This has to be less than ideal as a precedent for civil liberties in schools. Another sign of a fundamental shift in our attitude to the presumption of innocence in the 21st Century, perhaps?
The Age reports on the pressing issue of the growth of independent schools teaching from a faith-based curriculum in Australia. Presenting religious indoctrination in the Howard era clothing of “choice”, some such schools are teaching creationism in science classes and directly counteracting government efforts to provide sex education to students.
For example, the principal of one religious school tells The Age that at least he doesn’t “hide” evolution from students:
“We don’t hide the fact that there is a theory of evolution, and that’s how we’d present it, as a theory,” Mr Bray said.
“We teach it, explain what it is, and at the same time we present clearly and fairly, and we believe convincingly, the fact that our position as a school is that God created the heaven and earth … There wouldn’t be any point of being a faith-based school if we didn’t think that God was the creator.”
Mr Bray’s faith-based school has no problem accepting money from secular-based taxation of unbelievers, of course. According to The Age, up to 200,000 Australian children are now being taught in evangelical Christian schools.
These issues are particularly relevant as the new Federal Government considers a reallocation of funding for such schools, which gradually increased throughout the Howard era. A more in depth piece can be read here, which highlights the fact that independent schools in Victoria are exempt from discrimination laws relating to employment and are thus free to hire only the devout.
U.S. Supreme Court Judge: ‘absurd’ not to punch suspects in the face, stick things under fingernails
13Feb08In a recent interview, everyone’s favourite extreme right wing U.S. Supreme Court Justice Antonin Scalia remarked that he found it ‘absurd’ to think that authorities couldn’t torture an individual who had information about an imminent terrorist attack (another take). Picking up on the widespread belief that terrorists will hand themselves in for interrogation minutes before the next major terrorist attack but then refuse to talk, Scalia seemed to endorse torture (or is that ’so-called torture’) in certain circumstances:
I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?
Needless to say, he made no remarks about what safeguards or restrictions would be placed on the heroic forces of the government in their quest to protect civil liberties by beating and abusing bad guys, or what remedies a person who is ‘incorrectly’ tortured would have.
The Sydney Morning Herald and Catholic News tell us that judges and other members of the legal community in New South Wales recently participated in ‘Red Mass’, a European tradition in which members of the legal profession seek divine guidance for the courts.
The image of judges - wearing the robes which represent their role in the state - seeking direct guidance from God is somewhat disconcerting. Australia has no state religion, by virtue of s 116 of the Constitution:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
(The NSW Constitution is silent on the topic). That is not to say that the Constitution bans religion from the state in any sense - the same document refers to ‘Almighty God’ without identifying which particular variant of God is being exulted.
It would, of course, be unreasonable to criticise judges for exercising their freedom to worship in private. But it should be a topic for serious debate as to whether it is appropriate for judges to involve themselves in their capacity as judicial officers in the customs and ceremonies of a particular religious denomination.
As Keith Mason points out in this article, while there is little doubt that Christianity had much to do with the development of the common law and with Australia’s legal traditions, much of the modern law (and particularly insofar as it embodies a contemporary view of human rights) has involved sweeping outdated Biblical notions aside. For example:
The common law established that it was lawful for a husband to rape his wife and Biblical explanations were offered for this rule. This doctrine lasted until 1991 when it too was overturned through the proper exercise of the lawmaking powers of judges in Britain and Australia.
It is not uncommon for judges to refer to religious texts in their judgments. Mason urges an approach to religion which avoids any hint of literal application of the scriptures, but not one which rejects outright any contribution to legal progress from religious sources:
Hopefully we have not reached the stage that an idea relevant to public or legal discourse is off limits if it is sourced to the Bible or because it forms part of a larger corpus of philosophy or theology.
