If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?



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It’d be better for ministers like Barnaby Joyce to have any potentially contentious decisions made by an acting minister until their citizenship issues are resolved.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

What would happen if the High Court found that ministers Barnaby Joyce, Fiona Nash and Matthew Canavan had not been validly elected at the last federal election in July 2016?

In the case of the senators (Nash and Canavan), the High Court, sitting as the Court of Disputed Returns, would most likely order a special recount of the votes, as it did in relation to senators Bob Day and Rod Culleton, with the seat then most likely going to the next person on the Coalition ticket.

This may disrupt the balance between the National Party and the Liberal Party in the Senate, as those most likely to replace the two National Party senators would be from the Liberal Party.

Joyce’s seat, being in the lower house, would most likely go to a byelection, as previously occurred in the cases of Jackie Kelly and Phil Cleary. Like Kelly and Cleary, Joyce could stand for his seat at the byelection, as he has now renounced his New Zealand citizenship.

A bigger question arises, however, as to the validity of decisions that they made as ministers since the last election. If they were not validly elected in July 2016, then Section 64 of the Constitution becomes relevant. It says:

… no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

That three months ran out a long time ago. So, for a considerable time they would have been exercising powers conferred upon ministers by statute, without actually being ministers. Were those decisions valid? Could they be challenged?

This brings into play the “de-facto officer” doctrine. This is a common law doctrine that protects people who rely on acts done in the apparent execution of their office by an officer who appears to be “clothed with official authority”, even though they may not validly hold that office.

It is not aimed at protecting those who invalidly exercise power, but rather those who rely in good faith on the apparent authority of those who publicly exercise power. The doctrine is also relied on to give certainty concerning the validity of acts of persons whose appointment or election may later be challenged.

The public policy behind the doctrine is to avoid the chaos that would ensue if decisions of public officials were automatically rendered invalid because of a later discovered defect in their election or appointment. For example, the decisions of a Western Australian magistrate were upheld, even though they were taken after she had reached the compulsory age for retirement.

The application of the doctrine, however, is uncertain. It does not necessarily apply to all decisions of an invalidly appointed officer, and therefore is likely to lead to litigation if decisions are contentious.

Its application has also been doubted in relation to matters that concern a breach of the Constitution. For example, High Court Justice Michael Kirby observed in a 2006 case about the constitutional validity of acting judges that:

It is difficult to reconcile the [de facto officer] doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period. However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.

Moreover, the doctrine ceases to protect the actions of the purported official at the point when they lose the cloak of authority, such as when the validity of their appointment is contested, or their lack of qualification to hold office is “notorious”.

It is quite possible that point arises when, in the case of a Commonwealth minister, they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences.

The ConversationInstead, such actions, if they need to be taken before the question of the status of these ministers is resolved by the High Court, could be taken by acting ministers to ensure their validity and avoid the financial and social costs of further litigation and uncertainty.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

Grattan on Friday: Malcolm Turnbull’s government has finally defied fiction



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With the eligibility of the Nationals’ leadership under question, Malcolm Turnbull has had a nightmarish week.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s burqa stunt wasn’t the most extraordinary thing that happened in Canberra.

Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.

In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.

Entirely beyond imagination was the week being bookended by the Nationals leader, Barnaby Joyce, and his deputy, senator Fiona Nash, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).

Joyce and Nash are remaining in cabinet – unlike their Nationals colleague Matt Canavan – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.

Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, suggested on Thursday that parliament should be prorogued – that is, suspended – until citizenship questions and any subsequent byelections are sorted.

But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.

Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.

There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.

Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.

But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor conspiracy across the Tasman with New Zealand Labour, was deluded from the start.

First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?

Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a laudatory article had asked why she wasn’t mentioned more often as a possible future leader.

Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.

Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.

If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.

The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.

It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.

It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.

Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.

But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.

He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.

If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.

Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.

The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.

Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory.

Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.

Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.

One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.

While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot.

A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.

As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards.

Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.

The ConversationThe nation is considering an important social issue – young Australians should get on the roll and vote.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

On North Korea, Turnbull locks Australia into the unpredictability of unpredictable players



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Donald Trump’s presidency is unlike any of its modern predecessors.
Michael Reynolds/EPA

Michelle Grattan, University of Canberra

A week ago, the leaked transcript of the January telephone call between Malcolm Turnbull and Donald Trump revealed Turnbull had told the president, “You can count on me. I will be there again and again.”

Now, as the US-North Korea verbal war intensifies, with fears it could run into a military conflict, Turnbull has made specific that general pledge.

In extended comments on Melbourne’s 3AW on Friday, Turnbull declared: “Be under no misapprehension – in terms of defence we [Australia and US] are joined at the hip”.

“Let’s be very clear … If there is an attack on the United States by North Korea, then the ANZUS treaty will be invoked and Australia will come to the aid of the United States, just as if there was an attack on Australia, the United States would come to our aid.”

