups studied raise funds. Following the outcome of the 2013 “IRS targeting scandal”, which found that the IRS had used inappropriate and politically-motivated criteria to identify tax-exempt applications, it is believed that the debate over the non-profit status of groups that discriminate against immutable characteristics should fall onto Congress.

COVID app

'Tracking, tracing, trust: contemplating mitigating the impact of COVID‐19 through technological interventions' by Kobi Leins, Christopher Culnane and Benjamin IP Rubinstein in (2020) 213(1) Medical Journal of Australia 6-8.e1 comments 

A false impression of technological panacea may see much needed interventions overlooked and may introduce unintended consequences and risks. 

In the face of coronavirus disease 2019 (COVID‐19) limiting free movement, experts are scrambling to mitigate the profound impact that the disease is having on our lives. For many countries, this approach involves increased testing, isolation, and education about hygiene practices until a vaccine is found. To varying degrees, without much evidence as to their efficacy, countries are turning to technology to solve some of the current challenges. Increasingly, smartphone applications (apps) are being contemplated for tracking proximity of people to determine possible sources of transmission, with elements of technological solutionism. Such technical solutions require trust, and without honest and clear information about the possibilities and limitations of technologies, an app's benefits may be undermined by low adoption, or conversely a false impression of a technological panacea may see much needed interventions overlooked. For example, the Australian Government's target of a 40% uptake of the COVIDSafe app may or may not be effective in helping to control the disease, while 60% uptake is supported by independent modelling from the United Kingdom. Furthermore, such summary statistics do not clarify to the public the wide range of other factors and assumptions that must be considered in predicting the app's efficacy. 

Much is being written about the different technological models and whether they trace, track and comply with privacy and human rights frameworks, including whether this information can, in fact, ever be anonymised. Fully effective anonymisation is unlikely when collecting data as granular as regular interaction with others in addition to age, gender and postcode demographics, as has been demonstrated by previous attempts to de‐anonymise data. If these data are accidentally or deliberately linked with other datasets, such as births in hospitals or the public Myki public transport dataset, anonymity is virtually impossible to guarantee. Successful uptake of new technologies requires trust. When adoption is insufficient, collective benefits are not guaranteed. Civil society in the United Kingdom called for clear and comprehensive primary legislation to regulate data processing in symptom tracking and digital contact tracing applications, including with a strict purpose, access and time limitations.6 Such regulation may improve trust.

CSIRO Biosecurity report

The latest CSIRO biosecurity report - Australia’sBiosecurity Future: Unlocking the next decade of resilience (2020–2030) - states

The world is currently experiencing the impact of a severe biosecurity event. Early in 2020, Australia, along with the rest of the world was hit with a virulent COVID-19 pandemic. The virus, believed to be transmitted from animals to humans, has dramatically affected individuals, communities, industry and economies. Thousands have died and thousands more have been ill. People have had to significantly change how they live and work; many businesses have disappeared, shut down or changed their operating models; and national and global economic growth has experienced a severe contraction. Full recovery is likely to take some years and until a vaccine is produced, it will be uneven and tied to the severity and frequency of new waves of infection. Australia has coped relatively well with this outbreak, but will we be sufficiently prepared to cope with the next incursions? 

Australian Governments have long acknowledged the need for a coordinated approach to biosecurity that builds on the natural protection that comes from being an island nation. However, despite significant efforts by governments, industry, not for profit organisations and various players in the community, this paper highlights the alarming fact that annual interceptions of materials that present a biosecurity risk to Australia have increased by almost 50% in the five years to 2017 to just over 37,000. If that is not sufficiently concerning, the paper highlights that the cumulative burden of yet to be eradicated or ineradicable species has also risen considerably in the last decade. 

Australia is a small but open nation which relies heavily on trade for its prosperity; it is not surprising that the number of biosecurity incursions has increased along with increases in our trade and travel. Given that these are likely to continue increasing, business as usual will ensure that the burden of biosecurity threats will only continue to escalate. 

Business as usual will ensure that the burden of biosecurity threats will only continue to escalate. 

