Malcolm Turnbull is on the brink of a major policy victory after the government mustered ten of the 12 non-Green crossbenchers behind its Gonski 2.0 policy.
The outcome of a week of intense negotiation by Education Minister Simon Birmingham means, barring mishap, the government is set to end this parliamentary sitting on a strong note, at least in policy terms. The Coalition remains in a bad place in the polls.
The new model for schools funding will be much closer to the original needs-based one recommended by the Gonski review, the implementation of which was compromised by a plethora of special deals.
In electoral terms, Turnbull hopes the schools policy will at least partly offset Labor’s usual strong advantage in education. But the fight over schools will still be on, because Labor will be promising a big extra boost to funding.
To get its legislation through, the government has shortened the time frame for delivering funding targets from ten to six years; boosted by $A4.9 billion to $23.5 billion the amount of additional money that will be spent over a decade (including $1.4 billion over the next four years); agreed to establish an independent body to oversee the funding; and endorsed a tight arrangement to prevent states lowering their share of school funding.
In a gesture to a deeply agitated Catholic sector, the government will provide transitional money for it next year, while a review is undertaken of the basis for calculating how much parents should be expected to contribute. Some money will also be available for schools that are part of systems in the independent sector.
This is being couched as transition money so that all systems will come under the new model from the 2018 start. The transition money will amount to $46 million, $38 million for the Catholics.
But the Catholics, who benefited from the previous special arrangements, remain angry. The future political implications of this are yet to be seen.
On Wednesday night National Catholic Education Commission executive director Christian Zahra said that commission representatives had just met with Birmingham who “set out the minor changes” he proposed in response to the Catholics’ “very serious concerns”. But the commission’s position hadn’t changed: the bill “still poses an unacceptable risk to the 1,737 Catholic schools across the country” and should be defeated.
The outcome has left the Greens caught badly short, exposed as under the thumb of the powerful teachers union, the Australian Education Union (AEU).
The government negotiated simultaneously with the Greens and the other crossbenchers. But the Greens were split, unable to finalise a deal even though they did most of the heavy lifting in extracting some major changes and additions to the government’s original $18.6 billion plan.
The result is they’re in the worst of positions. They are unable to claim victory in delivering the more needs-based system. But they have raised the ire of some of their supporters for attempting to reach agreement with the government.
As soon as it knew it had the numbers with the other crossbenchers, the government – unsurprisingly – brought on the second reading vote on the legislation in the Senate.
Greens leader Richard Di Natale said he was disappointed the government had stitched up the deal with the other crossbenchers. The Greens had still been negotiating when the second reading vote was called. “We thought those talks were progressing really well when out of the blue, the bells rang,” he told reporters.
He said the Greens were proud that what they did through their negotiations “was to raise the bar”. But they could not support the “special deal” for the Catholic sector, and had wanted more money for disabled children.
The government is relying on getting the votes of Pauline Hanson’s One Nation, the Nick Xenophon Team, Jacqui Lambie, Derryn Hinch, and Lucy Gichuhi.
Labor has trenchantly opposed the government’s package, saying the $18.6 billion is $22 billion short of what schools would have received under the ALP’s policy.
The opposition’s schools spokeswoman, Tanya Plibersek, says a Labor government would keep the parts of the package that “are practical, like an independent schooling resource body”. It would also retain the cuts to elite private schools.
But Labor has not spelled out how a Shorten government would alter the new model it would inherit and fund more generously.
It says Gonski 2.0 is flawed because it entrenches a skew in federal funding towards non-government schools (traditionally funded by the federal government, which is only the minor funder, compared to the states, of government schools). But that doesn’t deal with the issue of how a Labor government would handle the Catholics.
Labor has taken advantage of the Catholic rebellion. The Catholic sector, having lost the old special deals, would be anxious to extract some new ones from an ALP government that had extra dollars to put around.
So, will Labor give the Catholics any undertakings that in power it would rectify the wrongs it alleges the government will do to the Catholic system? If it won’t, what will be the response of the Catholics?
If, after the dust settles from the Turnbull government making the tough changes, Labor broadly accepts the new model as a basis for its own planned funding, it will have a sound policy position but questions to answer about disingenuous claims we have heard from it in this debate.
Fewer Australians are trusting the US to act responsibly in the world, and they have scant regard for Donald Trump – but this is not translating into people losing faith in the American alliance, according to the Lowy Institute’s 2017 poll.
Only 20% have a “a great deal” of trust to act responsibly in the world. This is a big fall from the 40% level in 2011, when the question was last asked.
Overall, 61% trust the US to act responsibly, 22 points lower than 2011. The contrast is stark when attitudes to other countries are compared – 90% trust Britain and 86% trust Germany and Japan. China is trusted by 54%.
