Last Monday, 7 January, environmental activist Jonathan Moylan put out a fake press release purporting to convey a decision by the ANZ bank to withdraw its $1.2 billion loan to Whitehaven Coal for environmental reasons. As a result, shares in Whitehaven plunged by $314 million before recovering to pre-hoax levels. Moylan is now being investigated by the Australian Securities and Investments Commission (“ASIC”) for serious breaches of corporations law, in allegedly engaging in misleading and deceptive conduct which destabilises the stock market. He could face jail time. He has said that his intention was not to cause people to lose money, that he is sorry, and that he is prepared to face the legal consequences.

Moylan explained that he sent out the press release that ANZ “should” have sent. The stunt was meant to highlight ANZ’s “dirty loan” for a project which he believes will unduly harm the environment. Others have supported his actions as highlighting the immorality of financing new coal projects in the face of the dangers of climate change.

Moylan’s actions have attracted a variety of responses from our politicians. The Greens have generally applauded Moylan’s actions. Greens leader Christine Milne noted that Moylan’s actions were part of a “long and proud history of civil disobedience, potentially breaking the law, to highlight something wrong”. Senator Lee Rhiannon tweeted her congratulations. In contrast, former Howard government Minister Peter Reith on ABC’s The Drum called for Moylan to receive the harshest of possible penalties. Joel Fitzgibbon, government whip, tweeted that the law should be interpreted as broadly as possible so as to make an example of Moylan. The federal opposition’s Senator Eric Abetz criticised the Greens’ position as “the epitome of extremism”.

So – whose assessment of Moylan’s actions is “correct”? I try to answer that question, with limited success, below.

Non violent direct action

There is indeed a long and rich tradition of non violent actions which highlight injustices (or perceived injustices) and sometimes play a role in redressing them. Following are a random list of examples from around the world and Australia.

Mahatma Gandhi led peaceful protests against British colonial rules in India. Rosa Parks refused to sit at the back of the bus, signalling the start of the civil rights campaign in the US. Huge crowds in Tahrir Square in early 2011, which were largely non violent, overthrew decades of dictatorial rule in Egypt by Hosni Mubarak. Members of Pussy Riot have been jailed for breaking the law in protesting against President Putin and his cozy relationship with the Russian Orthodox Church.

Just this past weekend a group of Palestinians set up a tent village, known as Bab al Shams, to protest against Israel’s plans to build new settlements in the E1 area of the West Bank.

In April last year, Trenton Oldfield disrupted the iconic Oxford/Cambridge boat race in protest against entrenched British elitism. Union Green Bans preserved Sydney Harbour’s urban heritage in the early 1970s. And of course non violent environmental activism in Australia has been around for decades: numerous protesters have thwarted logging plans by getting in their way.

The internet has spawned a generation of non violent online activists, such as Julian Assange who created Wikileaks and disrupted government controls over information by providing a safe and untraceable receptacle for leaked information which was then published in its primary form. Anonymous has revolutionised “hacktivism”. The Egyptian revolution was preceded by one in Tunisia, which itself was seeded in a proud tradition of internet activism. Finally, this past weekend we have mourned the passing of 26 year old Aaron Swartz, a zealous advocate of free public online access to information.

Hoaxes

Hoaxes are not particularly new either. Indeed they were a staple on Australian FM radio until a 2Day FM’s prank call to the London hospital treating a pregnant Kate Middleton went horribly wrong late last year, when one of the nurses who was “pranked” committed suicide. FM radio style hoaxes are meant to amuse listeners and aren’t political. Those of the Chaser are also meant to make people laugh, but have a political element in embarrassing political figures like arch climate sceptic Lord Monckton or the essential apparatus of the State, as in its infamous APEC stunt which thoroughly embarrassed NSW police.

Moylan himself has analogised his hoax to the actions of the Yes Men. The Yes Men engage in “identity correction”, whereby members will impersonate representatives of entities in order to highlight what they see as those entities’ most egregious actions. The main targets of the Yes Men are corporations and corporate-friendly institutions like the World Trade Organisation.

The most famous Yes Men hoax occurred in 2004, when a “Yes Man” appeared as “Jude Finisterra” on the unsuspecting BBC as a representative of Dow Chemical. Dow bought Union Carbide in 2001: a Union Carbide subsidiary owned the factory which exploded in Bhopal in India in 1984, one of the world’s worst industrial accidents. Thousands of Indians have died or suffered severe illnesses and deformities as a result of the poisonous chemicals released in that explosion.

The Union Carbide issue is complex but it is fair to say that the victims have never been properly compensated, and there are good reasons to argue that Dow, having voluntarily taken over Union Carbide’s assets and liabilities, should take responsibility. Hence, Finisterra announced on BBC that Dow was going to take responsibility for the accident and properly compensate the victims. The result was that Dow’s stock price plunged4.24% in 23 minutes, losing $2 billion of its market value.

Criteria

It is likely that readers will have different views of all of the actions mentioned above: you will support some and not others. Some of you may even support all but few if any will, I believe, condemn all. Is there any way to differentiate between those non violent actions which are legitimate and “good” and those which are not?

Legality of action

AWU chief Paul Howes (in an article criticising the Greens’ support for Moylan) suggests that one should not engage in acts which are “illegal”. But sometimes the law is unjust and it is moral to challenge it, as was clearly the case for Rosa Parks in her stand against segregation in the south of the US. Howes himself may have different views when trade unions engage in unlawful industrial action, as for example happened during Victoria’s recent nurses’ strike. It is not so long ago that sex between men was illegal in many Australian States: does Howes seriously suggest that gay men should have obeyed that law?

Furthermore, the fact of arrest can be an intended part of the direct action, and arrest is (normally) not possible without behaviour that is unlawful according to the municipal state. For example, the eviction of peaceful Palestinians from Bab Al Shams, located on privately owned land in territory that is not recognised as Israeli, played out in real time on Twitter and on an Al Jazeera live stream. The action exposed Israeli hypocrisy in comparing the swift eviction of the Bab Al Shams outpost with its dawdling in implementing court orders to evict Jewish settler outposts. It was politically embarrassing for Israel, and is doubtlessly and legitimately part of the point of the action.

Democracy and non-democracy

Certainly, more illegal acts may be justified in a non-democratic country like Mubarak’s Egypt, or in a highly flawed democracy like Russia, than in liberal democracies like Australia. There are outlets to campaign for legal change that are available in the latter that are simply not available (and are even dangerous) in the former.

However, such a criterion still assumes a level of justice and fairness within liberal democracies that does not exist. For example, Paul Howes is the head of a very powerful trade union with direct lines to the ruling party in this country. He is an “insider” who can assume the cosy position that the law must be obeyed, as he is in a good position to lobby for legal change with some hope of success, unlike most others. I would also suggest that while he might concede that some Australian laws inthe past were unreasonable, he does not think the same is true now. Such an attitude is complacent: there will undoubtedly be mouths agape as future generations contemplate our idiocy, just as we smirk over the baffling laws of the past. Of relevance to Moylan, environmental laws may be an area where future generations look askance at us.

There are blatant imbalances of power in Australia. For example, the major mining companies had the luxury of negotiating their own profits tax with the Gillard government after it had hammered the initial proposals with an advertising campaign that may have been the final nail in the coffin of Kevin Rudd. Yet how much negotiation has gone on with the Australian Council of Social Services in deciding on the appropriate level of the NewStart allowance?

I would argue that it is generally more legitimate to break the law or to otherwise undertake direct non violent political action in order to challenge entrenched power than in order to reinforce it. And that principle holds true in both democracies and non democracies.

Validity of the message

An alternative criterion depends on the validity of the purpose of the protest. However, such a criterion is inherently subjective. Political messages are probably more valid than those motivated by a search for cheeky laughs (a la 2Day FM), greed or attention seeking (as seems to have been the motive behind the HelenDemidenko/Darville hoax). But it is difficult to go further and try to sift through legitimate political messages and illegitimate ones. I can only know which message Ifind more legitimate than others.

Success

Perhaps one criterion is to assess whether the protest is successful. But how does one measure “success”? The ultimate success for Moylan would have been for ANZ to reconsider its loan and withdraw it. But I’m sure he never thought that would happen, and of course it has not. His main aim of highlighting the issue has in fact been achieved, and he has received far more attention due the brazenness of his act than had he simply resorted to a change.org petition or a Facebook campaign against the loan.

However, there is no doubt that many disapprove of his act. Perhaps he has harmed his cause by being too radical.

Success can only really be measured in hindsight. Even if people feel angrier with environmentalists over Moylan’s “irresponsible” act, it is still possible that they will subconsciously pay more attention to coal investments. They may even subconsciously shy away from them.

A more fundamental point is that “success” is not a particularly good criterion, as the success of an action is hard to predict. Further, many causes are just but doomed. Indeed, catastrophic climate may no longer avoidable, with interminable delays in meaningful global and national action delayed by vested interests, timid politicians, the developing world’s desire to industrialise, and genuine climate scepticism. Yet I would not concede that direct action highlighting climate change then becomes illegitimate.

Harm

A relevant criterion in assessing the legitimacy of an action concerns the harm caused by the action. Victimless actions are easier to defend than those which cause harm to somebody. Witnesses in the Pussy Riot case claimed to have suffered spiritual harm from the band’s forty second “punk prayer” in a major cathedral.

“Harm” can be difficult to characterise. The “harm“ that was caused by Oldfield’s actions was to ruin the day for young men who had trained hard for an iconic race, particularly those from the losing boat, Oxford. A hoax perpetrated on the conservative magazine Quadrant and its editor Keith Windschuttle was designed to expose lax standards for publication. Many of the Yes Men pranks, as well as those of The Chaser and Sacha Baron Cohen, involve the mere embarrassment of people by exposing unflattering traits within people. Is “embarrassment” harm?

