Victoria may soon have assisted dying laws for terminally ill patients


Ben White, Queensland University of Technology and Lindy Willmott, Queensland University of Technology

An independent group of experts set up by the Victorian government has today delivered its final report outlining 66 recommendations for how voluntary assisted dying would work in the state.

Chaired by former head of the Australian Medical Association, Brian Owler, the Ministerial Advisory Panel’s role was to work out how legislation should be drafted to allow terminally ill people to receive assistance to die. The panel based its report on the recommendations of the Parliamentary committee’s Inquiry into end of life choices in December 2016.

Legislation giving effect to the report is likely to be tabled in the Victorian Parliament within a month.

Who does the law cover?

At the heart of debates about assisted dying are eligibility criteria – who can get assistance to die and who cannot. The panel’s recommendations are broadly consistent with the report of the parliamentary committee. Access is allowed for an adult who can make their own decisions, is terminally ill and their suffering cannot be relieved. They must also be a resident of Victoria.

But the panel widens the committee’s earlier recommendation that a person must be “at the end of life (final weeks or months of life)” to be granted their request. Instead, the current report states the “incurable disease, illness or medical condition” must be expected to cause death in no later than 12 months.

While we agree eligibility should be based on a terminal illness, we don’t favour time limits as they are arbitrary and difficult to accurately predict. They can also lead to people taking harmful steps to fall inside them, such as starving themselves.

But the panel’s recommendation to extend the time to 12 months is still a better approach than the committee’s, as it is likely forming a clinical view about prognosis will be more manageable in that time. Providing a set time frame also avoids the uncertainty of the vague use of the phrase “at the end of life”.

Former AMA president, Professor Brian Owler, chaired the Ministerial Advisory Panel.

Also of note is that the panel specifically stated mental illness alone and disability alone will not satisfy eligibility requirements; but nor will they exclude access to voluntary assisted dying.

What assistance can be provided?

This is primarily a physician-assisted dying model, which means the patient is expected to take the lethal dose of medication themselves. This is a narrow approach to assisted dying as it is the person themselves who takes the final step to end life, not the doctor.

The panel’s approach is consistent with the committee’s report – both are broadly along the lines of the US assisted dying model such as the one in Oregon.

There are downsides to this and we favour a more inclusive model (like in Canada or under the European model) that permits assistance to die being directly provided by a doctor as well. This choice better reflects the autonomy that underpins these laws.

But the panel (and the committee) did recommend an exception where the person is physically unable to take the medication or digest it themselves. This may not be used often but helps address potential discrimination, for example on the grounds of physical disability which prevents someone taking the medication themselves.

What safeguards are there?

The panel has proposed a very rigorous process – comprised of 68 safeguards – that involves three separate requests for voluntary assisted dying (one which is witnessed by two independent witnesses) and two independent medical assessments.

A patient seeking assistance to die must be provided with a range of information including about diagnosis and prognosis, treatment options available, palliative care, and the expected outcome and risks of taking the lethal dose of medication. Doctors involved will have to receive special training about the law and how it operates.

Other safeguards are at the systems level, with a Voluntary Assisted Dying Review Board recommended to examine each case and also to report on how the scheme as a whole is operating. The panel has also proposed a range of new offences specifically about voluntary assisted dying to deter conduct outside the scope of the regime, such as an offence against inducing someone to request assisted dying.

Will these recommendations become law?

Strong public opinion, shifting views in the health and medical professions and international trends towards allowing assisted dying mean it will become lawful in Australia at some point. But will it be in Victoria, and soon?

The politics of assisted dying are notoriously fickle and this is the latest of over 50 bills in Australian parliaments addressing this issue over the past two decades.

But as we have argued in the past, features of this law reform effort suggest it could happen. The process of examining the issue has been very careful, inclusive and thoughtful with multiple reports and engagement with expert opinion and national and international evidence.

The ConversationThis is a narrow assisted dying model with a lot of safeguards. There is also high level and public support of senior politicians on both sides of politics. But as always, the ultimate test is what happens on the floor of parliament.

Ben White, Professor of Law and Director, Australian Centre for Health Law Research, Queensland University of Technology and Lindy Willmott, Professor of Law, Queensland University of Technology

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

Social mix in housing? One size doesn’t fit all, as new projects show


Kate Shaw, University of Melbourne

A recent suggestion that new housing on inner-city public land should start from a presumption of 100% social housing prompted indignation in government circles. “We can’t condemn another generation of Victorians to live in housing poverty,” huffed the housing minister, Martin Foley.

It’s curious, then, that we heard barely a peep about the latest government announcement that the height of an apartment tower associated with the Queen Victoria Market makeover will be reduced by removing the original affordable housing component to a separate, smaller development.

It is tempting to conclude that both responses accord, naturally, with the interests of the developers of private housing. But that would be to over-simplify the complex issue of social mix. It is increasingly clear there is no one-size-fits-all.

The principle of social mix now routinely drives public housing estate renewals and new housing builds on surplus public land. This is usually expressed in a 50:50 mix of social (public and community) and private housing, though the social component is often much smaller. As the stock of public land is ever diminishing, and affordable housing is in such short supply, this is problematic.

I have argued before that government commitments to social mix are often disingenuous. They are more likely to be driven by an ideological imperative to privatise public assets, or at best to secure upgrades to public housing without having to fund them directly.

