In the heat of the 2006 Spring Offensive over Australian values [tag]Values Australia[/tag] was born in response to the cynical and ignorant way real Australian values were being abused by politicians and the sycophantic, rightwing media echo chamber.
It was a hard slog but slowly and surely the numbers began to rise and Values Australia was eventually recognised as a top five [tag]Google[/tag] site.
And then…the ultimate [tag]success[/tag]! The Deputy Secretary of the [tag]Department of Immigration and Citizenship[/tag] (freshly cleansed of responsibility for [tag]Aborigines[/tag] and [tag]migrants[/tag]) complained in the most bureaucratically courteous and yet wounded tone about the Values Australia site.
The letter was variously described by others as “bizarre”, a “hoax” and “frog-shit”.
Values Australia had to respond to take advantage of this undreamt-of opportunity. (Or, as an Aussie medal-winner might say, “Issa dreamcometrue”.)
Here is an excerpt from the Department’s letter:
I acknowledge that your website expressly states that it is a [tag]satire[/tag]. However, I am very concerned that it gives the appearance of being an officially approved [tag]Australian Government[/tag] website. I am concerned that some of the content may seriously damage Australia’s reputation overseas. It may also create confusion regarding the important business managed by the Department, including the processing of [tag]visa[/tag] applications and the granting of Australian Citizenship. You have a right to express your views about the government but I consider that the website is potentially misleading and [tag]offensive[/tag]. I request that you remove it immediately….
I would appreciate your notification within seven days of the date of receipt of this letter that you have taken that action. Otherwise the Department will consider whether to take any further action.
The full letter is here but it’s claims are addressed comprehensively in the Values Australia response. We trust you will understand the deletion of the name and address:
Croydon NSW 2132
25 March 2007
Department of Immigration and Citizenship
Dear Mr Correll,
I have received a letter purporting to have come from your department. There are reasons for believing it may be a hoax and it is therefore attached for your information.
This letter threatens Values Australia with a number of laws and acts including Sections 53 (c) (d) and (eb) of the [tag]Trade Practices Act[/tag] 1974, Section 68 of the [tag]Crimes Act[/tag] 1914 and Section 39(2) of the [tag]Trade Marks Act[/tag] 1995
One of the reasons it was thought this letter must be a [tag]hoax[/tag] is that Section 68 of the Crimes Act 1914 was repealed in 2000 whereas the Values Australia website has only been online since September 2006. There may be other laws which are now more pertinent but it is unlikely that a competent government lawyer or the Deputy Secretary of a major government department would make such an embarrassing mistake if they were seriously trying to threaten a citizen.
However, on reflection, and taking into account the numerous far more embarrassing [tag]legal gaffes[/tag] that have been made in recent history by your own department under its variety of names, and the government’s willingness in general to make threats on equally dubious legal grounds against Australian citizens, its willingness to push the legal envelope on refugees, not to mention acts which, according to everyone except government lawyers, contravene [tag]international law[/tag], and its eager acquiescence in illegal acts by other nations, it has been thought possible that this threat may in fact be genuine.
Section 39(2) of the Trade Marks Act 1995, which you mention (assuming for the moment that it was you and not a hoaxer) refers as far as we can tell to signs which so nearly resemble a sign as to be likely to be taken for it, this in particular reference to the [tag]Australian[/tag] [tag]Coat of Arms[/tag].
You and your lawyers would have noted as they investigated the Values Australia website that there are a number of images to which you could be referring. There is no one image of which it might be said that “that is the one which is pretending to be the trademark”. Each of these images is merely an image. None of them is a modification in any way of the Australian Coat of Arms and each of them was generated as an original image from materials not remotely connected with the Australian Government.
None of the images is, or has ever been, intended as a trade mark, purports to be a [tag]trade mark[/tag], or has anywhere been claimed to be a trade mark.
Looking at the images it is clear to anyone remotely acquainted with the Australian Coat of Arms, and anyone who could pass any proposed Australian [tag]Citizenship Test[/tag], that none of them can be confused with it or could be “taken for it”. According to the official description of the Coat of Arms:
1) A shield is supported by a [tag]kangaroo[/tag] and [tag]emu[/tag]
2) A seven-pointed star sits above the shield
3) A wreath of gold and blue sits under the star
4) Golden [tag]wattle[/tag] frames the shield and supporters
5) A scroll contains the word ‘Australia’.
