2007.03.17
Image: stephentrepreneur (CC BY-SA)
In Australia we grant Temporary Protection Visas (TPVs) to refugees – upon proving a well founded fear of persecution, they are granted three-year temporary visas, and are then faced with the difficulty of applying for further proetction.
New research from UNSW ”confirms that TPVs cause immense psychological distress to an already vulnerable and traumatised community”. Not surprisingly, the stress of being granted only temporary visas (remember, on real, legitimate refugees) exacts a high mental health toll. Zachary Steel, co-author of the recent research, notes:
Refugees on TPVs get trapped in a situation were they live in permanent fear about the future. Of the TPV holders interviewed, 80 per cent experienced intense and disabling feelings of fear and terror about the future compared to only eight per cent of those with permanent protection visas.
The same research shows that our mandatory detention policies are sorely lacking:
The 154 refugees who had spent time in detention had twice the risk of depression and three times the risk of traumatic stress compared to refugees who had not been in detention. The risk for depression was found to increase by 17 per cent for each additional month spent in detention.
We have certain obligations to provide protection to legitimate asylum seekers. It is abundantly clear that we are not, in fact, doing so.
When the Immigration Minister complains that refugees are having trouble integrating with society (see below), it seems extremely clear that a very large part of the problem is the quite horrific process we put them through.
2007.03.17
 Image: crizk
Kevin Andrews has said that Austrlaia would cut its intake of African refugees. Why? Apparently, because they're poor, uneducated, and come from war-torn backgrounds:
“They tend to have more problems and challenges associated with them. Their level of education, for example, is a lot lower than for any other group of refugees,” he said.
“They've been in war-torn conflict for a decade, many of them. Many are young . . . and many have been in refugee camps for decades.
It doesn't make much sense to me to acknowledge you have a problem . . . but not actually slow down the rate of intake until you've dealt with it,” he said.
This is absolutely ridiculous. You can't pretend to be fulfilling your international obligations to accept refugees, but pick and choose on the basis that you only want educated refugees who HAVEN'T come from decades of war-torn conflict.
If refugees have problems 'integrating' into Australian society, the fault lies with us. The convention requires that we accept people who have a well founded fear of persecution. It does not mention that we can legitimately separate persecuted groups into those who are rich and educated and those who are not.
Lets either stop pretending that we're compliant with our international obligations, or actually give effect to the principle that people who have a well founded fear of persecution are entitled to protection.
2007.03.17
So this kid goes to a forum with John Kerry and asks why Kerry conceded the election so quickly. He then asks a bit more of a wacky question about whether Kerry was a member of Skull and Bones.
He is forcibly removed from the microphone and escorted to the back of the room. Kerry says, as the police are escorting him away, “let me answer his question”, and continues to answer while the police grapple with the man.
All the while, the man is asking why he is being arrested, and what he has done wrong. Finally he is lying on the floor surrounded by police officers, and you can hear him say “let me go and I'll walk out of here”, “please don't taser me”, “why are you arresting me?”.
And then, they taser him, and he screams. And all this time, Kerry is talking in the background.
I don't have any words for this. It's really, incredibly disgusting. Some of his questions may have been wacky, but they were still legitimate. You don't taser people because they take up too much time asking questions of an elected official. You just don't do it.
2007.03.17
Last week, the UN voted 143-4 in favour of a declaration of rights of indigenous peoples. Voting against were Australia, New Zealand, Canada, and the US.
This comes hot on the heels of the Howard Government pushing through controversial legislation which removes significant autonomy from indigenous communities and overrides the Racial Discrimination Act.
The Howard Government is terrified of debate and discussion on its policies. This legislation was given next to no time for discussion in the Senate, and failed to engage in any significant community consultation. Instead of working with rural indigenous communities to overcome the very real problems that they face, this package is unabashed paternalistic vote-buying grandstanding. If Howard were serious about addressing the health and welfare needs of indigenous communities, his policies would be inclusive instead of being deeply divisive.