What does the evidence tell us?

Soon-to-be-published research by Abdullahi Jama and I on the Carlton public housing estate redevelopment supports these conclusions.

Our findings show that public and private residents on the new estate are not mixed. They are divided into separate buildings with separate gardens, explicitly with a view to increasing the value of the private apartments.

The case that normally follows from such a finding is that public and private households should be “salt and peppered” through new apartment buildings to encourage social mixing. While Abdullahi and I agree this is a necessary precondition for social mixing, this is not the entirety of our argument. We question the very basics of the policy orthodoxy on social mix.

The rationale for building upmarket private housing in low-income areas draws on the neighbourhood effects thesis, which says that concentrations of poverty exacerbate its effects.

This might be the case in large areas of disadvantage, such as the US Rust Belt cities, parts of the UK and even some outer suburbs of Sydney and Melbourne. But it doesn’t stand up in highly resourced, gentrified inner cities where community facilities and opportunities for interaction are plentiful.

Paul Watt talks about neighbourhood effects, the disputed idea that poor communities benefit from social mix in urban renewal projects.

Even where poverty is widespread, studies from Toronto, Vancouver, Amsterdam and London show that imposed social mix disrupts support networks and social structures. Involuntary displacement from a neighbourhood often has serious effects on physical and mental health.

Ranjan Balakumaran and Kam Sandhu discuss the displacement of poorer communities by ‘redevelopment’.

Minority communities may benefit from concentration in terms of safety and maintaining their cultural heritage. A substantial body of research shows that social mix policies do not replace the social capital they displace.

So, are there good reasons to introduce social mix?

The strongest argument is the reduction of stigma that for some people comes with public housing. If the public housing is indistinguishable from private housing, the public tenants’ wellbeing is considered to be improved.

It’s not entirely clear, however, whether this is due as much to the housing being new and decent as to having private residents as neighbours. Also unresolved is the question of whether stigma is felt as keenly on estates in gentrified cities, which are islands of public housing in seas of inner-city privilege, as it may be in widely disadvantaged neighbourhoods.

There is certainly evidence that, for some people, being thrust among others from different class and socio-economic groups can increase feelings of inadequacy, discomfort and sometimes hostility.

So how do we provide affordable housing?

These issues vary across place, time and individuals. What is clear is that different responses are needed accordingly.

It is also clear that, with dire shortages of affordable housing in so many cities, all opportunities should be seized to build as much affordable housing as possible. That’s not just public and community housing, but “key worker” housing, “below market rent” housing, co-op housing and community land trusts. Models for all these exist and should be encouraged and explored.

A diversity of housing types must include diverse sources of funding, with a range of support programs. Involving future residents in design and ensuring they know what they’re moving into, and enabling people to organise their own housing, are far more effective ways of building social harmony than enforcing a rigid notion of mix.

The ConversationSeparate buildings for social tenants and private residents next to the Vic Market might be a perfectly reasonable response. But it should come from nuanced public policy and optimal use of public resources, rather than the developers and their sales people.

Kate Shaw, Future Fellow, University of Melbourne

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

Australia’s new ‘Home Office’ is a worry for immigration policy



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Prime Minister Malcolm Turnbull and the minister in charge of the new ‘super-portfolio’, Peter Dutton, announce the changes on Tuesday.
AAP/Mick Tsikas

Adele Garnier, Macquarie University

When Prime Minister Malcolm Turnbull announced the establishment of a Home Affairs portfolio this week, he described it as “similar to the Home Office of the United Kingdom”. Drawing inspiration from this British model is worrisome for the immigration portfolio.

Immigration mismanagement

Planning immigration has never been a core task of Britain’s Home Office. As political scientist Randall Hansen has described, the UK in the 20th century has long managed immigration using its nationality legislation.

Migration management was set to become a priority under the Blair government. Decades after Australia did so, it introduced a points-based system for skilled migrants.

In practice, the Home Office did not anticipate the large inflow of citizens from new members of the European Union in the 2000s. This fuelled public concerns that eventually played a crucial role in Brexit.

Immigration-related Home Office activities have been mired in enforcement issues. From the 1980s to the 2000s, asylum applications took years to process.

More recently, European citizens aiming to apply for residency in the post-Brexit UK have faced a bureaucratic nightmare. This has been criticised by the EU.

What’s in a name?

The Home Office was originally established to protect British citizens, with a focus on Britain’s infrastructure and customs, and on the prevention of entry by “undesirable aliens”. It has historically been inward-looking.

This has also been the case of Australia’s Department of Home Affairs, established at Federation in 1901. After the second world war, a distinct Department of Immigration was established to plan and oversee the expansion of the country’s population. This was a major strategic and economic goal at the time.

In Australia, both the Department of Home Affairs and the Department of Immigration have co-existed over the years, with two exceptions. From the late 1980s to 2007, the former disappeared as its portfolio was handed to the Department of Justice and Customs. Then, in the early 1970s, the Whitlam government abolished the Department of Immigration, because its administrative culture was considered to still reflect the White Australia policy, which had been effectively scrapped in 1966.

The Fraser government reinstated the Department of Immigration in 1976, this time with a strong multicultural rationale. Home Affairs disappeared again in 2013, while Immigration expanded to become the Department of Immigration and Border Protection.