The poll found that 60% of Australians say Trump causes them to have an unfavourable opinion of the US, with younger adults and women being especially likely to be unimpressed. Still, this figure is lower than the proportion who said this about George W Bush in 2007.
Despite people’s feelings about Trump, support for the alliance has actually increased six points since 2016 – 77% say it is “very or fairly important” for Australia’s security. Just 29% believed “Australia should distance itself from the United States under President Donald Trump”.
The institute’s executive director, Michael Fullilove, said that while Australians had come to terms with the Trump presidency, the relationship was not unaffected by him. “The president is not popular in Australia. And Australia’s trust in the United States to act responsibly has declined”.
The survey of 1200 people was conducted in March. The release of the results comes a week after Malcolm Turnbull’s parody of Trump at the federal press gallery’s Midwinter Ball. So far there has been no response from Trump.
The poll found considerable suspicion of China, mixed with strong pragmatism.
Some 46% believe it is likely China “will become a military threat to Australia in the next 20 years”. But 79% see China as more of an economic partner than a military threat.
Only one-third (34%) would favour using Australian military forces “if China initiated a military conflict with one of its neighbours over disputed islands or territories”. But 68% favour Australia conducting “maritime operations designed to ensure freedom of navigation in the region”.
Nearly eight in ten people (79%) are dissatisfied with the direction of the world, but despite the international rise in protectionist and nationalist sentiments, 78% believe globalisation is “mostly good” for Australia.
Yesterday, One Nation leader and senator Pauline Hanson suggested it would be better for teachers if students with autism and disability were put in special classrooms.
Hanson used children with autism as an example. She argued that their inclusion in regular classrooms was detrimental to non-disabled students, because “it is taking up the teacher’s time”.
She suggested moving students with disability “into a special class [to be] looked after and given that special attention … to give them those opportunities”.
Hanson claimed that students with disability have a negative impact on their peers. Yet international research shows otherwise. Some research suggests students with disability have no impact on the learning of other students – whether they are present or not.
Other research shows that students appear to benefit from having disabled peers. They develop greater appreciation for human diversity and capacity for positive relationships.
Hanson also claimed that students with disabilities were better served in separate classrooms or schools. Evidence shows the converse is true. Decades of research has concluded that students with disabilities who learn in inclusive classrooms make far greater progress.
For example, students with disabilities in mainstream schools achieve higher grades than their counterparts in segregated schools and classes. They also develop more proficiency in language and mathematics and perform better on standardised tests.
Hanson claimed that students with disabilities take a disproportionate amount of teachers’ time, at the expense of non-disabled students. Yet studies exploring the views of teachers strongly indicate that they perceive inclusion as beneficial and valuable.
Teachers are more likely to feel anxious about their ability to meet their students’ needs and overwhelmingly express a desire for more information and training in order to become better teachers for all their students.
Interestingly, teachers often cite students with autism as a major group with whom they want to improve their skills. Our research shows there are many highly effective strategies that can be used in regular classrooms to achieve this.
In addition, teachers who receive appropriate professional learning about disability and inclusion report feeling more knowledgeable and less stressed.
This points to the importance of providing high-quality education and training for teachers. It also suggests the need for ongoing professional development in the teaching workforce.
Students with disability are not always well supported in Australian schools, but this does not mean that they are better off in special classes or that “special attention” will lead to opportunity.
In fact, too much individualised support and attention can increase disablement by fostering dependence, reducing the range of learning opportunities, and hampering achievement.
For this reason, it is critical that students with disability are included in the “real world” of school. This is important for them to become socially competent, independent and financially secure adults.
Having desegregated classrooms is also an important step in paving a positive future after school. Inclusive education makes a powerful contribution to creating a more equitable and productive society. This prepares adults with disability for life after school and connects them in the wider community.
Students with disabilities who are educated in inclusive classrooms are far more likely to complete post-secondary education, making them much more capable of engaging in the workforce and obtaining meaningful employment.
Additionally, students with disabilities who attend their local schools are also more socially connected and engaged in their community as adults.
Hanson’s comments were based on anecdotes from conversations with a limited number of teachers. However, there is both established and new evidence that clearly indicates Hanson’s claims are unsubstantiated.
Most importantly, when considering the placement of children with disability in the schooling debate, we should focus on both promoting quality education for all kids (regardless of their backgrounds), and providing the tools for a society in which all adults can work, study and interact socially.
The government has finally found an issue it can cast in terms of “national security” on which it can get a fight with Labor.
Bill Shorten usually sticks leech-like to bipartisanship on anything with even a whiff of “security”. But now the opposition has said “enough” on the proposals to toughen the criteria for people seeking citizenship.
In political terms, the question is whether the government can turn this into an effective wedge against Shorten, claiming he is “soft” on citizenship. Labor’s challenge is to keep the debate as one about what are reasonable conditions to place on aspiring Australians.
