Australian Civil Liberties Union
from Your Rights 2000
THREATS TO YOUR RIGHTS
Threats to freedom of speech -- Racial vilification legislation -- Concentration of control of media -- Contempt of court -- Whistleblowers -- Failure of Amnesty International -- Kerry Packer, Acxiom, and Privacy
Freedom of Speech under threat. Contempt of Court. Time - America Online merger. Racial Vilification. Censorship of History. Packer and Privacy. Cameras. Olympic Games. Whistleblowers. Failure of Amnesty International. The High Court. ACLU annual report.
Free speech developments in 1999 - An overview
The merger of Time-Warner with America On Line demonstrated the growing concentration of control and "vertical integration" of sources of international information (page 92). The increasing concentration of control of the media in Australia with its concomitant threat to freedom of speech continued unabated. This concentration of control facilitated a biased coverage by the media of the referendum on the republic in 1999 (page 88). The "Cash for Comment" inquiry by the Australian Broadcasting Authority found that 2UE had failed to enforce its own code of conduct and that John Laws and Allan Jones had passed off "advertorials" for their sponsors as their own views.
The ABC's Media Watch which triggered the ABA "Cash for Comment" inquiry and which has exposed the hypocrisy, double standards, and use of "advertorials" in the print and electronic media has been more effective as a media watch dog than the relatively "tame cat" Press Council. The former presenter of Media Watch, Richard Ackland, and the current presenter, Paul Barry, are to be commended for their independence and courage, traits somewhat uncommon in the media.
The prosecution of four critics of the Family Court for contempt of court drew attention to the threat to freedom of speech posed by the use of the contempt power, and to the possibility of using an implied right to freedom of speech in the constitution as a possible defence in some cases. The threat of legal action under the Trade Practices Act to prevent the distribution of printed material, a threat used by the ABC to prevent the distribution of Your Rights, and by the Timber industry, to prevent the distribution of an anti-logging book, remains, and inhibits public discussion of important issues.
The arbitrary nature of film censorship in Australia, which was discussed in Your Rights 1999 in relation to Lolita and Salo was reflected in the initial decision to ban Romance, which was eventually released. The failure of a libel action by the former Premier of Victoria, Jeff Kennett against The Australian indicated the difficulty of using libel laws to inhibit comment by the media. The attempt by the Kennett government to gag the State Auditor General backfired, when the Auditor General made a strong widely reported speech at a meeting sponsored by the Free Speech Committee supporting free speech and the public's right to know. The speech, made a few weeks before the cliffhanger State election in 1999, may have tipped the balance against the Kennett government.
The failure of the Herald Sun to publish the results of a "Voteline" telephone survey of its readers in response to the question whether readers agreed with David Irving's views on the Holocaust was an example of pressure "behind the scenes" to curb the public's right to know. It was the first time since the daily Voteline was introduced several years ago that the result of a phone in was not published. Similar pressure behind the scenes by the same pressure group led the Law Institute Journal to apologise for running a "rave" review of Your Rights 1999 (see back cover). The continuing refusal of the Australian government to grant a visa to the UK Historian David Irving to visit Australia and the imprisonment of Dr Fredrick Toben in Germany in 1999, shows the limited nature of freedom of speech in some Western countries (pages 79-86). The failure of Amnesty International to support freedom of speech for Historical Revisionists seems to be due to pressure been placed upon it to withhold support for some whistleblowers (page 99).
The failure of The Age to report that it had paid Raymond Hoser $10,000 for breach of copyright after it had used his material without acknowledgment to expose police corruption, showed that sections of the media can "dish it out but can't take it". The poor record of The Age in defending freedom of speech and the right of the public to be informed has been documented in previous editions of Your Rights. Censorship of the views of whistleblowers has been documented in Deadly Disclosures by William De Maria (pages 94-96). In 1999 and early in 2000 several whistleblowers dobbed in nursing homes where they worked because of their treatment of elderly patients and were then penalised. The Bracks Labor Government indicated in February 2000 that it intended to introduce legislation to provide greater protection for whistleblowers in the State public service. The Racial Vilification Legislation proposed by the Bracks Government will further inhibit freedom of speech on controversial issues (page 93). The proposed legislation has been opposed by the Free Speech Committee (membership $20 - P.O. Box 93, Forest Hill, Vic., 3131) which has also been active in opposing arbitrary film censorship and the use of the Trade Practices Act by big corporations to squash dissident writers.
