Minister to get unprecedented power if Australia’s new citizenship bill is passed



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It’s not clear how proposed extensive powers for the immigration minister strengthen the integrity of Australian citizenship.
AAP/Lukas Coch

Sangeetha Pillai, UNSW

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).

Powers to control citizenship acquisition

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.

Power to override AAT decisions

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.

Power to revoke citizenship

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.

What’s next?

It is not clear how these extensive ministerial powers strengthen the integrity of Australian citizenship.

The ConversationQuite the contrary, creating broad executive powers with minimal review undermines the rule of law. This, ironically, is said to be one of the fundamental values underpinning Australian citizenship.

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

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

Turnbull’s Trump riff won’t please The Donald but it could be a hit at home



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Malcolm Turnbull’s Midwinter Ball speech parodying Donald Trump has received international attention.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

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”.

The Conversation“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.

Michelle Grattan, Professorial Fellow, University of Canberra

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

As Trump ups the ante, executive powers should worry Australians too


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The executive government in Australia has more power than most people realise, especially when it comes to immigration.
Cody Austin/flickr, CC BY-NC-ND

Anna Boucher, University of Sydney and Daniel Ghezelbash, Macquarie University

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.

Differences in transparency

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.

As immigration minister, Scott Morrison wouldn’t release his order authorising turn-backs of asylum-seeker boats.
DFAT, CC BY

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.

Australia lacks a bill of rights

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.

Trump tests limits of executive power

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.

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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.

Other than court action, what protections are there?

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.

The ConversationBoth 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.

Anna Boucher, Senior Lecturer in Public Policy and Political Science, University of Sydney and Daniel Ghezelbash, Lecturer, Macquarie Law School, Macquarie University

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

Turnbull government must find a way to rid Australia of foreign donations



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Attorney-General George Brandis (left) and Special Minister of State Scott Ryan need to work together to reform foreign donations laws.
AAP/Dan Peled

Tony Walker, La Trobe University

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.

The ConversationRyan, 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.

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

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

The new data retention law seriously invades our privacy – and it’s time we took action



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Then government’s new law enabling the collection of metadata raises serious privacy concerns.
shutterstock

Uri Gal, University of Sydney

Over the past few months, Australians’ civil rights have come under attack.

In April, the government’s data retention law came into effect. The law requires telecommunications companies to store customer metadata for at least two years. Metadata from our phone calls, text messages, emails, and internet activity is now tracked by the government and accessible by intelligence and law enforcement agencies.

Ironically, the law came into effect only a few weeks before Australia marked Privacy Awareness Week. Alarmingly, it is part of a broad trend of eroding civil rights in Western democracies, most noticeably evident by the passage of the Investigatory Powers Act in the UK, and the decision to repeal the Internet Privacy Law in the US.

Why does it matter?

Australia’s data retention law is one of the most comprehensive and intrusive data collection schemes in the western world. There are several reasons why Australians should challenge this law.

First, it undermines the democratic principles on which Australia was founded. It gravely harms individuals’ right to privacy, anonymity, and protection from having their personal information collected.

The Australian Privacy Principles define limited conditions under which the collection of personal information is permissible. It says personal information must be collected by “fair” means.

Despite a recent ruling by the Federal Court, which determined that our metadata does not constitute “personal information”, we should consider whether sweeping collection of all of Australian citizenry’s metadata is consistent with our right to privacy.

Second, metadata – data about data – can be highly revealing and provide a comprehensive depiction of our daily activities, communications and movements.

As detailed here, metadata is broad in scope and can tell more about us than the actual content of our communications. Therefore, claims that the data retention law does not seriously compromise our privacy should be considered as naïve, ill-informed, or dishonest.

Third, the law is justified by the need to protect Australians from terrorist acts. However, despite the government’s warnings, the risk of getting hurt in a terrorist attack in Australia has been historically, and is today, extremely low.