Asked what would happen in the event of an attack on the US territory of Guam, Turnbull said: “We would come to the aid of the United States. Now, how that manifests itself will obviously depend on the circumstances and the consultations with our allies.”

North Korea is threatening to launch missiles not at Guam itself but in the ocean nearby.

Ahead of a Friday briefing from military chiefs and intelligence and foreign policy experts, Turnbull underlined his point: “We stand shoulder-to-shoulder with the United States”. The worsening crisis was among topics discussed in a Thursday night telephone conversation between Turnbull and US vice-president Mike Pence.

The 1951 ANZUS treaty says: “The Parties will consult together whenever in the opinion of any of them the territorial integrity, political independence or security of any of the Parties is threatened in the Pacific”. (Article III)

“Each Party recognizes that an armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.” (Article IV)

Despite the tight alliance, only once has ANZUS been invoked – by John Howard after the September 11 2001 attacks.

Mostly, when Australia has stood with the US militarily, the treaty has been not relevant or not needed.

Nor has ANZUS or the wider American alliance meant the US automatically supports Australia. Australian efforts to get America involved in regional clashes, notably Indonesia’s claims to West New Guinea, and the Indonesia-Malaysia confrontation of the 1960s, were met with resistance.

Geoffrey Barker wrote in 2015, “In fact the US commitment to ANZUS has never been as strong as the Australian commitment”.

While Turnbull has trumpeted the message that Australia would support the US in a conflict with North Korea, Hugh White, professor of Strategic Studies at the Australian National University, believes he has given a narrow, literal interpretation of the treaty and gone further than he had to.

“He’s missed the point that we have the right to judge our interests”, White says.
“Under article IV there is an obligation to act – there’s no obligation to act by contributing military forces. It’s always acknowledged that each side has the right to make a judgement about the kind of response it makes.”

The judgement, White argues, would depend on the particular circumstances. He outlines four scenarios of military conflict.

– an attack by the United States on North Korea, which some believed Trump was building up to in his words earlier this week, when he said continued threats to the US "will be met with fire and fury like the world has never seen";

– an attack by North Korea on the US;

– North Korea firing its missiles to near Guam, but not on Guam;

– A pre-emptive strike by the US to prevent North Korea completing the development of an intercontinental ballistic missile (ICBM) capability.

White says that Turnbull has walked past the complexities of what might happen, and asks: “Is it in Australia’s interests to encourage the US by saying we’d support it unconditionally”?

Foreign minister Julie Bishop had been more circumspect. When it was put to her this week that we would be in the fight, if it came to that, given both ANZUS and Australia’s being a party to the Korean War ceasefire, she said: “In fact we were not a party in the legal sense to the armistice so there is no automatic trigger for Australia to be involved. As far as the ANZUS alliance is concerned, that is an obligation to consult. But of course we have been in constant discussion with our friends in the United States”.

Bishop carefully kept options open.

It is worth noting, however, that Kim Beazley, a former defence minister, has a different view of the ceasefire agreement. He wrote in The Strategist: “At the signing of the armistice in Korea in 1953 we agreed, with South Korea’s allies, that we would defend the South in the event of an attack by the North.”

If Australia became involved in a military conflict, it would be a limited contribution. It would be presence, rather than capability, that (as usual) would be important to the Americans.

As has become evident, Trump’s presidency presents Australia with serious management challenges in the alliance relationship, which is built into the foundations of Australian security policy.

This presidency is unlike any of its modern predecessors, and judging how to handle it is extremely difficult for the government. It’s interesting to note the new administration hasn’t yet even posted an ambassador to Australia.

Turnbull, with his personalised style of operating, has chosen to try to get up close and personal, talking as one businessman to another. Hence the “you can count on me” sort of line.

The ConversationTurnbull may later nuance his Friday comments, but as they stand, they lock Australia into the unpredictability of unpredictable players. They also reflect, unvarnished, the reality that Australia always answers America’s call.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Turnbull’s North Korea intervention could be his own ‘all the way with LBJ’ moment



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EPA/How Hwee Young

Tony Walker, La Trobe University

Prime Minister Malcolm Turnbull has dealt Australia into the argument over how to respond to North Korea’s brinkmanship over its nuclear weapons program.

Speaking on Melbourne radio on Friday morning Turnbull invoked the ANZUS Treaty, which obliges Australia and the US to come to each other’s defence in the event either is attacked.

Debate persists over whether this is an absolute guarantee, but Turnbull left no wiggle room in his declaration that Australia would regard an attack on the US as a casus belli. He said:

America stands by its allies, including Australia, and we stand by the United States. So be very clear on that. If there’s an attack on the US, the ANZUS Treaty would be invoked and Australia would come to the aid of the United States, as America would come to our aid if we were attacked.

Turnbull’s forthright intervention might be regarded as fairly unexceptional were it not for the fact it aligns Australia with a US president untested in a crisis, and one who has shown a predisposition to shoot from the lip.