This is not a description which fits any of the images on the Values Australia website.
a) The bird in every case is on the “wrong” side of the image and is usually a shape resembling an ostrich.
b) Where the bird, in one case only, is an emu it is looking directly at the viewer.
c) The kangaroo’s stance, when it is a stance, is different from that on the “real” Coat of Arms. The difference is variously the disposition of its arms and the direction the head is pointing.
d) In other iterations the kangaroo is reclining.
e) On most images on the site there is no kangaroo. A shape perhaps suggesting a [tag]koala[/tag] is on the right hand side of the image.
f) There is no star, whether seven-pointed or not, on the values Australia image.
g) There is a representation of a crown. There is no crown anywhere on the “real” Coat of Arms.
h) On coloured images there is a rectangle below the crown which is red, blue and yellow.
i) There is no representation of wattle on any image.
j) On coloured images the foliage is clearly [tag]eucalyptus[/tag].
k) None of the images to which you may be referring have a scroll with the word “Australia”.
l) On images where there is a scroll it says either “Ministry of [tag]Mateship[/tag]“ or “Department of Values”.
m) Where there is a shield-shaped element discernible, it does not include any symbol of any of Australia’s six states.
n) Where a shield-shaped element can be discerned on the monotone versions there is no detail.
o) A coloured image bears a shield shape enclosing hands grasping prison bars, or perhaps the bars of a [tag]detention centre[/tag].
p) There is a distinctly non-Australian sash across the shape.
The third threat made in the letter is with Sections 53 (c) (d) and (eb) of the Trade Practices Act 1974, claiming that a case may be made of “[tag]passing off[/tag]“.
In a landmark passing off case, Reckitt & Colman Ltd v Borden Inc , Lord Oliver stated that a plaintiff must establish all of the following:
a goodwill or reputation attached to the goods or services…
Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether intentional) leading or likely to lead the public to believe that the goods or services offered by him are goods or services of the plaintiff…
Thirdly, he must demonstrate that he suffers [loss or damage as a consequence of the erroneous belief that the goods or services of the defendant are the goods or services of the plaintiff].
a) Values Australia obviously cannot and does not offer or claim to offer the goods and services actually offered by the Department of Immigration and Citizenship.
b) Not even a stupid person, let alone a “reasonable person”, could conclude that the so-called “services” offered on the Values Australia website would be confused with the real services offered by the Department of Immigration and Citizenship or that there is any intent to represent a limited range of satirical mugs, t-shirts, or “[tag]Fair Dinkum Aussie Mate[/tag] ‘certificates’” – or, indeed, laughter -as being goods or services of, or sanctioned by, the Department.
c) Because the website does not offer, or pretend to offer, or represent that it offers, the actual goods and services offered by the Department, it is as impossible to demonstrate as it is silly to suggest that the Department has suffered or could suffer loss or damage of those services as a result of any confusion caused by the website. No person has ever contacted Values Australia with any question concerning citizenship or visa applications. In case anyone were to try, Values Australia has on the contrary been responsible and careful to avoid confusing really stupid people. The “Contact” page of the website has a link to the Department’s website with the words,
“If you are seeking information about real Australian visas or citizenship, we recommend you go to the official site: http://www.immi.gov.au.”
The header of the website has the statement, “Not an Australian Government site”, which links to the official DIC website.
Returning to the “forgery” threat made in the letter:
The test is intent to deceive, in the case of the repealed act, or of an intention to obtain a gain or cause a loss by inducing a public official to accept a document as genuine. I am confident that there is no public official who would accept the Values Australia website or any of its ‘materials’ as genuine, particularly to the extent of acting upon them. For example, no public official could conceivably accept the Fair Dinkum Aussie Mate Cetrificate as anything but a parody. Values Australia has not and has never had any intention to have any of its materials taken as, or presented by others as, genuine Commonwealth documents, which they quite transparently are not. To suggest otherwise is ludicrous.