Financial Harm__

Both Moylan’s hoax and the Bhopal prank caused financial harm. However, this harm deserves more analysis. Who in fact was harmed? The vast majority of Whitehaven shareholders, including the “mum and dad shareholders” emotively cited by Moylan’s critics, would have only heard about the hoax that night, by which time the value of their investment was basically the same as it had been in the morning.

Furthermore, just as many people may have made money on Whitehaven and Dow as lost, as the stock price recovered quickly. Blogger John Quiggin reports that Morgan Stanley and MacQuarie Bank clients probably gained, while those of Citigroup and UBS lost.

Certainly, the undermining of the integrity of the sharemarket send shivers down spines, especially as most of the country’s collective pensions are invested in shares. However, while overall losses (and gains) to superannuation funds may have been large, the individual losses to fundholders would be miniscule, especially when measured over the long term as superannuation funds must be.

A real question arises as to the lack of due diligence exhibited by many who should have known better. In a scathing article, The Australian’s John Durie wonders why anybody believed a fake press release announcing the withdrawal of a loan by a bank: banks never do that. According to Durie, ASIC and the ASX “have got some work to do to convince the community that the sharemarket is all about investing money and not trading stocks every split second or dumping them on the basis of an obviously ludicrous fake release”. He correctly slams the financial press for gormlessly believing Moylan’s announcement without undertaking simple checks (eg ring ANZ). Similarly, Dow investors should probably have expected the big Bhopal announcement to be preceded by a trading halt, rather than announced impromptu on the BBC. Moylan may have inadvertently done the ASX a favour by exposing its vulnerability to human frailty.

Nevertheless, there is no doubt that innocent investors lost money due to both hoaxes. And my expectations of due diligence by stock market experts clearly cannot fairly apply to the inexpert.

Proportionality__

The existence of harm does not mean the relevant action is illegitimate. For example, some people are always harmed in a strike but most people would not accept that all strikes are illegitimate. If one believes the harm suffered is proportionate to the end achieved, then one will likely believe that the relevant act is justified.

To my mind, legitimacy partly depends on the power and public stature of the target; this is one reason why I am often uncomfortable with Baron Cohen even though he generally targets bigots. In contrast, I personally have no problem in a prank targeting the NSW police (the Chaser at APEC), Monckton or Windschuttle and Quadrant (and why I’d probably have to accept a similar prank played on Robert Manne and The Monthly). While Oxford and Cambridge per se may be fair targets, I don’t feel the same way about the actual rowers.

One troubling aspect of the Yes Men’s Bhopal prank was the possible harm caused to the victims of Bhopal. Finnistera’s bogus statement may have raised the hopes of Bhopal survivors, only for them to be quickly shattered. The Yes Men themselves, in the movie The Yes Men Save The World, claim that organisations represent Bhopal victims by and large appreciated the publicity given to their plight and the black eye it gave Dow. Nevertheless, the possibility of raised then shattered hopes shows the dangers of bad unintended consequences … again demonstrated horribly in the 2Day FM prank.

Pranksters do have to be prepared to morally wear the consequences of their actions.

For me, it is fair to highlight in spectacular fashion Dow’s links to Bhopal and its continued refusal to compensate victims, as well as Whitehaven’s new coal project and ANZ’s facilitation of it. But what about the investors who lost money in the Whitehaven/Dow pranks? Many would unknowingly have moneys invested in such companies via their superannuation funds. However, as noted, it seems unlikely that any single such investor lost a significant amount of money. And, as noted above, the experts who lost money have in part themselves to blame.

What about those “non-experts” who have deliberately bought such shares? Are they “innocent”? I make the following remarks without answering the question.

Whitehaven investors have invested in coal, an environmentally unsustainable industry. Dow shareholders have invested in a company that refuses to compensate innocent victims horribly harmed in an industrial accident. Indeed some Dow investors clearly expressed dissatisfaction with the idea of compensating Bhopal victims in their panicked “sell”.

Perhaps actions like the Whitehaven/Bhopal hoaxes will indirectly promote a growth in ethical investing. At the least, it might prompt shareholders to take an interest in the ethical profile of a company. Ethical investing is not yet the norm, nor I suspect is knowledge of a company’s ethical profile.

Finally, the outrage exhibited by many of Moylan’s critics over the harm caused by political hoaxes to shareholders (especially “mums and dads”) is not necessarily matched by concern over the harms caused by the targeted companies. The former is perceived as harmful and irresponsible; the latter is all too often dismissed as business as usual.

Conclusion

Consistency on this matter is probably only achievable if one adopts “the Paul Howes position” that illegal actions are out of bounds, at least in liberal democracies. Such a position seems very staid in a country that claims to pride itself on lauding “larrikins”, as well as the Eureka Stockaders and even Ned Kelly. It is a position that can be contentedly adopted by comfortable insiders like Howes, but not by passionate people further away from the mainstream. It seems to indicate that one price for living in a liberal democracy is to accept limited scope for progressive change, which must be incremental and dependent on the political class.

Beyond “the Paul Howes position”, consistency in this area seems impossible, because everyone will have different views on the legitimacy of a protest message and the proportionality of the harm caused compared to the advantage gained.

So what of Moylan? A criminal law designed to preserve the integrity of the information fed to stockholders is needed to combat insider trading and other misinformation designed to generate ill-gotten gains. Shareholders deserve a believable and transparent stock market. So if he is charged, I do not believe it will be under an unjust law. The rule of law also dictates that one cannot be exempted from a law simply because one’s motives are political. In such circumstances, Moylan must be prepared to face legal consequences. It seems that he is.

However, just as Moylan can’t expect exoneration on political grounds, he shouldn’t expect excessive punishment. And I can’t help but marvel at the vehemence with which his critics have reacted. Fitzgibbon’s call for “the broadest possible” interpretation of criminal law to make an example of Moylan seems Orwellian. So too is Reith’s call for the strongest penalties. I do not, for example, recall the same level of outrage when a hoax takeover bid for David Jones, presumably motivated by greed, spooked the market in June last year.

Furthermore, Moylan’s alleged crimes must be put in persepective. John Quiggin’s recent blogpost highlights the damage caused to the integrity of stock indices by “respectable” corporate players which have engaged in systemic criminality, which is far worse than any damage caused by Moylan. Yet those entities are too big to fail, unlike Moylan.

Moylan has allegedly committed a white collar offence. It seems to me that much of the excessive outrage against him is generated by the fact that he doesn’t wear a white collar and he didn’t perform his actions for white collar reasons. In that sense, he poses more of an unacceptable “threat” to the status quo than the “normal” insider trader. Hence the call for an example to be made of him lest other non corporate hippie types get fancy ideas of upsetting the stockmarket citadel.

Hopefully, Moylan will not suffer the fate of other activists around the world of being disproportionately pursued and punished. Witness the excessive sentences for the Pussy Riot girls as well as Trenton Oldfield, the overreaction by the United States (and the Australian government) to Julian Assange, the appalling treatment meted out by the US to alleged Wiki-leaker Bradley Manning, the financial blockade of Wikileaks in the absence of charges against it, and, most poignantly this week, the pursuit

of Aaron Swartz by the US Department of Justice over alleged computer offences for which he was apparently facing decades in prison prior to his recent suicide. Overreactions by States to non violent actions create injustice, and turn just laws into unjust ones. Perhaps the exposure of the vindictive capacity of the State is one key factor which legitimises non violent direct actions in the first place.

Please note this blog was first published on 14/1 at the Castan Centre for Human Rights Law blog

The federal Attorney General has put forward a proposed new draft anti-discrimination bill. An enquiry into the Bill by the Senate Legal and Constitutional Affairs Committee has attracted over 500 submissions. Submission 484 is from “Joint Media Organisations”, unusually a joint submission by the major media providers in Australia; it is very critical of the Bill.

So what is this new bill for? It is designed to consolidate and simplify existing federal anti-discrimination laws, which currently cover the grounds of race, sex, disability and age. It will roll them up into “one great big new law”. It also adds new protected grounds of discrimination (known as “protected attributes”), such as religion, sexual orientation and nationality (see draft s. 17).

The most controversial aspect of the proposed new law is that “discrimination” in draft section 19 is defined as the “unfavourable treatment” of someone because of their protected attribute. Unfavourable treatment is further defined in s 19(2)(a) as including “harassing” of “the other person” and, in 19(2)(b), “other conduct that offends, insults or intimidates” a person. It is s 19(2)(b) which has the media up in arms. And rightly so.

As pointed out by the new ABC Chair and former NSW Supreme Court Chief Justice Jim Spigelman in his Human Rights Day Oration in December, s 19(2)(b) sets the bar too low. It is certainly unpleasant to be offended or insulted because of one’s race, gender or age (for example). However, the “harm” caused in such instances is too trivial to warrant the consequence of unlawfulness. If such behaviour escalates beyond the trivial, then we reach the realm of “harassment” which is already (rightly) covered in s 19(2)(a).

Today Nicola Roxon has issued a press release purporting to justify s 19(2)(b). She states:

Despite what some reports may have said, it is not the case that any conduct that a person finds offensive will be unlawful. The draft bill only seeks to clarify what courts have already found – that racial, age, sex and disability discrimination can include harassment on that basis.

Similar reasoning is contained at para 107 of the government’s Explanatory Notes. I beg to differ from Roxon’s reasoning. If the subsection is simply meant to make clear that offence and insults can in some circumstances amount to “harassment”, it seems to me that that matter is adequately covered by s19(2)(a). Indeed, the separation of 19(2)(a) from 19(2)(b), and the latter’s reference to “offence and insults” as “other conduct”, indicates that they are different to “harassment”.

A prohibition of offending or insulting behaviour or “treatment”, even if it is motivated by prejudice, interferes too much with the internationally recognized human right to free expression (or “free speech”). Certainly, that right is not unlimited, and there is also a human right to be free from discrimination. However, there is no human right not to be offended or insulted. And indeed, historically much important speech has offended somebody. The closest such right is the right to be free from vilification which incites hatred: that is a long way from behavior which merely “offends” or “insults”. Indeed, the racial vilification provisions in the new Bill (s 51(2)), and in the current Racial Discrimination Act (s. 18C), also go too far by including behavior which simply “offends” and “insults” another because of that person’s race.