In effect, Turnbull is mortgaging Australian security policy to an unpredictable commander-in-chief whose instincts may be to take the safety catch off first and ask questions later.

Turnbull should remind himself that recent experience in which an Australian predecessor followed the US precipitately into the sands of Mesopotamia did not end well.

In his interview Turnbull might have calibrated his remarks more carefully when he said that: “In terms of defence, we are joined at the hip”.

This recalls unfortunate prime ministerial contributions such as Harold Holt’s “all the way with LBJ” at the time of Vietnam, or John Howard’s characterisation of Australia as America’s “deputy sheriff” in the Asia-Pacific. We can do without these sorts of glib statements.

Turnbull’s undertaking to apply the ANZUS Treaty should the US be attacked recalls Howard’s decision in September 2001 to invoke the treaty’s mutual defence elements after the al-Qaeda terrorist attacks on New York and Washington.

This activation of Australia’s security obligations under ANZUS was largely pro forma. No follow-up ensued that could be described as action under the treaty itself. Australia’s support for the US in Afghanistan was part of a NATO deployment.

The question then becomes: how seriously should we regard an escalating war of words between a US president and North Korea in which Donald Trump has doubled down on his earlier “fire and fury” threats?

No-one should make light of the risks involved of a conflagration on the Korean Peninsula, which remains potentially the epicentre of the world’s most-destructive conflict. Nor should threats by North Korea’s idiosyncratic leader Kim Jong-un to fire a missile toward the American Pacific territory of Guam be dismissed as a stunt.

Where the real risks lie in a volatile environment is a miscalculation that could precipitate conflict that spirals out of control with unpredictable – possibly terrible – consequences.

South Korea’s vulnerability to a North Korea first – or retaliatory – strike cannot be overstated. The South Korean capital, Seoul, is within range of North Korean artillery, leaving aside a nuclear threat.

This raises the question of the extent to which North Korea has acquired the ability to arm its missile systems with a nuclear warhead, and whether intelligence reports of its development of a “miniaturised” nuclear device are correct.

It is not clear that North Korea has achieved this level of sophistication. However, no responsible leader can afford to exclude the possibility that North Korea is further advanced in its nuclear program than had been assumed.

In an analysis on the war of words that has erupted between Trump and Kim, the Council on Foreign Relations put it this way:

The war of words underscores both the American rejection of the idea of vulnerability to a nuclear-armed Kim and the increasing dangers of miscalculation that would accompany a North Korean capability to follow through on its past offensive threats to strike the United States with a nuclear weapon.

The intensity of the rhetorical escalation underscores the fact that North Korea is on a trajectory of confrontation with Washington that Defence Secretary James Mattis characterised as “catastrophic”.

Since there is no chance of Kim giving up his nuclear capability short of ironclad US guarantees of his regime’s survival, the crisis over North Korea’s nuclear pretensions will likely remain intractable. What represents the best outcome is a de-escalation of tensions, an end to the war of words, and some prospect of negotiations that would rein in North Korea’s nuclear ambitions.

If there is a model for such an arrangement it lies in the Obama administration’s agreement with Iran that led to an effective freezing of its nuclear program. Unhelpfully, the Trump administration persists in claiming Iran is breaching this agreement – without supporting evidence.

This is especially destructive at a moment when the US and its allies need to reduce tensions, not add to them.

In all of this, the best outcome is for North Korea to be drawn back into negotiations on its nuclear program under the threat of escalating sanctions to which China and Russia are party.

In the meantime, as the Council on Foreign Relations puts it:

The more the crisis escalates, the greater the dangers of miscalculation, and the harder it will be for either side to find an exit ramp from a high-stakes crisis.

The ConversationTalk of the next Cuban missile crisis may be premature, but the risks of a destructive conflict in which nuclear weapons are deployed cannot be disregarded. This is shaping as the Trump administration’s first big security policy crisis.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

This article was originally published on The Conversation. Read the original article.

Newspoll 53-47 to Labor, but Turnbull’s ratings jump


Adrian Beaumont, University of Melbourne

This week’s Newspoll, conducted 3-6 August from a sample of 1640, gave Labor its sixth consecutive 53-47 lead. Primary votes were 36% Coalition (steady since last fortnight), 36% Labor (down 1), 11% Greens (up 2) and 8% One Nation (down 1). This is the Coalition’s 17th consecutive Newspoll loss under Turnbull; Abbott lost 30 in a row before he was ousted.

38% were satisfied with Turnbull’s performance (up 4) and 50% were dissatisfied (down 4), for a net approval of -12, up eight points. According to Kevin Bonham, this is Turnbull’s best net approval since the 2016 election. Shorten’s net approval was up five points to -15, his best since November 2016.