To date, the government has not presented any concrete empirical evidence to indicate that this risk has substantially changed. Democracies such as France, Germany and Israel – which face more severe terrorist threats than Australia – have not legalised mass data collection and instead rely on more targeted means to combat terrorism that do not jeopardise their democratic foundations.

Fourth, the data retention law is unlikely to achieve its stated objective and thwart serious terrorist activities. There are a range of widely-accessible technologies that can be used to circumvent the government’s surveillance regime. Some of them have previously been outlined by the now-prime minister, Malcolm Turnbull.

Therefore, in addition to damaging our civil rights, the law’s second lasting legacy is likely to be its contribution to increasing the budgetary debt by approximately A$740 million over the next ten years.

How can the law be challenged?

There are several things we can do to challenge the law. For example, there are technologies that we can start using today to increase our online privacy.

A full review of all available options is beyond the scope of this article, but here are three effective ones.

  1. Virtual private networks (VPNs) can hide browsing information from internet service providers. Aptly, April 13, the day the data retention law came into effect, has been declared the Australian “get a VPN day”.

  2. Tor – The Onion Router is free software that can help protect the anonymity of its users and conceal their internet activity from surveillance and analysis.

  3. Encrypted messaging applications – unprotected applications can be easily tracked. Consequently, applications such as Signal and Telegram that offer data encryption solutions have been growing in popularity.

Australian citizens have the privilege of electing their representatives. An effective way to oppose continuing state surveillance is to vote for candidates whose views truly reflect the democratic principles that underpin modern Australian society.

The Australian public needs to have an honest, critical and open debate about the law and its social and ethical ramifications. The absence of such a debate is dangerous. The institutional accumulation of power is a slippery slope – once gained, power is not easily given up by institutions.

And the political climate in Australia is ripe for further deterioration of civil rights, as evident in the government’s continued efforts to increase its regulation of the internet. Therefore, it is important to sound a clear and public voice that opposes such steps.

Finally, we need to call out our elected representatives when they make logically muddled claims. In a speech to parliament this week Tuesday, Turnbull said:

The rights and protections of the vast overwhelming majority of Australians must outweigh the rights of those who will do them harm.

The ConversationThe data retention law is a distortion of the logic embedded in this statement because it indiscriminately targets all Australians. We must not allow the pernicious intent of a handful of terrorists to be used as an excuse to harm the rights of all Australians and change the fabric of our society.

Uri Gal, Associate Professor in Business Information Systems, University of Sydney

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

Ten Network has a hard road back to viability


Peter Wells, University of Technology Sydney

With Ten Network in voluntary administration, efforts are under way to restructure the company. But having lost A$231.2 million in the half-year ending February 2017, it will take a lot to make Ten a viable business.

In the short term, Ten has to focus on reducing costs by renegotiating contracts with its suppliers. Over the long term, Ten has to contend with changing demographics and falling television advertising. The company has to receive more revenue from the content it already has, and the best way to do that may be through a tie-up with Foxtel.

How to make Ten viable

Entering voluntary administration provides an opportunity to reorganise Ten and renegotiate contracts. Changing media ownership laws would doubtless make this easier, by allowing some of the major shareholders to take the company private.

In the short term, Ten should aim to reduce expenses, aiming for annual savings of A$80 million. In a release to the ASX, Ten talks about renegotiating contracts with the studios it buys content off, notably CBS and 20th Century Fox. Ten had already identified these cost reductions, but entering voluntary administration will give the company a stronger bargaining position.

However, these negotiations are just the beginning of content changes. Ten will need to produce content more cheaply and aligned to a changing target demographic. As younger viewers moved away from traditional television, Ten’s programming has suffered. Voluntary administration will give Ten more power to renegotiate contracts with domestic suppliers too.

Longer term, Ten needs to protect and expand its revenues. With television advertising declining, Ten needs to reach more viewers so that it can maximise the revenue from the content it has. Distributing content through more channels, such as realising the full potential of streaming, would enable more efficient use of content and increase the potential audience.