In Cattanach v Melchior [2003] HCA 38, the High Court was asked to consider whether it was open to sue for damages resulting from the unplanned birth of a child due to another’s negligence. As part of his judgment, Kirby J was highly critical of any suggestion that Biblical sources could guide the Court:
[i]f there is any area where the law has no business in intruding, it is in the enforcement of judicial interpretations of Scripture
His Honour’s argument is founded on a principle which should, perhaps, be more explicitly central to the judicial process: that an empirical basis must be identified for the incorporation of ‘public policy’ considerations into judicial decision-making:
In short, if the application of ordinary legal principles is to be denied on the basis of public policy, it is essential that such policy be spelt out so as to be susceptible of analysis and criticism. Desirably, it should be founded on empirical evidence, not mere judicial assertion […]
Judges seeking to literally interpret religious texts and principles as a basis for decision making fail this test, for reasons that come to the heart of many debates about the role and validity of religion: scriptural doctrines cannot be tested or criticised logically, because they represent the arbitrary ‘word of God’ and quite openly purport to be immune to rational analysis and dissection. As such, a decision founded on an interpretation of the word of a deity takes on a character entirely foreign to the strongly evidence- and precedent-based foundations of the common law, and the (in theory) rationalist and accountable form of government adopted in Australia.
And so, we return to Red Mass and the process (whether symbolic or literal) of judges seeking “divine guidance”, apparently on behalf of the Court. Because the religion behind the mass (Christianity, and more specifically Catholicism) is a mainstream one in Australia, there is virtually no criticism of judges participating in it. It is hard to imagine that the situation would be the same if the religion in question were Islam (imagine the public response to a superior court judge seeking ‘divine guidance for the court’ from Allah in an antiquated Muslim ceremony) or some minor religion, or indeed if it were some other form of spirituality altogether, such as paganism. But more importantly, it must be doubted whether it is proper in the 21st century for Australian judges to actively involve the court in the rituals of any religion at all. For the good of the law, it might be best if such things were kept strictly in the private sphere of judges’ lives.
This is an extraordinary decision by the Industrial Relations Commission. Telstra has had its right to sack an employee upheld, where the basis of the sacking was that she had sex with another employee (or employees, it seems) outside of work hours and then refused to tell her benevolent employer corporation the details.
In the first instance the IRC ruled that she had been unjustly sacked, and (in essence) that what Telstra’s employees did in a hotel room in their own time was none of the company’s business.
However, on appeal the IRC has overturned that decision and ruled that the sacking was legitimate. To summarise the reasoning, “it’s not because you had sex - it’s because you lied about it when Telstra asked you.” Apparently refusing to answer questions about the incident when Telstra was investigating a harassment claim was sufficient to break the bond of ‘trust’ between the employer and employee and justify dismissal. A less artful way of looking at it is that the IRC held that if your employer receives a harassment complaint then you are obliged to tell your employer who you f**k, and the circumstances in which you f**k them.
Although the phrase is often misused and is generally cringe-worthy, it’s hard to disagree with the employee’s lawyer when he calls the decision “un-Australian”. It smacks of the philosophy of everyone’s favourite corporate state, the United States - your employer has an absolute right to control every aspect of your life, and if you don’t like it your only recourse it to get another job. After all, it’s an employee’s market, as we’re so often told.
A right of appeal lies to the Federal Court - one can only hope that it is pursued, and our right to do whatever the hell we want, to whichever consenting adults we want, in privacy and outside of work hours, and without having to disclose the details to our employer is reinstated before we go too far down this path.
Another question: if we had a bill of rights, would this amount to impermissible discrimination on the basis of sexual preferences?
I just became aware of this piece of legislation, recently introduced into the South Australian Parliament: the Serious Crime (Control) Bill 2007 (SA). You can see the bill here in Rich Text Format or here in PDF.
This legislation is ostensibly aimed at bikie gangs, but it goes a lot further than that, and doesn’t direct itself specifically towards them. In addition, even insofar as it does apply to bikie gangs, it contains some extraordinarily broad incursions into civil liberties with very few restrictions.
The gist of the bill is that it allows the Commissioner of Police to ‘declare’ certain organisations for the purposes of the Act (s 8). Once an organisation is declared, the door is open for some startling consequences. Pursuant to Part 3:
The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.