Turnbull’s ratings jump is likely to be related to the recent terrorist incident where an attempted bombing of an aeroplane was thwarted. If Turnbull’s ratings improvement is a polling blip, Labor should not worry. However, a sustained rise in Turnbull’s ratings would probably lead to better voting intentions for the Coalition.

It appears that the Greens have had 9-10% support in all Newspolls since May 2016. This Newspoll is the first time since then that the Greens have broken out of that range, despite a shocking July. This Newspoll has One Nation’s lowest vote since February.

Some people who support One Nation and similar global parties do so from the left, in an attempt to shake up the established order. As the appeal of populist right parties has faded closer to the election, left-wing parties have surprisingly benefited. At the March WA election, the Greens and Labor overperformed and One Nation underperformed final polls. At the June UK election, Labour overperformed and the UK Independence Party underperformed.

Despite being told that high-income earners paid 50% of all income taxes, voters thought by 61-29 that the tax burden did not fall too heavily on high-income earners. By 57-29, voters thought there were not enough incentives in the tax system for those who want to work hard to earn more. 43% both favoured and opposed Labor’s policy to increase the top marginal tax rate from 47.5% to 49.5%.

Essential at 54-46 to Labor, plus Federal Queensland Galaxy and YouGov

In this week’s Essential, Labor held a 54-46 lead, a two point gain for Labor since last week and a one point gain since last fortnight. Primary votes were 39% Labor, 37% Coalition, 9% Greens, 8% One Nation and 3% Nick Xenophon Team. Labor’s primary vote is up three since last week, and its highest in Essential since April 2016.

Essential uses a two-week rolling average, with a total sample of 1805. The Poll Bludger has said that the one-week sample last fortnight was pro-Coalition, and this has been replaced by a pro-Labor sample, causing the big shift. Additional questions are based on one week’s sample.

In agreement with Newspoll, both leaders gained on net approval since July, with Turnbull up four points to -8 and Shorten up one point to -7.

On resolving same sex marriage, voters favoured a voluntary postal plebiscite followed by a parliamentary vote 43-38. A parliamentary vote with attempts to persuade Liberal members to cross the floor was favoured 43-31. A plebiscite held with the next election was favoured 46-34. Delaying a decision until after the next election was opposed 55-22.

39% thought current industrial laws favoured employers, 12% employees and 29% thought they balanced the interests of both. By 41-30, voters approved of Labor’s proposal to tax family trusts at a 30% rate. 28% thought the Coalition government had increased school funding, 22% decreased and 22% thought school funding had not been changed much.

From the same sample that produced Sunday’s 51-49 result to state Queensland Labor, the Federal Queensland Galaxy poll is 51-49 to the Coalition, a one point gain for the Coalition since late April. Primary votes are 37% Coalition (up 2), 32% Labor (down 1), 12% One Nation (down 3), 7% Greens (steady) and a surprisingly strong 6% for Cory Bernardi’s Conservatives. By 48-35, Queenslanders opposed an Australian republic.

The fortnightly Australian YouGov, conducted 3-7 August from a sample of 1005, had a 50-50 tie by respondent allocated preferences, unchanged on last fortnight. Primary votes were 34% Coalition (down 2), 32% Labor (down 1), 11% Greens (up 1) and 9% One Nation (up 1). Primary votes are very different from Essential and Newspoll, with YouGov’s lean to the Coalition continuing.

Section 44 potential disqualifications

Since two Greens were disqualified in late July, questions have been raised about the Constitutional eligibility of LNP Senator Matt Canavan, One Nation Senator Malcolm Roberts, Labor House member Justine Keay, Greens Senator Nick McKim and Liberal House member Julia Banks.

These eligibility questions are covered in detail by Kevin Bonham. It appears that Canavan and Roberts are in the most trouble. Canavan’s story that his mother took out Italian citizenship on his behalf in 2005 when Canavan was 25, and that he never knew, is difficult to believe, especially as Italian voting forms were sent to his mother’s address.

Roberts has claimed he emailed the British consulate on 6 June 2016, three days before nominations for the 2 July election closed, advising that if he was a British citizen, he renounced it. After further correspondence, his citizenship was renounced in December 2016. As Roberts is an extreme climate change denier who demands empirical evidence, what he says may not be credible. Even if what he says is true, the High Court may not think he took “reasonable steps” to renounce before the election.

Less than two months before election, NZ Labour leader resigns

The next New Zealand election will be held on 23 September. NZ elects its 120 members effectively using proportional representation with a 5% threshold. The current conservative National government has held office since 2008. Labour was soundly beaten in 2008, and their vote declined further at the 2011 and 2014 elections; they won just 25.1% in 2014.

The ConversationOn 1 August, following the release of two dreadful polls that gave Labour just 24%, Labour leader Andrew Little resigned, and was replaced by Jacinda Ardern, who was unanimously elected by the Labour caucus. Ardern appears to be a genuine progressive, and she will appeal to the Greens.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

This article was originally published on The Conversation. Read the original article.

Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation



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AAP/Eoin Blackwell

Amy Maguire, University of Newcastle and Jason von Meding, University of Newcastle

What is the point of international co-operation in matters of shared concern? According to the UN Charter, its founding member nations were determined to achieve overarching societal progress based on human rights.

Excerpt from the UN Charter.

The international legal system of the UN era continues to attempt, with mixed success, to promote these goals.

Within intricately connected global systems that produce ever-more complex problems, a framework for international co-operation is essential. The international legal system, however imperfect, must be maintained as a bulwark against the wholesale pursuit of domestic political interests.

Yet our belief in the efficacy of this system is challenged when the stark reality of international power relations is laid bare. It seems the more insight we have into what happens behind the scenes, the harder it becomes to convince the sceptical that international law has either legal or normative power.

On Friday, The Washington Post published a leaked transcript of a now-infamous phone call between the then newly elected US president, Donald Trump, and Australia’s prime minister, Malcolm Turnbull.

The shocking conversation reveals that the deal for the US to accept some of those asylum seekers currently detained offshore – a key feature of the Australian government’s effort to close its offshore detention centre on Manus Island – imposes no obligation on the US beyond “going through the process”. According to Turnbull:

… the agreement … does not require you to take 2,000 people. It does not require you to take any.

Trump made it abundantly clear that he did not see either the US national interest or his personal popularity being served by upholding the agreement:

… boy that will make us look awfully bad. Here I am calling for a ban where I am not letting anybody in and we take 2,000 people. Really it looks like 2,000 people that Australia does not want and I do not blame you by the way, but the United States has become like a dumping ground.


Further reading: Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


Trading lives in a ‘refugee swap’

The deal between Australia and the US remains mired in confusion almost a year on. Australia committed to resettling some Central American refugees currently in Costa Rica, as part of a US-led program.

Soon after, Turnbull announced an agreement with the Obama administration that would see the US resettle perhaps 1,250 refugees currently detained on Manus Island and Nauru.

The transcript confirms that Trump was resistant to inheriting what he described as a “rotten deal”:

I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.

Turnbull sought to reassure Trump he could sell the agreement to the US public as consistent with his campaign promise to tighten immigration controls.

Turnbull emphasised his and Trump’s shared identity as businessmen and represented the “deal” as a business transaction that ought to be upheld, at least formally:

Please, if we can agree to stick to the deal, you have complete discretion in terms of a security assessment. The numbers are not 2,000 but 1,250 to start. Basically, we are taking people from the previous administration that they were very keen on getting out of the United States. We will take more. We will take anyone that you want us to take. The only people that we do not take are people who come by boat. So we would rather take a not very attractive guy that help you out then to take a Noble [sic] Peace Prize winner that comes by boat. That is the point.

Despite Trump’s reluctance, US immigration officials have conducted some screening interviews with refugees on Manus Island. However, these were suspended mid-run and the officials withdrew to the US, once it was announced that the US’ annual humanitarian refugee quota had already been fulfilled.

Those detained have been told that interviews will resume and that resettlement in the US is still on the table. However, whether the Trump administration ever had any serious intention to be party to a resettlement solution is now in doubt, as is Turnbull’s commitment to anything more than a domestic political win.

On Manus Island, the leaked transcripts arrived amid heightened tensions. Protests have been ongoing since Tuesday, when water and power services were withdrawn in the largest compound. Local police, detention centre guards and reportedly the Australian Federal Police are attempting to remove those deemed “prisoners” by Trump – something that Turnbull, perhaps tellingly, did not dispute.

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This latest insight into the international game of trading unwanted human beings compounds the frustration and sense of injustice that those trapped in Australia’s offshore detention system are experiencing.

Proof that Australia fails to see the humanity of refugees

Turnbull’s position appears to be that the people detained on Manus Island and Nauru are “good” and deserving of protection somewhere, but that his domestic political environment demands they must be treated like criminals.

In the call, Turnbull repeatedly refers to the people imprisoned on Manus Island and Nauru as “economic refugees”. This pernicious framing is consistent with government messaging about “boat people” and “queue jumpers”.

In reality, no refugees are accepted on economic grounds under Australia’s rules. It is disingenuous of Turnbull to make such an inference about those detained in offshore detention, considering that almost 90% of those on Manus Island have been assessed as bona-fide refugees by both Australia and the UNHCR.

Turnbull’s indifference to human suffering is chilling, surprising even Trump:

We should do that too. You are worse than I am.

When two of the most powerful men in the world conspire to inflict further harm on some of the world’s most vulnerable to satisfy domestic agendas, we truly need to question whether the goals of the international community as constituted in the UN are being upheld by our elected officials.

Dehumanising refugees and treating them as the problem avoids any serious consideration of why people are displaced. This is where the international community should be working together.