A final point about the draft provisions is that the test of whether something offends or insults appears to be subjective. If so, it could open up people to liability because they happen to be dealing with someone who is very easily upset.

So what does this all mean for the new Bill? Actually, not much. I predict that s 19(2)(b) will not make it into the final legislation in its current form (the prohibition on “intimidation” may remain); the Bill hangs together well without the problematic offends/insults standard. There is certainly no reason to chuck the baby out with the bathwater, no matter how much The Australian (which has published story after story after story on the issue) might be hyperventilating. And the Bill itself has many worthwhile and important provisions, designed to ensure that people are indeed free from discrimination on irrelevant grounds in crucial areas of life, a very important human right, particularly for the vulnerable (for more info, check submission 249 from the Castan Centre for Human Rights Law).

So, Sydney shock-jock Alan Jones has disgraced himself with his appallingly tasteless and hurtful comment, recorded at a recent Sydney University Liberal club dinner, that the late John Gillard “died of shame” over his daughter Julia. He compounded the ignominy with his bizarre 45 minute “apology” on Sunday. His comments have led to an explosion of justified schadenfreude by the many people who lament his shtick, a tiresome combination of hate, misogyny and misinformation. Politicians, media figures, and thousands and thousands of “ordinary folk” on social media have expressed outrage at his comments. Numerous ALP figures have finally decided that they will no longer indulge him with appearances on his show.

A prominent manifestation of this outrage is an online petition, calling for Radio 2GB to sack Alan Jones, which has attracted over 100,000 signatures. It and similar campaigns have convinced many companies to remove their sponsorship from Jones’ program. Of course, the advocates of these campaigns have every right to run them: they, like Jones, have a right of free speech. But while I am no fan of Jones’ nasty oeuvre, I am not sure that these campaigns are positive developments for discourse in Australia.

Let us put these campaigns into perspective. 100,000 + signatures does not equal Jones’ reported audience. And it takes a lot more effort to listen to his show than it does to sign an online petition or like a facebook page. Sure, many sponsors have pulled advertising. But they may have simply moved them to 2GB’s other shows, which include the equally charming Ray Hadley. Some sponsors have announced they are “suspending” advertising, perhaps signalling a return to the fray once the controversy dies down. Finally, Jones is an equity holder at 2GB, so the chances of it sacking him are minimal to nil.

But what if the campaign succeeds? Are we really getting to a stage where a default reaction to an outrageous comment is that “something must be done”, in particular a person should be shut down and taken off the air? Are the campaigners really saying that Alan Jones’ show, which they do not listen to, simply should not exist?

What about the wishes of Alan Jones’ listeners and their tastes? Wouldn’t a better strategy be to use his outrageous comments to convince his listeners that they should stop listening? Would it not be better to try to diminish their number with the power of argument, rather than to seek to deprive them of “their” guy because “we” don’t like his message? What if “they” did the same thing? One can’t be sure that one will always be on the “socially acceptable” side of the barricades in the likely free speech battles that Jones’ removal might prompt.

Jones’ power is over-exaggerated. He has a large audience, but it covers a relatively narrow demographic. It would be a more ignominious fate for Jones to continue his slide in the ratings into ludicrous irrelevance, shouting into the void, rather than to be made a martyr by being “hounded” off the air while his ratings remain high. Let him self-destruct, like Glenn Beck in the US.

And while one can bemoan the lack of diversity in Australia’s newspaper market, the same is not true of radio. Melbourne in particular has thriving community radio stations. Alan Jones’ ilk clearly doesn’t impress Melbournians, with shock-jock stable MTR dying a ratings death earlier this year. For whatever reason, some Sydneysiders are impressed with that stuff. The removal of Jones due to campaigns by his ideological opponents wouldn’t, I expect, reduce that apparent appetite for shock jocks. And the digital revolution means that the scarcity of the broadcast spectrum is no longer an issue: Jones’ use of airwaves doesn’t crowd out a more worthy participant.

One is of course free to boycott Jones’ remaining advertisers, though I am doubtful that a large percentage of those who have signed the petition will do so. The campaign against the sponsors does however raise interesting issues, as noted obliquely by Todd Sampson on the Gruen Transfer on Wednesday night. Do we want to entrench the idea that private companies are the guardians of what is and what is not allowable speech? I wrote about this in a previous post in regard to social media companies. And certainly, MacQuarie Radio is a private company that owns 2GB and has the power to sack Jones, just as Fairfax Media’s 3AW has recently sacked Derryn Hinch. But do we want that power extended to companies like Freedom Furniture and Hyundai, who have both dropped the Jones program and who can be expected to have zero expertise in the “acceptable speech” arena?

Maybe this concern is naïve. Advertisers already exercise enormous power over broadcast speech. The Jones campaigns may be a positive development in at least injecting an overlay of citizen input, particularly via social media, into the exercise of that power. However, corporate advertising power over speech, in my view, is something that should be discouraged. Rather than encouraging and therefore legitimising the practice, social media is probably better used to call out corporations when they use their advertising power to censor.

The meeting of world leaders at the United Nations has confirmed major faultlines over free speech. In the wake of the outrage prompted by The Innocence of Muslims, member States of the Organisation of Islamic Conference (“OIC”) are demanding the adoption of global blasphemy laws. Other States, particularly Western liberal democracies, argue that such a move would undermine the human right to freedom of expression.

Religious Hate speech

International human rights standards already demand the prohibition of hate speech. And certainly, anti-Islamic speech, or indeed speech which targets the advocates of any religion, can sometimes constitute hate speech. As I explained in relation to The Innocence of Muslims in a post at this site a fortnight ago, I do not believe this deplorable movie is hate speech.

Are Blasphemy Laws Allowed under International Human Rights Law?

International human rights law tolerates blasphemy laws as a legitimate limit on free speech. For example, in Wingrove v UK, the European Court of Human Rights upheld the banning of a pornographic video on blasphemy grounds.

Of course, there are limits to how blasphemy laws can be enforced. The censorship of a video is one thing. The misuse of blasphemy laws by religious fundamentalists, most notoriously in Pakistan, to harass religious minorities and moderate Muslims, coupled with the possibility of a death penalty for conviction, clearly goes too far.

Global Blasphemy Laws

I disagree with the Wingrove decision, as it seemed to indicate that the right to freedom of expression could be limited by a purported “right” not to be offended on religious grounds. The right to frankly discuss the many problems that arise with regard to many religions is essential, so blasphemy laws can constitute a grave affront to free speech.

A demand for prohibitions on blasphemy goes much further than demands for prohibitions on hate speech. Bans on hate speech prevent the incitement of hatred against particular groups on racial or religious grounds. Blasphemy laws protect religions rather than people. Blasphemy laws may prevent the mocking or even perhaps the questioning of religion. Some of the most important speech in world history has challenged religious dogma: remember Galileo.

A global blasphemy standard would presumably extend beyond Islam, as it couldn’t justifiably protect only one religion. It would not only target the execrable The Innocence of Muslims or the rantings of Pastor Terry Jones. We would be deprived of many worthy works: imagine a world without The Life of Brian.

Globalisation of Speech

Modern communications, particularly the internet, mean that the manifestations of free speech in one country can spread around the world and cause reactions, sometimes deadly, in other countries.

A famous phrase for justifying the limits on free speech arises from the US Supreme Court on the US’s First Amendment in Schenck v US in 1919: one is not allowed to yell “fire” in a crowded theatre lest one cause a riot (unless of course there is a fire). Perhaps it may be argued that these days, one shouldn’t be allowed to yell “fire” in a crowded planet. Maybe States should take into account the dangers of speech causing riots within but also beyond their own territory.

However, routine censorship in such circumstances would drive a race to the bottom for free speech. The internet has generally been thought of as an emancipating force for global free speech. It would be ironic and very disturbing if its advent drives a push for the compulsory adoption of lower standards of free speech in order to respect regional sensitivities.

More likely is that the internet will move beyond its global phase into a regional phase, where States reassert control over local internet content. Technological advancements now allow major platforms like Twitter and YouTube to selectively censor in different markets. Famously, China blocks numerous sites outside of its “great firewall”. Recently, Iran blocked access to Google in possible preparation for the launch of a national intranet which may be largely cut off from the world wide web, its promised “halal internet”.

Reverse cultural relativism

The current UN debate will likely lead to a renewal of the OIC’s push for the recognition of “defamation of religion” as a human rights issue. Non-binding resolutions in support of “defamation of religion” as a human rights concept were routinely passed by the UN Human Rights Council and its predecessor until 2011, when it was withdrawn, presumably because the shrinking majority in favour of the resolution was about to turn into a minority. The universal disgust over the content of The Innocence of Muslims may reinvigorate the resolution, and restore a majority in favour.

This battle over free speech introduces a new twist to debates over “cultural relativism” within the international human rights system. Cultural relativist arguments have traditionally arisen when non-Western countries attempt to resist the recognition of co-called “Western” human rights standards, for example those regarding women’s rights, same sex rights, political freedoms, or the death penalty. (The last example demonstrates that it is in fact simplistic to view human rights as Western concepts given the US is one of the most prolific remaining users of the death penalty).

In arguing for compulsory global blasphemy laws, the OIC is appropriating the language of human rights in an attempt to impose its blasphemy standards on other countries. And the West could find itself in a cultural minority resisting this development within the UN by defending freedom of expression. The battle over free speech poses a major challenge to the integrity of the international human rights system, and to claims of its underlying universality.

The global uproar over the YouTube trailer for Innocence of Muslims may have subsided, but the controversy lingers. Last week I wrote about the US obligations regarding that video, and concluded that it was under no international obligation to censor the movie. In fact, it is forbidden under its own domestic Constitution from doing so.

The (non) blocking of access by YouTube

But what about YouTube’s obligations? YouTube is a subsidiary of Google, and owns the platform upon which the video was placed. It has the right, if it wishes, to remove the video. To do so would not breach US law, as it is a private body which is not bound by the US Constitution. Indeed, the White House requested that Google remove the video, but Google has refused.