Note the use of the word ‘must’. And note, also, that the finding that the Court must make is nothing to do with the merits of the declaration - it’s simply whether the person in question is a member of an organisation which is a declared organisation.
It Gets Worse
Control orders can include restrictions on who a person may see, where they may go, and (somewhat extraordinarily) what they may own. There do not appear to be any real restrictions on the nature of the orders.
It Gets Much Worse
Perhaps even more extraordinary, a control order can be obtained in respect of someone who is not a member of a declared organisation, but has merely been a member of an organisation in the past, or simply associates with someone who is a member of an organisation:
The Court may, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that—
(a) the defendant—
(i) has been a member of a declared organisation or engages, or has engaged, in serious criminal activity; and
(ii) regularly associates with members of a declared organisation; or(b) the defendant engages, or has engaged, in serious criminal activity and regularly associates with other persons who engage, or have engaged, in serious criminal activity, and that the making of the order is appropriate in the circumstances.
And of course, all of this can be done without any warning or any of the notice and opportunity to defend oneself which would typically accompany a criminal trial:
(3) A control order may be issued on an application made without notice to any person.
Et Cetera
Some other features of the bill are powers for the Police Commissioner to ban a person or “class of persons” from a premises or event, and the creation of an offence of associating with a person whilst being reckless as to whether they are a member of a declared organisation. Presumably this last item means that if, for example, a gentleman resembling a bikie comes into your corner shop or restaurant or bar more than a few times in a year then you are guilty of a criminal offence.
Presumably all of this flows from this High Court decision, in which the High Court in their wisdom decided that control orders were constitutional and along the way gave a fairly general endorsement to the concept of laws which seriously interfere with liberty without any actual criminal offence taking place. The timing of this South Australian Bill suggests that the states will now feel free to draft these types of laws in pursuit of whatever ends they see fit (particularly in the absence of meaningful political opposition, as is the case in SA). Let’s hope that the High Court knew what it was doing.
Adelaide to suck slightly less
23Jan08
In a break with longstanding tradition, the Adelaide City Council has decided to do something innovative and interesting to the visual environment in the city centre by commissioning a (seemingly permanent) high tech light installation for the middle of the CBD.
Mercifully the council abandoned an earlier plan to create a Times Square-style advertising nightmare on the site, although probably because of funding issues rather than any kind of realisation that it’s a bad idea to actually set out to create a Blade Runner-esque dystopian nightmare world.
The real installation is a bit smaller than the one pictured. Apparently there is a possibility that it will include some form of interactivity in the future via touch screens, although plans to implement such a feature have been put on hold for now. More pictures and information: here, here and here.
This is an interesting little example of the current attitude to anonymity in some sections of the community: a type of jacket with a hood and integrated face-mask has apparently become popular amongst “young people” in Britain (more).
Admittedly looking quite intimidating (see link), the jacket does not in fact come with a mind control device to turn its wearer into a shoplifting criminal maniac at this stage. Nevertheless, the usual brilliant minds (business groups, populist politicians, and the “think of the children” lobby) have immediately suggested that:
- the jackets are “inciteful, provocative and sinister”
- they are a tool for “hooligans”
- they are “almost Klu Klux Klan”
- they should be banned in order to stave off a descent into anarchy
Needless to say, none of these critics has stopped howling for long enough to wonder whether Britain’s pervasive surveillance culture, with 4.2 million CCTV cameras, has anything to do with the popularity of a garment which allows one to remain anonymous in a public space.
least reassuring statement ever
13Dec07
FYI:
[W]e have no current plans to accumulate massive armaments on our neighbours’ borders.
- regards, Russian Foreign Ministry.
Thanks for letting us know. Is it perchance time to stop devoting 100% of our resources to chasing criminally insane Arabic men around in the deserts of the world and start paying attention to Russia’s increasingly aggressive militarism and slide back into full totalitarianism?
religion is in the inverse of…
12Dec07The always interesting Possum Comitatus has some analysis of voting trends and social factors at the last federal election. Tucked away in there are some very interesting graphs about religion and its correlation to several other variables (about half way down, look for “Update 2“).