Threats to Freedom of Speech
The laws relating to libel, contempt of court and racial vilification continue to inhibit freedom of speech. People who speak out may receive death threats, may be threatened with loss of employment, may be expelled from organizations, and may be subject to often effective pressure from their friends, family and fellow employees. Distributors of books and magazine have sometimes refused to distribute books with unpopular ideas especially books which challenge what Orwell called control of the past. The high cost of posting letters discourages freedom of communication. A well founded belief that phone tapping is widespread inhibits freedom of speech. The Human Rights and Equal Opportunities Commission has discouraged freedom of speech on some issues.
But the main threat to freedom of speech in Australia is the reluctance of most people to seek and find the truth (or some approximation thereof) and to express their views in private and in public. Many people are especially fearful of expressing their views in the media by letters to the editor etc. because of a fear of ridicule and of peer group pressure. Media commentators such as print and radio journalists who are described as fearless and outspoken by their employers, often impose self censorship on themselves and are easily pulled into line through pressure from advertisers, their employers or the media monitoring agencies of pressure groups. The Free Speech Committee has played an important role in exposing censorship by the mainstream media and in fighting for more liberal censorship laws. The arguments for freedom of are set out on page 79.
Concentration of Ownership of the Media
The merger of Time-Warner with its world news from CNN, its 5700 films and its publishing empire with America On Line, the world's biggest Internet provider, lead to critical comment by Terry Lane (President of the Free Speech Committee Sunday Age 16/1/00) and Andrew Marr (Age 18/1/00). Lane predicted that in a few years there will only be two global communication companies and they will both be American. One critic said that this type of vertical integration makes it harder for the public to hear anything but the corporate party line while another critic accused America Online of censorship when it removed the American Civil Liberties Union from its sites. With control of content, and blatant conflict of interest, Marr says that Big Brother is here. But as with Microsoft, Government anti-monopoly laws may create greater diversity and allow a freer flow of information and ideas.
The concentration of ownership of mass media in Australia is a greater threat to freedom of communication than legal restrictions such as laws relating to defamation, contempt of court and official secrets. Concentration of control of the print media in media in Australia is greater than in any other Western country. The Murdoch News Limited which controls many suburban and country papers and dominates book publishing also controls about 65% of the metropolitan newspaper market. Major Murdoch papers include The Courier Mail in Brisbane, The Daily Telegraph Mirror in Sydney, The Herald-Sun in Melbourne, The Advertiser in Adelaide, the national daily The Australian, and The Sunday Telegraph. The Fairfax group formerly controlled by the Fairfax family, then by the Canadian Conrad Black and now by the New Zealander Ron Brierley publishes The Sydney Morning Herald (SMH) in Sydney, The Age in Melbourne, the daily nation wide Financial Review, and the Sunday Sun Herald has about 20% of the market. Rupert Murdoch is an American citizen, Conrad Black is a Canadian and Brierley is a New Zealander. Thus about 85% of the metropolitan press controlled by foreigners. Murdoch papers seldom carry any criticism of Murdoch's domination of the print media and never refer to comments he made in 1977 that it would be against the public interest if he grew any bigger.
They also seldom carry any news items critical of Murdoch's other business interests. A Murdoch editor has stated that he would not publish anything against Murdoch's business interests and most Murdoch editors seem to follow his policy.
However Murdoch should be given credit for starting new high quality papers such as The Australian, for the great improvement in the quality of the Melbourne Herald before its demise, for allowing his editors much more independence than many of his critics concede, and for allowing (unlike the Fairfax press) both sides of the immigration debate to be put in News Limited papers. Professor L. Corray, an Asian Australian, has pointed out that The Australian has a better record than Fairfax papers in promoting an open discussion of important matters such as the recent four referendum proposals, and the controversy following the maiden speech of Pauline Hanson, the independent member for Oxley when she claimed that Australia was in danger of being swamped by Asians.
The metropolitan television market is dominated by Channel 7, Channel 9 and Channel 10. The publicly owned ABV2 which has less than 10% of the market seems to have lost some of its independence in recent years and provides little opposition to the virtual monopoly of the commercial stations.
Few journalists dare to criticise the paper or television they work for and seldom criticise concentration of media ownership in Australia. David Bowman in his book The Captive Press says that journalists seldom criticise "rival" newspapers and television stations, because of the limited number of prospective alternative employers. Few journalists critised the takeover of the Herald and Weekly Times group before or after the takeover. Few politicians criticised the takeover, and few criticise the current concentration of control of both print and electronic media. The increasing concentration of media ownership in recent years has made censorship by the print and electronic media easier and more effective. Material critical of the concentration of control or critical of the business interests of proprietors is seldom published. The views of some individuals or organisations are excluded from some section of the media sometimes on the basis of raw and unchecked dossiers supplied to the media from foreign security agencies. The existence of special exclusionary rules is indicated by the publication of letters ghost written by people subject to "black bans" and signed by other people.