Partnering with Animal Health Australia, Plant Health Australia and the Centre for Invasive Species Solutions, CSIRO Futures and CSIRO Health and Biosecurity have produced a succinct and plausible case for the pressing need to transform, rather than just scale up, our biosecurity system. 

Given the cost of COVID-19 to Australia, this paper is extraordinarily timely. It merits significant attention and further investigation by all those who have an interest in seeing Australia retain and improve our biosecurity status and our way of life. It is an important reminder and wakeup call that we need to set ourselves up to be able to adequately respond to the biosecurity challenges that an increasingly interconnected world is going to present to us. It is an important reminder and wakeup call that we need to set ourselves up to be able to adequately respond to the biosecurity challenges that an increasingly interconnected world is going to present to us. 

About this report

In 2014, CSIRO published ‘Australia’s Biosecurity Future: Preparing for future biological challenges’, which identified major biosecurity trends facing Australia’s biosecurity landscape, with a focus on an agricultural, environmental and marine biosecurity sector audience. Focusing on the same primary audience, this report seeks to build on the 2014 publication by describing an ideal 2030 future state and identifying actions that can be taken to get there. The report also aims to encourage discussions across government and industry around the importance of cross-disciplinary management of biosecurity risks. The report was developed collaboratively through interviews and workshops with Commonwealth and state governments, research, industry and non-government organisations (NGOs), totalling 57 individuals representing 26 organisations (see Appendix A). 

Outbreaks across biosecurity sectors are continuing to rise in volume and complexity 

Biosecurity is critical to supporting the health of Australians, their environment and the competitiveness of key industries through biosecure trade networks. While Australia has one of the strongest biosecurity systems globally, outbreaks across human, agriculture, environment and marine health are continuing to rise in volume and complexity. This is due to a range of factors including growing levels of trade and travel, urbanisation, climate change and biodiversity loss. 

Between 2012 and 2017, the annual number of interceptions of biosecurity risk materials at Australian borders rose by almost 50%, to 37,014.  Figure 1 provides an indication of the number of new incursions in Australia since 2010 as well as the growing cumulative burden created by species which have established and are yet to be eradicated or have been deemed ineradicable.  

Scaling current approaches will not be enough to mitigate these growing risks 

While the relatively consistent level of new incursions in Figure 1 is due to Australia’s strong biosecurity system, the costly ongoing management of established species coupled with the increasing risk of new incursions is placing growing strain on the system which is already experiencing resourcing challenges. While investments are being made towards some of these challenges, continuing along the ‘business as usual’ (BAU) trajectory of slow and incremental change could expose Australia to significant triple bottom line risks over the next 10 years. 

Scaling the current system through additional funding allocation will not be enough. Modelling shows that even almost tripling investment in interventions out to 2025 will still result in increased residual biosecurity risk compared to 2014–2015 levels. This suggests that the system requires more transformational change in approaches and responsibilities to generate greater efficiencies and effectiveness. 

Now is the time for a system re-think 

The COVID-19 pandemic has increased community and public awareness of the importance of biosecurity and has enhanced familiarity with broad biosecurity concepts. This presents a unique opportunity to make transformational changes to Australia’s biosecurity system while engagement levels are comparatively high. 

Preparing Australia for biosecurity resilience in 2030 will require setting nationally coordinated goals across the One Health spectrum (human, agricultural, environmental and marine health sectors). 

To assist with these discussions, this report describes potential 2030 scenarios for a ‘business as usual’ and ‘transformational’ trajectory (Figure 2). 

Pursuing the transformational trajectory will require stronger collaboration across governments, industry, research and the community. 

This report provides 20 recommendations (Figure 3) which aim to highlight priority areas for system improvement. While suggested lead stakeholder groups are provided for each recommendation, all require deeper cross-disciplinary discussions and planning. 

Recommendations fall under three themes:

• System connectivity – Digitising processes, enhancing partnerships and greater data sharing across supply chains and the One Health sectors to facilitate market access and ensure the system is capable of understanding and managing emerging risks and established pests and diseases. 