The wording on the Fair Dinkum Aussie Mate Certificate includes:
I, the Minister of Fair Dinkum Aussie Values and Detention Centres hereby grant this Certificate of Fair Dinkum Aussie Mateship to the abovenamed applicant who shall be an Aussie Mate, no worries.
The parodied “Visor” stamp contains the following text:
Holder has promised not to blow anything up or molest daughters and has correctly recited “I, Lover”
True blue mate who has promised to sling me a slab
Approved for entry to pick fruit for a period of three months and must then visit [tag]Opera House[/tag]
The following text appears on the home page:
Enriching Australia through the well-managed [tag]detention of innocent children[/tag]
Australian values are to always give people a fair go. This ethic does not apply if your name is David Hicks.
Australia offers a wide range of lifestyle choices – both [tag]RSL[/tag]s and [tag]Leagues Club[/tag]s.
In principle, we decide who comes here and how they come, but only if that is all right with Indonesia.
Australia values democracy. We love it so much we give it away, at the point of a gun if necessary. Dead Iraqis are a small price to pay for [tag]world peace[/tag].
Values Australia looks forward to hearing the Department argue that these statements could be misinterpreted or misconstrued as official, credible, or even potential Government policy, or that these statements could possibly be officially approved and that these statements would not immediately indicate to even the most unwary and unsophisticated visitor that the site was a [tag]parody[/tag], a satire and definitely not a government or government-sanctioned site.
The claims concerning the “title of an official government agency” are the main reason it is thought this letter may be a hoax.
a) The letter was correct in stating that the Values Australia website used the phrase “Department of Citizenship” in the text of one iteration of the header image. However the full text on that image was “[tag]Department of Citizenship and Fair Dinkum Values[/tag]“. The first use of this phrase on the website was on or after 22 September 2006 when your Department’s name was the “Department of Immigration and Multicultural Affairs”. Your Department was subsequently renamed on or about 23 January 2007 to become the “Department of Immigration and Citizenship”.
b) The letter claims that the use of the phrase “Department of Citizenship” could be misleading and deceptive, but it is clearly not. No reasonable, or even really stupid, person could possibly believe that a department called the “Department of Citizenship and Fair Dinkum Values” would exist in reality.
c) Your Department is not and never was called the “Department of Citizenship”. It is now called the “Department of Immigration and Citizenship”.
d) Astonishingly, the letter claims that the use of the phrase “Department of Citizenship”
“could be seen as a misrepresentation made in the course of trade to perspective customers, which is calculated to injure the business or goodwill of another trader and which causes actual damage, or will probably do so.”
Values Australia fails to see how the use of the phrase “Department of Citizenship and Fair Dinkum Values” three months before the Department’s change of name could be construed either as an intentional “misrepresentation”, or as “calculated to injure”. There was no Department of Citizenship in existence, or planned, which Values Australia could possibly have intended to misrepresent or to injure by using those words. The writer gives Values Australia far too much credit for political clairvoyance to suggest that it could have known three months in advance that the head of the Minister would roll and the Department’s name be changed.
If Values Australia had such predictive abilities it would be in another, far more lucrative, business.
On the other hand, perhaps it would not have been such a stretch to foresee that, from [tag]DIMIA[/tag] to [tag]DIMA[/tag] to [tag]DIC[/tag], first Aborigines and then [tag]ethnic[/tag] Australians would be cleansed from your Department by the Prime Minister.
f) The letter mentions the possibility of “misrepresentation made in the course of trade to perspective customers”.
Values Australia is not clear what a “perspective” customer might be. Perhaps it is one who views the site from a safe distance.
The letter purporting to be from you effects concern that
“some of the content may seriously damage Australia’s reputation overseas.”
The Department does not need Values Australia to damage Australia’s reputation overseas. Your department, in particular, in hand with the Attorney General’s Department and the Department of [tag]Foreign Affairs[/tag] have been “seriously damaging” Australia’s reputation overseas for some years.
Your department’s ministerially admitted and well-documented dysfunctional corporate culture, characterised by callous disregard for humanity, basic morality and decency (all until fairly recently basic Australian values), and the astonishing ineptitude and resultant shameless blameshifting and denial which are so regularly publicly exposed – most recently in your new Minister’s embarrassment over [tag]Nauru[/tag], IOM and the [tag]UNHCR[/tag] – have resulted all by themselves in immeasurably more damage to Australia’s reputation than the Values Australia website could possibly do if it wanted to, which it most definitely does not.