It is tempting to say that YouTube should take the video down, given the mayhem that the video has sparked, and the almost universal view that it is a grubby film that adds little of value to the sum of human experience. However, a take-down would shut the gate after the horse has bolted. Copies of the video have likely proliferated, including on sites beyond Google. In any case, I doubt many of the rioters have viewed the movie: many are simply angry at its very existence.

Google has blocked access to the video in some countries, including Indonesia and India, as the video’s content breaches the law of those States. It also chose to take the site down in Egypt and Libya, due to the volatile situation in those countries. I will return to that decision below.

Censorship and social media companies

It is trite to note that the internet and social media are incredibly powerful forces. After all, social media played a key role in the overthrows of long-standing dictators in Tunisia and Egypt in early 2011. Now a YouTube video has sparked protests and riots across the globe, with the latter leading, tragically, to several deaths. It is fair to say that internet and social companies have, perhaps unwittingly, come to exercise significant power over political and social developments.

The most popular and influential social media platforms are run by private companies, namely Google, Facebook and Twitter. What responsibilities should these companies have with regard to the content they host? In particular, should they exercise censorship powers beyond that mandated by the laws of the States they operate in? Should, for example, YouTube have a “tougher” censorship policy and clamped down on Innocence of Muslims before it became uncontrollably viral?

A starting point for discussion is to examine the companies’ censorship policies. YouTube’s Community Guidelines prohibit hate speech, as well as other “bad stuff” like abuse of animals or instructions on bomb making. Its policy on violent videos was amended in 2007 after it was criticised for removing videos showing police abuse in Egypt. YouTube clearly embraced the potential for its site to highlight human rights abuses (which sometimes requires the presentation of violence).

Facebook’s Statement of Rights and Responsibilities provides that users cannot post content that “is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence”.

Both YouTube and Facebook have the unilateral right to remove content in accordance with their policies, and there are no avenues to appeal their decisions. After all, they are their sites.

Certain take-down decisions have attracted controversy. For example, Facebook eventually removed a site promoting a Third Intifada in Israel and the Occupied Territories after initially resisting requests to do so, as well as a site associated with the Syrian military. But what is Facebook’s criterion for “taking sides” regarding the political and revolutionary messages that might turn up on its site? Given the contemporary importance of Facebook pages in promoting political activism, Facebook must tread a fine line between allowing its platform to be used for the organisation of peaceful protests (which may easily contain comments that are far from peaceful) and pages that promote violence and hate. But how does Facebook determine its own political red lines?

Social media companies have enormous potential power over the true global extent of the enjoyment of free expression, which is not commensurate with their expertise or their accountability. After all, they are not traditional media companies well-versed in making editorial decisions on what to and what not to include in the limited space of a newspaper or a half hour broadcast. Rather, they are the hosts of unlimited amounts of information created and disseminated by others.

Given those realities, the best policy is probably that adopted by Twitter, which exercises less discretion over the removal of content. Instead, it will “withhold” tweets in accordance with valid legal orders. It will endeavour to inform the user concerned and publicise the fact of the withdrawal. It will also presumably still remove tweets which clearly breach its “content boundaries”, but these are significantly narrower than those of YouTube or Facebook.

Twitter has largely knocked the free speech ball back into the arena of States, which is probably where it should be. It, like YouTube and Facebook, lacks the credentials to fairly and consistently arbitrate free speech.

Innocence of Muslims: too incendiary to leave up?

Returning to Innocence of Muslims, YouTube has blocked the video in Egypt and Libya of its own accord due to the “difficult” situations in those countries, rather than any identified breach of its guidelines. I said in last week’s post that I was not “perturbed” over those actions. Without wishing to impugn Google’s humanitarian motives in taking such action, I now believe that I may have spoken too soon.

First of all, the upload can be removed in accordance with YouTube’s normal policy by legal order in either Egypt or Libya. Perhaps surprisingly, no such order was apparently made. Secondly, as noted above, YouTube’s measures were probably too late to make much of a difference to the protests and riots on the ground. Thirdly, YouTube risks setting a precedent whereby it rewards the unreasonable and unjustified reactions of a violent few by giving in to their demands. Such an action may simply legitimise more violent reactions the next time incendiary content is placed online. Free speech must not be held hostage in that way.

Protests have erupted across the Middle East in response to a trailer for an obscure US-made film posted on YouTube, Innocence of Muslims. Those protests seemed to turn deadly in Libya. However, it seems now that those killings (of US embassy staff including the Ambassador) were probably perpetrated as part of a terrorist attack rather than by a mob outraged over the movie. Nevertheless, anti-film protests were ugly in Cairo, and anger over the film still has the potential to cause severe public disorder.

The film describes Islam as a “cancer”, and trailer scenes depict the prophet Muhammed “as a buffoon, suicidal, gay, lascivious and condoning of pedophilia”. Given the outrage generated in parts of the Muslim world over previous episodes, such as the publication of the Satanic Verses, the Danish cartoons controversy, and instances of Koran burning, there seems little doubt that this film was designed to enrage. In which case its makers got the reaction they were looking for.

In this post, I wish to examine some of the human rights issues at stake over the publication of this movie. In particular, is its publication protected under international human rights law or is it perhaps prohibited?

Was the US obliged to ban the film as ‘hate speech’?

Clearly, the publication of the movie is a manifestation of freedom of expression. This right is protected under international law, but it is not an unqualified right. Indeed, the International Covenant on Civil and Political Rights demands the prohibition of certain types of speech, namely “hate speech”, in Article 20(2), which reads:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Was the US, the place of publication of the film, obliged under the ICCPR to ban this film as hate speech? The answer is no.

I query whether the film is in fact hate speech. Please note that my comments below are based on descriptions of its content, as I have not viewed it.

Hate speech is classically viewed as speech which incites violence against the group that is targeted by the relevant speech. For example, Nazi ravings against Jews incited violence and murder against Jews, and broadcasts on Radio Mille Collins in Rwanda in 1993 incited genocide against Tutsis (and moderate Hutus).

Innocence of Muslims is extremely provocative and it foreseeably provoked religious violence. However, it is doubtful if it could be said to have foreseeably incited religious violence against Muslims by non-Muslims. At this point in time, I am aware of no such incidents (though the question of whether something is foreseeable is different to the question of whether it actually happens). Instead, subsequent events have followed the trend of previous like episodes: the relevant publication offends some Muslims in some countries so much that it provokes violence by those Muslims against others, including other Muslims and non-Muslims. That is, the foreseeable violence is by a small radical component of the victimised group, rather than by people against that group. Therefore, I would argue that the movie is not hate speech.

In any case, the US has entered a “reservation”, indicating that it is only bound by Article 20 to the extent allowed under its Constitution, which contains free speech protections much stronger than those in the ICCPR. Indeed, most instances of hate speech are constitutionally protected in the US. Reservations are like opt-out clauses. A State’s right to make reservations to treaties is not unlimited, but I believe the US’s reservation to Article 20 is valid.

Could the US ban the film as a ‘necessary’ limitation of free speech?

Under Article 19(3) of the ICCPR, freedom of expression can be limited even if it does not amount to hate speech, for example in circumstances where it is necessary to protect public order, national security, or the rights of others. Given the foreseeability of violence, the US would have been permitted under international law to censor the movie (though an interesting legal question arises from the fact that the foreseeable violence is outside rather than inside the US). However, the US is free under Article 19(3) to censor or not to censor. Of course, for reasons mentioned above, it is probably prohibited from doing so under its Constitution.

Does the publication of the film breach any other human right?

Are there any countervailing human rights which might indicate that the US should have censored the movie? There is no issue of the film inhibiting freedom of religion: Muslims are not hindered in practising their religion due to its release. Such an effect might have arisen indirectly if the film was well respected and influential in the non-Muslim world, but that is hardly the case.

The film has clearly caused extreme hurt and offence. While the denigration of one’s religion is unpleasant, there is no human right not to be offended.

A sound case could perhaps be raised that the film may foreseeably lead to injuries and deaths of people caught up in riots, thus raising issues regarding the rights to security of the person and life. (It is not clear that anybody has died because of this movie, if one assumes that the Benghazi attack was essentially unrelated).

This is a thorny issue. Should speech be banned because a tiny extremist minority might foreseeably react violently? If so, unreasonable reactions and sensitivities are being rewarded.

On the other hand, it is clearly reckless to publish material (or perform an act such as Koran-burning) when one should be able to anticipate the very real harm that could be caused to others caught up in subsequent riots. In that respect, I am not perturbed that YouTube has taken the film clip off its site.

In conclusion …

In Egypt, the Muslim Brotherhood has called for peaceful protests against the film on Friday. Certainly, peaceful protests (against anything) are permitted under human rights law as a manifestation of freedom of assembly. Perhaps the Brotherhood is attempting to orchestrate a peaceful outlet for the undoubted passions inflamed by the movie. However, the call for protests confers a status upon the film that it does not remotely deserve, and we must hope that the protests do not get out of hand. Even if one thinks the film should have been banned from the outset, riots and violence are not a justified or proportionate response.

Finally, it is incumbent upon the authorities in Egypt, and across the Muslim world, to do all they can to counter pernicious misinformation which is designed to manufacture even greater outrage over such offensive publications. It should be made clear, for example, that the film is not sponsored or endorsed by the US government, but is rather the work of fringe bigots.

Certainly, publications once limited to one country now spread around the world quickly, digitally and virally. The potential for a publication in one State to generate mayhem in another is greater than at any other period in history. But while the film would undoubtedly be banned in Muslim countries, they cannot demand that the US (or Denmark, or any other country) alter its constitutional and free speech values to accord with their own.

P.S. Things have moved on considerably since I posted the above article on Thursday Australian time. My latest thoughts on this matter are at: http://castancentre.com/2012/09/15/the-innocence-of-muslims-rights-responsibilities-and-cultural-and-political-impositions/

This is a guest post from Adam Fletcher. Adam manages the accountability project at the Castan Centre for Human Rights Law. View his profile here.