• Shared responsibility – Harnessing the collective knowledge and capability of citizens, communities and industries to ensure national biosecurity efforts are optimised; and that all Australians are aware of, and value, their role in managing biosecurity risks. 

• Innovation in science and technology (S&T) – Creating national innovation platforms for developing and commercialising next-generation technologies and services that target priority biosecurity risks and can be sold globally. 

Many of these transformational shifts will take 10 years to plan and successfully implement, meaning collaborative, national action needs to be taken today. 

Business as usual trajectory 

Australia’s biosecurity system continues to face significant resourcing challenges which are compounded by more frequent pest incursions alongside human, plant and animal disease outbreaks. This harms Australia’s reputation as a biosecure trading partner and safe travel destination, which negatively impacts established industries, the environment and the economy. Australia is largely reactionary; with stakeholders sharing intelligence and investing in the system during times of crisis but less so during more stable periods. 

Transformational trajectory 

Australia is considered the most biosecure trade partner globally. This has been enabled by enhanced data sharing networks, national coordination of biosecurity activities, and investments in new technology applications; all of which have eased resourcing pressures and resulted in a system that more efficiently identifies and manages emerging risks. Engaged communities contribute to surveillance activities, reducing the risks of new incursions or spreading of existing established pests and diseases. Businesses play a greater role in the provision of biosecurity services, enabled by co-developed arrangements with government that ensure criteria around national interests are met. 

Enabling themes and recommendations for pursuing the transformational trajectory 

System connectivity 

Digitised processes and data sharing

1. Develop procedures and systems for timely biosecurity information exchange 

2. Modernise export compliance processes 

3. Optimise export protocols through regular assessment of supply chain risk reduction activities 

Domestic and international partnerships

4. Develop stronger partnerships within the national system to bolster shared responsibility 

5. Strengthen relationships with international counterparts and partners 

6. Improve pre-border clearance of imports

Shared responsibility 

Community and public engagement

7. Develop and promote a single source of biosecurity information to the public 

8. Create robust and verifiable citizen science programs to help engage and empower the public 

9. Develop biosecurity education and communication programs to build public and community awareness

Indigenous engagement

10. Make biosecurity engagement with Indigenous communities a more systemic process of the system. 

11. Empower Indigenous involvement in biosecurity through co-development of fit-for-purpose technology solutions and creation of economic opportunities 

12. Increase Indigenous representation at senior decision-making levels

Industry engagement

13. Identify the non-negotiable government conditions and industry incentives associated with privatisation of biosecurity services and activities 

14. Invest in social science research to better understand non-compliance behaviours 

15. Investigate improvements to incentivise accurate and timely biosecurity detection reporting

Innovation in S&T 

Supporting innovation 

• 16. Set national biosecurity innovation priorities 

• 17. Drive development, investment, commercialisation and manufacture of innovative technologies for biosecurity 

• 18. Better integrate social, cultural and ethical considerations into the development, policy and regulation setting of new technologies

Science and technology capability 

19. Invest in pathways for the career development and training of biosecurity-relevant specialists and researchers 

20. Bolster Australia’s vaccine development capability and pipeline

Gait Biometric

In R v Crupi (Ruling No 1) [2020] VSC 654 the Victorian Supreme Court has considered the problematic gait biometric. 

The Court states 

This is a ruling about the admissibility of evidence of forensic gait analysis (FGA). Such evidence has been admitted in the UK and Canada but, to my knowledge, this is the first time its admissibility has been the subject of a ruling in Australia. 

In this instance the evidence failed the test of relevance under the Criminal Procedure Act 2009 (Vic) s 55 and is inadmissible under s 56 of that Act. 