The ConversationAdopting a punitive approach to those seeking protection not only goes against international law, but it is an insult to those that uphold Australia and the US as leading beacons for human rights and freedom.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Jason von Meding, Senior Lecturer in Disaster Risk Reduction, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


Asher Hirsch, Monash University

The Washington Post’s leaked transcript of a January phone call between President Donald Trump and Prime Minister Malcolm Turnbull highlights the failure of Australia’s deal with the US to take refugees from offshore processing centres on Nauru and Manus Island.

It also reveals Turnbull’s desperation not to let people who came by boat settle in Australia.

The refugee deal was made in the dying days of the Obama administration. Trump, upon assuming office, tweeted his dismay over it:

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Here are a few of the key issues revealed in the leaked transcript.

Turnbull: ‘You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you.’

Turnbull’s comments highlight a key fault with the US deal.

Throughout the call, Turnbull reiterates that the only obligation on the US under this deal is to consider taking refugees. Trump asks:

Suppose I vet them closely and I do not take any?

Turnbull responds:

That is the point I have been trying to make.

The transcript highlights concerns that the deal could end up with the US deciding not to take any refugees from Manus Island and Nauru. A key question for the Turnbull government is what its plan is for the rest of the people left to languish indefinitely.

The harms of offshore processing are well known. Accommodation standards, facilities and services in the detention centres remain well below international standards. There have been consistent and alarming reports of abuse (sexual and otherwise). There has been one murder and six other deaths from inadequate medical care in offshore detention centres.

Turnbull: ‘We will then hold up our end of the bargain’

During the conversation, Turnbull highlighted that in exchange for the US taking people from Manus Island and Nauru:

We will then hold up our end of the bargain by taking in our country 31 [inaudible] that you need to move on from.

This is a reference to the commitment the Turnbull government made in 2016 to resettle in Australia an unspecified number of Central American refugees currently residing in a camp in Costa Rica. This aspect of the deal still remains unclear, with the transcript “inaudible” during this key moment.

Although the Turnbull government strenuously denied the deal was a “people swap”, it has been cast as a quid-pro-quo arrangement, whereby the Australian government can publicly maintain its unwavering commitment to an offshore detention policy that is no longer sustainable.

Turnbull: ‘The people – none of these people are from the conflict zone. They are basically economic refugees from Iran, Pakistan and Afghanistan.’

This statement highlights either wilful ignorance or blatant deceitfulness by Turnbull in an attempt to sell our responsibility to the US.

The Department of Immigration and Border Protection’s statistics show that of the 2,235 people on Manus Island and Nauru who have been assessed, almost 80% have been found to be persecuted refugees.

The term “economic refugee” is also a misnomer. Those found to be refugees are people fleeing persecution, based on who they are or what they believe.

By telling Trump these people are “basically economic refugees”, Turnbull also misrepresents the ongoing persecution and conflict that people from these countries are experiencing daily.

Trump: ‘What is the thing with boats? Why do you discriminate against boats?’

Trump raises a good point about Australia’s “discrimination against boats”.

The UN Special Rapporteur on the Human Rights of Migrants has highlighted Australia inhumane and discriminatory policies directed at boat arrivals. This includes mandatory and prolonged detention, as well as indefinite separation from families, restrictions on social services, and no access to citizenship.

Trump: ‘I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.’

Trump’s insistence that the people detained by Australia on Manus Island and Nauru “are bad” – which Turnbull did not contest – demonstrates the disdain and lack of understanding common to both the Australian and US governments with respect to forced displacement.

The notion of immigration detention being akin to “prison” underscores the punitive nature of the Turnbull government’s approach to people desperately seeking asylum – a description Turnbull fails to rebut.

Trump’s repeated attempts to draw a link between genuine refugees and terrorism are deeply troubling. ASIO Director-General Duncan Lewis has said no such link exists. In Australia and the US, both the media and the government have used this misleading narrative to justify the persecution of refugees and asylum seekers.

What next?

Ultimately, the transcript reveals that Australia maintains control and power over the centres – essentially highlighting that Manus Island and Nauru are Australia’s responsibility.

As Turnbull said:

They have been under our supervision for over three years now and we know exactly everything about them.

As Australia maintains responsibility for these people, we must ensure their safety and dignity. As the transcripts reveal, the US deal may amount to nothing.

The ConversationA decade ago, the Howard government faced the same question of what to do with hundreds of refugees on Nauru and Manus Island who had nowhere else to go. John Howard eventually realised the only option was to bring them to Australia. Turnbull must do the same – and quickly.

Asher Hirsch, PhD Student, Monash University

This article was originally published on The Conversation. Read the original article.

Turnbull’s promise to Trump: ‘You can count on me’


Michelle Grattan, University of Canberra

We’ve known for months the content and tenor of that explosive January phone call between Donald Trump and Malcolm Turnbull about the refugee deal, but this week’s leak of the transcript to The Washington Post provides crucial detail and nuance.

It also opens the exchange to two interpretations, which quickly fed into the domestic political battle.