In particular, two relationships stand out:
- atheism is proportional to growth in property value and inversely proportional to levels of mortgage debt; and
- low levels of education are (strongly) proportional to levels of Christianity.
Behold the graph of “year 10 education or lower” versus “Christian”:
Of course correlation != causation, but the relationships are interesting to ponder.
verballing 101
08Dec07The South Australian Government has gone ahead with legislation to ban David Hicks from selling his story. He’s still allowed to tell his story, but he’s not allowed to sell it. Lucky him. Presumably he’ll be able to find a job with no problems - after all, he was never convicted of anything by a court, so most employers will no doubt be happy to overlook the 
constant references to him being a “confessed” terrorism supporter. Either that or he can live off the interest which accrued in his long term savings account for the five odd years he spent shackled to the floor in a cell in Cuba.
The reasoning behind this political posturing is (as usual when it comes to terrorism) dubious. Hicks was detained by an foreign, non-judicial tribunal of doubtful legality and held (and tortured) without charge for five years. At the end of that he was offered a politically motivated deal whereby he pleaded guilty and avoided a show trial at which he might have received life in prison. Now, on the basis of that plea, he is treated as a convicted terrorist by elements of Australia’s political and media organisations.
Here in the free world we have strong laws to protect criminal suspects from confessions which are obtained by ‘verballing‘ that is, off-the-record threats, intimidation or physical violence being used by the police to elicit incriminating statements from a suspect. How can someone who has been through what Hicks has been through possibly be exempt from the same principle?
no ape in 08: i !heart huckabee
06Dec07FYI, Mike Huckabee, potential Republican presidential candidate and by extension potential President of the United States, has this to say about creationism (and the fact that he believes in it):
If you want to believe that you and your family came from apes, that’s fine. I’ll accept that. I just don’t happen to think that I did.
Once again, it’s worth noting that this man would control approximately 10,000 nuclear weapons. The real story of what happened to the dinosaurs is shown below for illustrative purposes:
Confirming that the United States still regards the phrase “war on terror” to mean “license for continuing and willful insanity”, a lawyer representing the U.S. in a high profile case in England has indicated that the U.S. view is that the covert abduction of foreign nationals in order to bring them to America to face justice is absolutely fine, and indeed appears to be some sort of historical birthright accorded to Americans.
Of particular note is that this apparently centuries-old right to kidnap foreign citizens in their own country does not relate exclusively to suspects in terrorism offences, but in fact applies to anyone charged with a criminal offence in the United States. Furthermore, it apparently continues to exist despite the existence of perfectly functional regimes for extradition, and without any regard to the laws of the countries in which the relevant kidnappings are to take place.
Ordinarily, a government sponsored taskforce crossing into another country with the express purpose of violating that country’s laws and kidnapping its citizens is regarded as an act of war, or at least the basis for a serious international incident. Fortunately if you are the world’s only superpower you don’t need to worry about such things. It is safe to assume that a corresponding right for foreigners to travel to the U.S. to kidnap Americans and take them abroad for trial is not recognised by the Bush Administration.
abnormal is the new normal
19Sep07
This is an excellent piece by Barry Jones in The Australian in which he highlights the extraordinarily dangerous attitude currently being promoted as the “new normal” by politicians and their lackeys in the western world, in which objectivity, rationality and informed debate are completely subsumed by “faith”, expedience and knee-jerk reactivity:
We live in an era of instinctive, reactive and ill-informed leaders and followers, marked by contempt for truth, living by the dictum that the end justifies the means. It hardly matters whether that view is driven by cynicism or ideology.
Jones urges a return to the era of the public intellectual, where serious issues are put on trial in a public arena through relatively spin-free, objective debate. Continue reading ‘abnormal is the new normal’
Bazooka Circus is what the whole world would be doing on a Saturday night if the Nazis had won the war.
- Hunter S Thompson