The government believes it is in tune with the mainstream; its eye to the politics was obvious when Malcolm Turnbull went out of his way to make a statement on the matter at Tuesday’s news conference on his latest energy security initiatives.
“The Labor Party does not value Australian citizenship enough to say, as we do, that it must be more than simply the outcome of an administrative tick-and-flick form-filling process,” Turnbull said. Immigration Minister Peter Dutton invokes national security and claimed Shorten has been “mugged by the left of his party”.
The proposed legislation requires potential citizens to have a higher English proficiency than at present. Additionally, the applicant will need to have lived in Australia as a permanent resident for at least four years (just one at present).
There will be a defined process to assess a person’s commitment to Australian values, helped by the longer residency requirement; people will have to show what they’ve done to integrate into the community.
The immigration minister will acquire the power to override decisions of the Administrative Appeals Tribunal on citizenship, subject to a court appeal.
Labor is opposing the bill as a whole; it wants it referred to a Senate inquiry, and says that then, if it considers there are parts worth supporting, it would ask the government to bring them back in separate legislation.
Aware Labor is treading on potentially dangerous ground, citizenship spokesman Tony Burke is trying to fireproof it. “Don’t lie and pretend something is national security when it is not,” he said.
The opposition is challenging in particular the longer qualifying period and the harder English test.
The government has a case with the former; comparable countries make residents wait between five and eight years before applying for citizenship. It is on more dubious ground on English testing, where the standard is to be raised to “competent”.
This is a level where the person has “an effective command of the language despite some inaccuracies, inappropriate usage and misunderstandings. They can use and understand fairly complex language, particularly in familiar situations.”
Burke pointed out that the questions now asked of those seeking citizenship are in a test “which is written in English. If you can’t speak English, you can’t pass the test.”
He warned the new requirement would “guarantee there will be a group of permanent residents who live here their entire lives and are never invited to take allegiance to Australia and are never able to be told by the Australian government: ‘you belong’. That is a fundamental change in our country.”
While it is desirable, not least for their own benefit, to have aspiring citizens acquire good English, people can also be excellent citizens even though their English language will always be poor. Many of us know people like that.
One motive for upping the English requirement might be fears about inward-looking communities. But insisting on the proposed level of English proficiency makes for a very un-level playing field, discriminating against those from certain countries.
Immigrants should be encouraged to become citizens – surely that is likely to be a positive for national security because it promotes a more unified nation. A “two-class” situation in the migrant/refugee population, where some can’t make the cut because of the language issue, is not what we want.
Dutton dismisses Labor’s concerns about the longer qualifying period and the harder language test.
Possibly wearing a focus group on his sleeve, he says: “The Australian public wants to see an increase in the English language requirement, they want to see people meet Australian laws and Australian values”.
There have been mild concerns in Coalition ranks about people who are about to qualify for citizenship under current rules but will face waiting longer. Dutton has told colleagues to bring him any particular cases.
If the government is playing politics with its citizenship move, Labor will have its eye on what might be opportunities on the ground.
These changes won’t be popular with some in ethnic communities, where Labor seeks votes.
On the other hand, some of those who’ve entered the citizenship tent can be less than sympathetic to aspirants.
The government may get the legislation through regardless of Labor’s stand, via the crossbench. If so, the opposition would have to decide whether it would undertake to alter the law if it won the election, or just move right on.
This week’s Newspoll, conducted Thursday to Sunday from a sample of 1790, has Labor leading by 53-47, unchanged since the last Newspoll, three weeks ago. Primary votes are 37% Labor (up 1), 36% Coalition (steady), 11% One Nation (up 2) and 9% Greens (down 1).
32% were satisfied with Turnbull’s performance (down 3), and 55% were dissatisfied (up 1), for a net approval of -23. After creeping above a net -20 rating in the last Newspoll, Turnbull has slid back. Shorten’s net approval was also -23, down three points.
The 2-point lift in One Nation support is probably due to the many headlines about terrorism in the last few weeks. While there has been bad publicity about One Nation’s expenses, One Nation voters are likely to regard this as a media conspiracy to “get” One Nation, and be undeterred.
Since Donald Trump’s election, far right parties in Europe, and at the WA election, have slumped in the closing weeks of election campaigns, and then underperformed their polls on election day. There is no reason to think that a similar pattern will not apply at the next Federal election.
Some have argued that the UK election resembles the Australian 2016 election. As Kevin Bonham says, this is not true. The UK election was held three years early, while the Australian election was held two months early. Furthermore, the Australian election was held early in an attempt to make the Senate more compliant, while the UK election was held solely to attempt to increase the Conservatives’ Commons majority, and this was a dismal failure.
UK Labour leader Jeremy Corbyn succeeded by enthusing the youth vote. With compulsory voting in Australia and full preferential voting required, parties do not need to encourage their supporters to vote. While many on the left would prefer Tanya Plibersek as Labor leader, they will still preference a Labor party led by Shorten higher than the Coalition.