You can read the conversation as showing Turnbull playing the strong leader, bringing measured argument and, despite constant provocation, an even temper to trying to have Trump honour the deal Australia made with the Obama administration to take refugees from Manus Island and Nauru.

Or you can observe Turnbull as the rather desperate supplicant, with the domestic political importance of the deal being his overwhelming concern.

It’s obvious Trump was only minimally across the agreement’s terms, under which the United States had agreed to take up to 1,250 refugees.

He exaggerated the numbers, referring to 2,000, even saying he’d heard 5,000. They had to be “bad” people – they were “in prison”.

He found it difficult to get his head around the boat issue. “What is the thing with boats? Why do you discriminate against boats?” Maybe that questioning wasn’t as strange as it sounds, in light of Turnbull declaration that “we would rather take a not very attractive guy that help[s] you out than to take a Nobel Peace Prize winner that comes by boat”.

Above all Trump was preoccupied with how accepting the agreement would make him look.

Turnbull suggested a way to square away the contradictions in his situation. But the president wasn’t countenancing such spin, refusing to concede he could present the deal as consistent with his just-announced exclusionist policy.

“This shows me to be a dope”, he said, in a not unrealistic assessment.

“This is going to kill me. I am the world’s greatest person that does not want to let people into the country. And now I am agreeing to take 2,000 people.”

In their excruciating exchanges, Turnbull extracted the president’s reluctant agreement to honour the arrangement. But agreement to what exactly?

As Turnbull put his case, he seemed to shrink the deal to be little more than the Americans having to simply put the refugees through a process.

Asking Trump to “hear me out”, Turnbull said: “The obligation is for the United States to look and examine and take up to and only if they so choose – 1,250 to 2,000”. (Elsewhere he clarified it was 1,250.)

“Every individual is subject to your vetting. You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you. The obligation is to only go through the process.”

In fact the deal “does not require you to take any”.

Turnbull’s minimising the US’s obligation is particularly important in light of the fact that so far not one of the refugees has been moved, and now the American general refugee quota is full – delaying any departures until October at the earliest. After the agreement was confirmed by the new administration, the timetable has been tortoise-like.

Turnbull’s desperation is obvious in the conversation. “This is a very big issue for us, particularly domestically,” he said at one point, and at another, “I am asking you as a very good friend.

“This is a big deal. It is really, really important to us that we maintain it. It does not oblige you to take one person that you do not want”.

Turnbull sought connection with the then-new US leader by referencing their common business backgrounds. Trump might relate to that, though the irritated president said he respected Turnbull but was sure “you have brokered many a stupid deal in business”.

Turnbull described himself as a “highly transactional businessman like yourself”.

His case to Trump was pitched in blatantly transactional terms. He referenced the Central Americans Australia had agreed to take, making it clear it was a quid pro quo for the Manus/Nauru arrangement – something he’d previously denied. If necessary Australia would take more people – “anyone that you want us to take”.

He stressed the deal required Australia “to do a number of things for the United States”.

At the end, after an angry Trump refused to talk about Syria and North Korea and was just determined to get off the phone – “I have had it” – came this exchange:

Turnbull: “Thank you for your commitment. It is very important to us.”

Trump: “It is important to you and it is embarrassing to me. It is an embarrassment to me, but at least I got you off the hook. So you put me back on the hook.”

Turnbull: “You can count on me. I will be there again and again.”

Trump: “I hope so.”

Turnbull was undesirably fulsome in declaring he’d be “there again and again”, especially given the nature of this president.

This is even clearer in retrospect – Trump’s capriciousness and his administration’s dysfunction has only increased in the months since the phone call.

One expects Trump will not forget he is owed for the favour he sees himself having done in endorsing the deal.

“I will be there again and again” may go down as the Turnbull equivalent of “all the way with LBJ (Harold Holt) and “we’ll go a Waltzing Matilda with you” (John Gorton).

The government’s challenge is to position itself with this difficult administration in a way that keeps the alliance strong but does not compromise Australia or its values. To be in Trump’s debt is unfortunate; for Turnbull to make what sounds like a gushy if vague pledge is unwise.

The ConversationOne final thing. When Trump described the earlier reports of the call as “fake news” and Turnbull, sitting beside him in New York, agreed, they were both lying. We knew it at the time, but the transcript has provided an effective lie detector.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Transcript of Trump-Turnbull call shows just how hard it’ll be to deal with the president



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Reuters/Jonathan Ernst

Tony Walker, La Trobe University

Malcolm Turnbull’s opponents, including those reflexively opposed to Australia’s asylum-seeker policies, would be hard put to take exception to the substance of a leaked conversation with US President Donald Trump soon after January’s presidential inauguration.

In an early round of congratulatory phone calls from world leaders Turnbull broached an agreement reached with the previous Obama administration for the US to take 1,250 such refugees in exchange for an Australian undertaking to resettle displaced people from Central America.