The 2013 name change already meant the department’s focus on immigration became narrower than before. It was now mainly concerned with the admission (or refusal) of immigrants. Settlement and multicultural affairs were transferred to the Department of Human Services.

The newest name change, and its close association with the British model by Turnbull, appears as a symbolic marginalisation of the immigration portfolio. It is not clear yet whether an agency under a Home Affairs “super-ministry” will carry “immigration” in its name.

In Britain, the corresponding agency under the purview of the Home Office is called “UK Visas and Immigration”. Yet it existed for several years as the UK Border Agency (UKBA), with no reference to immigration. The then home secretary, Theresa May, eventually split UKBA in two following the revelation that hundreds of thousands of people had entered the UK without the appropriate checks.

Critical timing

The creeping invisibility of the immigration portfolio comes as the government is overseeing major changes to immigration policy, and is increasingly using the rhetoric of putting Australians first.

In April, the admission of skilled migrants was overhauled with the abolition of the 457 visa. The government shortened the list of professions for which skilled foreign workers would be eligible for a four-year visa to Australia, and subsequently for permanent residence.

A citizenship reform is before parliament. It significantly extends the time permanent residents must live in Australia before they can apply for citizenship. It also introduces more stringent English-language proficiency requirements.

The legislation would require citizenship applicants to demonstrate their allegiance to Australia more strongly, with a pledge to Australian values and proof of integration.

It has been written that, rather than encouraging integration, these changes could result in newcomers feeling more distanced from Australia. The disappearance of “immigration” from the department name may contribute to this uneasiness.

And prospective immigrants to Australia may justifiably fear the changes will cause confusion about division of responsibilities, or a further delay in processing times.

Turnbull has promised the reform will involve strong oversight mechanisms. He noted that such mechanisms were essential to respect the rights and liberties of “all Australians”.

The ConversationAs Amy Maguire noted, Turnbull did not make any specific reference to the rights and liberties of non-citizens living in Australia. One can thus worry to what extent Australia’s “Home Office” will better protect them.

Adele Garnier, Lecturer, Department of Modern History, Politics and International Relations, Macquarie University

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

Greens resignations show a need to change dual citizenship requirements



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The Greens have lost their two co-deputy leaders, Scott Ludlam and Larissa Waters, in a matter of days.
AAP/Mick Tsikas

Lorraine Finlay, Murdoch University

On Tuesday, the Greens’ Larissa Waters became the second senator in under a week to resign from parliament, after discovering she held dual citizenship and was therefore ineligible to hold her seat. Her Canadian citizenship revelation followed Greens co-deputy leader Scott Ludlam’s resignation, after he was found to hold New Zealand citizenship.

It is expected that the Senate will refer both matters to the High Court, sitting in its capacity as the Court of Disputed Returns. The court will almost certainly find both senators ineligible based on their dual citizenship. It will declare the resulting vacancies should be filled by a recount of the ballot papers from the 2016 federal election.

What does the Constitution say?

Section 44 of the Constitution sets out several disqualifications that result in a person being:

… incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

One of those is Section 44(i). It disqualifies any person who:

… is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.

Section 44(i) effectively means that dual citizens are not ordinarily eligible to be elected to parliament.

The High Court has previously held that becoming naturalised as an Australian citizen is not enough on its own to escape this disqualification. A person must also take “all reasonable steps” to renounce their foreign citizenship. Exactly what this requires will depend on the circumstances of each particular case and will, in particular, depend on the law of the relevant foreign country.

In the case of both New Zealand and Canada the process is straightforward. Specific government websites provide clear advice on how to apply to renounce your citizenship.

So, by failing to make a request for release from their foreign citizenship, neither Waters nor Ludlam took reasonable steps to satisfy the requirements of Section 44(i).

Not only does Section 44(i) mean the two Greens senators are unable to remain in the parliament, but they were never actually eligible to be elected in the first place.

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Why are dual nationals ineligible?

Section 44(i) was originally designed to ensure MPs had a clear and undivided loyalty to Australia, and would not be subject to any improper influence from foreign governments.

This reflected the position in the UK. Those born outside “the Realm” were disqualified from holding office in the Privy Council or parliament.

The history and context of this section is important. At the time of the first Australian parliament, nearly half of all members had been born overseas – and any person born in Australia was a British subject. The legal concept of Australian citizenship did not exist until 1949.

Before 2002, any Australian citizen who became a citizen of another country automatically lost their Australian citizenship. Much has changed since Section 44(i) was first drafted.

Should Section 44(i) be reformed?

Several expert bodies and parliamentary committees have considered Section 44(i) over the years and recommended reform. The section has been criticised on several grounds, including its archaic language, unclear scope, and the sheer number of Australian citizens who are potentially disqualified under its terms.

Of particular note, given the events of the past week, has been the criticism that many Australian citizens are likely to be unaware that they are actually dual citizens.

This is not simply an academic concern. Several potential MPs have been ruled ineligible in the past on the basis of holding dual citizenship, including the two major party candidates in the 1992 Wills by-election and a One Nation Senator elected for Queensland at the 1998 federal election. And earlier this year the Court of Disputed Returns rejected a challenge to the eligibility of independent senator Lucy Gichuhi that was based around her previous Kenyan citizenship.