The Court notes 

The leading case in the UK is Otway v R [2011] EWCA Crim 3. In Otway, a murder case, a podiatrist (Blake) was permitted to give FGA evidence. Forensic podiatry and CCTV analysis were key aspects of his practice. He gave evidence of the similarities between the gait of the offender, recorded on CCTV at a petrol station, and Otway’s gait, recorded on CCTV at a police station and a cell block. The gait features referred to did not include step length, step frequency or walking speed, as in the present case. See also Hashi v R [2014] EWCA Crim 1243, another murder case, where a podiatric surgeon (Francis), experienced in FGA comparative analysis, gave evidence based on CCTV footage of the similarities between the gait of the offender and Hashi’s gait. I note that the FGA expert in Hashi v R, looked for dissimilarities as well as similarities in undertaking his comparative analysis. The importance of such an approach is stressed in the recently published textbook by Haydn D Kelly, Forensic Gait Analysis (CRC Press, 2020) eg, 186. For an overview of FGA, see also The Royal Society and The Royal Society of Edinburgh ‘Forensic gait analysis: a primer for courts’ (2017). 

The leading case in Canada is R v Aitken [2012] BCCA 134. A UK podiatric surgeon (Haydn D Kelly), who since 2006 had been a researcher in FGA identification and who has given FGA evidence in the UK courts on many occasions, was permitted to give evidence that there was “a very strong likeness” between certain features of the offender’s gait and Aitken’s gait in the relevant CCTV footage. The similar features were the degree of abduction (toe-out gait) and eversion (inward foot rolling). Professor Gary Edmond, of the School of Law at the University of New South Wales, discusses Aitken v R, Otway v R , and Haydn D Kelly in an article highly critical of the lack of scientific rigour of FGA: see Edmond & Cunliffe, 'Cinderella Story: The Social Production of a Forensic Science' 106 J Crim. L. & Criminology 219 (2016).

Fake Health News

'From Anti-Vaxxers to Antisemitism: Conspiracy Theory in the COVID Pandemic' by the Office of HM's Official Adviser on Antisemitism  comments 

This report analyses the role of antisemitism in ‘anti-vaxxer’ conspiracy theories, a movement that has grown significantly in 2020 during the Covid-19 pandemic. Looking at private and public groups on Facebook, this report evaluates the saturation of antisemitism in the anti-vaxxer and anti-lockdown movements. 

 The author/s conclude 

This report identifies the prevalence of antisemitism within the anti-vaccination groups on social media. Whilst not all anti-vaxxers share antisemitic attitudes, it is probable that their propensity to conspiracy theory reduces their resilience to antisemitic beliefs and attitudes. In nearly all the Facebook groups identified this study, users were able to see and interact with antisemitic content, including links to extremist content on sites such as BitChute. Even when initial posts relating to the pandemic did not include any antisemitic content, conversations within the post’s comments section were often openly antisemitic and provided an opportunity for others to be radicalised. 

As conspiracy theories provide comfort when faced with uncertainty and adversity, it should come as no surprise that anti- vaccination groups have grown and multiplied during the COVID-19 pandemic. This report identified the emergence and growth of local anti-vaccination and anti-lockdown groups on Facebook and their movement to ‘alternative’ social media platforms popular with the far-right. Members of these groups were often very active, organising local meetups and anti-lockdown actions, including targeting local and national businesses that were complying with Public Health England guidelines. 

The UK Government must not be complacent about the levels of misinformation on social media and its infiltration into local communities. The Government needs to urgently tackle the growth of conspiracy theory during the pandemic if the public are to remain trustful and confident in public health guidelines and recommendations. As temporary restrictions on individual freedoms look set to be prolonged or extended as the United Kingdom enters a three-tier system of coronavirus controls, the need to address antisemitic and anti-vaccination conspiracy theory will become more acute. 

Most people are desperate for a safe and effective vaccine for COVID-19, as are governments across the world. Once a vaccine becomes available it will be essential to quickly sideline the conspiracy theories and misinformation of the antivaxxers. Exposing their links to antisemitism and age old conspiracy theories can only assist the public health message, but in doing so government and civil society organisations must also combat the resurgence of antisemitism that, as this report evidences, is present in 79% of antivaxxer networks. The attempts to blame ‘the other’ for the economic and health problems of COVID-19 will inevitably mean an increase in antisemitism at precisely the moment that nations will need to be at their most united. Exposing the level of antisemitism amongst the anti-vaxxer movement now is therefore of the utmost importance.

