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David Hicks and Lex Wotton – it’s all black and white

Categories: Bill of Rights, Commonwealth Government, Discrimination/Racism, Domestic Law, Equality, Human Rights, Indigenous People, International Law, Justice, Law Enforcement, Queensland, Queensland Police, Racism, Rule of Law, Terrorism, White Australia

by: Bakchos
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David Hicks and Lex Wotton, two of Australia’s notorious. No I’m not suggesting that they are members of that Sydney based pseudo-outlaw bikie gang allegedly connected with the Ibrahim family, rather I’m suggesting that these men have been outlawed for a very different reason, they challenged Australia’s systemic and entrenched culture of corruption.

While Messers Hicks and Wotton may share a certain degree of notoriety based on their past actions, there is a subtle, but important difference. Hicks is white and Wotton is black. This subtlety might be lost on many – but, it won’t be lost on those of us who live with the daily social stigma of ABORIGINALITY. While Aboriginality is obviously not a “four lettered word”, in certain Australian circles it is nonetheless a loaded term. A word or phrase is “loaded” when it has a secondary, evaluative meaning in addition to its primary, descriptive meaning. When language is “loaded”, it is loaded with its evaluative meaning. A loaded word is like a loaded gun, and its evaluative meaning is the bullet.

Loaded language is not inherently fallacious; otherwise most poetry would commit this fallacy. However, it is often a logical booby-trap, which may cause one to leap to an unwarranted evaluative conclusion. The fallacy is committed either when an arguer attempts to use loaded words in place of an argument, or when an arguer makes an evaluation based on the colourful language in which an argument is clothed, rather than on the merits of the argument itself.

Loaded language is a subfallacy of Begging the Question, because to use loaded language fallaciously is to assume an evaluation that has not been proved, thereby failing to fulfill the burden of proof. For this reason, Jeremy Bentham dubbed this fallacy “Question-Begging Epithets”. In many parts of Australia the term Aboriginality brings with it an evaluation of criminality, “dole-bludging” and laziness or in some red-neck east coast communities anyone claiming Aboriginality is simply notorious!

The same, but not the same

As part of David Hicks agreement which saw him transferred from Guantanamo Bay to Australia after his plea bargain with United States authorities, he promised not to describe his experience in Guantanamo Bay for at least one year after his transfer to Australia. When this ban expired, he did eventually write all about it in his book Guantanamo: My Journey, an interesting, if not a totally convincing, response to the allegations leveled against him.

Although Hicks waited out the twelve months mandated under his plea deal, he was nevertheless investigated by the Australian Federal Police (“AFP”) under the Proceeds of Crime Act 2002. The Commonwealth Director of Public Prosecutions (“CDPP”) decided in July 2012 to drop the proceeds of crime case against Hicks, making a statement to the media explaining that the plea deal Hicks entered into along with the associated evidence could not form the basis for further prosecution. Importantly, at least one commentator observed that this statement cast doubt on the Government’s claims that Hicks’ deal was not made under duress or some other kind of dodgy deal with the then United States Vice-President Dick Cheney.

The end result of all this legal maneuvering was that Hicks got to tell his side of the story and not only that, he got to keep any royalties he might make from the sale of his book. Not a bad outcome for someone who pleaded guilty to the crime of “material support for terrorism”. Even if that crime at the time of the alleged commission of the offence fell within the legal principle known as nullum crimen, nulla poena sine lege (“no crime or punishment without law”).

Along comes Lex Wotton, our Aboriginal protagonist. Like David Hicks, Lex Wotton falls outside of what white Australia would like to see as acceptable. While Mr Wotton did not convert to Islam, or travel to Afghanistan to help “women and children victims of war”. He was born Aboriginal, a far worse crime in the eyes of many white Australians.

As discussed in my post Liberty, Equality, Fraternity – but, only if you’re white, Mr Wotton was charged with inciting a riot on Palm Island following the death in police custody of Mulrunji Doomadgee. He was convicted, and on his release his parole conditions stated he was not allowed to speak to the media and needed to gain permission before he could attend public meetings on Palm Island. Wotton challenged the constitutional validity of the laws underpinning these conditions in the High Court.

Among other things, the Wotton case highlights how limited Australia’s constitutional protection of free speech is, and how restricted our legal rights really are. It really is time, indeed it’s past time that Australia lived up to its democratic tag and enacted a bill of rights, bringing us into lime with most other western style democracies!

When Wotton was released on parole, the parole board placed 22 conditions on his release. These conditions, based on the Queensland Corrective Services Act, prohibited Wotton from attending public meetings on Palm Island without the prior approval of the Queensland Department of Corrective Services, as well as from receiving any direct or indirect payment or benefit from the media. It also required that Wotton “not commit an offence”. So far these conditions are not particularly dissimilar to those imposed on Hicks.

Crucially for Wotton and for freedom of speech in this country, the Corrective Services Act makes it an offence for a person to interview a prisoner, or obtain a written or recorded statement from a prisoner. Under section 132(1) (a) of the Corrective Services Act, a prisoner is defined to include a prisoner released on parole.

Wotton brought proceedings to the High Court of Australia (“HCA”) challenging the constitutional validity of sections 132(1) (a) and 200 (2) of the act, as they apply to prisoners on parole. This second section allows the parole board to place parole conditions ensuring a prisoner’s good conduct and to prevent him re-committing an offence – prima facie, I haven’t got a particular issue with section 200 (2), but I do have reservations about how evenhandedly Correctives Services applies this provision.

The High Court Decision

The HCA unanimously held that sections 132(1) (a) and 200 (2) of the act were constitutional. In reaching this conclusion, the court applied the two questions set out in the decision in Lange v Australian Broadcasting Corporation.

First, does the law burden freedom of communication about government or political matters? Second, does the law effectively burden that freedom? That is, is the law reasonably appropriate and adapted to serve a legitimate end (in a matter compatible with the maintenance of the constitutionally prescribed system of government)?

On the first question the HCA came down in favour of Wotton, accepting that the law burdened communication about government and political matters. The court favored this view because the public debate around Aboriginal and Indigenous affairs, extending to perceived or alleged injustices, involves communication about government and political matters at a national level.

The court then turned to the second question from Lange, whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end. This question went against Wotton with the court finding that the sections were indeed reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. These ends were community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. From my perspective this finding by the HCA reeks of paternalism and double standards, but then again I’m only an Aborigine, so who am I to judge our white law lords?

Importantly for ALL Australians, the High Court would unanimously find these provisions constitutional, effectively preventing parolees such as Wotton from speaking to the media or from engaging with political issues should it be a matter of concern to those of us who value free speech.

The real crux of this decision lies in the fact that it highlights just how weak our constitutional protections regarding freedom of political expression and association really are in Australia, and why we really do need a bill of rights.

Importantly from a white versus black perspective, the white man who pleaded to the crime of “material support for terrorism” has been allowed to tell his side of the story. The black man who was convicted of protesting the death of another black man while in police custody has been denied his right to tell his story . As I said at the beginning, when it comes to “just-us” in Australia, it’s all black and white!

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