Figures from the 2001 Census show approximately 3 million Australian citizens were born overseas. Among the 224 MPs who currently remain in parliament, 23 were born overseas.

While not every Australian who is born overseas remains a dual citizen, these figures do highlight the significant number of people who are potentially impacted by Section 44(i).

But reform can only be achieved through a constitutional referendum, which is itself a challenging exercise.

There are arguments weighing against any change. The principles that underpin Section 44(i) are still of continued importance. There is no doubt that the integrity of parliament and the loyalty of MPs are vitally important. This issue has been highlighted only recently with claims about the influence of foreign donations in Australian politics.

The ConversationWhen considering changes to Section 44(i), the key is to strike the right balance between maximising participation by Australian citizens while also safeguarding the national interest. Given the events of the past week, now is an opportune time to engage in that conversation.

Lorraine Finlay, Lecturer in Law, Murdoch University

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

The new Department of Home Affairs is unnecessary and seems to be more about politics than reform



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Peter Dutton (right) is set to assume responsibility for the newly created home affairs portfolio.
AAP/Mick Tsikas

John Blaxland, Australian National University

It is difficult not to give in to cynical impulses over Tuesday’s announcement that the government will create a Department of Home Affairs.

Described as a “federation of border and security agencies”, the home affairs minister – set to be the current immigration minister, Peter Dutton – will be responsible for ASIO, the AFP, Border Force, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, and the Office of Transport Security.

The Home Affairs department was announced at the same time the government released an eagerly awaited review of Australia’s intelligence agencies. But the rationale for the creation of a “super ministry” seems to conflate the well-intentioned and important intelligence review with an inadequately justified yet major rearrangement of federal government executive agencies.

Fraught with danger

The Home Affairs model appears to stand on contestable grounds.

There may be an argument to be made about potentially improving internal bureaucratic efficiencies by having power centralised under one minister. However, this is debatable. And the move upends long-standing conventions on how security intelligence and executive police powers are managed separately.

Bringing ASIO and the AFP together in one department and away from the attorney-general is a fraught move.

Multiple royal commissions and a protective security review following the Hilton Hotel bombing in February 1978 saw the police, security and intelligence functions tried and tested by fire. They were found wanting, but were then subject to significant review and reform.

That reform led to an understanding about how best to delineate and maintain the separation of powers while upholding robust accountability. That understanding has come to be broadly accepted as the best way of managing intelligence and security affairs.

This model includes a high degree of healthy contestability concerning intelligence judgements and operational options. This is thanks in large part to the diffusion of power between ministries, and authority between agencies, departments and ministers. These arrangements mean there are clear lines of accountability and responsibility.

Mechanisms for prioritisation and avoiding overlap exist with the Heads of Intelligence Agencies Meetings, the Secretaries Committee on National Security, cabinet’s National Security Committee, and the National Intelligence Collection Requirement Priorities mechanisms. It’s unclear how the new arrangements will alter the dynamics in these contexts.

Under the previous arrangements, in authorising a warrant the attorney-general had to be satisfied it was justified, recognised as consistent with agreed-upon national intelligence collection priorities, resourced appropriately, executed within the legal guidelines, and then suitably reported on in a timely manner.

Under the new arrangements, the attorney-general – having relinquished management responsibility for ASIO – will retain responsibility for issuing warrants and ministerial authorisations. Yet the attorney-general will not, seemingly, be responsible for seeing the process through to its completion.

This change risks diminishing the prospects of a clear connection between ministerial authority and ministerial responsibility. The two functions look set to be performed separately, by the attorney-general and the home affairs minister.

The attorney-general also will gain responsibility for two important oversight agencies: the Independent National Security Legislation Monitor and the Inspector-General of Intelligence and Security. These are two little-understood but important offices that have been performing significant roles to ensure intelligence agencies are accountable and compliant with legislation.

The inspector-general, for instance, has the enduring powers of a royal commissioner. They are able to walk into any sensitive intelligence facility and ask to see any files virtually at any time.

Like the monitor, the inspector-general can report directly to the prime minster. This is a powerful tool to ensure accountability. It is hard to think of a compelling reason for their lines of reporting responsibility to be altered.

What role did the intelligence review play?

Announcing the changes on Tuesday, Prime Minister Malcolm Turnbull did not speak about the intelligence review – undertaken by former senior public servants Michael L’Estrange and Stephen Merchant – in great detail.

However, Turnbull did mention the headline items. These include:

  • the creation of an office of national intelligence (a sensible and graduated move);

  • the better resourcing and management of intelligence capabilities (also a reasonable step);

  • the establishment of the Australian Signals Directorate as a statutory body within the Department of Defence (something talked about for years by insiders); and

  • a bolstering of the profile and placement of the Australian Cyber Security Centre (an unsurprising step given the high profile of cyber affairs this year).

The review also proposed:

  • an expansion of the Inspector-General of Intelligence and Security’s remit to cover agencies with intelligence collection and reporting functions not previously counted as part of the six agencies in the Australian Intelligence Community over which he exercised oversight; and

  • a slightly expanded, operationally-oriented role for the Parliamentary Joint Committee on Intelligence and Security to request briefings and initiate inquiries.