Premier Bracks Proposed Vilification Laws
The Free Speech Committee, Councils for Civil Liberties, the ACLU, various journalists such as Robert Manne, Beatrice Faust and Terry Lane, law groups such as the WA Law Society, and many Asians such as Professor Cooray, have objected to anti-free speech racial vilification laws. The ACLU believes the Laws will create uncertainty as to the limits of permissible speech, may
give legitimacy to the views of racists, and judging by overseas experience, may increase racial tensions and lead to public sympathy for "persecuted" racists. Existing laws in relation to assault, defacing property, and incitement to riot etc. are already quite adequate to deal with physical manifestations of racism. There are already too many needless restrictions on freedom of speech an the new restrictions may inhibit public discussion on important matters such as immigration and some aspects of "history".
Supporters of new anti-free speech laws should realise that such laws could be used by members of the majority Anglo-Celtic culture against minority groups such as aborigines and also by one minority group against other minority groups. On key issues such as immigration, multiculturalism an Asianization we have a tyranny of the minorities and a disenfranchisement of the majority claims that people who oppose multiculturalism are "racist", are now less effective in stifling debate. Brack's proposed bill is designed to stifle open debate on immigration and multiculturalism at a time when both were increasingly coming into popular disrepute.
Barbara Kulaszka's case study of the effects and operation of Racial Hatred laws in Canada concludes by stating that high-profile public accusations of "hatred" are made by two main groups in Canada: ethnic lobbies and politicians. The accusations have the effect of controlling the boundaries of acceptable public opinion and of stifling dissent from government policies such as official bilingualism and multiculturalism. The "hate" accusation sets the boundary of what is acceptable to believe and what is not. Link Byfield of the Western Report magazine wrote that the hate law "... is obviously an attempt to govern how we think. By telling us what we may and may not read, it goes beyond telling us what we may not do, and starts telling us what we may not believe." The above discussion of Canadian Racial Vilification Laws is taken from The Hate Crimes Law in Canada by Barbara Kulaszka. To obtain a copy of this publication forward $25 (Canadian) to the author, C/- Box 1635, Brighton, Ontario, Canada KOKIHO.
The ACLU asks whether one aim of racial vilification legislation is to curb Australians who query the extent f the Jewish Holocaust? Similar legislation is used in countries such as France and Canada to obtain or attempt to obtain criminal convictions against historical revisionists. Is a lobby powerful enough to secure the prosecution of alleged war criminals, the introduction of a Holocaust Kit in NSW schools, concessions in relation to dual nationality, the exclusion until recently of PLO spokesmen from Australia, the passage of a resolution by the Senate accepting the official version of the Holocaust (the only resolution about "history" ever passed by the Senate), the cancellation of a conference in Australia because one speaker was from the PLO, the dismissal of Paul Madigan from 3RRR, changes in the law to facilitate the refusal of a visa for David Irving and to facilitate the extradition of Konrad Kolejs, and much else (see Your Rights, 1988) also powerful enough to prevent questions about the extent of the Holocaust being asked in "democratic" Australia?
Contempt of Court
Four men have been charged with contempt of court following demonstrations outside the Family Court in Melbourne in 1998. Bernard Lane, Australian, (17/1/00) said that the aim of the contempt law was to protect public confidence in the Courts not to suppress reasonable criticism. The hearing of the first case, against PT, began in January, 2000. PT is claimed to have handed out leaflets headed "Killers!" And "Blood on who's hands" and is alleged to have shouted that Family Court Judges were "afraid of the truth" and were "arrogant" and "shit scared". The lawyer for PT argued that the constitution protected the right of PT to make strong criticisms of the court and its judges, and that the case raised the issue as to whether judges should have greater protection than politicians from strong criticism. Counsel for PT said that PT and the other accused were entitled to the safeguards of ordinary criminal proceedings. PT had previously appealed to the High Court claiming that he was entitled to trial by jury on the charges. The appeal failed but the High Court left open the possibility of a defence based on the implied right of free speech in the constitution.
Lane said that the penalty for contempt is a fine, prison, or both- with no set maximum. The last person known to have been convicted for contempt by "scandalising the court" was the late Norm Gallagher, then boss of the Builders Labourers' Federation. In 1982 an appeal court had quashed his previous contempt convictions. The judges had done this, Gallagher explained to the media, because his loyal rank and file had walked off the job in support of him. He quickly found himself charged with a fresh contempt, and was sentenced to three months' prison.