Corruption and proposed Commonwealth Integrity Commission (CIC)

Peiple who've observed recurrent denials by the Commonwealth Government of the need for a national anti-corruption agency, alongside systemic disregard of questions regarding specific politicians, may be unimpressed by today's announcement that the Government 'has committed to establishing a Commonwealth Integrity Commission (CIC) to strengthen integrity arrangements across the federal public sector'. 

When you check the consultation draft - reflecting the December 2018 paper noted here - it is not much of a commitment, rather than merely something that is painfully overdue. 

The Attorney-General's Department states - 

The CIC will be a centralised, specialist centre investigating corruption in the public sector. It will be established as an independent statutory agency, led by the Integrity Commissioner and assisted by the Law Enforcement Integrity Commissioner and the Public Sector Integrity Commissioner. The draft legislation is the result of detailed planning to ensure the new body has both the resources and powers that it needs to investigate allegations of criminal conduct that could occur across the public sector. 

The CIC will have greater investigatory powers than a Royal Commission. These include the ability to:

• hold hearings and compel witnesses to testify 

• enter and search premises 

• require people to surrender documents and other evidence 

• use telecommunication interceptions 

• have individuals arrested and confiscate passports.

The Australian Government sought views on the proposed CIC model via a consultation paper, as well as advice from an expert panel that was engaged to advise the government on the reforms. 

The Australian Government has considered feedback on the previous consultation paper and has developed draft legislation to establish the new agency. 

The draft legislation comprises two Bills:

• Commonwealth Integrity Commission Bill 2020 (the draft Bill) – which would establish the CIC. 

• Integrity and Anti-Corruption Legislation Amendment (CIC Establishment and Other Measures) Bill 2020 – which would make necessary amendments to various Acts to give effect to the new CIC scheme.

The first phase of the government’s plan for a CIC is already underway. The Australian Commission for Law Enforcement Integrity’s (ACLEI) jurisdiction will be expanded from 1 January 2021 to cover four new agencies, and additional funding and staff were allocated to ACLEI in the 2020-21 Budget to undertake those functions. The second phase will be the full delivery of the CIC by legislation, which will subsume ACLEI and cover the remainder of the public sector. 

The public sector integrity division will have jurisdiction over the rest of the public sector and other regulated entities. This division will investigate potential criminal corrupt conduct perpetrated by:

• public sector, intelligence agency and Australian Defence Force employees 

• the staff of federal judicial officers 

• parliamentarians and their staff 

• higher education providers and research bodies (in some circumstances). 

Other considerations 

The government is considering whether the CIC should be given jurisdiction over federal judicial officers. Any model would need to be mindful of the separation of powers in Australia’s system of government, and will need to respect and maintain the independence of the federal courts and judges enshrined in the Australian Constitution. 

The government is also continuing to consider the interaction between the CIC and Public Interest Disclosure scheme. This will ensure that public officials who disclose corrupt conduct to the CIC are protected from reprisal action. 

Transitional arrangements for the effective operation of the CIC are also being settled. This includes, for example, mechanisms for the transfer of ongoing ACLEI investigations to the CIC, and establishing that the CIC may investigate conduct within jurisdiction that occurred before it commenced. 

These will be particular areas for further consultation. 

The government is committed to a national comprehensive consultation process on the draft legislation. A series of consultation sessions will be arranged for the law enforcement and public sector groups that would be regulated under the legislation, as well as roundtable meetings with civil society, academia and other stakeholder representatives from all states and territories. These sessions will be held across the consultation period which will run from November 2020 to March 2021.

Extradition and a Pseudolegal Shopping List

In Matson v Attorney-General [2020] FCA 1558 Baron Matson (aka Baron Bronstein, Philip Fletcher and Lincoln Robert Marshall) has unsuccessfully relied on Magna Carta - quelle surprise - and Love and Thoms in seeking to prevent his extradition to the United States on charges regarding conspiracy to commit mail and wire fraud, mail fraud, wire fraud and conspiracy to commit money laundering. 