These recommendations are sound. But they were made in isolation of the Home Affairs proposal.

By announcing the review and the new arrangements together, the issues appear conflated. The Intelligence review is well considered and reasonable. The new governance arrangements lack the same level of intellectual rigour for the public to consider and accept.

The ConversationPut together, it suggests this is more about politics than substantive fact-based organisational reform.

John Blaxland, Professor, Strategic and Defence Studies Centre, Australian National University

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

Peter Dutton has his prize – now to see how he handles it


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Peter Dutton comes to the job with, at best, a middling ministerial record.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

The mettle of the man who aspires to be a future Liberal leader is about to be severely tested, now that Malcolm Turnbull has handed Peter Dutton his dream home affairs ministry, overseeing a vast national security empire.

Dutton comes to the job with, at best, a middling ministerial record. His time in the health portfolio was a nightmare. In immigration he has been relentlessly political.

The former Queensland policeman is a natural political head kicker rather than a nuanced policy man.

It was Turnbull who, among other ministers, tore shreds off a 2015 Dutton submission on removing citizenship from people involved with terrorism.

A recent initiative, revamping foreign worker visas, has brought problems for and complaints from business. The announced toughening of the citizenship requirements that makes the English test excessively difficult has been sharply criticised.

Dutton has not so far managed to secure the departure of any of the refugees from Manus Island and Nauru that the US agreed to take.

When he became leader Turnbull wouldn’t have Dutton on cabinet’s National Security Committee. He fought his way back into that key group. He and Turnbull drew close. With Liberal conservatives coalescing around him as their factional heavyweight, Dutton made himself a guardsman for Turnbull.

Turnbull is understandably sensitive to suggestions that the planned home affairs ministry is all about Dutton, whose continued support is so vital to him.

Those around Turnbull insist he has long been committed to a shake-up of national security arrangements, exploring the issues on overseas trips.

But you have to ask: if there were no Dutton, would Turnbull be putting the government through what he is presenting as the biggest reorganisation in four decades, which is going to take many months and a vast amount of effort to implement? Wouldn’t it be a matter of fine tuning rather than root-and-branch change?

After all, the evidence – and the mantra from the government – is that things are working well.

Whatever the motives, and regardless of their personal thoughts, ministers have to defend the new arrangements. This led Attorney-General George Brandis – a long-time opponent of the shift that will cost him responsibility for ASIO – into an unexpected and unconvincing argument at Tuesday’s press conference, which brought together with Turnbull the winner and losers (Dutton, Brandis and Justice Minister Michael Keenan, who cedes the AFP).

Not only did Brandis speak enthusiastically about the new arrangements, but he pointed out that because of his multiple responsibilities he hadn’t been able to focus exclusively on his national security duties.

It sounded like the barrister making a case. If one had put to Brandis six months ago that the present arrangement was unsatisfactory, it’s a fair bet he’d have been dismissive.

But Brandis has retained his responsibility for issuing warrants under the ASIO Act, a power the attorney-general will share with Dutton. They will both have to approve warrants, except in cases where time is of the essence.

One-time ASIO head Dennis Richardson said on Tuesday: “It’s a good thing the attorney-general remains the approval authority for ASIO warrants”. But “it does mean ASIO is effectively responsible to two ministers not one”.

Richardson, in contrast to the government and many commentators, plays down the significance of the broad reorganisation, seeing much of it as presentational.

If Brandis had trouble with many duties, Dutton is likely to have the problem in spades, given the breadth of his responsibilities, that will range from border security to oversight of ASIO, the AFP, the Australian Criminal Intelligence Commission, and much else. The bundle labelled “national security” has varied components.

Most security experts have either challenged the need for change, or said that what is planned is undesirable. Neither Turnbull nor Dutton will be drawn on whether the heads of ASIO or the AFP advocated that they move ministers – because, on all we know, they didn’t.

Turnbull is aware of the dangers of excessively concentrated power – hence his effort to beef up the attorney-general’s scrutiny remit. The first law officer was “the minister for oversight and integrity and that role is being reinforced”, he said. How vigorously this responsibility will be exercised will depend on who occupies the portfolio – Brandis is expected to leave parliament in a few months.

While co-ordination is vital, one risk that has been raised is that too much centralisation can push out counter opinions. It will be up to Turnbull to stop that from happening.

The planned new Office of National Intelligence (ONI), which will subsume the present Office of National Assessments, will report directly to the prime minister.

The office was proposed by the L’Estrange/Merchant intelligence review, in a report released on Tuesday. That review, incidentally, did not recommend a Home Affairs portfolio – although those in the prime ministerial circle stress that it did not recommend against one.

The review says the ONI “would be headed by a director-general who would be the prime minister’s principal adviser on matters relating to the national intelligence community”.

The ConversationWho gets this job and how much Turnbull listens to them will be absolutely critical in how the new centralised system under a highly assertive minister operates. Turnbull and the director of the ONI potentially could be the counterweight to Dutton and the home affairs department.

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Michelle Grattan, Professorial Fellow, University of Canberra

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

Greens senator Larissa Waters forced out of parliament



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Larissa Waters is the second Greens senator to resign in less than a week.
Dan Peled/AAP

Michelle Grattan, University of Canberra

The Greens have lost a second senator in less than a week for having dual citizenship, with Larissa Waters forced to resign on Tuesday after she discovered she was still a citizen of Canada.