The latter “understanding” has not been publicised as far as I know, but it was integral to the quid pro quo that enabled an agreement to be reached by the Turnbull government to relocate asylum seekers stranded on Manus Island and Nauru.


Further reading: Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


The incarceration of would-be refugees, economic or otherwise, who have arrived by boat on Australia’s shores is the running sore of Australian politics.

The Turnbull government has maintained a steadfast “stop the boats” policy, which was instituted by Turnbull’s predecessor, Tony Abbott, to widespread international condemnation and persistent domestic criticism.

The Labor opposition supports such a policy, while seeking to convey the impression it would apply it more humanely. In reality, there is virtually no difference between the two sides of politics.

When Washington Post published leaked details of a fractious conversation between Turnbull and Trump earlier this year, an impression given then was that Australia’s prime minister was treated disrespectfully, and indeed had yielded ground to a bombastic president.

What the now-leaked full transcript shows is that far from yielding, Turnbull held his ground as he patiently – and courteously – sought to explain the complexities of Australian asylum-seeker policy to a cantankerous president who had himself been elected on a “stop the illegals” platform.

A fair judgement is that Turnbull set out Australia’s position in a manner that would not have been out of a place in a barrister’s deposition to an interlocutor who had little clue about the complexities of Australian immigration policy, and seemed to care less.

Typifying the dysfunction of a conversation between two men who appeared locked in a cycle of mutual incomprehension are the following extracts.

Trump: Does anybody know who these people are? Who are they? Where do they come from? Are they going to become the Boston bomber in five years? Or two years? Who are these people?

Turnbull: Let me explain. We know exactly who they are. They have been on Nauru or Manus for over three years and the only reason we cannot let them into Australia is because of our commitment to not allow people to come by boat. Otherwise we would have let them in. If they had arrived by airplane and with a tourist visa then they would be here.

Trump: Malcolm, but they arrived on a boat.

Turnbull: The only people that we do not take are people who come by boat.

Trump: What is the thing with boats? Why do you discriminate against boats? No, I know, they come from certain regions. I get it.

Turnbull: The problem with the boats is that you are basically outsourcing your immigration program to people smugglers, and also you get thousands of people drowning at sea.

And so the conversation continued like a Beckett play, with Trump venting about the bad deal struck by his predecessor.

What emerges from these exchanges is that the US president was either inadequately briefed or had not absorbed what he had been told about a refugee deal leftover from the previous administration.

What it also reveals is that once fixated on a point of view, namely that he was talking about the broader problem of unauthorised immigration not the more specific issue of asylum seekers being brought to Australia by people smugglers, it was difficult for Trump to comprehend the distinction.

The ConversationIn Trump’s first weeks in office, it may have been unreasonable to expect him to be across these sorts of issues. But the transcript reflects some of the challenges America’s allies face in dealing with an administration whose chief executive knows less than he should about issues that come across his desk, and perhaps more to the point is not a good listener.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

This article was originally published on The Conversation. Read the original article.

Turnbull’s chief-of-staff is the new defence head


Michelle Grattan, University of Canberra

Malcolm Turnbull has appointed his chief-of-staff Greg Moriarty – who has a strong background in defence, foreign affairs and counter-terrorism – as the new secretary of the defence department.

Moriarty, who replaces the recently retired Dennis Richardson, worked in defence between 1986 and 1995, primarily in the Defence Intelligence Organisation.

He served in the headquarters of the US Central Command in the Persian Gulf during Operations Desert Shield and Desert Storm.

While in the foreign affairs department Moriarty was senior negotiator with the Peace Monitoring Group on Bougainville, ambassador to Iran, ambassador to Indonesia, and a deputy secretary.

When he was ambassador to Iran he gave two lengthy briefings to George W. Bush, in 2006 and 2007, at the Americans’ request.

In 2015 he became the first Commonwealth counter-terrorism co-ordinator. He joined Malcolm Turnbull’s office in August 2016 as adviser on international and national security, before becoming chief-of-staff.

He is described as having a good policy mind and being very steady under pressure. He is said to have been well regarded by Labor’s Stephen Smith when Smith was foreign minister.

Moriarty’s name emerged publicly quite late in the speculation about Richardson’s replacement. The field also included Mike Pezzullo, who heads immigration and border protection, and Peter Jennings, director of the Australian Strategic Policy Institute.

Presumably Pezzullo will now remain to head Peter Dutton’s new home affairs department, the core of which is the current immigration department.

Turnbull’s new chief-of-staff will be Peter Woolcott, currently high commissioner to New Zealand.

The ConversationWoolcott has previously served as ambassador for the environment, where he dealt with international climate change issues, permanent representative to the UN in Geneva and ambassador for disarmament, ambassador for people-smuggling issues, and ambassador to Italy. Between 2002 and 2004 he was chief-of-staff to the then foreign minister, Alexander Downer.

https://www.podbean.com/media/player/axx2w-6d8662?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.