Richard Ackland (S.M.H., 21/1/00) referred to a case of John Wilson who was sentenced to 2 years jail by acting Justice Brian Murray, for "scandalising the Court" after he threw some yellow paint on Woods' lapel causing a seven millimetre stain. In another case it was found that it was not contempt of court for a solicitor, talking to another solicitor in a paddock in rural Victoria to say that a Supreme Court judge "had his hand on his dick". The judge hearing the case found that "it was not contempt of court to describe a judge as a wanker."
Dr William D. Maria author of Deadly Disclosures, says that Whistleblowers such as Karl Konrad, who as a serving policeman exposed police corruption in relation to a "window shutter" scam where police took kickbacks, can be regarded by the public as either good citizens or people who dob their mates in. A complaint against a powerful organization such as, the police can lead to official or unofficial reprisals. Official reprisals can include selective redundancy, punitive transfers and being given an excessive workload, while unofficial reprisals can include social ostracism.
Most people who are aware of corruption in their work place ignore it. The price of being a whitleblower is perceived as being too high. The police force is a dangerous organization to blow the whistle on because of the long term ability of the force to strike back by searching your house, pulling over your car, and planting evidence. Karl Konrad
for instance suffered harassment, both before and after he left the force, and his claim for damages for unfair dismissal was rejected by the Federal Court on the basis that he had not been an employee of the State of Victoria.
People blowing the whistle on multiculturalism and aspects of history have no protection from such laws and are often persecuted, vilified and misrepresented in the manner described by Saul Bellow, Jonathan Rauch, J.S. Mill and George Orwell (see pages 67 and 79), Members of Parliament and especially Independents such as Ted Mack, Pauline Hanson, Graham Campbell and Franca Arena have been in a good position to expose corruption and maladministration under the protection of Parliamentry privilege. Franca Arena and he former Independent, Mr Hatton, helped bring about official enquiries into corruption, although many people thought Ms Arena abused her position by making allegations without supporting evidence. However, none of the Independents in the NSW. Upper House voted against a bill in December, 1997 (later rejected after a public outcry) surreptitiously giving MPs a 30% increase in their superannuation
entitlements. The Internet, which is extraordinarily difficult to censor, has enabled groups such as the Adelaide Institute to ask awkward questions about history, and challenge some "sacred cows."
Persecution of Whistleblowers.
Shelly Gore, in a review of Deadly Disclosures, headed "Dissent can be a wonderful thing" ("Australian", 4/12/99) quoted Bill De Maria:" the demonisation of dissent and outspokenness is so strong in our society now". De Maria is brutal about today's global corporates, the bogey that the Seattle demonstrators took on. "Corporate Australia is about a fear-driven workplace in the sense there's no longer that family concept. It's more like- give us your heart and soul, and we might not ask for your leg as well."
Tough stuff. But we have all seen it in action. And probably turned the other way. One of the hardest crosses for people who buck the system is not the enmity of the people they're exposing, but the ostracism of peers, even those who have previously agreed with them. The herd avoids the rebel. "The shunning is 100% effective", says De Maria. "It's the closest thing to death" He concludes herd reaction is one of the most powerful weapons of a corporation.
A survey of 35 Australian whistleblowers, concluded that the income of over half had been reduced by over 75%. There can be job loss and almost certainly physical and psychological strain. "You have these people who tend to be unusually good workers, which is why they blew the whistle-and they go from being employed to going for the disability support pension."
In another review of Deadly Disclosures in "The Australian" (15/1/00) headed "Dobbers Down", quotes De Maria-" Whistleblowers see and report wrongdoing as if they lived in a working democracy." What a price they pay for this belief. Not some of them, all of them. They come to grief, real grief, merely for stating the obvious in public. Stating the obvious in public must be about the most vile thing one can do, judging by the endless cycle of retribution it generates. If you take liberal democracy seriously, you are doomed. It's worse if you naively think that the famous "mission statements" that supposedly guide organisations are more than corporate camouflage. Blow the whistle, and you will be persecuted, sued, beaten up, framed, suspended, vilified and sacked. You may then be paranoid and can be quietly dismissed as a nutter. If not, as Dr Maria says, "there is always a psychiatrist somewhere who is ready to pathologise dissent." Dr Maria's case studies show that all the above is normal administrative response to whistleblowing.
To be a whistleblower you have to work for an organisation and publicly expose it from within. This distinguishes whistleblowing from external dissent, informing (the powerless reporting the weak to the strong) and leaking.