Like Scott Ludlam, who quit last week when he found out he had dual New Zealand citizenship, the Queensland senator had been co-deputy leader of the Greens.

She said she had left Canada as an 11-month old baby; she’d been born to Australian parents studying and working briefly in Canada.

She had all her life thought that “as a baby I was naturalised to be Australian and only Australian, and my parents told me that I had until age 21 to actively seek Canadian citizenship. At 21, I chose not to seek dual citizenship, and I have never even visited Canada since leaving.”

After Ludlam’s discovery, she sought legal advice, and was “devastated to learn that because of 70-year-old Canadian laws I had been a dual citizen from birth, and that Canadian law changed a week after I was born and required me to have actively renounced Canadian citizenship”, she said.

“I had not renounced since I was unaware that I was a dual citizen. Obviously this is something that I should have sought advice on when I first nominated for the Senate in 2007, and I take full responsibility for this grave mistake and oversight. I am deeply sorry for the impact that it will have,” she said.

Greens leader Richard Di Natale, heaping praise on Waters, said he was “gutted” by her announcement, coming just a few days after Ludlam’s.

He was initiating an overhaul of the party’s processes.

“I have immediately spoken to our two national co-conveners and we are committed to a thorough root-and-branch review so that we strengthen our governance, improve our internal processes and we make sure that this never happens again,” he said.

“I won’t sugarcoat it, we need to make sure that our internal party processes are up to the challenge,” he said. He did not believe there were any other Greens senators in breach of Section 44 of the Constitution, which prohibits a person with dual citizenship being eligible for election to parliament.

The resignation of Waters opens the way for the possible return to the Senate of Andrew Bartlett, who represented the Australian Democrats from 1997 and 2008. He led the Democrats from 2002 to 2004, and was deputy from 2004 and 2008.

On earlier precedents, the High Court would order a countback which would see Bartlett elected.

It is not clear whether he would then remain in the seat or resign so the Greens could fill it again with Waters.

Bartlett said on Facebook that the party’s membership “will be having many conversations over the next few days as we process what has happened and determine what is the best way forward to ensure we remain a strong voice for the essential values the Greens promote”.

Other foreign-born Greens senators hit Twitter to declare their citizenship credentials were in order. Tasmanian senator Nick McKim said he renounced his UK citizenship in 2015, before being nominated by the Tasmanian parliament to the Senate. Fellow Tasmanian Peter Whish-Wilson, born in Singapore, said he did not have dual citizenship.

The ConversationFor good measure, One Nation’s Malcolm Roberts, born in India, and Labor’s Sam Dastyari, born an Iranian citizen, also tweeted they were in compliance with constitutional requirements. Finance Minister Mathias Cormann, who migrated from Belgium, said in a statement that he automatically lost his Belgian citizenship when he became an Australian citizen in 2000.

https://www.podbean.com/media/player/b9kr9-6cf745?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.

Caution needed as the government expands the military’s role in counter-terrorism



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Malcolm Turnbull announced the proposed changes in front of heavily armed special forces soldiers.
AAP/Brendan Esposito

Keiran Hardy, Griffith University

The government’s announcement of plans to strengthen the Australian Defence Force’s (ADF) role in domestic counter-terrorism operations appears to be a quick and decisive reaction to the New South Wales coroner’s report on the Lindt Café siege in 2014.

The proposed changes may help to clarify some of the confusion surrounding the role of state police and the ADF in responding to terror attacks. However, to prove effective in practice, the changes will depend heavily on the willingness of state police to accept military advice and assistance.

Changes to call-out powers

The major change proposed is to relax the call-out powers for ADF assistance during a terrorist attack. Prime Minister Malcolm Turnbull described the existing law as “cumbersome” – and it certainly sets a high bar for requesting military involvement.

Currently, the Commonwealth Defence Act provides that the ADF can be called out to respond to violence within state boundaries, but only where:

  • a state government requests such assistance; and

  • the state “is not, or is unlikely to be, able to protect itself”.

This is consistent with the Constitution, which allows the Commonwealth to protect states against internal violence “on the application of the executive government of the state”.

A formal request for ADF assistance was not made during the Sydney siege. Despite the many recognised problems with its response, the NSW police force did not believe its capacity to respond to a single armed offender was inadequate.

Details of the proposed changes have not yet been released. But it appears that state governments will be able to request “specialist” or “niche” assistance from the ADF. For example, they may request assistance with specific weaponry such as sniper rifles or other high-powered weapons.

This will provide more flexible arrangements for state governments to request ADF involvement. Rather than admitting that its overall capacity to respond to a terrorist incident is inadequate, a state government could request assistance on more specific grounds.

However, it appears the process will still require state governments to request assistance from the Commonwealth. Whether state police forces will concede that their ability to respond to terrorism is inadequate – even on more specific grounds – remains to be seen.

It also appears that requests for ADF involvement will depend on whether state police classify an incident as an act of terrorism. This in itself is open to interpretation, and may prove difficult to determine in practice.

Changes to military liaisons

Another proposed change is to embed military liaison officers within state counter-terrorism police units. This will help build a closer relationship between the ADF and state police forces – if they can work together well.