Last night in Melbourne the Castan Centre for Human Rights Law hosted an event which gave Paris Aristotle an opportunity to speak about his involvement in the government’s Expert Panel on Asylum Seekers. Aristotle was interviewed live by The Age newspaper’s National Affairs Editor Michael Gordon, who was one of the few journalists to visit Nauru under the Howard government.

For those who are not aware of his background, Aristotle is the Director of Foundation House – the Victorian Foundation for Survivors of Torture. He has been on various government advisory boards for refugee resettlement and humanitarian issues for more than 20 years, and was named a Member of the Order of Australia for his work with refugees in 2002.

A key theme in the evening was Aristotle’s clear commitment to the Expert Panel report as an integrated package of recommendations, rather than as a set of recommendations to be cherry-picked according to the government’s will. He said he had informed the prime minister that his continued support for her policies was contingent on implementation of all recommendations, rather than only the deterrent aspects which have already been put in place.

As is well known, the panel recommended the recommencement of offshore processing in Nauru and on Manus Island. Perhaps inevitably, it is that aspect of the report that has attracted the most attention and controversy. Aristotle explained his position on that issue. Although he said he had “significant anxiety” about the resurrection of offshore processing after the suffering experienced by those who went through it last time, he concluded it was a necessary “circuit breaker” to prevent loss of life at sea, which has increased significantly in the past couple of years. More than 2000 boat arrivals per month means 40-50 boats on the water at once; exceeding the capacity of the Navy and search and rescue agencies to cope.

Faced with the ethical dilemma of whether to recommend Australia do what it can to prevent further deaths at sea, Aristotle said he and the rest of the panel came to the conclusion that it was unacceptable to omit a recommendation to provide a strong disincentive to getting on leaky boats.

Aristotle contended that critics were failing to face up to the life-and-death consequences of their opposition to offshore processing. He also said that many critics seemed not to have read the panel’s full report because their comments were ill-informed. He claimed the panel had been criticised for recommending a decrease in family reunion places when in fact it had done the opposite.

On regional cooperation, Aristotle noted that there is significant ill-will towards Australia on this issue on the part of the Indonesian government. In particular, Indonesia feels Australia is reluctant to do its fair share in dealing with refugees in the region after the Oceanic Viking and Merak episodes.

Additionally, the mandatory imprisonment of young Indonesian fishermen on people-smuggling charges has aggravated Indonesian voters, who see them as victims of the trade rather than perpetrators. Australian NGOs and even judges had been recommending a change to this policy for some time. Once the panel recommended it be scrapped the government moved swiftly to comply.

Aristotle said he recognised that enhanced regional cooperation is crucial to the success of the Panel’s package of recommendations. He said the proposed “no advantage” test would see people kept on Nauru and Manus for “a couple of years”, if that was how long it took to establish an orderly regional process, though he did not specify an exact time frame.

On the other hand, he did not seem particularly optimistic about the prospects for improved cooperation, which does not sit well with his assertion that people will not be on Nauru/Manus for “four, five or more years like last time”. He also conceded that the initial transfers to the islands may produce ugly scenes (as they did before).

Still, he insists that the regime as recommended is not intended to be punitive, and that safeguards such as guaranteed access to medical care and legal representation will constitute a significant improvement over the original Pacific Solution. He reported that his organisation and others are already advising the government on the implementation of safeguards and how processing should proceed.

Aristotle was at pains to point out that there are several aspects of the Panel’s recommendations (which have already been accepted in principle by the government) which are unprecedented – for example $10.5m for regional capacity-building and $70m for NGOs to boost their protection work. He urged NGOs to grasp the opportunity presented by this funding injection.

Aristotle expects the first planeload of the 400 extra refugees to be resettled from Indonesia to arrive in Australia very soon, and an announcement on the extra 4000 places in the family stream to be announced within the next couple of weeks.

In summation, there was no perfect answer to the problem of irregular asylum seeker flows; only improved ways of managing the issue. He cautioned that we cannot take an unlimited number of refugees, nor can we have a credible asylum system under the Refugees Convention unless we are able to return those who are found not to be in need of protection.

For Aristotle, the most important thing is to provide a system which is as fair as possible to all refugees – those who arrive by boat and those who do not.

Last week Australia experienced its worst day in terms of combat deaths since the Vietnam war. The tragic deaths of five diggers were mourned by our Prime Minister with words of sorrow, followed by her now rote promise that the deaths would not turn Australia from its present course in Afghanistan. In particular, Australia is “there for a purpose and … will see that purpose through”.

But increasingly, that purpose seems to be to maintain a military presence in the country until the end of 2014. Which, of itself, seems rather arbitrary and pointless. There is little evidence that an acceptable and irreversible level of stability will be achieved in Afghanistan by that date. If there is, it is incumbent upon our government to present such evidence to Parliament on a regular basis.

Three of the dead were killed by a rogue Afghan soldier, which brings to seven the number of Australians killed in this way. The training of the Afghan army is the main talk being undertaken by our troops. Such “green on blue” attacks, according to the ABC’s 7:30 report, are responsible for 14% of coalition dead this year. The US has now suspended the training of Afghan police in order to vet the trainees. While this process may be necessary, it certainly decreases the chances that Afghan forces will be adequately trained by the time coalition forces, including Australia, are due to leave.

Vetting assumes that the “turncoats” are Taliban infiltrators. Yet the ABC reported that only one quarter of the killings are believed to be caused by infiltration. Other “turncoats” were acting under duress, with reports the Taliban may have threatened their families' lives.

Most worryingly, many of the killings have apparently been caused by genuine friction between Coalition forces and their Afghan trainees. As “green on blue” incidents mount, it’s hard to see such animosity decreasing. Furthermore, this morning the Afghan government condemned Australian troops for conducting a raid in pursuit of the rogue soldier, in which two Afghan civilians (or, perhaps, Taliban) have been killed. While Australia claims the operation had Afghan approval, such apparent “misunderstandings” will do little for relations between coalition troops and the Afghan people.

Foreign Minister Bob Carr let the cat out of the bag on Sky News on Sunday morning. He said it would harm Australia’s image if we were to bring our troops home early. It would shame us in the eyes of our Coalition partners and the Afghan government (even though the latter seems to have no shame).

Clearly, France doesn’t feel that way, as President Hollande pushes forward with an election pledge to be out of Afghanistan by the end of 2012 after four of its troops were killed earlier this year. But perhaps the French can be dismissed as “surrender monkeys”. After all, Carr intimated it is not in “the Australian character” to withdraw early.

So there we have it folks. It’s important to stay in an 11 year old war that seems increasingly futile to preserve some stereotyped “image” of Australia as a loyal and brave ally that “sees it through”. But surely it’s more important to never lose sight of whether “it” is achievable. Furthermore, “punching above our weight” is fun when it comes to Olympic medals, but do we have to apply that principle to fighting wars?

Strangely, recent history indicates that “image” plays a key role in keeping us in a war, but not in keeping us out of war. After all, concerns over “image” didn’t prevent Australia from engaging in an illegal war in Iraq (or in investigating our role in that disaster).

Of course, that paradox is explicable if the image concerns are about impressing one ally in particular, our superpower mate the US. The same US whose “image” has taken a mighty battering due to the way it has fought the “war on terror”, of which Afghanistan is the centrepiece of a constellation including torture, rendition, Gitmo, an illegal invasion of Iraq and now drones. And there is arguably a fine line between being known as a reliable ally and being taken for granted.

Julia Gillard claims that an early withdrawal would dishonour the dead. With rare bipartisanship, Tony Abbott agrees. But the policy behind that rote speech guarantees that it will be delivered again and again. Perhaps it dishonours our troops to keep them in harm’s way in order to preserve Australia’s image as a loyal ally in an increasingly discredited war on terror.

So things have once again hotted up in the continuing story of Julian Assange in the Ecuadorian embassy.

In a fiery press conference in Quito, Ecuador’s Foreign Minister Ricardo Patiño claimed that Britain had threatened to “storm” its embassy in order to get hold of Assange and fulfil its obligation under a European Arrest Warrant to extradite him to Sweden. This “threat” was contained in an aide memoire in which the UK informed Ecuador that under its domestic law, namely the Diplomatic and Consular Premises Act 1987, it could revoke Ecuador’s embassy status. Such a move would then presumably remove its inviolability under the law of diplomatic protection, enabling the British police to enter in order to seize Assange.

The British Act was amended in 1987 in light of two incidents in which major crimes were committed under the shield or attempted shield of diplomatic immunity. In April 1984, British policewoman Yvonne Fletcher was killed by shots fired at protesters from inside the Libyan embassy. Though British police laid siege to the embassy for eleven days, they did not enter, and the matter was eventually resolved by all Libyan diplomats being expelled and diplomatic relations severed. No one has yet been arrested for Fletcher’s murder.

In July 1984, Nigerian authorities, assisted by Israeli agents, attempted to kidnap one Umaru Dikko, a former Nigerian government minister living in the UK, by drugging him and smuggling him out of the country in a diplomatic bag. The plot failed as the crate in which Dikko was stashed did not have the appropriate diplomatic markings, so police could open it.

The aide memoire indicates that British authorities believe that the Assange affair is serious enough to give rise to the possibility of revoking Ecuador’s embassy status under its amended law. Yet the behaviour of Ecuadorian embassy staff hardly compares to the homicidal behaviour of someone inside the Libyan embassy in 1984, or the subterfuge and complicity in an attempted kidnapping by Nigerian diplomats in the Dikko incident. Furthermore, we must remember that Assange has not been charged with any offence anywhere, apart from skipping bail in the UK by launching his asylum bid in June. Furthermore, Ecuador is no more responsible for Assange seeking asylum in its embassy than the US was responsible for Chen Guangcheng’s decision to seek refuge at the US embassy in China in May.