After most major catastrophes, it emerges that people may have had misgivings and even voiced them but they were overruled. Are we supposed to believe, for instance, that no one in the whole wide, wonderful world of computing didn't have a doubt about that pesky, cost-saving measure which has now mutated into the trillion dollar Y2K bug?
Brian Martin, an associate professor of science, technology and society at the University of Woolongong, has been studying dissent for 20 years. "The reprisals for being a dissenter are extremely serious in many cases, which is why you often get either the young or the old being the rebels. Less to lose." A healthy society needs dissent. "A society is an organism that needs warning signals that something is going wrong. What's going wrong in our society are ill-advised policies. You need dissenters to correct that."
"The balance on society is way too skewed towards conformity", says Martin. "Dissent is becoming more important, but it's also more difficult to take in the powerful corporations. And if you're on the inside of the corporation it's easy to be targeted vehemently."
The devices that a democratic society expects will cope with these traumatic eruptions fail with dismaying regularity. Unionism, drastically weakened in recent times, seems embarrassingly feeble in defending its persecuted members. Independent regulators such as the ombudsman and the Human Rights & Equal Opportunity Commission achieve little."
The reviewer concludes that it is the tragedy of the individual whistleblowers that grip the reader: the fisherman harassed for 20 years because he dared to report drug importation- his car, boat and house were successively torched. Or the Australian War Memorial staff who were vilified for no apparent reason. Or the Tasmanian vet hounded for years because he warned of dangerous quarantine practices. Or the Lindeberg case in Brisbane, where public officials illegally shredded vital documents.
Raymond Hoser has exposed corruption in the NSW National Parks and Wildlife Service (NPWS) in his books, Smuggled-the underground trade in Australian Wildlife ($20) and Smuggled 2 ($25) He has also exposed corruption in the Victorian Police Force in the Hoser Files ($20). Victoria Police Corruption ($30) and Victoria Police Corruption 2 ($30). Add $5-00 postage for each book which can be obtained by sending a cheque payable to Kotabi Publications, PO Box 599, Doncaster, Victoria 3108. Hoser has been persecuted and vilified because of his whistleblower activities. He has been (unsuccessfully) sued for defamation on 19 occasions, attempts have been made to close his website, and prevent the distribution of his books, and he has been harassed by other court proceedings.
He is the first writer to effectively expose the suspicious nature of the alleged suicide of Christine Tanner, leading to a second inquest with an adverse finding against a policeman. The Age plagiarised material from Hoser's books and was forced to pay him $10,000 for breach of copyright. The settlement was not mentioned in The Age, which together with the Herald-Sun, has a policy of not mentioning Hoser's name.
KERRY PACKER, ACXIOM, AND PRIVACY
A report in The Australian by Ian Grayson, headed "Packer sets up Big Brother data store" (30/11/99) said that a giant data warehouse containing the personal and financial details of almost every Australian is being constructed by a United States company and will be operational by Christmas. The warehouse will contain information from a diverse range of sources, including credit companies, retailers, electoral rolls, post office lists, car sales records and housing purchase records. The power of the warehouse comes from its ability to cross-reference information from many different sources. Detailed personal records therefore can be built up on anyone in the country. Its existence has prompted expressions of concern from the Australian Consumers Association. ACA senior policy officer Charles Britton said it was "very scary" to think so much information would be stored in a single place. "Most people would be unaware that all this data about them is being held by a single company. An individual's right to privacy should be protected at all times, but this was becoming increasingly difficult to ensure. There are also concerns as to just how accurate the data being held actually is. People should have the opportunity to check their records and ensure they are accurate."
The warehouse has been constructed by Axciom, a joint venture between the US company of the same name and the Packer family's Publishing and Broadcasting Limited( PBL). It will also be fed information from a range of PBL sources, including Channel Nine, ninemsn, Crown Casino and Ticketek. Access to the warehouse, called InfoBase, will be offered to companies seeking to focus their marketing activities or learn more about their customers.
Greg Thom, Herald Sun, (21/11/99) in an article headed "Privacy on the line", said that companies that are participating in the system, called InfoBase, will access a wealth of personal information with a single phone call. Consumer groups, and civil libertarians, such as the director of the Financial Services Consumer Networks, Chris. Connolly, have greeted the plans with howls of protest. "It's the biggest challenge to individual privacy we have faced in Australia since the Australia Card", he said.
Database appears to be another nail in the coffin of any lingering notion that what constitutes your individual identity actually belongs to you. The power of the new database and others like it is the phenomenal ability to cross-reference a staggering array of personal information. In 1987, a plan by the Hawke Government to introduce the Australia Card was defeated amid overwhelming concerns about government access to personal details. The Packer proposal is a far greater threat to privacy than the Australia Card and will allow massive "function creep" where information supplied by a citizen for one purpose can be forwarded on to other agencies and data banks without his knowledge or consent. Why has there been so little protest about "InfoBase" as compared to the protest over the Australia Card?