Similarly, many on the right would prefer a PM more right-wing than Turnbull, but they will still prefer the Coalition to Labor.
At the UK general election held on 8 June, the Conservatives lost their majority, winning 318 of the 650 seats, 8 short of an outright majority. The Northern Ireland (NI) Democratic Unionist Party (DUP) won 10 seats. As the DUP is very socially conservative and Corbyn has connections to the IRA, they will support the Conservatives.
All other parties represented at Westminster are to the left of the Conservatives. With the Speaker, John Bercow, omitted from the Conservative total, the Conservatives and DUP would have a wafer-thin majority of 327-322.
However Sinn Féin, which won seven seats in NI, will not take its Westminster seats, owing to historical opposition to British rule of NI. Unless this policy changes, the Conservatives and DUP will have a more comfortable 327-315 majority.
Owing to her loss of authority, PM Theresa May’s YouGov ratings have slumped since the election, while Corbyn’s have surged. This graph shows the net favourable ratings of May, Corbyn, the Conservaitves and Labour before the election campaign, near the end of the campaign, and now.
According to YouGov, just 8% had a favourable opinion of the DUP, while 48% had an unfavourable opinion. Association with the DUP could taint the Conservative brand.
Division within the Conservatives is likely over Brexit. Had the Conservatives won the expected thumping majority, May would have a mandate for a “hard” Brexit. As it is, Conservatives who favour a “soft” Brexit are pushing back.
Elections for the French lower house were completed in yesterday’s second round vote. President Emmanuel Macron’s new party, La République En Marche! (REM), won 308 of the 577 seats, and its ally, the Democratic Movement, won another 42 seats. The centre right parties won 137 seats, the centre left 44, the hard left Unsubmissive France 17, the Communists 10 and the far right National Front 8. Turnout was just 42.6% of registered voters, and only 38.4% cast a valid vote.
At the 2012 lower house elections, the centre left had won 331 of the 577 seats, the centre right 229, the Left Front 10, the National Front and the Democratic Movement 2 each. In 2017, Macron’s centrist movement made huge gains at the expense of both the right and left, with far right and left parties also gaining seats.
In the first round held on 11 June, the REM and Democratic Movement won 32.3% of the vote, the centre right 21.6%, the centre left 9.5%, the National Front 13.2%, Unsubmissive France 11.0% and the Greens 4.3%. Unless a candidate won a first round vote majority, the top two candidates in each seat proceeded to the second round.
Candidates other than the top two who received at least 12.5% of registered voters also qualified for the second round. However, turnout of only 48.7% meant that just one seat was contested by more than two candidates in the second round.
The government has introduced legislation to reform Australia’s citizenship regime, under the guise of strengthening the integrity of citizenship. The bill, if passed in its current form, confers sweeping new powers on the immigration minister.
Access to Australian citizenship has always involved some executive discretion. But if the bill is passed, the minister will gain unprecedented control over the criteria governing citizenship acquisition, the time it takes for a person to gain citizenship after their application has been approved, and even the circumstances in which citizenship can be revoked.
The minister will also be able to override certain citizenship decisions made by the Administrative Appeals Tribunal (AAT).
The bill gives the minister a range of new powers that relate to various aspects of the citizenship acquisition process.
As the government’s discussion paper on the proposed changes indicated, the bill creates several new requirements for citizenship applicants. Aspiring citizens will be required to demonstrate “competent English”, and show they have “integrated into the Australian community”.
The bill gives the minister the power to create regulations determining what these requirements mean. It also allows the minister to determine an Australian Values Statement, which applicants will be required to sign and lodge with their citizenship application.
Where a person’s application for citizenship has been approved, the bill gives the minister a new power to cancel this approval, if he or she determines it should no longer be granted – for any reason.
While determining whether to exercise this cancellation power, the minister may block a person from acquiring citizenship for up to two years by barring them from making the mandatory citizenship pledge.
As foreshadowed, the bill also seeks to give the minister the power to override certain citizenship decisions made by the AAT.
The AAT is an independent administrative tribunal that reviews executive decisions on their merits. A person whose application for citizenship is rejected may apply to the AAT to have this decision reviewed.
The bill enables the minister to personally override AAT decisions in particular circumstances. This power applies where it has reviewed a departmental decision to refuse citizenship, provided a ground for refusal was that the applicant was not of good character, or that their identity could not be determined. The minister must also be satisfied that overriding the AAT is in the public interest.
Additionally, the bill removes the right for an applicant to appeal to the AAT where the minister decides to refuse them citizenship, and states that this is in the public interest.
The bill’s explanatory memorandum stresses that ministerial decisions to override the AAT can be reviewed by the courts. However, this is likely to be of limited utility. This is because courts typically regard the “public interest” as a matter for ministerial determination.