The revocation of Ecuador’s embassy status, followed by the entry of police to seize Assange, might be legal under British law. But it seems very unlikely that it is legal under international law, namely the Vienna Convention on Diplomatic Relations 1961. At best, it is an open question.

Indeed, given the highly dubious legality of the “threatened” British action, it is wrong for our Attorney General, Nicola Roxon, to once again timidly claim that there is little Australia can do to help its own citizen. Australia should at least make it very clear to the UK that it would be unacceptable for it to take unprecedented action and perpetrate a likely breach of international law in order to seize our citizen.

I seriously doubt the UK government ever intended to escalate matters to this extent. Does the UK really want to jeopardise its relations with Ecuador, and probably all of South America and much of the developing world, by “storming” an embassy? Does it really want to set a precedent which might endanger its own embassies in many countries in the world? Does it really want to commit a likely violation of international law?

The actual chances of Assange escaping extradition to Sweden are small. Ecuador may well grant him asylum (it has stated that it will announce its decision at 10pm AEST) but it is now quite clear that the UK will not facilitate safe passage out of the country. No breach of international law arises if the UK arrests him once he finally stepped outside the embassy’s environs.

The aide memoire may have been meant more as a clarification of UK law than an actual threat to use that law. But then again, why was it stated at all? It is a major bungle on the part of the Foreign and Commonwealth Office, as it has unnecessarily antagonised Ecuador and revealed to the world a somewhat cavalier stance on the inviolability of embassy premises. It is another instance of bizarre behaviour by a country in relation to Julian Assange and Wikileaks.

POSTSCRIPT: Ecuador has granted political asylum to Assange. The UK refuses to grant safe passage out of the country, and remains committed to executing the European Arrest Warrant. So the diplomatic standoff continues.

On the weekend it was reported that Tasmania intends to legalise same sex marriage despite the Commonwealth Marriage Act 1961 defining “marriage” as being between a man and a woman. Given that apparent discrepancy, does Tasmania have the power under our Constitution to pass a same-sex marriage law? I will briefly answer this question below. I also refer people to the detailed advice on this matter given by Professor George Williams in 2005.

Australia is a federation. Under our Constitution, power is split between the federal government (“the Commonwealth”) and the States. Most of the federal government’s powers are spelt out in section 51. Under s. 51(xxi), the Commonwealth has power over the subject matter of “marriage”: this provision provides the Commonwealth’s authority to enact the Marriage Act. However, the powers in s.51 are “concurrent” powers, meaning they are shared between the Commonwealth and the States. Hence, the States too have power over marriage.

Given that the Commonwealth and the States can legislate in the same area, there is the potential for inconsistency. Section 109 of the Constitution tells us how to resolve inconsistencies. Basically, the Commonwealth law will prevail.

So how is “inconsistency” determined? Is it likely that the Tasmanian Act would be struck down as being inconsistent with the Commonwealth Act? I speculate on this below, though it is acknowledged that there is as yet no draft of the proposed Tasmanian law. Bills, which have since lapsed, circulated in 2005 and 2008.

The first test of inconsistency is to ask whether simultaneous obedience is impossible. Does one law compel what the other demands? This test will not apply. For a start, neither the Commonwealth Act or any proposed Tasmanian Act will compel anybody to get married.

The second test is to ask whether one law confers a right taken away by the other. Certainly, the Tasmanian law would grant a right for same sex couples to get married which is not recognised under Commonwealth law. But the Commonwealth does not take away such a right: it does not prohibit same sex marriage at the State level. The Marriage Act has nothing to say about that matter.

The most likely source of inconsistency, if one exists, lies under the third test of “cover the field” inconsistency. Under this test, a State law will be deemed to be inconsistent if it is found that the Commonwealth intended for its law to be the sole law on the topic in question (ie. it intends to “cover the field”).

With regard to the Commonwealth’s intention, section 6 of the Marriage Act explicitly preserves the validity of State and Territory laws relating only to the registration of marriage. Section 6 therefore seems to implicitly exclude the validity of State and Territory laws relating to other aspects of marriage. That is, the Commonwealth has signalled an intention to cover the field of all aspects of marriage besides registration. Which is not promising for the Tasmanian law.

But what in fact is “the field” of the Commonwealth law? Identifying the field (ie the topic of a law) for the purposes of section 109 is notoriously unpredictable.

If the field is “marriage”, then the Tasmanian law would be in constitutional trouble. However, Professor Williams suggests that the field is in fact “opposite sex marriage”, thus leaving the field of “same sex marriage” open for the States. In this regard, he points to the parts of the Commonwealth Act dealing with the recognition of marriage solemnised in foreign countries. Section 88EA makes it clear that same sex marriages conducted overseas are not recognised as “marriages” under the Commonwealth law. Given the Parliament clearly turned its mind to this issue, it is significant that the law says nothing about the recognition of same sex marriages conducted in Australia. That may indicate that that field was simply vacated for the States. On the other hand, given that s88EA deals to a small extent with same sex marriage, that may make it more difficult to argue that the field of the law is confined to “opposite sex marriage”.

The explicit reference to marriage being between a man and a woman in the Marriage Act was introduced by amendments in 2004, and was clearly designed to head off arguments that the Act allowed same sex marriage. Ironically, if Professor Williams is correct, the Howard government amendments may also have the effect of reducing the field of the Commonwealth law, and opening up space for Tasmania to fill.

There are international precedents for same sex marriages being performed at a provincial rather than national level. Same sex marriage is permitted and recognised in a number of US states, but not at the federal level. They are also performed in Mexico City, and these marriages must be recognised throughout Mexico.

If Tasmania is to pass the proposed legislation, it will complete a remarkable journey. Tasmania was the last State to decriminalise same sex relations. In 1994, those laws were found by a United Nations body to breach Australia’s international human rights obligations in Toonen v Australia. The State government only reluctantly repealed the law in 1997 when it became clear that they were unconstitutional, as the Commonwealth had overriden them in 1994 in response to the UN decision. Now it seems that Tasmania may be the first domino to drop in recognising same sex marriage.

Such a law will likely face constitutional challenge, and it is not certain that it would survive. However, any victory by same sex marriage opponents could well be short-lived, as the momentum towards acceptance of same sex marriage in this country seems unstoppable.

Pussy Riot is a collective of young, cool, smart women with attitude who may just be Russian President Vladimir Putin’s worst nightmare. Pussy Riot engage in guerrilla punk protests, popping up unexpectedly at iconic sites in Moscow to blast punk songs critical of Putin. They are probably now the most globally recognised expression of the “Russian Winter” movement for greater democracy in Russia, which exploded last December in the wake of parliamentary elections widely believed to be rigged. “Recognised” is however a misnomer as the ten or so members of Pussy Riot wear balaclavas (as well as bright skimpy outfits) and are anonymous. Even their parents don’t necessarily know who they are!

But three of them are now very well known. Nadezhda Tolokonnikova (22), Maria Alekhina, (24), and Yekaterina Samutsevich (29) have been detained since March and are now facing trial for “hooliganism motivated by religious hatred or hostility”, which could lead to seven year sentences for each of them. The charges arise from a song performed at the altar of Cathedral of Christ the Saviour, a prominent Russian Orthodox Church in Moscow in February. During the performance, Pussy Riot called on the Virgin Mary to “throw Putin out”. The women undoubtedly caused offence to many religious Russians, but their detention as well as the prospect of seven years’ imprisonment for the three, including two young mothers, has caused considerable disquiet. 200 prominent Russians, as well as 41000 others, have signed a letter calling for their release.

Public interest in the trial has led to it being streamed live on the internet. Not all of it though. Key parts of the trial like witness testimony are excluded.

The case has attracted international attention. Amnesty International has declared the three to be prisoners of conscience. And the Russian government has surely been embarrassed by a string of international performers such as the Red Hot Chili Peppers and Sting calling for the release of the Pussy Riot three on stage in Moscow.

Pussy Riot join the long and honourable roll call of brave dissident artists, exemplified (for example) today by the artist Ai Weiwei in China, the comedians The Moustache Brothers in Burma, and Syrian cartoonist Ali Farzat. Pussy Riot’s predecessors as musical outlaws include the Plastic People of the Universe in Czechoslovakia after the Prague Spring, the Klaus Renft Combo in East Germany, and Victor Jara, a Chilean folk singer murdered in Augusto Pinochet’s coup of 1973.

45 years ago, the harsh sentence handed out to (now Sir) Mick Jagger for a minor drug offence was condemned by conservative Times commentator William Rees-Mogg in his famous 1967 editorial, “Who breaks a butterfly on a wheel?” Rees Mogg speculated that disproportionate sentences (later overturned) were imposed due to the perceived threat the young anarchic Rolling Stones posed to Britain’s staid establishment. The parallels in the Pussy Riot case have been noticed by the BBC, though the stakes for the three young women are much higher.

However, it may be another butterfly analogy that Putin should be wary of – that of “the Butterfly effect” (though I concede this may be an imperfect analogy). While the Pussy Riot trial seems designed by Russian authorities to use a compliant judiciary to send a message by making an example of the women, Putin better hope it doesn’t reinvigorate the opposition, and add to their number due by generating widespread disgust at the regime’s disproportionate response. Pussy Riot’s chapter in the long running saga of “art versus power” is far from over.

Acclaimed former Spanish jurist Baltasar Garzón has joined the legal team which represents Wikileaks and its founder Julian Assange. Wikileaks is engaged in legal actions aimed at lifting the financial embargo placed on it by Visa, Mastercard and Paypal, which has severely restricted avenues for donations to the organisation (indeed, Wikileaks recently won an action in this regard in Iceland). Assange is currently holed up in the Ecuadorian embassy in London seeking asylum. Regardless of the outcome of his asylum claim, he faces extradition to Sweden for questioning on sexual assault and rape when he steps outside the embassy. Assange also fears the prospect of an onward extradition to the US, which is deeply unhappy with his Wikileaks activities.