But developing these channels by itself might not be a viable option as Ten has neither time nor financial resources. This is why it makes sense to tie up with Foxtel, already a major shareholder and a big player online.

A common theme to these strategies is that Ten needs to compete more effectively for content and advertising revenues. This means that regulatory constraints must be removed if it is to fight for long-term financial sustainability.

Overcoming financial hurdles

A major contributor to Ten’s recent half-year loss was a one-off impairment charge – the company wrote down A$214.5 million from the value of its television licences.

But, even allowing for this one-off item, there was still a substantial loss and the financial pressures have been building for some time. Much of this pressure stems from a decline in revenues from A$998 million in 2011 to only A$689 million in 2016. The 2016 annual report even notes a structural change in advertising as a risk facing the company.

Over this same period Ten has been working to reduce operating costs, but obviously this has been difficult. The financial reports do not give exact breakdowns of costs, but we do know that content contracts with CBS and 20th Century Fox are substantial and need to be reduced.

If there is one thing we can be certain of, it is that there must be substantial change in the business for Ten to recover.

Further contributing to Ten’s woes are loan facilities that expire in December. This includes borrowing that amounted to A$73.8 million at the end of February and which needs to be repaid in the short term.

Unless Ten can negotiate an extension to its loan facility at the Commonwealth Bank, the solvency of the business becomes doubtful. Failure to get backing for a new loan to replace the current one in December is reportedly one of the reasons Ten decided to go into voluntary administration.

The ConversationPreviously, major shareholders had provided guarantees for Ten’s banking facilities, but this is difficult to justify given the state of the business. Regardless, it would not resolve the underlying issues. For Ten to be viable, it needs to get a handle on costs and reach more viewers with the content it has.

Peter Wells, Professor, Accounting Discipline Group, University of Technology Sydney

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

The NDIS costs are on track, but that doesn’t mean all participants are getting the support they need


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Many people who are dissatisfied with the scheme have reported they couldn’t find care providers to deliver their funded and approved plans.
from shutterstock.com

Helen Dickinson, UNSW

The National Disability Insurance Scheme (NDIS) is “on track in terms of costs”, according to a position paper released by the Productivity Commission this week. The report further stated that:

if implemented well, it will substantially improve the well-being of people with disability and Australians more generally.

But the Commission’s paper also expressed some significant concerns at the speed the scheme is being rolled out, and that this could undermine its overall effectiveness. The report highlighted a number of areas that are proving challenging for those accessing the scheme. It noted that such barriers to access are, in fact, contributing to keeping the costs on track.

Where the NDIS is succeeding

Rarely a day has gone by in recent months without a news story about the perceived failings of the NDIS. The scheme has been reported as “plagued with problems” and concerns aired about a potential “cost blowout” .

As a result, the government asked the Productivity Commission to undertake an independent review into the overall costs of the scheme, its value for money and long-term sustainability. The full report is due by September.

The current position paper goes to great lengths to acknowledge the size of the challenge in delivering the NDIS. It argues that the

scale, pace and nature of the changes it is driving are unprecedented in Australia.

When fully implemented, the scheme will involve the delivery of individualised support to 475,000 people at a cost of A$22 billion per year.

There is no doubt the NDIS is complex, but the Commission finds that there is “extraordinary” commitment to the success and sustainability of the scheme. It notes that making the scheme work is not simply the job of the National Disability Insurance Agency (NDIA), but also that of government, participants, families and carers, providers and the community.

Based on the data collected, the Commission finds NDIS costs are broadly on track with the modelling of the NDIA. A greater number of children are entering the scheme than expected, leading to some cost pressures, but the report notes the NDIA is putting initiatives in place to help deal with these challenges.

The report also finds benefits of the NDIS becoming apparent, with many, but not all, NDIS participants receiving more disability support than previously and having more choice and control.