Australia used to have a reputation overseas as a decent, fair and tolerant country.
Now in just the last few years we have had the [tag]Cornelia Rau[/tag] affair, [tag]Vivian Solon[/tag], [tag]Robert Jovicic[/tag], the ongoing humanitarian disgrace of the detention centres and the appalling and un-Australian treatment of [tag]refugees[/tag].
Values Australia understands that [tag]Villawood[/tag] detainees are released into the Australian community, after four years in detention, not knowing a word of [tag]English[/tag]. Not to help these people to learn English, when there has been so much opportunity over four years, is a disgrace and to require them to enter the community without the basic tools they need in order to survive is simply abuse.
Then there is [tag]David Hicks[/tag] and [tag]Guantánamo[/tag], Australia’s capitulation to [tag]Indonesia[/tag] over refugees from [tag]Irian Jaya[/tag] and of course [tag]AWB[/tag]. Naturally, Values Australia understands that the fury at Australia expressed by the [tag]United Nations[/tag], The [tag]US Congress[/tag] and [tag]Canada[/tag] over the AWB Affair pales into insignificance beside the light humour attempted on the Values Australia website.
The letter you may have written says,
“You have a right to express your views about the government but I consider that the website is potentially misleading and offensive.”
Values Australia is not sure it understands. Does this mean that Australian citizens may express their views so long as they are not offensive? It does not say offensive to whom. The Department’s website asserts that Australians are free to express their opinions about any topic. That Australia does not censor the media. That a person may criticise the government without fear of arrest. Is this only as long as they are not offensive? Is it offensive by definition to criticise the government? Values Australia is not aware of which law would cover that.
Values Australia, although it makes fun of elements of Australian [tag]culture[/tag] and [tag]politics[/tag], is fiercely and proudly Australian, defending the real Australian values of decency and humanity and a fair go, from the constant, corrosive attacks by cynical, self-serving politicians and bureaucrats.
Values Australia sees what it does as positively enhancing Australia’s international reputation, as it knows for a fact that it does, by demonstrating that despite our politicians and their compliant servants, most real Australians are humane; that Australians do care about people elsewhere in the world; that Australians do disagree with the callousness of this government and its servants, and that Australians do have a sense of humour.
Bob, a person reported to Values Australia a conversation with his children when they had read some pages of the Values Australia website. “Are they allowed to say that?” they asked. “Won’t they get into trouble?”
This person was furious and said so. “How dare you!” he exploded. “Don’t you understand? You have free speech in this country. You are allowed to say what you think! People fought wars and died for that freedom! How dare you assume that you don’t have [tag]freedom of speech[/tag]!”
Of course their belief that they couldn’t necessarily say what they thought if it was critical of the government was natural. In their short lives they had already seen so many of the [tag]liberties[/tag], [tag]rights[/tag] and [tag]freedoms[/tag] that had been fought for and cherished in Australia for so long being eroded and corroded under this government, and apparently and unfortunately with the acquiescence of people like you.
So Bob (assuming you wrote the letter), what is another little freedom quietly whittled away, another voice strangled, another turn of the screw of fear on an increasingly, and synthetically, anxious population? It’s not really you, after all. It’s the job, it’s the kids’ education, it’s the career, it’s the boss, it’s the Minister, it’s the PM. It’s not you, not really. At the end of the week you can still hop in the Volvo and tootle down to the weekender at [tag]Moruya[/tag] to bask in the knowledge of a week well worked. It’s just people, after all.
Values Australia will of course be assuming for the time being that the letter is real and taking legal advice on all of the points, but it declines to refrain from giving offence – if that is what is taken – for the sake merely of “not being offensive”. That would be a violation of a basic Australian value.
Graham (family name withheld)
for Values Australia
Values Australia is not a lawyer and would be grateful for any serious pro bono advice on the matter.
COMING UP: Don’t you understand, John? It wasn’t about David Hicks: Why Howard is fucked whether Hicks comes home or not. Roger Migently earns his reputation as a political clairvoyant.