During the Sydney siege, ADF liaison officers attended the police forward command post. In his report, the NSW coroner noted that the role of these officers was poorly understood, and that NSW police could have drawn on their expertise to a greater extent.

Controversy remains over whether police failed to heed military advice that their bullets would fragment on hard-tiled surfaces.

Formalising military liaison positions will help clarify the ADF’s role in circumstances that fall short of a formal call-out. However, it seems the key problem to date has not been an absence of military advice, but a lack of willingness to accept it.

Changes to training

A third major change is for special forces soldiers to provide enhanced training to state counter-terrorism police. This is likely to be the most effective strategy for improving operational responses to terrorism.

The ADF has two tactical assault groups – East and West – based in Sydney and Perth respectively. Realistically, these specialist units could only respond to a terrorist attack in one of those cities, or in the event of an extended siege. Having specially trained state police is crucial if first responders are to deal adequately with the threat of terrorism.

Improved training procedures will enable state police to draw on the expertise of Australia’s special forces, while avoiding territorial issues as to who should have jurisdiction in the event of an attack. They also avoid difficult constitutional and democratic issues regarding the expanding role of the military in domestic crime control.

The ConversationSeeing Turnbull flanked with soldiers in gas masks, as well as soldiers patrolling the streets of Paris and London, should urge caution against an expanding role for the military in public life.

Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith University

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

Peter Dutton becomes national security ministerial tsar in portfolio shake-up



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The reorganisation is a major win for Peter Dutton, a key conservative supporter of Malcolm Turnbull.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

Peter Dutton will take charge of a new mega Home Affairs portfolio in a sweeping overhaul of national security agencies and responsibilities announced by Malcolm Turnbull on Tuesday.

The reorganisation is a major win for Dutton, a key conservative supporter of Turnbull, and comes despite scepticism from many experts and several ministers about the need for – or desirability of – the change.

Turnbull said the new Home Affairs portfolio would be similar to the United Kingdom’s Home Office, which he discussed while in London last week. It will include the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police (AFP), the Australian Border Force, and the Australian Criminal Intelligence Commission.

Turnbull stressed the restructuring was his call, after extensive consultation with colleagues. The changes were the most significant security and oversight reforms in four decades, he said.

Following a just-completed review of the Australian Intelligence Community by two former federal officials, Michael L’Estrange and Stephen Merchant, the government will set up an Office of National Intelligence, headed by a Director of National Intelligence. The Australian Signals Directorate will become a statutory authority within the defence portfolio.

The report did not recommend a mega portfolio.

The broad reorganisation will take months to implement, and Dutton will be home affairs minister-designate until it is completed and he is sworn in as the new minister. This points the way to a summer reshuffle, with Attorney-General George Brandis widely tipped to exit parliament then.

In an apparent concession to Brandis and to head off criticism about civil liberties, the attorney-general will continue to be the issuer of warrants under the ASIO Act. The home affairs minister will also issue these warrants. Exceptions will be made to the need for double approval when the circumstances are time-sensitive.

The attorney-general’s portfolio will also include the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor. Both are now in the prime minister’s portfolio.

“I always have believed strongly in the role of the government’s first law officer. It will only become more critical as threats continue to evolve,” Turnbull told a news conference, flanked by Brandis, Dutton and Justice Minister Michael Keenan.

“So, I am determined to ensure effective oversight,” he said, insisting it would be stronger under the changes.

The first law officer was the minister for oversight and integrity, he said.

Turnbull said that, given the challenges, “we need more enduring and better integrated arrangements for our domestic and border security – arrangements that will preserve the operational strengths and independence of our front line agencies but improve the strategic policy planning behind them”.

“We are taking the best elements of our intelligence and national security community and making them better. As terrorists evolve their methods, we have to evolve our responses.”

But recently retired secretary of the defence department Dennis Richardson, speaking at the Lowy Institute, played down the significance of the changes, saying they were not some great advance. There was a reasonable argument for immigration merging with other areas but beyond that it was presentational.

Turnbull said that Dutton would have two ministers working to him one on the security side and the other on the immigration side. Justice Minister Michael Keenan would be on the security side but Turnbull did not say who would be the junior on immigration.

The changes, expected to become operational early next year, will require some legislative amendment, especially in relation to ASIO. A taskforce will work on the complicated reorganisation; in the meantime the agencies will continue to report to their current ministers.

While critics have suggested a reorganisation would risk diverting the agencies’ attention while it was happening, Turnbull said: “There will be no reduction in frontline capacity, focus or operational tempo”.

Brandis, previously a known opponent of moving ASIO from the attorney-general’s portfolio, told the news conference: “These are historic reforms and they have my strong support”.

Dutton said: “Having made the promise to stop the boats and to make sure that we can keep our borders secure, we make this announcement today with this promise: the home affairs portfolio is dedicated to keeping Australians safe, to doing everything that we can to defeat the surge of terrorism, but beyond that, to work with our agencies in relation to transnational crime, in relation to organised crime, in relation to many other aspects of criminal activity within our country”.

Opposition Leader Bill Shorten said: “I don’t think this is a captain’s call, I think it’s Peter Dutton’s call”.