Problems with the scheme

Many people who are dissatisfied with the scheme have reported they couldn’t find care providers to deliver their funded and approved plans. This kind of under-utilisation of services is a factor contributing to keeping costs on track. Such findings are in line with recent independent research into consumer experiences of the scheme.

Overall the report finds there is insufficient flexibility in the NDIA’s operational budget and that money could be spent more in a way that reflects the insurance principles of the scheme, such as greater amounts of funding being invested in prevention and early intervention services.

The process of care planning needs greater attention. Pressure on the NDIA to get numbers of people on to the scheme means that the quality of the care planning processes have been decreased in some cases. This has caused “confusion for many participants about planning processes” and has resulted in poor outcomes for them.

There is a significant challenge in relation to the disability care workforce. The Commission estimates that one in five new jobs created in Australia in the next few years will need to be in the disability care sector. The report notes that current approaches to generating greater numbers of workers and providers are insufficient.

A range of responses required to address these include a more targeted approach to skilled migration, better market management, and allowing formal and informal carers to provide paid care and better price monitoring and regulation.

The interface between the NDIS and other disability and mainstream services has also proved problematic. There is a lack of clarity in terms of where the responsibilities of different levels of government lie and who should be providing which services. Some people with a disability have lost access to supports they used to get as state government disability services close down.

Need for political will

The Commission describes the roll-out to the full scheme as “highly ambitious” and expresses concern it risks not being implemented as intended. Indeed the speed of the NDIS roll-out is described as having “put the scheme’s success and financial sustainability at risk”.

The report concludes that if the scheme is to achieve its objectives there needs to be a

better balance between participant intake, the quality of plans, participant outcomes, and financial sustainability.

The NDIS is taking a number of steps to deal with these issues but the Commission “is unable to form a judgement on whether such a refocus can be achieved while also meeting the roll-out timetable”.

The ConversationWhat all of this means is that we will need to see some enormous political will to enable the scheme to be supported to reach its full potential. This will likely involve some slowing of the timetable for implementation and some difficult work to deal with a number of the areas that have been identified as problematic. Whether the government has an appetite to see this through remains to be seen.

Helen Dickinson, Associate Professor, Public Service Research Group, UNSW

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

Ten Network’s problems are history repeating


Marc C-Scott, Victoria University

Reporters at the Ten Network relayed the news of their employer’s voluntary administration, during a staff meeting. The network was looking to refinance to the tune of A$250 million, after its existing finance was due to expire on December 23.

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But Ten’s directors said they were left no choice but to appoint administrators from KordaMentha to try to recapitalise or sell the business. Lachlan Murdoch, who owns a 7.7% share of Ten (via his private investment fund Illyria), and Bruce Gordon, who owns 14.96% (via Birketu), are now teaming up to offer a rescue package to restructure the network, though the details are still to be sorted out.

This will see the two shareholders treated as an association rather than a merged entity to prevent triggering a compulsory acquisition provision or a breach of the existing two-out-of-three cross-media ownership rule.

While this all may appear to be contemporary issues for the company, Ten has faced many hurdles during its lifespan of little over 50 years.

Ten has been in trouble before

The network began in the 1960s, originally named the Independent Television Network, before promptly being renamed the 0-10 Network. The network’s Melbourne-based station (ATV-0) began its official broadcast on August 1 1964, with other metro stations starting the year after.

Ken Inglis argues in his book, Whose ABC?, that Ten struggled during its early establishment and that the Whitlam government made attempts to buy the network to use it as a second channel for the ABC.

But the network debuted popular shows during this time, such as Number 96, and its high ratings pushed the price higher than the government was willing to pay.

Remembering Number 96.

Ten also faced a crisis after Frank Lowy bought the network from Rupert Murdoch. Murdoch was forced to sell due to changes to the media ownership laws in 1987, which prohibited a media company owning both a newspaper and television station in the same city.