Rapidly developing technology has exposed many of those early fears about the Australia Card as almost quaint. Increasingly, it is not government snoops but the private sector that is watching us. Many Internet users may be surprised to learn, for example, that while they are surfing the worldwide net they themselves can be watched.
Experts believe the same principles can be applied to webcam - allowing secret pictures to be snapped of people near a computer. Information-gathering is not always so high-tech. Australia Post found itself in hot water recently over a survey sent to hundreds of thousands of householders that sought intimate details of their daily lives. Australia Post wants to know if you are impotent, suffering from dandruff, and the brand of tampons you use. The ACLU criticised the Australia Post survey in several radio interviews in 1999.
Thom said Australia Post wanted to know other intimate information ranging from credit card details to how much soy milk you drink. A cover letter promised security and confidentiality were assured. But Australia Post confirmed to the Herald-Sun that it planned to sell the results to direct mail companies. The furore follows revelations last year that councils were secretly selling ratepayers' details to private companies. Examples included in a submission to a federal parliamentary inquiry included selling the "compulsorily acquired" names of licensed dog owners to a pet-food company. If you feel trapped now, things are only going to get worse.
Greg Barker (Financial Review) said that no privacy laws exist to protect us from data companies and that the Internet-centered world has the capacity to reveal our most intimate details. Worse still, the information can be bought and used without our knowledge or permission. It's worth millions, and it's the lifeblood of the emerging revolution in electronic commerce. Barker said that in many countries, from New Zealand to Western Europe, laws control the use of such personal information. But Australia, like the United States, has no such laws, although they have been promised since the Howard Government was elected. A bill to protect personal privacy will come before the Victorian Legislative Assembly in the new year, but at the federal level it will be at least five years before effective laws are enacted.
Your supermarket knows what goods you buy because they are detailed by the cash register. Use a plastic card and a Fly Buys card at the checkout and those details can be linked to your name, address and bank. Use that to treat other purchases from, say, a wine club, a ticketing agency, clothing store, pharmacy, sports or social club, even a brothel or a pornographic website, and you begin to look naked indeed.
Chris. Connolly, of the Consumer Policy Centre, agrees that data warehousing companies are racing to beat legislation. "Acxiom is definitely in that camp. There is a lot of money to be made out of getting a big database and selling it to as many people as possible as quickly as possible. Australia Post is almost at war at the moment with privacy advocates over their style of collecting information."
Barker says the big legal issue is who owns the information. Is it the individual who left the electronic trails, or the data miners who produce the personal profits that is so commercially viable? A critical part is the difference between data, which can be seen as belonging to the individual, and information derived by skilled analysis of he data. Some experts believe the law may find the analyst to be the owner, leaving the individual little or no say in what happens to it. Conscious of growing concerns, some, but far from all, companies are forming their own private policies. Among these are American Express, AAMI, ninemsn and Ozemail. But not yet the banks and insurance companies, say insiders.
An Age editorial (2/12/99) stated that "what does need to be made clear is that Australia's laws will be strongly and equitably applied, and that looking for loopholes, either through shopping for lenient states or offshore havens, will not be tolerated. Transparency- enshrining the rights of every citizen to know what information these private databases contain about them- also should be obligatory. As we move towards a new century, this is a threshold issue for our elected guardians of the public interest.
The Financial Review (2/12/99) said that there was an urgent need to act on privacy and that there was a potential for the privacy of personal information to take off as an estimated political issue.
Acxiom says it would be happy to remove an individual's name, home or particular data base but how do you opt out of it? You don't know you are in. In the first place, the Financial Review asked, should companies be required to disclose to customers if or when they pass on or sell information collected from their customers? Should individuals have the right to access and then correct information held by data companies which sell consumer profiles?Who should have the final power of arbitration on disputes? If misleading or incorrect information about a person is sold by a data seller and it causes a loss to the person, should they have any right of redress? How should the new laws deal with information which has already been collected?
Some data agencies are likely to be based outside Australia, and data could be sourced from Internet websites and other locations outside the country. This could make regulation particularly hard to administer and make legal redress a more attractive control mechanism.
The arrival of Acxiom underlines the need to reconcile the undoubted business potential of sophisticated data collection with what the community considers to be an acceptable degree of personal privacy.