I don't believe that a bill of rights can fix all our problems. A universal declaration, however, at the very least provides a means of redress for Government actions which are purely discriminatory (see, for example, Toonen v Australia, where Tasmania's laws prohibiting homosexual sex were finally repealed in the late 90's (after a decision of the United Nations Human Rights Committee and significant Federal pressure)). Which is exactly why the Australian Government doesn't want to agree to this declaration – it could open the doors further than Mabo v Queensland (No 2)) for Australian indigenous peoples to make legitimate claims within the Australian legal system.
By voting against this declaration, Australia is continuing its long tradition of treating indigenous Australian as second class subjects. By refusing to acknowledge any substantive rights of indigenous Australians, we are condemning ourselves to socially exclusive paternalistic policy.
Much to my shame, I hadn't even heard of this vote until today. Looking back, there were a number of articles in the mainstream media, but much less than I would have expected for what I feel is a completely reprehensible move by the Australian Government.
See over for ambassador Robert Hill's explanation of the vote against.
(Thanks Daithi.)
ROBERT HILL ( Australia), speaking in explanation of vote before the vote, said Australia had actively worked to ensure the adoption of a meaningful declaration. Australia had worked hard to ensure that any declaration could become a tangible and ongoing standard of achievement that would be universally accepted, observed and upheld. The text of the Declaration failed to reach that high standard and Australia continued to have many concerns with the text. Australia had repeatedly called for a chance to participate in negotiations on the current text and was deeply disappointed that none had been convened.
Regarding the nature of the Declaration, he said it was the clear intention of all States that it be an aspirational Declaration with political and moral force, but not legal force. The text contained recommendations regarding how States could promote the welfare of indigenous peoples, but was not in itself legally binding nor reflective of international law. As the Declaration did not describe current State practice or actions that States considered themselves obliged to take as a matter of law, it could not be cited as evidence of the evolution of customary international law. The Declaration did not provide a proper basis for legal actions complaints, or other claims in any international, domestic or other proceedings.
The Australian Government had long expressed its dissatisfaction with the references to self-determination in the Declaration, he said. Self-determination applied to situations of decolonization and the break-up of States into smaller states with clearly defined population groups. It also applied where a particular group with a defined territory was disenfranchised and was denied political or civil rights. The Government supported and encouraged the full engagement of indigenous peoples in the democratic decision-making process, but did not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government.
On lands and resources, he said the Declaration's provisions could be read to require recognition of indigenous rights to lands without regard to other legal rights existing in land, both indigenous and non-indigenous. Any right to traditional lands must be subject to national laws, or the provisions would be both arbitrary and impossible to implement, with no recognition being given to the fact that ownership of land might lawfully vest in others. Australia would read the lands and resources provisions in line with its existing domestic laws, including the Native Title Act.
Australia had concerns that the Declaration expanded any right to free, prior and informed consent too far, as the scope of that proposed right was too broad. It could mean that States were obliged to consult with indigenous peoples about every aspect of law that might affect them. That would not only be unworkable, but would apply a standard for indigenous peoples that did not apply to others in the population. Australia could not accept a right that allowed a particular sub-group of the population to be able to veto legitimate decisions of a democratic and representative Government. Australia also did not support the inclusion of intellectual property rights for indigenous peoples.
On third party rights, he noted that, in seeking to give indigenous people exclusive rights over property, both intellectual, real and cultural, the Declaration did not acknowledge the rights of third parties, in particular the rights of third parties to access indigenous land, heritage and cultural objects where appropriate under national law. The Declaration also failed to consider the different types of ownership and use that could be accorded to indigenous people and failed to consider the rights of third parties to property. Australia was also concerned that the Declaration placed indigenous customary law in a superior position to national law. Customary law was not “law” in the sense that modern democracies used the term, but was based on culture and tradition. Australia would read the whole of the Declaration in accordance with domestic laws, as well as international human rights standards.