Lowy said that “TV was like any other business”, although he quickly found out it was not. Lowy asked Ian Gow, who had previously worked at the Nine Network, to run the network. According to Gow, Lowy had “bought the worst house in the best street and [wanted] to renovate”.

Despite the initiatives Gow implemented, including selling off the Adelaide, Perth and Canberra stations, the network was forced into receivership in September 1990. Communications corporation CanWest Global bought 57.5% of Network Ten from Westpac Bank for A$275 million and then re-established a capital city network in 1995.

During 1999 Ten formed a joint venture with Village Roadshow Limited, Village Ten Online (VTO). Network Ten argued this was a “strategically defensive move” to develop and market content for the next generation. Ten stated in its 1999 annual report that the joint venture planned to produce a series of websites targeted specifically at the under-40s market.

The first major announcement of the venture was Scape.com, which was launched in October 2000. The CEO of Ten Ventures, Peter O’Connell, described Scape as:

An exciting new presence on the Internet, with all the necessary attributes to appeal to increasing numbers of online service users.

But in March of the following year, less than six months from its launch, Village Roadshow and Network Ten released a joint press release stating that Scape had been placed in voluntary administration and ceased operation. Both companies had contributed A$22 million to the joint venture.

Ten’s future

Ten’s future is unclear and this will not only impact the network, but some of its key stakeholders.

This recent announcement will affect Bruce Gordon, who holds a 14.96% share in Ten and also owns WIN Television, in two ways. The first is due to his financial stake in the network, which could expose his investment companies to liability. Secondly, WIN Television is the regional affiliate of Ten. Any changes to Ten or its programming would impact WIN and its regional stations across Australia that rely heavily on Ten’s programming.

Foxtel is another major shareholder that could be affected by any changes made to Ten. Any restructure or sale could impact the recent approach by both Foxel and Ten to partner in programming including GoggleBox, Common Sense, A-League and V8 Supercars. This approach could be used as part of the negotiations for the upcoming Cricket Australia media rights. Ten holds the rights for the Big Bash League and, while it would not like to lose these rights, a partnership with Fox Sports could allow it still to gain access to some games.

The ConversationWhat is clear is that Ten will have to attempt to break the traditional broadcast model and rethink what a television network is in the current media landscape. If it can achieve this it could potentially place the network in a strong position to compete not only with other local television broadcasters, but also with new media players that are stealing their ad revenue and audience share.

Marc C-Scott, Lecturer in Screen Media, Victoria University

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

For $70m, government gets off lightly, but settlement still highlights responsibility for Manus



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$70 million is tiny sum in the scheme of the federal government’s expenditure to manage asylum seekers who arrive by sea.
AAP/Eoin Blackwell

Alex Reilly, University of Adelaide

The federal government on Wednesday reached a settlement with 1,905 detainees on Manus Island for A$70 million. The settlement was agreed immediately before a trial was due to begin in Victoria’s Supreme Court. The case alleged the Commonwealth and its detention centre contractors, G4S and Transfield, had breached a duty of care owed to the plaintiffs in relation to their detention, and falsely imprisoned them between November 2012 and May 2016.

The decision to reach a settlement can be read in several ways.

It would first seem to be a stunning admission by the Commonwealth that it did owe a duty of care to the detainees, and that it breached this duty through its detention practices.

Alternatively, it may be read as a strategic decision by the Commonwealth to reduce the political damage it believed would be caused through a protracted trial (predicted to be six months). This damage was likely to be exacerbated by the court’s decision to allow proceedings to be streamed live.

A small price to pay?

Compared to the federal government’s expenditure to manage unauthorised maritime arrivals – $1.078 billion in the 2015-16 financial year, and more than $800 million in 2016-17 – $70 million is a tiny sum.

And $70 million – an average of about $36,000 per detainee – might seem a small price for the Commonwealth to pay for the litany of allegations of mistreatment detailed against it in the statement of claim. These included:

  • failure to provide adequate toilet facilities;

  • contaminated meals;

  • inadequate and delayed medical treatment; and

  • illegal detention.