Immigration Minister Peter Dutton has said the proposed power to override AAT decisions merely aligns the minister’s citizenship powers with powers that exist in relation to visa cancellations.
Current law allows the minister to override certain AAT visa decisions where this is in the national interest, and where the character of the visa holder is at issue. However, these existing override powers weaken – rather than strengthen – the case for the new powers the bill proposes.
To apply for citizenship, a person must have held a visa for several years. Throughout this time, the minister has extensive power to revoke that visa and remove the holder from Australia if they fail to meet character requirements.
Given this, the need for sweeping new powers is unclear.
One of the bill’s most insidious features is a proposal to allow the minister to revoke a person’s citizenship, provided they are satisfied the person obtained ministerial approval for citizenship as a result of fraud or misrepresentation. The minister must also be satisfied it would be contrary to the public interest for the person to remain an Australian citizen.
Current citizenship laws allow the minister to revoke citizenship where it is acquired by fraud. However, before this can be done, the person or a third party must be convicted by a court of migration fraud.
If the bill is passed, such a conviction will no longer be necessary. The minister will have the power to determine when fraud or misrepresentation has occurred.
The bill does not spell out the criteria that will be used to make such decisions. But, it does specify that misrepresentation includes “concealing material circumstances”. This absence of criteria creates uncertainty about how the minister will make decisions. It also decreases the prospect of meaningful judicial review.
In particular, it is not clear how the expanded revocation powers interact with the bill’s other provisions.
For example, take a situation where the minister believes a person who has been granted citizenship is not demonstrating the values or integration they were assessed for during the application process. Could the minister revoke citizenship on the basis that the person, when applying for citizenship, misrepresented their values or commitment to integration?
If so, this would create a dangerous back-door route to citizenship revocation for people whose conduct falls far short of the current thresholds that parliament has set.
It is not clear how these extensive ministerial powers strengthen the integrity of Australian citizenship.
We can presume that even without the assistance of Nine’s Laurie Oakes, Washington officialdom would have heard soon enough about Malcolm Turnbull’s riff on Donald Trump at Wednesday’s Midwinter Ball.
After all, among the hundreds of guests in Parliament’s Great Hall was James Carouso, the US embassy’s charge d’affaires. Any diplomat doing their job properly would inform their government about a speech mentioning their country’s leader, regardless of it being “off the record”.
But there’s a world of difference between a discreet report filtered through the channels of bureaucrats and advisers (who may or may not tell the president) and a blaze of publicity in the media.
Trump is not known for humour when the joke’s on him, and Turnbull’s hilarious send-up is likely to go down poorly with him. Whether this matters remains to be seen.
It was a great speech; I’ll leave readers to hunt for the now readily available detail, as I was present on the off-the-record occasion. It was Malcolm unplugged in a witty, clever way, self-deprecating even when he was sending up Trump.
These ball nights see an informal contest between the prime minister of the day and the opposition leader as to who can perform best. The chatter among guests was that Turnbull’s speech clearly beat that of Bill Shorten.
But, as things turned out, it was a risk-laden exercise.
The leaders prepare their speeches for this night, especially because they have to strike a humorous tone and being seriously funny – as distinct from inserting the odd joke – is not their usual stock in trade.
So it is surprising that someone around Turnbull, if not Turnbull himself, didn’t hear a warning bell.
It is not for lack of precedent. There was that most spectacular “leak” from the press gallery’s 1990 dinner when treasurer Paul Keating’s “Placedo Domingo” speech, seen as an attack on prime minister Bob Hawke, which caused a crisis between the two.
This week’s incident has sparked questions and debate about journalists’ ethics and practices.
Should Oakes have put the speech to air? In my opinion, he had absolutely every right to do so – he wasn’t there and so had not consented to the “off-the-record” terms.
Is the leaker, whoever it was, to be condemned? Whether you think they should be, leaks happen. We journalists encourage them, so we shouldn’t be hypocritical about this one.
We should, incidentally, respond with a horse laugh to the attempt by Mathias Cormann to suggest the leak might be Shorten’s fault. That was quickly denied by Oakes.
Should the ball be off the record anyway? Surely this is an absurdity, given the number of people present, including lobbyists, business figures, politicians, staffers and diplomats, as well as journalists.
Obviously leaders would be blander if they were talking on the record. This is not a credible reason, however, for drawing a curtain over what is effectively a public dinner. It simply looks like excessively “insider” behaviour between media and politicians.
But the debate about ethics is less important at the moment than the consideration of possible consequences of Turnbull’s speech.
The latest incident comes against the background of the up-and-down start to the Turnbull-Trump relationship.