So who is Baltasar Garzón? He was a judge in Spain for 23 years to 2010. He is most famous for his attempt in 1998 to extradite former Chilean dictator Augusto Pinochet from the UK on charges of murder and torture of Spanish citizens. That episode led to a landmark decision in the UK which established that former heads of State have no sovereign immunity with regard to international crimes like torture. Ultimately, the UK decided not to extradite Pinochet on medical grounds. But the aura of impunity attaching to former dictators was shattered.

Garzón also indicted Argentine military officers for their role in the disappearance of Spanish citizens during Argentina’s “dirty war” of 1976-1983, resulting in the successful prosecution of Navy Captain Adolfo Scilingo for crimes against humanity.

In 2009, Garzón considered filing charges against six former officials in the government of George W Bush for their role in the US’s use of torture. Wikileaks cables later revealed how pressure was applied to “force” Garzón to drop the case.

In 2008, Garzón commenced investigating crimes arising from Spain’s civil war and under the Franco dictatorship. That investigation was halted on appeal. However, two right wing groups then sued Garzón, claiming that he had knowingly overstepped his authority in opening up the Franco-era investigation in breach of Spain’s 1977 amnesty law. Ironically, the judge that pioneered the use of universal jurisdiction to indict people overseas was charged with improper conduct in investigating his own country’s dark past. The Wall Street Journal, clearly miffed at Garzón’s “extraterritorial enthusiasms”, cheered that development. Those charges were finally dismissed in February 2012.

However, Garzón was also charged with improperly ordering wiretaps in a corruption case, for which he was found guilty by the Spanish Supreme Court in February 2012. He has consequently been barred from Spain’s legal profession for 11 years. Many see the disbarment as retaliation for Garzón’s trailblazing human rights work, and, as described by Reed Brody of Human Rights Watch, “a massive attack on the independence of the judiciary and on a very brave judge”. In contrast, his critics have “rejoiced at the downfall of a man they saw as vain, media-loving, transparently leftwing and a loose cannon in the Spanish judicial system”.

In a joint press statement issued on Tuesday, Assange and Garzón stated that they have formulated a “new legal strategy”, aimed at defending Wikileaks and Assange from the financial embargo, and from “secret US processes” which “have compromised and contaminated other legal processes” in the UK and Sweden. In hiring Garzón, Assange has added serious human rights and international law firepower to his support team. He has also hired a man who, like himself, has upset some very powerful people, and who has divided public opinion.

Yesterday we learnt that the report of the UK’s Chilcot inquiry into Britain’s role in the Iraq war will not be delivered until the second half of 2013, over two years after its initial scheduled date of May 2011. The latest delay is caused by a stoush with Whitehall (the British public service) over the disclosure of key discussions in the leadup to war between British Prime Minister Tony Blair and US President George W Bush.

It is obviously a shame that such an important inquiry has been delayed. As a lawyer, I am particularly interested in the ultimate findings regarding the disconnect of the advice given on the legality of the war by international lawyers in the Foreign Office (ie. it was illegal in international law) and the advice presented by the Attorney General Lord Goldsmith to the British Cabinet and Parliament (ie it was legal in international law). And of course, there is the question of why the Coalition of the Willing was so adamant that Saddam Hussein possessed significant caches of weapons of mass destruction.

But hey, at least the UK is having an inquiry. No such inquiry seems to be on the horizon in the US. Regarding Australia, Professor Ben Saul of the Sydney Law School has lamented the “bipartisan agreement to bury the inconvenient past”. Quite strange, considering the vast numbers of Iraqi dead, and the fact that the waging of the war was, according to most international lawyers, an illegal act of aggression. As Saul eloquently puts it:

In the long sweep of history, I have no doubt that our children will scratch their heads and wonder why we attacked Iraq. They may well be puzzled about why there was no reckoning for those who took us there, and no justice for the innocent dead. I hope it gives them pause before mounting their own cavalier escapades to smash foreign governments and kill their peoples.

Indeed, Tony Blair seems to have learnt little, given he spent much of his Chilcot evidence talking about the possible need to wage war with Iran.

Emma Sky, a former political adviser to Ray Odierno when he was the US’s most senior general in Iraq, also argues that politicians should be held accountable for “the decision to go to war, and the lack of strategy and planning for its aftermath – the consequences of which are still being felt”.

It may seem to us in the West that the world has moved on from the Iraq war. That certainly isn’t true for Iraqis. Nor is it true for military casualties and their families. An inquiry into Australia’s involvement in the Iraq war would not be digging up the past. Rather, it would be an exercise in holding people accountable for flawed decisions with catastrophic consequences, as well as a process which should help to guard against repeat behaviour.

Chillingly, Sky has warned that the Iraq war may continue to haunt the West as anger at the West’s actions could provoke revenge attacks by “some Muslims brought up in the last decade”. While foreign policy mustn’t be tailored to suit fanatics, it shouldn’t be geared towards creating enemies.

Gosh. In the last year the media has been dominated by … the media. We’ve had the furore over Andrew Bolt and racial vilification law, the Finkelstein inquiry (and, less prominently, the Convergence Review), and now ructions at our two main newspaper stables, especially Fairfax. Internationally, we have seen the fall from grace of News International in the UK, with the hacking scandal, the charging of senior News figures like Rebekah Brooks and Andy Coulson, and the ongoing Leveson inquiry.

One issue which has arisen again and again is the issue of free speech. While few have defended phone hacking (though there are exceptions), many claim that the prospect of greater accountability for the press poses a grave threat to freedom of expression.

The free speech/media debate may be split into two categories: one concerning regulation of media content, and the other, which has become more prominent after Gina Rinehart’s raid on Fairfax shares, relating to regulation of media owners. The two issues are however related. Concerns over media content in Australia have been accentuated because of a concern over a perceived lack of diversity due to concentrated ownership. For example, criticism of News Ltd content has been driven by the perception of an owner-driven culture of conservative bias in that content.

Freedom of speech is of course a crucial human right. But it is not unlimited: clearly one cannot falsely yell “fire” in a crowded theatre. Regulation of the media can accord with human rights: overregulation does not.

The Institute of Public Affairs [IPA] has been one of the loudest advocates of free speech arguments against media regulation. Yet its version of “freedom” is solely focused on freedom from the government. For example, IPA boss John Roskam has stated:

A free media means neither the government nor government-appointed censors can tell the media what it can do. And a free media means politicians don’t decide who gets to own newspapers.

But human rights are not only about freedom. They are also about fairness and equal opportunity. And while human rights are most obviously about constraining government power, an increasingly recognised aspect of human rights is its role in constraining private power. “Free speech” is relevant not only to media freedom from overly intrusive government regulation but also to protection of journalistic freedom against overly intrusive private owners and editorial diktats. If the latter is omitted from the equation, media outlets can become mere mouthpieces for the very loud exercise of “free speech” by powerful people drowning out alternative interests and views. Especially those of the poor and powerless, who tend not to own many media sites.

A good example of how powerful private interests can abuse free speech in order to dominate agendas is in the US. In 2010, the US Supreme Court ruled in the (in)famous Citizens United case that “political spending” was an exercise of free speech, striking down long-standing caps on corporate (and union) spending in federal elections. The decision has unleashed the so-called Super PACs who are spending truly obscene amounts of money to influence the 2012 vote. US politics is completing its transformation from a battle of ideas into a battle of money.

The IPA’s Research Fellow Chris Berg recently dismissed the UK’s Leveson Inquiry as a farce because it was daring to investigate linkages between UK politicians and the media. Is he really saying that the prospect (or extent) of disproportionate influence over government power by media moguls should simply be accepted as “normal”? After all, former Minister Tessa Jowell stated that Britain’s Labor Party became addicted to courting media barons like “crack cocaine”. Surely such sentiments give rise to concerns over perversion of the democratic process.

Of course, the argument can be made that “the market” is an adequate mechanism to ensure that quality media content in the private sector prevails. However, polls indicate that consumer levels of trust in the Australian media, apart from the ABC, is low and has been for some time. Yet it isn’t obvious that the media has responded to that reality in any meaningful way. Further, the market has not ensured access to a plurality of opinion reflecting Australia’s true diversity in the mainstream media. Australia currently faces the prospect of having all major newspapers controlled by either Murdoch (reportedly already at 70%) or Rinehart: right and righter.

I acknowledge that the appropriate retooling of media regulation is not easy to devise. It is important to avert the danger of regulation morphing into overregulation, and killing off the golden goose of a free press. In this regard I note the alarming solution adopted in Hungary, which has introduced draconian legislation under which journalists face crippling fines if their coverage is deemed too “unbalanced”.

Nevertheless, the shrill reaction to the notion of increased media accountability based on simplistic appeals to free speech should not be the end of the regulation conversation.

This is a guest post from Associate Professor Paula Gerber. Paula is Deputy Director of the Castan Centre for Human Rights Law and an expert on children’s rights. View her profile here.

The UN Committee on the Rights of the Child (Committee) has just issued its five-yearly report on Australia’s compliance with the Convention on the Rights of the Child (CRC).

Although couched in diplomatic language, the report contains damning findings regarding Australia’s protection of children. One of the reasons the Committee may have been particularly critical of Australia is because we are “one of the most affluent economies of the world”. Thus, unlike many other countries, we can hardly claim lack of resources as an excuse for not achieving more when it comes to protecting our children.

The comprehensive review of Australia’s efforts includes strong criticism of the Government in a range of diverse areas including:

• Breast feeding – the Committee expressed concern that only 15% of mothers continue to exclusively breast feed until their child is six months old. It encouraged the Government to explore means of supporting breast feeding by working mothers.
• Australian mining companies – which the Committee found to have been complicit in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji, where children have been victims of evictions, land dispossession and killings.
• Juvenile justice – which still “requires substantial reform” in order to comply with international standards, including increasing the minimum age of criminal responsibility and ensuring that children with mental illness and intellectual disabilities, who are in conflict with the law, are dealt with using alternatives to judicial proceedings.
• Discrimination against gay and lesbian youth – and the need for federal legislation to protect against discrimination on the basis of sexual orientation and gender identity.
• Corporal punishment – which the Committee recommends be expressly prohibited in homes, schools, detention centres and alternative care settings.
• Bullying – the Committee recognised that the Government has taken steps to combat bullying in schools, but encouraged it to do more to train teachers to investigate and address bullying.