Wile the Declaration would not be binding on Australia and other States as a matter of international law, he was aware that its aspirational contents would be relied on in setting standards by which States would be judged in their relations with indigenous peoples. Accordingly, the Australian Government had been concerned throughout the negotiations to ensure that the Declaration was meaningful, was capable of implementation and enjoyed wide support in the international community. The Declaration failed in all those respects and Australia could not support it.
2007.03.17
In a recent vitriolic editorial, Philip Ruddock tells us that “Bills of rights do not protect freedoms”.
Regardless of whether we think an articulated Bill of Rights would be desirable, this piece is an overt attack on the independence and ability of our judiciary.
Ruddock argues that:
Bills of rights do not protect essential freedoms – all they do is present the very real risk of having judges imposing personal opinions as law, leaving everyone to guess about what the law might be.
This is where we start getting confused. Ruddock is still under the impression that law is neutral and value-free. In fact, what he's saying here, is that we don't want a bill of rights because we want judges who read the law very literally, and don't do nasty unexpected things like recognise native title or strike down workplace relations statutes.
Ruddock gives a number of Canadian and UK examples of shocking judicial activism, including:
The common law has always been concerned with developing legal principles to protect the interests of citizens. Judges do an excellent job of making rules where the legislature hasn't, and have a long history of protecting the people from the worst excesses of both the legislature and the executive. The examples used by Mr Ruddock above are examples of the common law at work. One of the dangers of popular representative democracy is that the rights of minorities are often overlooked. We depend on the judiciary to have the power to stand up for the rights of minorities, and to be able to place important checks on the exercise of legislative and executive power.
Australia has a record of having a strong independent judiciary, but this is something that Mr Ruddock has failed to uphold. One of the Attorney-General's functions has historically been to protect the integrity of the judiciary. Australian judges are reluctant to defend themselves in political contexts. In recent years, however, they have lost the support of the Government. The High Court and the Federal Court have been exposed to overt and often outrageous criticism for 'judicial activism'.
This is another facet of a systematic attack on the judiciary from a government which is terrified of having its policies and actions scrutinised. From immigration to copyright to industrial relations to prisoners' right to vote, the Howard Government has complained about the power of the courts to regulate and limit their power.
The real threat to democracy is not judicial intervention. To claim that a judge who takes a literal and conservative approach to the text of the law is not acting politically is mere legal fetishism.
The real threat to democracy here is the sustained attack on judicial independence that we have witnessed from a government which refuses to have its policies reviewed, either by the legislature before they become law, or by the judiciary afterwards.
2007.03.17
Here is a new machinima licence from Microsoft, who are gearing up for the release of Halo 3.
Important points:
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No commercial use, not even donations, not even contests, and presumably not film festivals – MS are reserving their ability to get a slice of that lucrative machinima pie.
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You can't grant rights to other people to build on your creations. This is a really confusing statement – they “don't mind if other people help you out”, but the permission comes from Microsoft and not the creator. Does this mean that licensing the finished film is forbidden? How exactly can other people “help” if they have a licence from Microsoft but not from the creator of the new copyright interests in a machinima film?
This licence shows that Microsoft are allowing machinima, but are keeping a very wide discretion on the types of content that can be created. Under a heading “What can't I do?”, the response is “It's tough to predict everything people will do, but there are some things that you can be sure will get our attention.”
The success of the Halo franchise is in a large part dependent on the engagement of the community, including machinima producers. I'm concerned because Microsoft are atetmpting to harness the creativity of their audience in order to promote their games, but are sending a very clear message that only films which are 'safe' are acceptable. Anyone who expects to create a really expressive and slightly gritty film can also expect the heavy hand of Microsoft's copyright lawyers to come down on them.
I'm concerned about the use of copyright as a tool of private censorship, and I'm concerned about companies who encourage and benefit from fan creation but give their fans little or no certainty as to what will and will not be permitted. Also, preventing these creators from even taking donations seems to go a little too far. It's clear that in any of these cases, traditional licence negotiation is going to be necessary, and this is a situation in which Microsoft holds a much better bargaining position than the fan-creators…
2007.03.17
And the lawsuits keep flying. This one is a class action suit started by a user called Antonio Hernandez, who's suing IGE for gold farming in World of Warcraft.