There was the fraught phone call early this year in which Trump denounced the deal the Obama administration did for the US to take some refugees from Manus Island and Nauru. At the other extreme came the over-the-top love-in during their press conference in New York when Turnbull, to his discredit, agreed with Trump that the account of the phone call had been fake news.
The government is pushing the point that Turnbull’s Trump references were all just a bit of fun, showing another side of him. The speech was “affectionately light-hearted”, Turnbull has said.
The US embassy played down the affair, saying “we take this with the good humour that was intended”, as did Australia’s ambassador in Washington, Joe Hockey, who quipped: “The administration hasn’t rung us up and I haven’t been hauled into the White House and sent back to Australia so far as I’m aware.”
But in view of the background and Trump’s prickly nature, the government will be holding its breath.
Trump might have so much on his plate that he doesn’t give Turnbull a second thought.
But if he got hissy, what is the worst he could do? The only immediate serious thing one can think of would be to go even more slowly on the refugee deal, already proceeding at a snail’s pace. That indeed would be a high price to pay for a joke or three.
He could be more difficult in future interactions with Turnbull. After Kevin Rudd leaked his disparaging remarks about George W Bush following a phone conversation the two had about the G20, their relationship became particularly frosty.
But the affair should be kept in perspective. Sometimes the Australian and US leaders of the day are joined at the hip – Lyndon Johnson and Harold Holt, John Howard and Bush. Historically, that can be seen as a good or a bad thing. Sometimes relations are tense – Gough Whitlam and Richard Nixon, Rudd and Bush after the G20 affair.
But as is often pointed out, the Australian-American relationship is based on shared interests. Thus Australia failing to forewarn the Americans that it was leasing the Port of Darwin to the Chinese was a much more serious offence than a bit of close-to-the-bone humour.
And, as a story in the Washington Post that reported Turnbull’s speech illustrated, when it comes to Trump Turnbull isn’t on his lonesome. It noted Trump has become “the butt of jokes in capitals around the world”.
“Fellow world leaders appear emboldened to poke fun at him as a way to bolster their political standing,” the story said. Now that would be an upside for Turnbull.
This article is part of the Democracy Futures series, a joint global initiative between The Conversation and the Sydney Democracy Network. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.
The US president’s executive powers are a crucial way to fast-track immigration policies without congressional approval. But with Donald Trump’s executive orders barring entry to people from selected countries, these powers are taking on a new flavour.
While we like to think we live in a democracy with a strong separation of powers, in both Australia and the US the executive government has more power than most people realise – especially when it comes to immigration.
In some respects, executive powers are greater in Australia than in the US. In Australia, executive orders relating to immigration are not subject to the same checks and balances as they would be in the US. There are a few reasons for this.
In the US, all executive orders must be published in the federal register, the official journal of the federal government. This at least makes them visible to Congress and to the general public.
In Australia, there is no such obligation. A good example of this is the immigration minister’s 2013 order authorising “turn-back” operations against vessels carrying asylum seekers as part of Operation Sovereign Borders.
The order was released only after a three-year Freedom of Information battle initiated by Guardian journalist Paul Farrell. Even then, the details of the turn-back operations were redacted or not released on public interest grounds.
In Australia, the public and the courts may not even be aware of the orders being implemented. That means Australians are unable to scrutinise executive orders to the same extent as Americans can. This, in turn, limits the people’s ability to lodge effective legal actions against the government, as they lack the information to build a case.
A second major difference is that Australia does not have a bill of rights, unlike the US. The US Bill of Rights is constitutionally entrenched as the first ten amendments to the US Constitution.
The success in striking down Trump’s recent executive orders relied upon two main provisions: the Fifth Amendment Due Process Clause, which requires a fair trial and prohibits the government indefinitely detaining people, and the First Amendment Establishment Clause, which has been interpreted as prohibiting discrimination based on religion.
Australia’s lack of such protections (constitutional or otherwise) stymies similar legal actions. Still, the Australian government can’t do whatever it wants with immigration. In the absence of legislative authorisation, actions of the executive will only be authorised to the extent they fall under the executive power set out in Section 61 of the Australian Constitution.
However, the precise scope of this power remains a matter of contention. Judges have generally been highly deferential in terms of what immigration measures they uphold.
The Tampa affair in 2001 provides a good example. The MV Tampa, a Norwegian freighter, rescued 433 asylum seekers from a vessel in distress in international waters north of Australia.
When the captain attempted to bring them to Australia, the prime minister, John Howard, ordered special forces to storm the vessel. The asylum seekers were detained at sea for several weeks and later sent to Nauru and New Zealand.
While there was no legislative basis for this decision, the full bench of the Federal Court upheld the action. The decision was based on a broad interpretation of executive powers in the constitution. The High Court has avoided a clear judgment on this issue in subsequent decisions.