A feature article in The Economist (10/2/96) headed" We know you are reading this" and an editorial headed "Virtual Privacy" provided a useful analysis. The editorial stated that the digital revolution will spread personal information far and wide. Should something be done about this?
Like a thousand insect-eyes glimmering in shadow, they are watching you. Not Big Brother, quite. Rather, hordes of little brothers gathering scraps of data - each of these, in itself, harmless and dull. Note the bar-code on our front cover, which, combined with a credit-card at the newsagents desk, could reveal when, where and by whom this newspaper was bought. Need a list of single male camping enthusiasts who live n high-income areas and read poetry? It can be had for the asking.
Such capabilities create commercial tools that make it possible to market the right products to the likeliest customers. This is all to the good. But those glimmering eyes can also be prying, even sinister. Americans especially are beginning to worry where all this is heading. Can the demands of privacy withstand the advance of digital technology?
More important, meaningless scraps of information can become something else when combined. Again, the sophistication of modern databases and their increasing ability to talk to each other have changed the rules. In America , where personal data are easily obtained, any computer nerd given your Social Security number, address or telephone number can easily find out much more about you than you might wish. The scraps become tiles in a mosaic of your life, including matters such as your medical history (contribute to a diabetes support group?) and sexual orientation (subscribe to Gay Times?). And all this may go on without your even knowing that your dossier is up for sale to people and institutions you have never heard of.
Given these technological advances, maintaining anything like the degree of anonymity that people used to enjoy will take regulation. This is awkward, for no regulation works perfectly or does quite what it was meant to. Moreover, evidence of actual harm to individuals from the huge expansion of public information is slight. So you might think it would be better to do little or nothing: let the meaning of "private" and "public" change, and learn to live with it. The trouble is that, though the harm so far maybe slight, the legitimate anxiety is not. Remember too that the new technological possibilities are only just being explored: like the digital revolution itself, the shrinking of what was once called privacy has much further to go.
Is there a method of regulation that would allow the economic benefits of copious information to be enjoyed while still defending privacy for those who value it? A promising approach is to require the information-gatherer to gain permission for subsequent use. This idea informs a recent European Union directive on data protection. Under the directive consumers have to be notified in advance of how a company would like to use their names and of the information that is attached to them. They can say no to such use; if they say yes, they have the right to know where their data have gone.
Amnesty International Fails To Act
The charter of Amnesty states that its aim is to fight arbitrary victimization of people because of their beliefs and to secure the release of prisoners of conscience - people imprisoned for their beliefs who have not caused or advocated violence.
As a longstanding member of Amnesty I had always been interested in its activities and assumed it would be fearless in taking up cases within its charter. The response of Amnesty to my first ever letter to it, as with the response of my first ever complaint lodged with the ABC, was an eye opener. The ACLU wrote to Amnesty headquarters in London, on 17/1/95 drawing its attention to the persecution of 15 named revisionist historians who had challenged various aspects of the official version of the Jewish Holocaust in WWII. The ACLU said the persecution of revisionists was a world wide phenomena and included jail, dismissal from employment, confiscation of books, destruction of the printing plates of books, revocation of university degrees, physical violence, assassination, being forced to live in exile, and attempts to censor their views on the Internet.
Among the 15 examples, the ACLU referred to the case of Dr William Stäglich whose book, The Auschwitz Myth, was banned, and the printing plates for the book destroyed. Dr Stäglich a former post war judge had his university degree revoked, ironically under a law passed by the Nazis.
David Irving was fined by a German court for defaming the memory of the dead by claiming (a claim low accepted by the curator of the Auschwitz Museum and most historians) that the gas chamber shown to tourists at Auschwitz was built after the war. This conviction is used by Australia as a reason to exclude Irving from Australia and major publishers are pressured into refusing to publish his books after he began to query the extent of the Holocaust.
Dr Robert Faurisson, an authority on the poet Rimbaud, was forced out of his position at the University of Lyon in France, and has faced numerous civil and criminal court proceedings under anti-racist laws costing him a huge amount in legal costs, damages and fines. He has been assaulted on several occasions, and was hospitalized after one incident with severe head injuries. Another Frenchman Henry Roques had his doctorate on Kurt Gerstein, the SS officer who supplied, fumigant gas to concentration camps revoked - the first revocation of a doctoral thesis in French history.
The ACLU letter to Amnesty was sent in January, 1995. Despite 6 letters to Amnesty in London requesting a response to the letter, numerous letters and phone calls to Amnesty in Australia, and a visit by an ACLU representative to Amnesty in London, none of the letters have even been acknowledged, and no explanation given as to why, Amnesty will not take up the cases referred to it for action, which are clearly within its charter. Some members of Amnesty in Australia have resigned because of the hypocrisy and lack of courage of the organisation.