This mistreatment was connected to the death of three detainees, and the serious injury of many more.

The class action brought the issues to a conclusion in a more timely fashion than individual actions could have done. But given the extent of the harm to each individual, the settlement amount for each person is likely to be significantly lower than they might have received in an individual claim.

The action was only peripherally about the money, though. The case provided a platform to lay bare the ugly reality of conditions in detention and the role of the Commonwealth and its contractors in producing and sustaining those conditions over many years.

A new way to hold government to account

In this case, private litigation was able to play a significant role in holding the government to account in an environment in which traditional accountability mechanisms fail to cut through. There are several reasons for this.

First, the case was able to produce new information about conditions on Manus Island. Once the class action was on foot, it provided a platform for expert witnesses and detainees to testify to conditions in detention free from the constraints of other types of investigation. It provided access to sensitive documents, such as the detail of government contracts with detention centre operators.

In contrast, the Australian Human Rights Commission only investigates detention abuses on Australian territory. And it is difficult for NGOs to investigate conditions in the detention centres. They need permission from governments to visit centres, and findings in their reports are easily denied by governments.

As a result, the best information on conditions in detention is through reports of those working in the centres, or through leaked documents.

As Slater and Gordon lawyer Andrew Baker said following the settlement, the case provided a strong reminder of the role the legal system can play in:

… holding governments and corporations accountable.

The case may herald the beginning of a period in which the Commonwealth will be forced to account for its offshore detention policy through protracted legal action.

What remains unclear is how many Manus Island detainees opted out of the action, and are thus free to bring individual claims. In light of the government’s decision to settle the claim, detainees outside the class action – and detainees on Nauru – may look to bring individual actions for negligence and false imprisonment against the Commonwealth.

If the treatment of these people was particularly bad, and they manage to reap a significant compensation settlement, this may open alternative pathways to settle in Australia. They might, for example, be able to apply for an investor visa, which requires a $1.5 million investment in a state or territory upon nomination.

There are no doubt many obstacles to such an application. This includes the ability to meet the health requirements for the visa – which might be compromised due to the applicants’ treatment in detention – or understanding Australian values, which may well seem very confusing to those subjected to offshore detention.

The ConversationHowever, that such an application could even be contemplated highlights the perversity of Australia’s treatment of asylum seekers. It brings into shocking relief the distinction drawn between the same person as an asylum seeker and as a migrant with the means to invest in Australia’s economy.

Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

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

Health Check: what’s the right way to blow your nose?



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One nostril or two? Hard blow or gentle? Some ways are more effective and less risky than others.
from www.shutterstock.com

David King, The University of Queensland

If you have a blocked or runny nose, chances are you’ll reach for a tissue or hanky to clear the mucus by having a good blow.

But is there a right way to blow your nose? Could some ways make your cold worse? And could you actually do some damage?

The three most common reasons for extra mucus or snot are the common cold, sinusitis (infection or inflammation of the sinuses, the air-filled spaces inside the face bones) and hay fever. Each of these conditions cause the lining in the nose to swell up, and to produce extra mucus to flush away infection, irritants or allergens.

Both the swelling and extra mucus lead to nasal congestion. This is when the narrowed passages increase the effort of breathing through the nose. Clearing the mucus by blowing the nose should reduce this congestion somewhat.

At the beginning of colds and for most of the time with hay fever, there’s lots of runny mucus. Blowing the nose regularly prevents mucus building up and running down from the nostrils towards the upper lip, the all-too-familiar runny nose.

Later in colds and with sinusitis, nasal mucus can become thick, sticky and harder to clear.


Further reading: Health Check: what you need to know about mucus and phlegm


Think of “snotty nosed kids”, in particular infants or toddlers who haven’t yet learnt to coordinate the mechanics of blowing their noses. They tend to repeatedly sniff thick mucus back into their nose or allow it to dribble down their upper lip.