In contrast, consider the fate of a series of executive orders issued by President Trump. The most controversial include a 90-day travel ban on people from Iraq, Iran, Syria, Libya, Yemen, Somalia and Sudan, and a 120-day suspension of the refugee resettlement program.
The original order, issued just seven days after Trump’s inauguration, caused panic and chaos at airports all over the world.
Both measures were claimed to be necessary for the purpose of designing “extreme vetting” procedures to identify and exclude Islamic extremists. No evidence was provided to show how countries were selected, or why existing procedures were inadequate. Nor were the relevant government departments and agencies consulted in advance.
After just one week, the order was suspended. A federal judge in Washington state issued a temporary nationwide restraining order.
The decision was based on two constitutional concerns. The first related to due process considerations arising from barring entry to US visa holders without providing them with notice or a hearing. The second was rooted in the prohibition of discrimination based on religion.
While the executive order did not specifically say it targeted Muslims, the court put two and two together, and found the measures discriminatory. The countries subject to the ban were all principally Muslim, and during his campaign Trump had promised a “total and complete shutdown of Muslims entering the United States”.
The Trump administration responded by issuing a new executive order. This order provided more information justifying why nationals from the selected countries presented a heightened security risk.
The number of target countries was also reduced to six, with Iraq being removed, and permanent US residents were exempt. It was the inclusion of US residents in the original ban that had raised the most serious concerns about due process.
Despite these concessions, the courts also suspended the updated executive order. Appeals are pending. The outcome will depend on how the courts apply the long-standing “plenary power” doctrine that gives the political branches a broad and largely exclusive authority over immigration.
In the past, the courts have used this doctrine to uphold discriminatory immigration laws, which would have been unconstitutional in other contexts. This applies particularly to laws targeting immigrants who are outside the US. However, recent decisions indicate that the scope of the plenary power may be narrowing.
Trump’s other executive orders on immigration have largely flown under the radar. The Executive Order on Border Security authorises construction of a wall on the Mexican border and expands the use of mandatory immigration detention.
The Executive Order on Interior Enforcement punishes “sanctuary cities”, or municipalities that are unco-operative with federal authorities in enforcing immigration laws. It also extends the list of non-citizens prioritised for deportation.
In Australia, protections are provided first and foremost through parliamentary representation, an approach informed by Australia’s British constitutional history.
The government of the day sits in parliament with the assumption that an executive that fails to act in the interests of the public can be thrown out of office at the next general election. The Senate, which is not always dominated by the government of the day, can offer oversight as well.
Unfortunately, these protections don’t always work. New arrivals can’t vote. Even if they become citizens, refugees remain a minority and have little influence over election results. It’s also naive to assume that all waves of migrants operate as a cohesive voting bloc.
The immigration executive can also avoid Senate oversight. Operation Sovereign Borders again provides an instructive example. In 2013, citing national security concerns, the minister refused the Senate’s request for information.
Furthermore, as a result of the way that refugee politics has unfolded in Australia, there is bipartisan support for draconian policies. The executive is unco-operative and the Senate does not always punish non-compliance.
For instance, when the minister refused to provide information about Operation Sovereign Borders, a Senate committee recommended “political” and “procedural” penalties. None of these were carried out.
The parliament is also often willing to retrospectively authorise immigration-related actions once judicial proceedings have begun. This happened during the recent High Court challenge to the executive’s power to have asylum seekers detained on Nauru.
Once court proceedings were initiated, legislation was swiftly introduced with bipartisan support to retrospectively authorise the government’s action. A similar approach was taken to validate actions during the Tampa affair.
So, as the world reacts with shock each time Trump issues another far-reaching executive order, it is worth remembering that the use of executive power in Australia is, in many ways, more expansive and unchecked than in the US. This is not limited to immigration. Australian courts have been willing to take an expansive view of executive power in a whole host of policy areas.
Both the Australian and the US public need to remain vigilant. Tolerance of the executive’s attack on the rights of non-citizens threatens to pave the way for similar action against citizens.
Let’s start at the beginning on the vexed issue of foreign donations for political parties and candidates in an environment in which globalisation is adding to challenges in combating foreign interference in electoral processes.
Back in 1918, when the Commonwealth Electoral Act was drafted, no distinction was made between donors from Australia or overseas, or (effectively) between donors who were Australian citizens, non-citizens, or organisations.
In the last year of the 1914-18 war not much thought, if any, was given to the possibility that foreign interests would interfere with the Australian electoral process, or would have an interest in doing so.
But now, in an environment in which commercial and political interests leapfrog national boundaries in ways that must have seemed a remote possibility when the 1918 Commonwealth Electoral Act was drafted, it is time to subject the act to a comprehensive revision.
The aim of this exercise should be to exclude foreign donations. Those bans should extend to organisations engaged in the political process as lobby groups for one side or the other.
It would make little sense for bans to be applied to political parties themselves without also extending such bans to unions and business lobbyists.