Read the complaint – even if just for the first couple of pages.
Hernandez alleges that IGE is interfering with the the enjoyment of contracts between Blizzard and users “by selling World of Warcraft virtual property or currency […] generated by cheap labor in third world countries”.
Really, the sweat-shop imagery is getting tiresome. We don't mind when our shoes are made by people working in ridiculously dangerous conditions, but gamers seem to get really upset when someone engages in internation arbitrage to sell repetitive computer labour to US players.
Interestingly, he sets out the particulars of damage as:
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“Devaluation of currency:” – this one is more reasonable, but still, mudflation was a big problem long before IGE came around. Besides which, they're measuring devaluation of currency in USD figures, where a couple of pages up, they said that it's not permissible to trade USD for virtual gold.
If there's no link to USD (by their own arugment), their damages must be limited to USD$15/month.
Anyone know who's actually joined this action? It seems ridiculously hard to prove – it rests on tortious interference with contract, and damages alleged are likely to be limited ot the value of the subscription, discounted by the enjoyment that the players did in fact get – i.e., very close to zero.
There's nothing in the EULA that prevents *farming*, only selling gold. Farming, even on a super large scale, is a legitimate activity, and any ill effects which flow from it are Blizzard's responsibility (for what are essentially bad game mechanics, in my opinion).
There's no causal link between the loss that these players are alleging and IGE's allged wrongdoing. If IGE and all the individual farmers had wanted to, they could each farm the same amount of money and cause the same level of inflation (and restless nights!) without breaching the contract – the fact that they subsequently broke a contract with Blizzard has nothing to do with players having a less enjoyable experience. I can understand that some people don't like gold farmers (personally, I like the ability to bypass what i find to be the boring part of the game by paying someone else to do it for me), but they can't reasonably claim against IGE for this. Blizzard may have a case against people who break their contracts (we'll see about that shortly), but I really don't see that IGE is responsible to Blizzard's users. If anything, I'd complain to Blizzard about encorouaging game mechanics which are repetitive and boring, but that's not the basis for a legal claim.
2007.03.17
I was at the ACIPA conference at Minter Ellison on 17 February 2007. Philip Ruddock and Helen Daniels explained what the Attorney-General's Department was going to be up to in 2007, now that the copyright amendments have gone through. Some of the projectsthey listed:
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Australia will be pursuing bilateral free trade agreements, including IP agreements, with: China, Japan, Chile, New Zealand, Indonesia, and ASEAN.
2007.03.17
My PhD confirmation seminar is up this Wednesday 07 March 2007. Professors Brian Fitzgerald (QUT Law), Greg Hearne (QUT Creative Industries), and Terry Fisher (Harvard Law) will be on the panel; it should be a good two hours of discussion on virtual worlds and regulation. Anyone interested is welcome to attend.
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Room: B506, Gardens Point Campus, QUT, Brisbane, Australia.
Virtual environments are becoming increasingly popular and diverse. These worlds challenge us to consider established concepts of place, relationships, economics, property, play, culture, and many other aspects of social life. They provide an excellent opportunity for interaction of all types, including play, commerce, teaching and learning, and research. As activities which were previously performed in real world spaces become commonplace within virtual worlds, some very interesting questions are raised about the nature of regulation, the distinction between public and private spaces, the distribution of power, and the way in which that power is exercised within virtual environments.
This thesis will take a critical approach to examine the roles of participants, platform owners, and territorial governments in the regulation of virtual environments. Much of the analysis carried out to date in this area is limited by an over-reliance on a property-based paradigm, coupled with a failure to recognise the multitude of roles and motivations of both participants and proprietors, and a tendency to essentialise the behaviours of each these groups. This research will attempt to unravel some of the complex interrelationships which exist between participants, platform owners, and regulators, and aims to provide a framework for the evaluation of regulatory approaches. In essence, this thesis considers a facet of digital constitutionalism – the principles governing the allocation of power amongst actors in and around virtual environments.
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