Matson argued

(a) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a “conflict of interest” and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution; 

(b) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution; 

(c) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta , common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation:

(i) Magna Carta Paragraph 29: “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice”; 

(ii) common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable; 

(iii) the common law sufficed on its own to indicate that a “legitimate expectation” was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and 

(iv) the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the “Rule of Law” and respect fundamental human rights of all people including its own citizens.

(d) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with:

(i) the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26; 

(ii) the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act; 

(iii) the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7; 

(iv) the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and 

(v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). ...

(e) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an “abuse of process” has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court. 

(f) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the “Rule of Law” which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding:

(i) Indigenous human rights protection; 

(ii) Anti-discrimination and equality; 

(iii) Constitutional implied rights; 

(iv) Government accountability; 

(v) Freedom of Information and transparent Government; and 

(vi) Extradition and mutual assistance in criminal matters;

(g) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment; 

(h) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties: (i) United Nations Model Treaty on Extradition 1990, Article 3 and 4; and (ii) Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64; 

(i) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK “Bill of Rights” by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty; 

(j) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth). 

(k) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the “Proportionality Test” as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the “human dignity” of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution. 

(l) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied “religious freedoms” and the “cultural practices” of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples “special connection” with Australia and the spiritual significance of “Dreaming” and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the “Spiritual Place” of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their “Dreaming-place”. Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution.

In contrast the Court states, at [345] onwards 

In Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614, a majority of the High Court held that Pt II of the Extradition Act (which includes s 22) and regulations with respect to an extradition treaty between Australia and Croatia were supported by the external affairs power in s 51(xxix) of the Constitution and did not offend the separation of powers inherent in the structure of the Constitution. Chief Justice Gleeson observed at [36]–[37]:

36. The Regulations, and Pt II of the Act, are supported by s 51(xxix) of the Constitution: the external affairs power. As French J said in Hempel v Attorney-General (Cth): “[T]he subject matter of extradition is directly concerned with international relations ... The nature of extradition is such that a law with respect to it is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty”. The external affairs power is not confined to the implementation of treaties. Making arrangements, by treaty or otherwise, for the extradition of alleged fugitive offenders, and giving effect to those arrangements, are matters that directly concern Australia’s relations with other countries and are part of that aspect of its external affairs. 

37. The conferral of power in s 51(xxix) is subject to the Constitution. Is the deprivation of liberty necessarily involved in the extradition process, or the particular scheme of Pt II of the Act, contrary to the Constitution? It may be accepted that, subject to qualifications, “the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts”. However, as Gaudron J pointed out in Kruger v The Commonwealth, there are well-known exceptions to that general proposition and, further, those exceptions do not fall within precise and confined categories. They include, for example, arrest and custody pending trial, and detention by reason of mental illness or infectious disease. They also include the process of extradition. (See also [87], [222])

Accordingly, the High Court has held that the Extradition Act, and by extension the Extradition Regulations, are supported by the external affairs power and do not infringe the Constitution. Therefore, Grounds (a)-(l) of the particulars in support of paragraph 10 relating to their inconsistency with international customary law, common law rights and the Magna Carta cannot succeed. 

In Ground (k), Mr Matson alleges that the Extradition Act and the Extradition Regulations, “infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years”. Mr Matson indicated at the hearing on 18 November 2019 that he relied upon arguments raised in Love and Thoms (which was concerned with the “aliens” power). The judgment in Love and Thoms was delivered after I had reserved my judgment, and I indicated to Mr Matson at the hearing on 18 November 2019 that he could make submissions on the relevance of that judgment once handed down. 

The written submissions prepared by Mr Burnside QC and Mr Freeman for the purpose of the interlocutory hearing on 25 June 2020 stated with respect to Love and Thoms, “The Applicant concedes that his argument that the constitutional validity of the Extradition Act 1988 (Cth), as it applies to him is without foundation”. Mr Matson later purported to withdraw this concession in written submissions filed for the purpose of the interlocutory hearing on 28 August 2020. However, Mr Matson has not otherwise made submissions regarding any implied constitutional right for Indigenous people to not be removed from Australia that is said to arise from the decision in Love and Thoms. I therefore consider this argument to be abandoned, and will not consider it.