As much as anything, such a provision would act as a deterrent to those who might seek to utilise foreign funds improperly.
Government ministers tell you it will be difficult to frame legislation that would stop all foreign funding.
What about grey areas, they ask, such as contributions by companies whose main business is in Australia, but whose headquarters is located elsewhere?
The London-headquartered Rio Tinto is one such example.
These are difficult issues and need to be worked through. There is no simple remedy.
Of course, one option would be to make political campaigns fully publicly-funded, thus obviating the need for private fundraising. But that arrangement potentially discriminates against new entrants who may not qualify for such public funding.
The Australian model in which funding is made available on the basis of past performance has merit. But its weakness is that it advantages the major parties disproportionately.
Then there is the whole murky area of funding for organisations like the conservative Institute of Public Affairs, or groups on the left, like GetUp, which supports progressive causes.
Under present circumstances, organisations like the IPA are not obliged to disclose their sources of funding. Since they are involved in the political process, these lobby groups should be required to open their books.
In the United States, funding for similar organisations is transparent, for the very good reason that just as sunlight is the best disinfectant so is transparency in ascertaining what might motivate groups to adopt certain positions.
The IPA, for example, opposed plain packaging for tobacco products on what it insisted were libertarian grounds. It would have been useful, however, to be apprised of whether the tobacco industry contributes funds to that organisation.
Lobby groups should be obliged to place sources of funding on the public register, especially since many of these organisations derive tax benefits from their status as not-for-profit organisations.
The whole question of “money talks” politics has come into focus in the past week or so with revelations in a Fairfax Media/ABC investigation of money being splashed around political parties by Chinese-born billionaires, one of whom is not an Australian citizen.
Clearly, the aim of these contributions has been to influence Australian politicians in a way that would make them more sympathetic to China’s aspirations.
Indeed, in one case, funding that had been promised to Labor was withheld after one of its spokesmen advanced a point of view contrary to China’s interests.
This was a clear example of money being used – or the threat of funds being withheld – for political purposes. It should be regarded as distasteful, and, potentially intimidatory.
If there is a rule of thumb in politics, it is that money does not bring purity, rather the reverse.
Special Minister of State Scott Ryan, who has responsibility for an overhaul of the Commonwealth Electoral Act as it relates to political donations, acknowledges that grey areas exist that will be difficult to legislate.
In framing the required legislation, Ryan might refer to the Political Finance Database of the International Institute for Democracy and Electoral Assistance, an intergovernmental organisation that supports sustainable democracy worldwide.
The IDEA has a formula that would be helpful in establishing exactly what constitutes a “foreign interest”.
It defines such interests as entities that:
contribute directly or indirectly [and who are] governments, corporations, organisations or individuals who are not citizens; that do not reside in the country or have a large share of foreign ownership.
In the case of the latter provision, framing regulations to stop foreign donations would present challenges. Rio Tinto is just one example of companies with large stakes in Australia, but domiciled overseas.
Perhaps the most compelling argument for an Australian ban on political donations is that, apart from New Zealand, Australia is the only English-speaking democracy to permit such donations.
In New Zealand, overseas donations are capped at $NZ1,500.
In Australia no such cap applies.
However, donations to parties and candidates above $13,200 require the name and address of donor to be supplied. This information must be made available at the end of each financial year.
One reform Ryan might consider is to oblige disclosure more quickly. In last year’s federal election, Prime Minister Malcolm Turnbull made a very significant personal financial contribution to the Liberal Party campaign. But under law, this donation did not need to be disclosed in a timely manner.
Turnbull did reveal his contribution – after the election and only under media pressure.
In the case of that contribution it could be argued that wealth in Turnbull’s case enabled him to fund a campaign that gave him an advantage over his opponents.
On the other hand, the conservative side of politics would say that Labor has an inbuilt funding advantage because it can rely on the support of the union movement.
In recent years, several attempts have been made to clean up what is clearly an unsatisfactory state of affairs.
In 2010, the Labor government introduced the Commonwealth Electoral Amendment (Political Donations and Other Measures Bill) that would have banned donations of “foreign property”.
The bill passed the House of Representatives, but was not proceeded with in the Senate and lapsed at the end of the 43rd parliament.
Labor and the Coalition toyed with the introduction of a donation and disclosure reform bill in 2013, but nothing came of these efforts.
In this latest 45th parliament the Greens have restored their own Commonwealth Electoral Amendment Bill that bans donations of foreign property. This version lapsed at the dissolution of the 44th Parliament.
Now is the time for this whole issue to be re-visited.
Ryan, in conjunction with Attorney-General George Brandis, needs to come up with a bill that seeks to forestall the possibility of candidates and parties being bought and sold in a monied environment that is infinitely more susceptible to influence peddling by foreign interests than it was a century ago.