High Court Threat to Democracy
High Court Grab for Power. The Australian Constitution sets out the powers of the State and Federal Governments. It is largely silent on individual rights leaving such rights to be protected by the common law, piecemeal legislative reform, and the good sense and tolerance of the public. The public has almost invariably refused to support referenda seeking to give the power hungry politicians of Canberra additional powers. The public has also refused to amend the constitution to include guarantees of individual rights, reflecting the belief that such rights are already well-protected, and would be better protected by legislation to correct particular problems. However the High Court, whose role is to interpret the constitution, has now decided in an apparent grab for power in defiance of public opinion, to in effect amend the constitution by allowing foreign treaties to override the constitution as in the Franklin dams case or by finding rights allegedly implied in the constitution where the constitution itself is silent.
Thus the High Court decided in 1992 to effect a de facto amendment to the constitution by alleging that the constitution contains implied rights. The Court decided that Federal Parliament was not entitled to ban political advertising before elections because, according to a majority of the Judges, such a ban would contravene an implied constitutional right of every Australian to freedom of expression in the political process. No section of the Constitution sets out this right and the court simply implied the right from the democratic nature of the constitution. The court is likely to find more and more implied rights, even though the constitution does not mention the rights, and the public has refused to amend the constitution to include rights. Some High Court Judges seem to revel in the possibility of rewriting the constitution. But the new self-appointed role of the Court will lead to uncertainty about the law, and to an examination of the political agenda of the Judges. The decision of the High Court in the Wik case that native title could co-exist with pastoral leases has led to uncertainty about the law, and claims that the Court has a political agenda.
One of the Judges of the High Court involved in the 1992 political advertising case, Mr Justice Toohey, has claimed that Parliaments are increasingly being seen as the agents of executive power rather than bulwarks against it. However, many people are unhappy about High Court Judges taking up an unspecified open ended and self-imposed role of remodelling the constitution which has served Australia well since 1901. Sir Harry Gibbs the former Chief Justice of the High Court, has been critical of the trendy social engineering approach of some Judges. Sir Harry Gibbs said if society is tolerant and rational it has no need of a bill of rights. If it is not, no bill of rights will preserve it. Australia which is one of tile freest countries in the world, may need a formal bill of rights but it is up to he people voting in referenda to decide this.
ACLU ANNUAL REPORT FOR 1999
The ACLU is an Australia wide organization and has about 300 members. During the course of the year the ACLU has taken up various policy issues with government departments, has made representations on behalf of individuals, participated in TV news programs and has been quoted in news stories in numerous newspapers. During the course of 1999 letters or comments by the ACLU have been published in newspapers such as The Australian, The Age, The Sydney Morning Herald, The West Australian, The Adelaide Advertiser, The Courier Mail, and The Herald-Sun. ACLU spokesmen have also been interviewed on more than 10 radio stations in NSW, Victoria, Queensland, SA and WA.
The ACLU has made policy representations to the federal government and State governments, and/or had its views published in news items or in letters to the editor on issues such as an, intrusive survey by Australia Post; a proposed massive invasion of privacy by a company controlled by Kerry Packer; racism on the Internet; the attempt by the ABC to stop the distribution of Your Rights; spying by the Victoria Police on law abiding political activists and others; the gun buy-back scheme; police use of capsicum spray and firearms; threats to free speech, including the continuing censorship of David Irving.
The ACLU has made representations and/or had its opinions published in relation to random breath and drug tests; the government's policy on refugees; proposed use of police videos in private homes; excessive use of cameras in public places; the need for more effective measures to protect whistleblowers; the need for independent investigation of complaints about police; support for intellectual dissent on the Internet by Adelaide Institute and others; the prosecution and imprisonment of Dr Fredrick Toben, (the director of the Adelaide Institute); possible spying by ASIO through personal computers and the failure of Amnesty International to take up the case of some political prisoners.
The 25th edition of Your Rights was published
in 1999 and many free copies were distributed. Since Your Rights was first
published more than 70,000 free copies have been distributed, mainly to pensioners,
journalists, schools and libraries. The 25th edition of Your Rights had new
sections on censorship and bias by the ABC; the debate over the call for a republic;
secret police files; Pauline Hanson and media bias; attempts to censor Lolita,
Rabelais, and the Adelaide Institute; the activities of the Free Speech Committee; and
changes to the Family Law Act. Your Rights is the most widely used layman's guide
to the law in Australia.
Contents of Your Rights
Australian Civil Liberties Union