Keeping this mucus (rather than blowing it out) is thought to contribute to a cycle of irritation that causes the snotty nose to persist for weeks or longer.

This may be due to the retained mucus acting as a good “home” for bacteria to grow in, as well as fatigue of the “hairs” (cilia) that cleanse the nose by moving along mucus and carrying with it irritants, inhaled debris and bacteria.

Thick retained mucus is also more likely to be transported to the throat rather than gravity working it from the nostrils, leading to throat irritation and possibly a cough. This is the mechanism behind the most common cause of prolonged cough after a viral infection or hay fever, known as the post-nasal drip cough.

So it makes sense to encourage people to blow their nose to remove unwanted mucus.

Rare risks if you blow too hard and too often

Although extremely rare, there are a few examples in the medical literature of people blowing so hard they generated pressures high enough to cause serious damage. In most of these cases people had underlying chronic sinusitis or an existing weakness in the structure they damaged after blowing too hard.

These injuries included fractures of the base of the eye socket; air forced into the tissue between the two lobes of the lung; severe headache from air forced inside the skull; and rupture of the oesophagus, the tube that sends food to the stomach.

One study looked at the pressures generated when people with and without a range of nasal complaints blew their noses.

People with chronic sinusitis generated pressures significantly higher than people without a nasal complaint, up to 9,130 Pascals of pressure. They also found blowing by blocking both nostrils generated much higher pressures than blowing with one nostril open.

One study showed how blowing your nose hard could send mucus from the nose into the sinuses, potentially infecting them too.
www.shutterstock.com

Another study comparing pressures from nose blowing, sneezing and coughing found pressures generated during blowing were about ten times higher than during the other two activities.

More worrying was their second finding – viscous fluid from the nose had found its way into the sinus cavities after vigorous nose blowing. The researchers said this could be a mechanism for sinus infection complicating some colds, with the introduction of nasal bacteria to the sinuses. But they did not produce evidence for this.

On balance it seems repeated and vigorous blowing of the nose may carry more risk than benefit, even though it seems to be a natural response to nasal congestion.

Can I take anything to stop the snot?

So looking to remove the need to blow so forcefully is probably a better option.

Decongestants and antihistamines, which you can buy without prescription from pharmacies, reduce both nasal congestion and the volume of mucus.

Decongestants contain ingredients like oxymetazoline and phenylephrine and come in tablets or sprays, and are often included in cold and flu tablets. They work by constricting (narrowing) dilated blood vessels in the inflamed lining of the nose, and decreasing the volume of mucus produced.

While decongestant sprays are effective, they are probably underused due to concerns about nasal congestion when you stop taking them after long-term use (rhinitis medicamentosa). But further studies have questioned this increased risk.

Antihistamines treat nasal congestion associated with hay fever, but may be less effective for treating cold symptoms.

Saline nasal sprays and washes can help.
from www.shutterstock.com

Saline nose sprays have some evidence they work for acute and chronic rhinosinusitis (inflammation of the nasal lining and sinuses), and can reduce the need for medications. They are believed to clear mucus through increasing the effectiveness of the cilia as well as diluting thick and sticky mucus.

A related technique, known as nasal aspiration, is when you squirt liquid saline up the nose with a special medical device to flush out mucus and debris from the nose and sinuses. One study found it lowered the risk of developing acute otitis media (inflammation of the middle ear) and rhinosinusitis.

What’s the verdict?

If you have mucus in the nose, it is probably best to get it out, so blow gently or by clearing one nostril at a time. Use of appropriate treatments can lessen the need to blow, and the force required to clear your nose.

If you are repeatedly blowing your nose you probably have a nasal condition, like hay fever or sinusitis, which should be treated more comprehensively.

The ConversationAnd if you see a snotty-nosed kid, please wipe away the mucus discharge for the benefit of all.

David King, Senior Lecturer, The University of Queensland

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