The strongest criticism was levelled at the Government’s performance in relation to three distinct groups of children, namely children with disabilities, Aboriginal and Torres Strait Islander children and asylum seeking children.

Children with Disabilities

The Committee found that disability services were “under-funded, unfair, fragmented and inefficient” with children “frequently failing to receive crucial and timely early intervention services”. The importance of children with disabilities being able to exercise their right to education, including mainstream education, was stressed by the Committee as was the need for legislation prohibiting non-therapeutic sterilisation, which the Committee noted was a procedure that continues to be utilised in Australia on girls with disabilities.

Aboriginal and Torres Strait Islander children

The Committee commented on the “serious and widespread discrimination faced by Aboriginal and Torres Strait Islander children”, including in accessing basic services and in their over-representation in the criminal justice system. Furthermore, aspects of the Northern Territory Emergency Response were described as punitive.

As part of the process of overcoming these problems, the Committee recommended that the Government undertake more effective and meaningful engagement with Aborigines and Torres Strait Islander people in the formation of policies that affect them.

Asylum-seeking children

The Committee was highly critical of the Government’s continuing policy of mandatory detention of asylum-seeking children without time limits and access to judicial review, and the failure to use the best interests of the child principle to inform asylum and refugee policies and processes.

The Committee noted the serious conflict of interest that can arise from the Minister for Immigration also being the legal guardian of unaccompanied minors, and recommended that the Government “expeditiously establish an independent guardianship/support institution for unaccompanied immigrant children”.

The Committee called on the Government to “conclusively abandon” offshore processing and the so-called ‘Malaysian solution’ in favour of adopting the UN High Commission for Refugee Guidelines on protecting children seeking asylum.

Although there were numerous strong criticisms of Australia’s efforts to protect and promote children’s rights, there was also recognition that the Government has made progress in some areas, including the announcement of a national children’s commissioner, the requirement that all legislation is now subject to a human rights compatibility assessment and family law reforms which prioritise the safety of children. But there can be no doubt that the failings of Australia’s children’s rights efforts far outweigh the successes.

The next assessment of Australia’s compliance with the CRC is not due for five years. Let’s hope that by there has been significant improvement in the protection and promotion of the rights of the most vulnerable members of our society. For as noted American Psychiatrist, Karl Menninger observed “What is done to children, they will do to society.”

Today a High Court hearing begins concerning the plight of refugees who are the subject of adverse ASIO assessments. Currently, there are 51 people in this situation, including the pregnant mother Ranjini and her two boys. They are people who have been determined to be genuine refugees under international and Australian law. Ordinarily, such people are granted a protection visa allowing them to live freely in the Australian community. However, an adverse ASIO assessment means that the affected person is refused a visa and is detained on the basis of national security considerations.

Such detention lasts until ASIO changes its assessment, or until another country takes the person in. But there is no requirement upon ASIO to periodically reassess its determination, and this author is aware of only one case where such a decision has been revisited. The latter situation is very unlikely: adverse security assessments tend to put other countries off from voluntarily taking people in (though it is not unprecedented). As these detainees have been determined to be refugees, Australia cannot return them to their state of origin.

So such people face indefinite detention. Further, they cannot respond to or appeal the ASIO assessment as there is no requirement for ASIO to give reasons, due again to national security considerations.

Before the High Court, the legality of this system is being challenged on behalf of a 36 year old Sri Lankan refugee, known as M47. It will be argued that the man has been denied procedural fairness, that it is unlawful under the Migration Act to remove him as he has been found to be a refugee, and that his indefinite detention is illegal. Of course, a victory for M47 will have positive repercussions for all who share his dire circumstances.

The High Court last considered the issue of indefinite detention in the (in)famous case of Al-Kateb v Godwin, in which a 4:3 majority found that it was lawful under the Migration Act to detain a stateless Palestinian, who had been refused a visa, and who had no state willing to take him in. Many, including myself, believe this case to have been a low point in High Court case law.

Given the thin majority and its cruel consequences, perhaps Al-Kateb will be overruled. Alternatively, Al-Kateb may be distinguished on the basis that it concerned the rights of a non-refugee, whereas M47 has been accepted as having refugee status. The obligations owed to refugees under the Migration Act may warrant a departure from the previous case.

Also today the Greens announced an intention to introduce legislation to address the issue. Given the intransigent attitude of both parties to refugees, it seems unlikely this Bill will pass, at least not before the High Court ruling.

In the meantime, we should be ashamed as a nation of keeping people in true Kafkaesque limbo – they are indefinitely detained without any right to know the reasons why, and without any obligation on anybody to reconsider the reasons for their detention. A greater departure from the proud traditions of the rule of law is difficult to contemplate.

The long anticipated telemovie “Mabo” aired last night on ABC1. Like many, I sat, transfixed, at this story of a proud Murray Island man, Eddie Koiki Mabo, his refusal to bow to endemic racism, his groundbreaking legal fight for Indigenous land rights, his untimely tragic death from cancer only a few months before his final legal victory, and his relationship with his wife Bonita, whose support was crucial in Mabo’s making of history. The telemovie also had personal resonance for me: I am humbled to know or have known some of the other players in this drama, such as the barristers Ron Castan and Bryan Keon Cohen, as well as the director Rachel Perkins.

Mabo reminds us that law can be great. Ultimately, after an 11 year battle that outlived him, Mabo prevailed and terra nullius, a racist and objectively absurd doctrine, was swept away by a 6:1 majority in the High Court. Along the way, a 4:3 majority had struck down the Bjelke Petersen government’s attempt to kill the litigation by retrospectively abolishing native title.

Law can also be terrible. The telemovie reminded us how, not so long ago, that Queensland law dictated segregation in pubs and elsewhere, and that an indigenous person could be refused “permission” to travel home to Murray Island to see his dying adopted father. Indeed, extraordinarily arbitrary powers over Indigenous people were exercised by Patrick Killoran, portrayed in Mabo by Rob Carlton. And it was the old “law” of terra nullius that necessitated the legal battle in the first place.

Law can be intimidating and culturally inflexible. Witness the humiliation of Mabo as a witness before a Queensland court which, ironically, dismissed his personal land title claims in applying white man’s standards to that issue.

The Mabo case was hardly the end of the fight for Indigenous rights in this country. While native title was enshrined in legislation in 1993, it was wound back drastically by the Howard government after the Wik decision in 1998. And native title remains difficult to prove in a court: continuous assertion of customary land rights were difficult to maintain on the mainland (in comparison to Murray Island) in the midst of “the tide of history” of white colonization, and Western requirements of documentary evidence pay little respect to Indigenous oral traditions. And Indigenous socio-economic disadvantage remains a national tragedy, and the Northern Territory Intervention a reminder of how Australian governments can so easily rely on coercion as a solution to Indigenous problems.

Eddie Mabo’s story is a crucial signpost en route to true reconciliation in Australia. It demonstrated just what can be achieved when determined people join together to make the effort to combat injustice. The Mabo case and its legacy were driven by Mabo the activist, his family and fellow plaintiffs, and a key support cast of lawyers, academics and now film-makers. Food for thought as we lead up to a referendum on the constitutional recognition of Indigenous Australians.

On Saturday night, we have that annual marvellous celebration of kitsch, the Eurovision Song Contest. Jedward, the Irish twins seemingly devoid of the embarrassment gene, are back, Russia promises to entertain with its troop of provincial grannies, while the UK has resurrected a 76 year old Engelbert Humperdinck for the occasion.

Yet these delightful absurdities are overshadowed by controversy over the site of the event, Baku in Azerbaijan. Baku got the nod because Azerbaijan won last year. But the Azerbaijani government is not one of the world’s good guys, with a shocking human rights record including gross suppression of civil and political rights, torture and corrupt government.

Should Azerbaijan have been disqualified as a host on human rights grounds? One response is to argue that Eurovision is inherently apolitical. After all, its signature charm is that most of the songs are only good because they are so bad. But Eurovision isn’t free of politics. Eurovision voting, which is frankly half the fun of the broadcast, is clearly political (with, eg, Greece and Cyprus commonly swapping maximum points). Azerbaijan’s longtime enemy Armenia has already boycotted. Its entries in Eurovision are reportedly censored on Azerbaijani TV.

But if we start imposing human rights criteria for Eurovision hosting, several States could be in serious doubt as viable hosts. After all, Russia with its Putocracy (and fresh from its war with Georgia), and Turkey with its oppression of Kurds, have hosted in the last decade. And what if the UK had hosted the year it played a key role in launching an illegal war on Iraq?

It’s a difficult equation. Certainly, Eurovision will showcase Azerbaijan to the world and in that sense be a bonus to its government. But Eurovision has also attracted much attention to the neglected subject of Azerbaijani human rights, just as the Bahrain Grand Prix focused the spotlight on that country’s brutality. A key challenge for the human rights community is to maintain that scrutiny to generate real pressure for change.

At the least, heightened human rights awareness of the hosts of such events must be expected. Organizers should be prepared to address human rights issues with honesty and responsibility, rather than hide behind appeals to a non existent apoliticism. And contestants are fair game to receive human rights related questions, though we can’t expect them to be human rights experts.

However, a line must be drawn when human rights abuses are credibly linked directly to the event in question. Worryingly, Panorama recently aired a documentary in which it alleged that homes were arbitrarily bulldozed (including with people inside) to make way for the Eurovision venue, the Baku Crystal Hall, and that Azerbaijanis had been persecuted for voting for Armenia in previous Eurovision competitions. Eurovision’s organisers, the European Broadcasting Union, cannot wash its hands of such allegations of abuse of the purposes of its competition. If proven, Azerbaijan should be banned from future song competitions until compensation is paid for Eurovision-related violations.