The ConversationHe said he was “very concerned that these proposals aren’t being pushed by our security agencies, they’re being pushed by Peter Dutton as the price of him continuing to support Malcolm Turnbull in his job”.

https://www.podbean.com/media/player/b9kr9-6cf745?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.

New Home Affairs department should prompt review of Australia’s human rights performance



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AAP/Lukas Coch

Amy Maguire, University of Newcastle

Prime Minister Malcolm Turnbull has just announced the creation of a new “super-ministry”, modelled on the UK Home Office. By the end of 2018, Australia will have a new Department of Home Affairs.

This change consolidates responsibility for all security agencies within a single portfolio. Peter Dutton, currently immigration minister, will head the proposed department.

Dutton gains responsibility for the Australian Federal Police from Justice Minister Michael Keenan. He also adds responsibility for ASIO, previously under the portfolio of Attorney-General George Brandis. As home affairs minister, Dutton will retain responsibility for immigration and border protection.

Announcing the change, Turnbull and Brandis went to considerable effort to note the attorney-general’s continued significance, despite his loss of responsibility for intelligence. Both emphasised that the attorney-general would gain responsibility for some oversight bodies previously within the prime minister’s portfolio.

According to Turnbull, the new arrangements will ensure stronger oversight of security matters to balance protection for civil liberties and freedoms.

What does this reform mean for people subject to Australia’s immigration system?

The comments of the four ministers at today’s press conference were revealing in many ways.

One group of people – refugees and asylum seekers – were completely absent from the ministers’ remarks. This raises questions regarding the meaning of the changes for these particularly vulnerable people, who remain subject to the powers of the home affairs minister.

Brandis said the reforms are significant because, for the first time, a senior cabinet minister will have as his exclusive focus the national security of Australia. That is, the home affairs minister’s sole focus will be national security and border security.

Dutton, preparing to assume wide-ranging new powers, reflected on his ministry’s success in stopping and turning back boats. According to Dutton, without integrity in the immigration and border protection system, “we can’t keep our country safe”.

And Keenan celebrated the government’s novel use of the immigration system to further its national security priorities.

The sum of these propositions is a continued linking of people seeking asylum with the notion of a threat to Australia’s integrity and security. Today’s announcement failed to show care or responsibility for the dehumanising impact of this strategy.

Instead, Dutton takes on a considerably expanded portfolio, despite extensive critique regarding his efforts to expand already very broad powers.

Australia’s bid for the UN Human Rights Council

Foreign Minister Julie Bishop was absent from today’s announcement. She is currently visiting India and Sri Lanka.

Her opposition to the creation of the new super-ministry has been widely reported.

Until today’s press conference, Brandis was also on record as opposing the creation of a super-ministry. This may explain the emphasis Turnbull placed on the oversight role of the attorney-general for “ensuring governments act lawfully and justly”.

Others will consider whether this change is called for in the sense of enhancing Australia’s security capacity or performance. But today’s announcement must also be assessed in the context of Australia’s human rights standing.

Bishop and Brandis have taken primary responsibility for promoting Australia’s current bid for election to the UN Human Rights Council. According to the Department of Foreign Affairs and Trade, Australia is the ideal candidate for a two-year term on the council, as it has been – and continues to be – an “international human rights leader”.

The government has taken steps to demonstrate Australia’s commitment to human rights, in support of its campaign.

For example, in February, Brandis announced that Australia would adopt the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT aims to improve oversight of international standards at the domestic level. Its adoption in Australia will enable access for independent inspection agencies to Australian prisons and detention centres.

And, fortunately for Australia, France recently withdrew as a candidate. Although an election will still be held in October this year, Bishop is now confident that Australia and Spain will be elected unopposed to the two available seats for their regional grouping.

Regardless of the likelihood of its election, however, does today’s shift in the national security context support the legitimacy of Australia’s bid for election to the Human Rights Council?

In launching Australia’s bid, Bishop described human rights as “national values deeply embedded in Australian society”. Brandis described Australia’s candidacy as:

… the most natural thing in the world for a country which – at its core – is a nation built on a belief in, and a commitment to, the human rights of all – the human rights of all Australians and the human rights of all the peoples of the world.

Such characterisations are widely disputed by domestic and international commentary, which tests Australia’s performance against its international legal obligations.

Notably, the people ignored in today’s announcement – those seeking asylum from persecution in their home countries – have suffered human rights abuses in Australia’s immigration system.

It is difficult to see how the consolidation of far-reaching security powers in a single ministry will promote human rights. Outgoing Human Rights Commission president Gillian Triggs has already identified expanding executive power as a threat to democracy and human rights.

While the protection of the Australian community from terror threats is an undeniable and legitimate priority for any government, lawyers must oversee the coming reforms to determine whether they further threaten the delicate balance between safety and security on one hand, and freedom and rights on the other.

Australia’s model for these reforms, the UK Home Office, hardly has a stellar human rights record. It has been recently criticised for “making border guards of doctors”. Its officials have been given incentives for reaching asylum seeker rejection targets.

And in June this year, UK Prime Minister Theresa May demanded expanded anti-terror powers for government. She said:

… if human rights laws stop us from doing it, we will change those laws so we can do it.

The ConversationThe human rights implications of today’s announcement must be carefully monitored, particularly considering the lack of comprehensive human rights protection in Australian law.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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